Wbi Energy Transmission, Inc. v. Twp. 2 S.

• Decision Date: 07 February 2017
• Docket Number: Cause No. CV 14-130-BLG-SPW
• Parties: WBI ENERGY TRANSMISSION, INC., Plaintiff, v. Easement and Right-of-Way Across: Township 2 South, Range 29 East Section 34: E1/2SE14, E1/2W1/2SE1/4 Section 35: N1/2SW1/4, NW1/4 Township 5 South, Range 26 East Section 10: SW1/4SW1/4 Section 15: W1/2NW1/4 Section 21: N1/2SE1/4, SE1/4SE1/4 Township 7 South, Range 25 East Section 9: NW1/4SE1/4 Township 6 South, Range 26 East Section 6: S1/2SE1/4 Section 7: All Section 8: W1/2W1/2NW1/4 in Big Horn and Yellowstone County, Montana, Consisting of Approximately 12.55 Acres, ARVILLA PLAINBULL aka ARVILLA TOWNSEND, UNITED STATES OF AMERICA, and UNKNOWN OWNERS, Defendants.
• Court: U.S. District Court — District of Montana

WBI ENERGY TRANSMISSION, INC., Plaintiff, v. Easement and Right-of-Way Across: Township 2 South, Range 29 EastSection 34: E1/2SE14, E1/2W1/2SE1/4 Section 35: N1/2SW1/4, NW1/4Township 5 South, Range 26 East Section 10: SW1/4SW1/4Section 15: W1/2NW1/4 Section 21: N1/2SE1/4, SE1/4SE1/4Township 7 South, Range 25 East Section 9: NW1/4SE1/4Township 6 South, Range 26 East Section 6: S1/2SE1/4Section 7: All Section 8: W1/2W1/2NW1/4in Big Horn and Yellowstone County, Montana,Consisting of Approximately 12.55 Acres,ARVILLA PLAINBULL aka ARVILLA TOWNSEND,UNITED STATES OF AMERICA, and UNKNOWN OWNERS, Defendants.

Cause No. CV 14-130-BLG-SPW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BILLINGS DIVISION

FILED: February 8, 2017

February 7, 2017

ORDER GRANTING SUMMARY JUDGMENT ON RIGHT TO TAKE AND FOR IMMEDIATE POSSESSION

Upon consideration by the Court of the following:

1. Condemnation Complaint (Doc. #3), as amended by the First Amended Complaint (Doc. #2);

2. Statement of Stipulated Facts (Doc. #21);

3. WBI Energy's Summary Judgment Motion for Order of Taking and Immediate Possession (Doc. #40);

4. Statement of Undisputed Facts in Support of Motion for Summary Judgment Order of Taking and Immediate Possession (Doc. #41);

5. Affidavit of Tom Stortz (Doc. #43);

6. Affidavit of Jeff Rust (Doc. #44);

7. WBI Energy's Brief in Support of Motion for Summary Judgment Order of Taking and Immediate Possession (Doc. #45);

8. Order of June 21, 2016 (Doc. #47);

9. Order of December 8, 2016 (Doc. #60); and

10. The record in this matter,

THE COURT HEREBY ORDERS AS FOLLOWS:

STATEMENT OF FACTS

1. WBI is a natural gas company within the meaning of the Natural Gas Act, 15 U.S.C. § 717a(6), and is engaged in gathering, storing, and transporting natural gas in interstate commerce. Statement of Stipulated Facts, ¶ 1 (Doc. #21). WBI operates under the jurisdiction of the Federal Energy Regulatory Commission ("FERC"). Affidavit of Jeff Rust at ¶ 2 (Doc. #44).

2. WBI, or its predecessor, Montana-Dakota Utilities Company, has been in the pipeline business in the states of Montana, North Dakota, South Dakota, and Wyoming for more than seventy-five years. Currently, WBI Energy operates approximately 3,800 miles of transmission and gathering pipelines. Affidavit of Jeff Rust at ¶ 3 (Doc. #44).

3. On February 13, 1985, FERC issued to Williston Basin Interstate Pipeline Company (n/k/a WBI Energy Transmission, Inc.) a Certificate of Public Convenience and Necessity (the "Certificate") authorizing it to acquire and operate the interstate pipeline facilities previously owned and operated by Montana-Dakota Utilities Co. ("MDU"), as well as to provide the certificated service previously provided by MDU. This included a Certificate of Public Convenience and Necessity authorizing routine activities (a "blanket certificate") issued November 24, 1982. The blanket certificate authorized MDU to perform the activities specified in Subpart F of Part 157 of the Commission's Regulations, as amended from time to time, including the construction, acquisition, and operation of facilities for the transportation and storage of natural gas. Affidavit of Jeff Rust at ¶ 4 (Doc. #44).

4. On July 1, 2012, Williston Basin Interstate Pipeline Company amended its Articles of Incorporation to change its name to WBI Energy Transmission, Inc. Affidavit of Jeff Rust at ¶ 5 (Doc. #44).

5. WBI is the owner and operator of a 12-inch diameter interstate natural gas pipeline (the "Pipeline"), a portion of which crosses the Crow Indian Reservation. Statement of Stipulated Facts, ¶ 2 (Doc. #21). Construction of the Pipeline was completed in 1950. The Pipeline has been in its present location and continuously operating since its construction. Affidavit of Tom Stortz at ¶ 2 (Doc. #43). The Certificate issued by FERC covers the Pipeline. Affidavit of Jeff Rust at ¶ 6 (Doc. #44).

6. That portion of the Pipeline crossing the Crow Indian Reservation was subject to a right-of-way grant issued by the Bureau of Indian Affairs (the "Right-of-Way"). Affidavit of Tom Stortz at ¶ 3 (Doc. #43). On April 6, 2009, WBI filed an application for renewal of the Right-of-Way with the Bureau of Indian Affairs. Affidavit of Tom Stortz at ¶ 3 (Doc. #43).

7. Arvilla Plainbull ("Mrs. Plainbull") is a beneficial Indian owner of an undivided portion of allotments 1901 and 2009, and all of allotments 2037-A, 2036-A, and 1085-B (the "Subject Property"). Mrs. Plainbull's ownership interest, whether in whole or in part, was obtained as an heir, devisee and successor to the original allottees under the General Allotment Act of 1887. The United States holds Mrs. Plainbull's interest in trust as an individual Indian allottee. Statement of Stipulated Facts, ¶ 3 (Doc. #21).

8. The Crow Tribe of Indians is the beneficial owner of an undivided portion of allotments 1901 and 2009. The United States holds the Crow Tribe's interest in trust for the benefit of the Crow Tribe. Statement of Stipulated Facts, ¶ 3 (Doc. #21).

9. WBI attempted to reach an agreement with Mrs. Plainbull for the renewal of the Right-of-Way. Statement of Stipulated Facts, ¶ 5 (Doc. #21). WBI and Mrs. Plainbull were unable to reach a consensual agreement as to the renewal of the right-of-way for the Pipeline and the compensation to be paid for the same. Statement of Stipulated Facts, ¶ 5 (Doc. #21). WBI negotiated in good faith with Mrs. Plainbull.

10. The Subject Property is necessary for the operation and maintenance of the Pipeline for the transportation of natural gas and for associated facilities necessary for the proper operation of the Pipeline. Affidavit of Jeff Rust at ¶ 10 (Doc. #44).

11. Mrs. Plainbull, through counsel, put WBI on notice that she will not allow it access to the Subject Property for any reason. Statement of Undisputed Facts in Support of Motion for Summary Judgment Order of Taking and Immediate Possession ¶ 17 (Doc. #41).

12. WBI must be able to access the Pipeline through the Subject Propertyfor all regularly scheduled inspections, maintenance and repairs, and all emergency situations. For example, the United States Department of Transportation imposes certain regulatory requirements on WBI in connection with the Pipeline, including pipeline patrolling, leakage surveys, line marker maintenance, valve maintenance, external and atmospheric corrosion control review and maintenance, and pipeline integrity management. See, 49 C.F.R. § 192 et. seq.; Affidavit of Jeff Rust at ¶ 11 (Doc. #44). WBI will suffer irreparable harm if it cannot access the Subject Property for such matters.

CONCLUSIONS OF LAW

Summary judgment is appropriate when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Wellington v. Lyon County Sch. Dist., 187 F.3d 1150, 1154 (9th Cir. 1999). The party moving for summary judgment bears the initial burden of proof to identify the absence of a genuine issue of material fact. Once the moving party has satisfied this burden, the opposing party must set forth specific facts showing that there remains a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

Right to Take the Subject Property

1. WBI seeks to condemn the Subject Property pursuant to the Natural Gas Act ("NGA"), 15 U.S.C. § 717f(h), which reads in part:

When any holder of a certificate of public convenience and necessity cannot acquire by contract, or is unable to agree with the owner of property to the compensation to be paid for, the necessary right-of-way to construct, operate, and maintain a pipe line... for the transportation of natural gas, and the necessary land... for the location of compressor stations, pressure apparatus, or other stations or equipment necessary to the proper operation of such pipe line... it may acquire the same by the exercise of the right of eminent domain....

2. This Court has previously affirmed the elements necessary to condemn property under the NGA:

In order to establish its right to condemn Defendants' property, Williston Basin must establish three elements: (1) that it holds a FERC certificate authorizing the relevant project, (2) that the land to be taken is necessary to the project; and (3) that the company and the landowners have failed to agree on a price for the taking following good faith negotiations. Transwestern Pipeline Co., LLC v. 17.19 Acres, 550 F.3d 770, 776 (9th Cir. 2008).

Williston Basin Interstate Pipeline Company v. Property Interests Located in Carbon County, Montana, 2010 WL 5104991 (D. Mont. 2010).

3. WBI is a natural gas company within the meaning of the Natural Gas Act, 15 U.S.C. § 717a(6); it is engaged in gathering, storing, and transporting natural gas in interstate commerce; and it holds a FERC Certificate of PublicConvenience and Necessity (the "Certificate") authorizing the construction, operation, and maintenance of the Pipeline. The first statutory element of WBI's right to condemn the Subject Property is met. Williston Basin Interstate Pipeline Company v. Property Interests Located in Carbon County, Montana, 2010 WL 5104991 (D. Mont. 2010). Transwestern Pipeline Co., LLC v. 17.19 Acres, 550 F.3d 770, 776 (9^th Cir. 2008).

4. By issuing the Certificate to WBI, FERC has determined that the Subject Property is necessary to the operation of the Pipeline. This determination cannot be challenged by Defendants. Williston Basin Interstate Pipeline Company v. Property Interests Located in Carbon County, Montana, 2010 WL 5104991 (D. Mont. 2010) ("By issuing the Certificate of Public Convenience and Necessity under the Natural Gas Act, FERC has already determined that Defendants' property interests are necessary. Defendants have not offered any arguments to the contrary, and even if they did, such arguments...