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Atlantic Coast Pipeline, LLC v. 0.25 Acres, More Or Less

United States District Court, E.D. North Carolina

March 16, 2018

ATLANTIC COAST PIPELINE, LLC, Plaintiff,
v.
0.25 ACRE, MORE OR LESS, IN NORTHAMPTON COUNTY, NORTH CAROLINA etal, Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff,
v.
8.88 ACRES, MORE OR LESS, IN HALIFAX COUNTY, NORTH CAROLINA et al, Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff,
v.
9.36 ACRES, MORE OR LESS, IN HALIFAX COUNTY, NORTH CAROLINA et al, Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff,
v.
2.27 ACRES, MORE OR LESS, IN HALIFAX COUNTY, NORTH CAROLINA et al, Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff,
v.
0.85 ACRE, MORE OR LESS, IN HALIFAX COUNTY, NORTH CAROLINA, et al, Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff,
v.
4.24 ACRES, MORE OR LESS, IN HALIFAX COUNTY, NORTH CAROLINA et al., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff,
v.
4.77 ACRES, MORE OR LESS, IN HALIFAX COUNTY, NORTH CAROLINA et al., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff,
v.
11.57 ACRES, MORE OR LESS, IN NASH COUNTY, NORTH CAROLINA et al., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff,
v.
4.36 ACRES, MORE OR LESS, IN NASH COUNTY, NORTH CAROLINA et al., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff,
v.
0.13 ACRE, MORE OR LESS, IN CUMBERLAND COUNTY, NORTH CAROLINA et al., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff,
v.
15.65 ACRES, MORE OR LESS, IN CUMBERLAND COUNTY, NORTH CAROLINA et al., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff,
v.
10.81 ACRES, MORE OR LESS, IN CUMBERLAND COUNTY, NORTH CAROLINA et al., Defendants. ATLANTIC COAST PIPELINE, LLC, Plaintiff,
v.
9.11 ACRES, .MORE OR LESS, IN NASH COUNTY, NORTH CAROLINA et al., Defendants.

          ORDER

          TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.

         These matters are before the Court on plaintiff s motion for partial summary judgment and motion for preliminary injunction granting immediate possession. Also pending is plaintiff s motion for hearing on an expedited basis. A hearing on the motions was held before the undersigned on March 9, 2018, at Raleigh, North Carolina and on March 14, 2018, at Elizabeth City, North Carolina.

         BACKGROUND

         Plaintiff, Atlantic Coast Pipeline (ACP), has initiated twenty-nine cases in this Court by filing a complaint in condemnation pursuant to 15 U.S.C. § 717f(h) and Federal Rule of Civil Procedure 71.1. In each complaint, ACP seeks an order allowing the taking of certain interests in real property, immediate entry and possession of real property, and the ascertainment and award of just compensation to the owners of interest in the subject real property pursuant to its power of eminent domain as authorized by Section 7(h) of the National Gas Act. On September 18, 2015, ACP filed an application for a certificate of public convenience and necessity with the Federal Energy Regulatory Commission (FERC), seeking permission to construct an approximately 600-mile pipeline and related facilities for the purpose of transporting natural gas from West Virginia to Virginia and North Carolina. ACP contends that the natural gas transported through its pipeline will serve multiple public utilities and is necessary to satisfy the growing energy needs of consumers in Virginia and North Carolina.

         FERC issued ACP a certificate of public convenience and necessity on October 13, 2017, authorizing ACP to construct the pipeline. See generally [DE 1-2]. In order to construct the pipeline, ACP must acquire both temporary and permanent, exclusive easements on the subject properties along the FERC-approved pipeline route. ACP contends that the easements are necessary to construct, maintain, operate, alter, test, replace, and repair the pipeline. ACP further seeks to acquire the right of ingress and egress to, from, and through the easements. Landowners on whose property the pipeline is placed will retain the right to use and enjoy the property in any way that does not interfere with ACP's rights under the easement.

         With the filing of each complaint, ACP filed a notice of filing of complaint in condemnation pursuant to Fed.R.Civ.P. 71.1(d), which provides notice to landowners of their rights to answer the complaint and present any defense and to appear in the action. See generally [DE 1 -7]. The notice further provides that failure to serve an answer within twenty-one days of service constitutes consent to the taking and the Court's authority to proceed and fix compensation. Twenty-two cases remaining pending in this Court, and the instant motions are pending in thirteen of the remaining twenty-two cases.

         Two defendant-landowners appeared through counsel at the hearings conducted on the instant motions. While some defendants have filed answers, no defendant in any case has filed a written response to the pending motions. In adjudicating the instant motions, the Court has considered the arguments and defenses raised by the defendants who appeared through counsel at the hearings.

         DISCUSSION

         At the outset, the Court notes that a stipulation as to the appropriateness of ACP's motion for partial summary judgment and ACP's entitlement to exercise the right of immediate entry, access, and possession of the easements to commence and complete construction of the pipeline has been filed No. 5:18-CV-47-BO. [DE 28]. The pending motions in this case are therefore DENIED AS MOOT.

         I. Motion for partial summary judgment.

         A motion for summary judgment may not be granted unless there are no genuine issues of material fact for trial and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden has been met, the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). In determining whether a genuine issue of material fact exists for trial, a trial court views the evidence and the inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). However, "[t]he mere existence of a scintilla of evidence" in support of the nonmoving party's position is not sufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). "A dispute is genuine if a reasonable jury could return a verdict for the nonmoving partyand [a] fact is material if it might affect the outcome of the suit under the governing law." Libertarian Party of Virginia v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (internal quotations and citations omitted).

         The Court first addresses the issue of sufficient notice to the non-appearing defendants.[1] As provided below, [2] ACP has effected service or appears to have effected service on all defendants either personally or by publication. Further, ACP has provide a certificate of service of the notice of this Court's March 14, 2018, hearing, which provides that known defendants were served via overnight delivery as well as regular mail and that all defendants were additionally served by publication in three local newspapers, with publication occurring on the day prior to the hearing. The Court has not been made aware of any defendant who sought or attempted to attend the March 14 hearing but was unable to do so. All defendants served prior to February 22, 2018, appear to have defaulted, and although the time to file an answer has not run for other defendants, the Court is satisfied that they have received adequate notice of this suit and of the hearing such that consideration of ACP's motions in these cases does not violate due process.

         ACP seeks entry of partial summary judgment in its favor as to its right to condemn the subject easements under the Natural Gas Act. The Natural Gas Act (NGA) provides that

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 or pipe lines for the transportation of natural gas, and the necessary land or other property, in addition to right-of-way, for the location of compressor stations, pressure apparatus, or other stations or equipment necessary to the proper operation of such pipe line or pipe lines, it may acquire the same by the exercise of the right of eminent domain in the district court of the United States for the district in which such property may be located, or in the State courts.

15 U.S.C. § 717f; see also E. Tennessee Nat. Gas Co. v. Sage (hereinafter Sage),361 F.3d 808, 821 (4th Cir. 2004) (Congress may grant condemnation power to "private corporations executing works in which the public is interested.") (quoting Mississippi & Rum River Boom Co. v. Patterson,98 U.S. 403, 406, (1878) (alteration omitted)). "In order to condemn a property interest, then, [a natural gas company] must prove three elements: (1) it is a holder of a certificate of public convenience and necessity; (2) the property to be condemned is necessary for the construction, operation, and maintenance of the pipelines at issue; and (3) that it has been unable to acquire the necessary property interest from the owner." Columbia Gas Transmission Corp. v. An Easement to ...


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