United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL
SUMMARY JUDGMENT AND FOR PRELIMINARY INJUNCTION AS TO
DEFENDANTS GLENN AND CAROL LADENBERGER ONLY (ECF #5)
MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE
condemnation action brought under the Natural Gas Act, 15
U.S.C. § 717f(h), Plaintiff NEXUS Gas Transmission, LLC
seeks to acquire by condemnation an easement over property
owned by Defendants Glenn and Carol Ladenberger.
(See ECF #1.) NEXUS has now moved for partial
summary judgment and for a preliminary injunction that grants
it immediate access to and use of the easement. (See
ECF #5.) For the reasons that follow, NEXUS' motion is
is a natural gas company that plans to construct, operate,
and maintain an interstate natural gas pipeline system over
257.5 miles of Ohio and Michigan. In order to construct the
pipeline, NEXUS requires easements over many different tracts
of property. NEXUS has acquired voluntary easements over
nearly all of the necessary property, but it was unable to
acquire an easement over property owned by the Ladenbergers
(the “Easement”). The description of the Easement
is attached to this Order as Exhibit A.
result, on October 2, 2017, NEXUS filed a Complaint for
Condemnation in this Court pursuant to the Natural Gas Act,
15 U.S.C. § 717f(h). (See Compl., ECF #1.) In
the Complaint, NEXUS asks the Court for:
(1) an order establishing that NEXUS has the authority to
condemn the [Easement]; (2) an order granting NEXUS immediate
access to and use of the Easement…; and (3) [a]
determination and award of just compensation attributable to
NEXUS' acquisition of the Easement.
(Compl., ECF #1 at Pg. ID 2.)
also filed a motion for partial summary judgment and
preliminary injunction. (See ECF #5.) In that
motion, NEXUS sought “an order (1) confirming
NEXUS' condemnation authority under the Natural Gas Act,
15 U.S.C. § 717f(h); and (2) granting NEXUS immediate
access to and possession of the [E]asement … and
also enjoins Defendants from interfering with NEXUS'
right of access.” (ECF #5 at Pg. ID 130.) NEXUS also
requested that the Court set an expedited schedule for its
motion so that it did not have to delay construction of the
pipeline. (See Id. at Pg. ID 132.)
Court issued an order on October 11, 2017, in which it (1)
required the Ladenbergers to respond to NEXUS' motion by
no later than October 16, 2017, and (2) set a hearing on the
motion for October 18, 2017. (See ECF #11.) The
Ladenbergers did not file any opposition to the motion, but
they did appear at the scheduled hearing on October 18.
Court begins with NEXUS' request for partial summary
judgment. In order to establish the right to condemn the
Easement, NEXUS must establish that: (1) the Federal Energy
Regulatory Commission (“FERC”) has issued a
certificate of public convenience and necessity to NEXUS
authorizing the pipeline project; (2) the use of Easement is
necessary for construction and operation of the pipeline
project; and (3) NEXUS cannot acquire the Easement by
contract and has been unable to agree with the Ladenbergers
on compensation for the Easement. See 15 U.S.C.
§ 717f(h). See also Rover Pipeline v. 1.23 Acres of
Land, Case No. 17-cv-10365 (E.D. Mich. Mar. 10, 2017),
Dkt. #640 at Pg. ID 7965-66 (stating requirements under the
Natural Gas Act).
has presented evidence that it has satisfied all three of
these conditions, including that FERC has provided it a
certificate of public convenience and necessity authorizing
the pipeline project. (See ECF #5-2.) The
Ladenbergers have not presented any counter-evidence or
otherwise disputed the evidence NEXUS has submitted.
Accordingly, there is no factual dispute that NEXUS has
satisfied all three requirements under the Natural Gas Act.
hearing on NEXUS' motion, the Ladenbergers argued that
the condemnation of the Easement would violate the Fifth
Amendment's Takings Clause. However, the Ladenbergers
were unable to cite any authority for that proposition, and
at least one federal district court has rejected that
argument when raised by a party objecting to a condemnation
of property under the Natural Gas Act. See Equitrans,
L.P. v. 0.56 Acres, 145 F.Supp.3d 622, 639-31 (N.D.
W.Va. 2015) (“[B]ecause Equitrans' complaint is
sufficient to state a condemnation claim under § 717f(h)
and that section satisfies the Fifth Amendment,
Equitrans' claim does not facially violate the Fifth
Amendment”). On this record, and in the absence of any
authority presented by the Ladenbergers, the Court is not
prepared to hold that condemnation of the Easement violates
the Takings Clause.
based on the record and arguments presented, the Court
GRANTS NEXUS partial summary judgment.
Pursuant to the Natural Gas Act, as the holder of a valid
certificate of public convenience and necessity issued by
FERC, NEXUS has ...