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NEXUS Gas Transmission, LLC v. 0.4 Acres Permanent Easement

United States District Court, E.D. Michigan, Southern Division

October 23, 2017

NEXUS GAS TRANSMISSION, LLC, Plaintiff,
v.
0.4 ACRES PERMANENT EASEMENT AND 0.8 TEMPORARY EASEMENT OF LAND IN AUGUSTA TOWNSHIP, WASHTENAW COUNTY, MICHIGAN, et al., Defendants.

          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

         In this 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 GRANTED.

         I

         NEXUS 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”).[1] The description of the Easement is attached to this Order as Exhibit A.

         As 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.)

         NEXUS 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.)

         The 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.

         II

         The 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).

         NEXUS 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.

         At the 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.

         Accordingly, 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 ...


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