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Rover Pipeline LLC v. 1.23 Acres of Land

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

April 8, 2019

1.23 ACRES OF LAND, et al., Defendants.



         The Court sets forth the following Commission instructions. Any objections to the Commission instructions shall be filed on or before 12 p.m. on April 11, 2019. No. responses to objections will be allowed. If no objections are filed, the Commission instructions will become final and issued to the Commission. If objections are filed, the Commission instructions will become final after the Court resolves the objections.

         A. Introductory Instruction.

         This is a case in eminent domain, which means the power of the government or an agency to take private property for a public purpose upon payment of just compensation to the owner of the property taken. Under the constitution and laws of this state, all private property is held subject to this right of eminent domain. The right of eminent domain is exercised through proceedings commonly called a condemnation action. This is such an action.

         Rover Pipeline, LLC (“Plaintiff”) has acquired a non-exclusive 50' easement, as well as temporary easements, across several properties to install a 42” high- pressure interstate natural gas transmission pipeline. Defendants include property owners and non-property owners who possess interests in the properties at issue. Plaintiff's easements (herein, “Easements”) are described in paragraphs 29-49 of Plaintiff's Verified Complaint, in Exhibit A to Plaintiff's Verified Complaint, as amended, and in the Notices of Commencement of Condemnation Action Plaintiff filed for each property. The Natural Gas Act, 15 U.S.C. § 717 et seq., gives Plaintiff the right to appropriate the non-exclusive Easements subject to the requirement that compensation for such taking shall be assessed by the Commission. The Commission acts as an assessing body in determining the amount of compensation to be paid to the Defendants. (See M Civ JI 90.01).

         B. Substantive Michigan Law Applies.

         This is an action brought under the Natural Gas Act, 15 U.S.C. 717 et seq., but state law also applies. That is because the Sixth Circuit has held that “although condemnation under the Natural Gas Act is a matter of federal law, § 717f(h) incorporates the law of the state in which the condemned property is located in determining the amount of compensation due.” Columbia Gas Transmission Corp. v. Exclusive Natural Gas Storage Easement, 962 F.2d 1192, 1199 (6th Cir. 1992). Accordingly, the Commission shall apply Michigan substantive law in determining the just compensation awards due and federal procedural law in conducting the compensation proceedings. Id.

         C. General Instructions on Commissioners' Duties, Powers, and Report.

         Pursuant to Rule 71.1, “[a] commission has the powers of a master under Rule 53(c). Its action and report are determined by a majority. Rule 53(d), (e), and (f) apply to its action and report.” Fed.R.Civ.P. 71.1(h)(2)(D). Accordingly, the Court directs that the Commissioners shall: (1) regulate all Commission hearings and all proceedings related to these hearings, such as briefing at the discretion of the commissioners; (2) take all appropriate measures to perform their assigned duties fairly and efficiently; and (3) exercise the same power as this Court to compel, take, and record evidence. Fed.R.Civ.P. 53(c). The Commission shall establish its own procedures for filing and responding to motions. The Commission shall produce written orders as necessary, which the Commission shall forward to chambers for filing and service on each party involved in a hearing. Fed.R.Civ.P. 53(d). Similarly, the Commission shall produce a written report on just compensation (“report”) to the Court, which shall be filed and served on each party involved in a hearing. Fed.R.Civ.P. 53(e). The Commission may, in its discretion, issue a single report at the conclusion of all hearings, or issue reports on different dates regarding different properties grouped as it deems appropriate.

         All written orders and reports shall be signed by the participating Commission members, and, as with all orders and reports, an electronic signature is sufficient. Evidentiary or procedural orders as recognized below that fall within the province of the Chairperson need only be signed by the Chairperson. The written orders and reports shall include all relevant findings of fact and conclusions of law; procedural orders need not be as comprehensive but should be sufficiently detailed to enable this Court to conduct adequate review when necessary. The United States Supreme Court has stated that “[c]onclusory findings are alone not sufficient, ” because a district court would “have no way of knowing what path the commissioners took through the maze of conflicting evidence.” United States v. Merz, 376 U.S. 192, 198 (1964). Thus, although “[t]he commissioners need not make detailed findings such as judges do who try a case without a jury[, ]” the commissioners must nonetheless “reveal the reasoning they use in deciding on a particular award, what standard they try to follow, which line of testimony they adopt, what measure of severance damages they use, and so on.” Id.; see also 13 James W. Moore, Moore's Federal Practice § 71.1.12[4] (“A report containing only conclusory statements and a summary of the evidence is clearly insufficient.”). Additionally, not “every contested issue raised on the record before the [C]ommission must be resolved by a separate finding of fact[]” and there does not have to be “an array of findings of subsidiary facts to demonstrate that the ultimate finding of value is soundly and legally based.” Merz, 376 U.S. at 198-199. Rather, the path followed by the commissioners in reaching their decisions should be “distinctly marked.” Id. at 199. The Commission is therefore “required to state not only the end result of their inquiry, but the process by which they reached it.” Id.

         Upon the filing of a Commission order or report, a party involved in the hearing with which the order or report is concerned may file specific and detailed objections to the Commission order or report no later than seven (7) days after a copy of an order is served and fourteen (14) days after a copy of a report is served. Fed.R.Civ.P. 53(f)(2). This shall constitute the party's notice of and opportunity to be heard on the order or report. Fed.R.Civ.P. 53(f)(1). The Court may in its discretion elect to receive evidence related to the order or report, but no oral argument or hearing on any objection will be held unless ordered by the Court. The parties should note that in acting on a Commission order or report, the Court may adopt or affirm, modify, wholly or partly reject or reverse, or resubmit to the Commission with instructions the order or report. Fed.R.Civ.P. 53(f)(1).

         A response to any objection to an order or report must be filed within seven (7) days of the objection. No. reply briefs may be filed, unless specifically allowed by the Court. The Court will decide any objection to a conclusion of law or finding of fact made or recommended by the commission on a de novo basis. Fed.R.Civ.P. 53(f)(4). The Court will review the commission's ruling on a procedural matter under an abuse of discretion standard. Fed.R.Civ.P. 53(f)(5). The Commission's report(s) on just compensation shall be submitted to the Court on or before July 26, 2019.

         D. Duties of Chairperson.

         The Court has designated Robert S. Rollinger as the Commission Chairperson. The Chairperson shall make all discovery and evidentiary rulings related to all hearings in which he takes part and will insure that the Commission adheres to any rulings by this Court. See 13 James W. Moore, Moore's Federal Practice § 71.1.12[1] (“A lawyer is often appointed by the court to function as Chairperson and to make evidentiary rulings.”). In any hearing in which the Chairperson does not participate, he shall designate another Commissioner to assume the role of chairperson for that hearing and that designated Chairperson shall make all evidentiary rulings. The Chairperson shall also be responsible for conducting the hearing - i.e., calling the hearing to order and supervising the proceedings. Finally, although all of the exhibits that have been admitted into evidence will go to the courtroom deputy following the filing of the report to which they pertain, the Chairperson is charged with maintaining control of the exhibits until delivery to the courtroom deputy.

         E. Alternate Commissioners.

         The alternate Commissioners shall attend each hearing and shall not be discharged until the Commission has reached a just compensation decision and the Court has made its final ruling on the matter. Prior to replacing a Commissioner, an alternate Commissioner cannot be present at, or participate in, the Commission's deliberations. If, before or during deliberations, it becomes impossible for a regular Commissioner to continue his or her duties, the alternate Commissioner will replace that regular Commissioner. If such replacement occurs during the course of deliberations, the Commission must start its deliberations over again. Unless he or she has replaced a regular Commissioner and is engaged in the deliberations, no alternate Commissioner may discuss the case with anyone, including the other alternate Commissioner.

         F. Viewing Property.

         Any party may file a written request or stipulation thirty (30) days prior to a scheduled hearing for a viewing of the property by the Commission. Any objection to a viewing request shall be filed within seven (7) days of the request's filing. If the assistance to the Commission is outweighed by an injustice to a party, however, the request for a viewing may be denied. Such denial is proper, for example, where the only purpose the view could serve would be to show the property in an unfair light or where the Commission, in the exercise of its discretion, finds that the prejudicial nature of the view exceeds any illustrative benefits or efficacy. If a viewing is not denied or is held by stipulation, the Commission and the parties shall then work to coordinate the viewing, which must be completed prior to the close of evidence. Failure to file a written request or stipulation by the deadline described shall constitute a waiver or forfeiture of a request for a viewing, subject to a showing of good cause warranting an exception for an untimely request. The view of the premises is not evidence. Rather, it is solely for the purpose of enabling the Commission to better understand the evidence offered by the parties.

         G. Location of Hearing.

         Unless otherwise ordered by the chairperson or this Court, or stipulated by the parties, all hearings shall be held at the Theodore Levin U.S. Courthouse, United States District Court for the Eastern District of Michigan in Detroit, Michigan. Hearings may, as necessary, be held away from this location in order to accommodate schedules or for the convenience of the parties, counsel, or Commission members. Any party may file a written request or stipulation thirty (30) days prior to a scheduled hearing to conduct the hearing in a location other than the courthouse. Failure to file such a written request or stipulation by the deadline described shall constitute a waiver or forfeiture of a request for an alternate location, unless there is a showing of good cause warranting an exception for an untimely request.

         H. Manner of Hearing.

         Each property shall be the subject of a separate and distinct hearing before a panel of three Commissioners, unless the parties stipulate or the Commission decides that more than one property be combined into a single hearing (e.g., in the case of a Defendant property owner who owns more than one property upon which Plaintiff has obtained Easements). The manner of the hearings shall adhere to the conventions of a trial. There is no general burden of proof applicable to all issues in a condemnation proceeding. Therefore, for the purposes of presenting evidence at Commission hearings, it will be within the Commission's discretion to decide the order of presentation.

         The parties through counsel shall give opening statements to the Commission, either at the commencement of the proceeding or immediately prior to the party presenting its evidence. Evidence shall then be presented to the Commission. The parties through counsel shall then present an oral closing argument, after which time the panel shall take the matter under advisement and conduct subsequent deliberations that should result in a written report. The decision of the Commission is determined by a majority. See 13 James W. Moore, Moore's Federal Practice § 71.1.04[2][h] (stating that a commission's “action and report are determined by a majority”).

         All hearings must be on the record through a registered court reporter. Plaintiff shall compensate any court reporter used at a hearing at the regular hourly rate of that reporter, in addition to travel expenses. The parties are responsible for the costs of obtaining a transcript just as they would be in any case. The reporter shall bill Plaintiff directly, and any issue surrounding billing or payment should be brought to the attention of the Court promptly.

         I. Duty in Deliberating.

         The Court cannot embody all the law in any single part of these instructions. One portion of the instructions should be considered in light of and in harmony with all the instructions. Whether certain instructions are applicable may depend upon the conclusions the Commission reaches on the facts. If a Commissioner has an impression that the Court indicated how any disputed fact should be decided, the Commissioner must put aside such impression because only the Commissioners determine such a matter. The Commission must not be influenced by any consideration of sympathy or prejudice. It is the Commission's duty to weigh the evidence, to decide the disputed questions of fact, to apply the instructions to the Commission's findings, and to render a decision accordingly. In fulfilling their duty, the Commissioners' efforts must be to arrive at a fair and just compensation award.

         It is the Commissioners' duty to consult with one another and to deliberate with a view of reaching an agreement if they can do so without disturbing their individual judgment. Each of the Commissioners must decide each contested issue for himself or herself, but should do so only after an impartial consideration of the evidence in the case with their fellow Commissioners. In the course of the Commission's deliberations, no Commissioner should hesitate to re-examine his or her own views and change his or her opinion if he or she is convinced that it is erroneous. However, no Commissioner should surrender his or her honest conclusion as to the weight or effect of the evidence solely because of the opinion of his or her fellow Commissioners or for the mere purpose of returning a decision. The Commissioners are the impartial triers of the facts. Their sole interest is to ascertain the truth from the evidence in the case.

         J. Applicability of Federal Rules.

         The Commission proceedings shall be conducted as a trial in accordance with the Federal Rules of Evidence and the Federal Rules of Civil Procedure, except where provisions of the latter are clearly inapplicable to Commission proceedings. See 13 James W. Moore, Moore's Federal Practice § 71.1.12[4] (noting that “[t]he Federal Rules of Evidence apply in all condemnation proceedings, whether tried before the court, a jury or a commission”). The Chairperson may at his election permit the filing of hearing briefs, and the parties shall comply with any scheduling order the Chairperson issues.

         K. General Instruction.

         It is the duty of the Commission to determine the amount of just compensation payable by Plaintiff to each Defendant. Although the Commissioners are the sole finders of the fact, they are duty-bound to follow the law as stated in the instructions of the Court and to apply the law to the facts as they find the facts from the evidence presented to the Commission. The Commission is not to single out any one instruction alone as stating the law, but must consider these instructions as a whole. No. Commissioner is to be concerned with the wisdom of any rule of law. Regardless of any opinion that a Commissioner may have as to what the law ought to be, it would be a violation of that Commissioner's duty to base a decision upon a view of the law that contradicts the view given in the instructions of the Court, just as it would also be a violation of the Commissioner's duty, as a finder of the facts, to base a decision on anything other than the evidence in the case.

         However, these instructions are not intended to state fully all rules of law that the Commission may find applicable. The recitation of any rules of law herein are not meant to exclude different or additional rules, except to the extent that any such rules contradict any statements on the law contained in these instructions. The Commission may make a formal request to the Court to clarify the current instructions or seek to include additional instructions as it deems necessary.

         L. Duties of the Commission.

         Our system of law does not permit the Commission to be governed by prejudice, sympathy, or public opinion. The parties and the public expect that the Commission will carefully and impartially consider all of the evidence in the case and reach a just compensation decision regardless of the consequences.

         M. All Persons Equal Before the Law.

         The Commission should consider and decide each hearing as an action between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. All persons, whether corporations, a governmental entity, or individuals, stand equal before the law and are to be dealt with as equals in a court of justice.

         N. Evidence.

         The evidence in each hearing consists only of the sworn testimony of the witnesses and all the exhibits that will have been received in evidence in that hearing. The evidence does not include any statements of counsel made during the hearing unless such statement was an admission or agreement admitting certain facts. The opening statements and the closing arguments of counsel are designed to assist the Commission, but they are not evidence. The Commission is to consider only the evidence admitted during the hearing.

         O. Direct and Circumstantial Evidence.

         The Commission may properly consider two types of evidence in reaching a just compensation award. They are known as direct evidence and circumstantial evidence. Direct evidence is where a witness testifies as to what he or she saw or heard. In other words, when a witness testifies about what is known to the witness as personal knowledge by virtue of his or her own senses - what he or she sees or hears - that is called direct evidence. For example, if a witness testified that she saw it raining outside and the Commission believes her, that would be direct evidence that it was raining.

         Circumstantial evidence is evidence that tends to prove a disputed fact by proof of other facts. For example, if someone walked into the courtroom wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence from which the Commission could conclude that it was raining. Circumstantial evidence is of the same value and quality as direct evidence. Circumstantial evidence by itself, or a combination of circumstantial evidence and direct evidence, can be used to prove or disprove a proposition. All the evidence, both direct and circumstantial, must be considered.

         Commissioners have a right to consider all the evidence in the light of their own general knowledge and experience in the affairs of life, and to take into account whether any particular evidence seems reasonable and probable. However, if a Commissioner has personal knowledge of any particular fact in this case, that knowledge may not be used as evidence.

         Commissioners may infer on the bases of reason, experience, and common sense from an established fact the existence or the nonexistence of some other fact. To infer, or to make an inference, is to reach a reasonable conclusion of fact that a Commissioner may make, but is not required to make, from other facts that he or she finds have been established by direct evidence. Whether an inference is made rests entirely with the Commission. ...

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