IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Baltimore Division
COLUMBIA GAS TRANSMISSION LLC, *
Plaintiff, *
v. * Civil Action No. 1:14-cv-00220-JFM
THOSE CERTAIN PARCELS IN *
BALTIMORE COUNTY AND HARFORD
COUNTY, MARYLAND, et al., *
Defendants. *
* * * * * * * * * * * * *
PLAINTIFF COLUMBIA GAS TRANSMISSION LLC’S OPPOSITION
TO MOTION FOR ADDITIONAL FINDINGS AND AMENDED JUDGMENT
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 52(b)
Plaintiff Columbia Gas Transmission LLC (“Columbia”), by counsel, submits this
Opposition to Motion for Additional Findings and Amended Judgment Pursuant to Federal Rule
of Civil Procedure 52(b).
INTRODUCTION
Pursuant to its eminent domain authority under the Natural Gas Act, 15 U.S.C. § 717 et
seq., and a Certificate of Public Convenience and Necessity issued by the Federal Energy
Regulatory Commission (the “FERC Certificate”), Columbia moved for partial summary
judgment and for immediate access to property owned by Defendants Kenneth T. Bosley and
Phyllis B. Bosley (the “Bosleys”), and Balama Farms, Inc. (“Balama,” and collectively with the
Bosleys, the “Landowners”). See ECF Nos. 23 & 24. On May 21, 2014, the Court heard
argument from the parties before holding that it would grant Columbia’s motions subject to
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Columbia posting a bond as security for the Landowners’ interests during the subject horizontal
directional drilling survey (“HDD survey”).
Both Columbia and the Landowners filed their respective positions concerning an
appropriate bond amount. Columbia proposed a bond in the amount of $3,000, while the
Landowners requested that the bond amount be set at $1,273,000 for the Bosley property and
$741,000 for the Balama property, for a total bond amount of over $2 million dollars. See ECF
Nos. 30 & 31. The Court then issued an order requiring Columbia to post a bond in the amount
of $10,000. See ECF No. 32. Columbia has since complied with that order and posted a cash
bond of $10,000. See ECF Filing of June 26, 2014.
The Landowners have filed the pending Motion for Additional Findings and Amended
Judgment Pursuant to Federal Rule of Civil Procedure 52(b), requesting that the Court reconsider
its intention to grant Columbia’s motion for partial summary judgment and motion for immediate
possession and access to property or, in the alternative, to require Columbia to post the bond
amount requested by the Landowners. For the reasons addressed below, the Court should deny
the Landowners’ motion.
ARGUMENT
A. Standard of Review.
The Landowners rely on Rules 52(b) and 59(e) of the Federal Rules of Civil Procedure to
rescind or amend the order setting the bond amount.1 The United States Court of Appeals for the
Fourth Circuit has repeatedly recognized that a judgment may be amended in only three
1 This Court has interpreted Rule 52(b) to require a showing of a “clear error of law” or
“manifest injustice” that is coextensive with the requirements of Rule 59(e), in order to warrant
amendment of the court’s findings. See Allcarrier Worldwide Servs., Inc. v. United Network
Equip. Dealer Ass’n, 2011 U.S. Dist. LEXIS 136509, at *4 (D. Md. Nov. 29, 2011) (declining to
make additional findings pursuant to Rule 52 or to amend judgment under Rule 59, reasoning
that the Rule 59 standard was not met).
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circumstances: “(1) to accommodate an intervening change in controlling law; (2) to account for
new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest
injustice.” Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (citing
EEOC v. Lockheed Martin Corp., 116 F.3d 110, 112 (4th Cir. 1997)). Rule 59(e) does not
enable a party to “argue a case under a novel legal theory that the party had the ability to address
in the first instance.” Pac. Inc. Co., 148 F.3d at 403. Moreover, a Rule 59(e) motion “may not
be used to relitigate old matters, or to raise arguments or present evidence that could have been
raised prior to entry of judgment.” Id. (citation omitted). Where a party seeks reconsideration
on the basis of clear error, the earlier decision cannot be “just maybe or probably wrong; it
must…strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.” TFWS,
Inc. v. Franchot, 572 F.3d 186, 194 (4th Cir. 2009) (citation omitted). “In general,
reconsideration of a judgment after its entry is an extraordinary remedy which should be used
sparingly.” Id. (internal citations and quotation marks omitted).
B. The Landowners Fail to Show that the Court Committed Clear Legal Error.
The Landowners contend that the Court committed a clear legal error by finding that
Columbia is entitled to access the Landowners’ property because the Landowners are allegedly
outside of the scope of project maps filed with FERC. See ECF No. 33 at 10-12. However, the
Landowners rely on inapplicable case law for this alleged “map rule” requiring Columbia to
adhere to detailed project maps for its pipeline easement location, as well as the location of
potential HDD boreholes that it has been directed to study by permitting authorities. The
Landowners rely on case law concerning underground storage fields, not transmission pipelines
such as Columbia is constructing here. See, e.g., Williston Basin Interstate Pipeline Co. v. An
Exclusive Gas Storage Leasehold & Easement, 524 F.3d 1090, 1097-98 (9th Cir. 2008).
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Because a certificate of public convenience and necessity for an underground storage field
identifies those properties that a gas company has exclusive rights to lease the underground
natural gas reserves, the specific borders of the designated area must be precisely stated and
designated on a map filed with the FERC application. For example, in Columbia Gas
Transmission Corp. v. An Exclusive Gas Storage Easement, the court determined that, even
though gas belonging to Columbia had travelled underground to the defendants’ property,
Columbia could not enforce an exclusive right to the natural gas because the defendants’
property was outside the bounds of the area designated by FERC for Columbia’s exclusive gas
rights. See 578 F. Supp. 930, 935 (N.D. Ohio 1983). Columbia is aware of no authority that
would require it to adhere to a particular “map rule” as to the precise route of its gas transmission
pipeline or, more specific to this case, the potential borehole locations which it was directed to
study for potential HDD water body crossing points. The Landowners have not shown that the
Court committed clear legal error on this point.
Contrary to the Landowners’ assertions, Columbia’s requirements are set forth in Rule
71.1 of the Federal Rules, which requires only an identification of:
(A) the authority for the taking; (B) the uses for which the property is to be taken;
(C) a description sufficient to identify the property; (D) the interests to be
acquired; and (E) for each piece of property, a designation of each defendant who
has been joined as an owner or owner of an interest in it.
FED. R. CIV. P. 71.1(c)(2) (emphasis added). The information Columbia provided about the
location of the borehole and the identification of both the Bosley and Balama Properties is
sufficient here. See Hardy Storage Co., LLC v. An Easement To Construct, Operate & Maintain
12-Inch & 20-Inch Transmission Pipelines, 2006 U.S. Dist. LEXIS 19210, at *10-11 (N.D. W.
Va. Apr. 12, 2006) (finding drawings and brief descriptions of easements are sufficient to
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identify the sizes of easements). The Court did not commit a clear legal error in this matter and
the Landowners’ motion should be denied.
Moreover, the Landowners’ reliance on Mid-Atlantic Express, LLC v. Baltimore Cnty.,
Md., is similarly misplaced. See 410 Fed. Appx. 653 (4th Cir. 2011). In that case, the appellate
court vacated the trial court’s preliminary injunction ruling permitting early access to property to
conduct certain surveys. The basis for the decision to vacate was specific language in the
certificate of public convenience and necessity limiting Mid-Atlantic’s eminent domain authority
until it received certain approvals. See id. at 657. The FERC Certificate here contains no such
specific limitation or condition precedent on Columbia’s right to exercise eminent domain
authority to complete the Line MB Expansion Project. See ECF No. 24, Ex. 2 (Affidavit of
Jennifer Cannon and accompanying FERC Certificate). Thus, this case is entirely
distinguishable from Mid-Atlantic, which does not support the Landowners’ argument that the
Court committed clear error in determining that Columbia has the right to access the
Landowners’ properties.
C. The Landowners’ Other Arguments Do Not Show that the Court Should Amend its
Order.
The Landowners offer several other arguments for why the Court should revise its Order,
none of which have merit. First, the Landowners provide mere speculation that they will be
substantially damaged by Columbia’s HDD survey work. For example, the Landowners
cryptically suggest that Columbia will not admit the true extent of the HDD survey’s
intrusiveness, they assume that their property will be damaged by heavy equipment, and they
imply that Columbia’s survey work will potentially cause them years of lost crops, wetlands,
vegetation, and interference with hunting and farming. See ECF No. 33 at 3-5. These
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unsubstantiated allegations and assumptions cannot justify rescinding or revising the Court’s
order concerning an appropriate bond amount.
Second, the Landowners allege that, because the Court issued its order setting the bond
amount several hours after the Landowners filed their position on the issue, the Court could not
have properly considered it. See ECF No. 33 at 7-8. Similarly, the Landowners further contend
that the Court erred in relying on Columbia’s request for a $3,000 bond amount when that
amount did not account for the fact that there are two parcels of land at issue in this matter. See
ECF No. 33 at 12. Both of these arguments fail to take into account the fact that, rather than
simply ordering Columbia to post the $3,000 bond amount it proposed, the Court ultimately
ordered Columbia to post an amount more than three times higher than that amount. The
obvious conclusion is that the Court considered both parties’ positions and set the bond amount
accordingly.
The arguments put forth by the Landowners in their motion fail to show one of the three
circumstances justifying an amendment to the Court’s prior order, such as “to correct a clear
error of law or prevent manifest injustice,” is present here. Pac. Ins. Co., 148 F.3d at 403. As
such, the Landowners’ motion must be denied.
CONCLUSION
For the foregoing reasons, the Landowners have not established that the Court committed
clear legal error in entering its Order setting the preliminary injunction bond amount or in
indicating its intent to grant Columbia’s Motion for Partial Summary Judgment and Motion for
Immediate Possession and Access to Property. Defendants’ Motion for Additional Findings and
Amended Judgment Pursuant to Federal Rule of Civil Procedure 52(b) should be denied.
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Dated: June 27, 2014 Respectfully submitted,
COLUMBIA GAS TRANSMISSION LLC
By Counsel
/s/ Jessica D. Fegan
John D. Wilburn (Federal Bar No. 16902)
Stephen P. Mulligan (admitted pro hac vice)
MCGUIREWOODS LLP
1750 Tysons Boulevard, Suite 1800
Tysons Corner, VA 22102
Telephone: (703) 712-5000
Facsimile: (703) 712-5281
jwilburn@mcguirewoods.com
Jessica D. Fegan (Federal Bar No. 28660)
MCGUIREWOODS LLP
2001 K Street, N.W., Suite 400
Washington, D.C. 20006
Telephone: (202) 857-1728
Facsimile: (202) 828-3328
jfegan@mcguirewoods.com
Counsel for Columbia Gas Transmission LLC
Case 1:14-cv-00220-JFM Document 35 Filed 06/27/14 Page 7 of 8
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CERTIFICATE OF SERVICE
I hereby certify that on the 27th day of June, 2014, I electronically filed the foregoing
Opposition to Motion for Additional Findings and Amended Judgment Pursuant to Federal Rule
of Civil Procedure 52(b) with the Clerk of the Court using the CM/ECF system, which sent a
notice to the following:
Carolyn Elefant
LAW OFFICES OF CAROLYN ELEFANT
2200 Pennsylvania Ave, NW, Fourth Floor
Washington, D.C. 20037
Counsel for Defendants Balama Farms, Inc.,
Kenneth Bosley, and Phyllis Bosley
/s/ Jessica D. Fegan
Jessica D. Fegan (Federal Bar No. 28660)
MCGUIREWOODS LLP
2001 K Street, N.W., Suite 400
Washington, D.C. 20006
Telephone: (202) 857-1728
Facsimile: (202) 828-3328
jfegan@mcguirewoods.com
Counsel for Columbia Gas Transmission LLC
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