Transcontinental Gas Pipe Line Company, Llc v. .24 Acres, More or Less, Over The Following Parcel(S) of Land: Approximately 58.985 Acres, More or Less, Situated in Land Lots 242 And 249, of The 19th District, And 3rd Section, Paulding County, Geor et al

MOTION for Partial Summary Judgment

N.D. Ga.August 30, 2016

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC, Plaintiff, v. .24 acres, more or less, over the following parcel(s) of land: Approximately 58.985 acres, more or less, situated in Land Lots 242 and 249, of the 19th District, and 3rd Section, Paulding County, Georgia, together with approximately 39.837 acres, more or less, situated in Land Lots 172, 173, 178 and 243, of the 19th District, and 3rd Section, Paulding County, Georgia and more particularly described herein; and Mark Stephen Gober & Julia L. Gober, Defendants. _____________________________________ CIVIL ACTION NO. MOTION FOR PARTIAL SUMMARY JUDGMENT The Plaintiff, Transcontinental Gas Pipe Line Company, LLC (“Transco”), pursuant to the Natural Gas Act (15 U.S.C. § 717 et seq.), Fed. R. Civ. P. 56 and 71.1, and Local Rule 56, respectfully moves the Court to enter partial summary judgment to establish its right to condemn easements in this case and in all other related Natural Gas Act condemnation actions concurrently filed by Transco in this Court. The grounds for this Motion are set forth in the accompanying Brief in Support of Motion for Partial Summary Judgment. Case 1:16-cv-03244-ELR Document 5 Filed 08/30/16 Page 1 of 3 - 2 - NOTICE TO UPREPRESENTED OR PRO SE DEFENDANTS Defendants who do not intend to engage legal counsel to appear on their behalf in this action are notified that Transco, through its request for partial summary judgment, seeks a judgment establishing that Transco has the substantive right, pursuant to the Natural Gas Act (15 U.S.C. § 717f(h)), and Fed. R. Civ. P. 71.1, to condemn the easement interests described in the Complaint over the real property at issue in this case. The partial summary judgment motion does not attempt to resolve the issue of just compensation to be paid for the taking of the easement interests. This notice provides unrepresented parties notice of the summary judgment rules. You have the right to file affidavits or other materials in opposition to the partial summary judgment motion. If you fail or refuse to file any affidavits or other materials in opposition to the motion, a partial summary judgment may be rendered against you if otherwise appropriate under the law. You must file all materials, including any affidavits, that you wish to be considered in opposition to the partial summary judgment motion within 21 days from the date the motion was served on you. Summary judgment can be granted only if there are no genuine disputes of material fact and if Transco is entitled to condemn the easement interests as a matter of law. Fed. R. Civ. P. 56(a); Clemons v. Dougherty Cty., Ga., 684 F.2d 1365, 1368 (11th Cir. 1982). While the evidence and all factual inferences therefrom must be viewed by the Court in the light most favorable to you, if you intend to oppose the partial summary judgment motion, you cannot rest on your pleadings to present an issue of fact but must make a response to the partial summary Case 1:16-cv-03244-ELR Document 5 Filed 08/30/16 Page 2 of 3 - 3 - judgment motion by filing affidavits or other materials in order to persuade the Court that material facts exist. Fed. R. Civ. P. 56(c)(1). Failure to respond to and rebut the statements set forth in Transco’s declarations or other sworn pleadings pertaining to the partial summary judgment motion will result in those statements being accepted as the truth. If the Court finds that Transco has satisfied its summary judgment burden, the motion for partial summary judgment will be granted. In that case, there will be no further proceedings regarding Transco’s right to condemn the easements it is seeking. The compensation that Transco must pay for the easements will be determined at a later proceeding. Dated: August 30, 2016. By: /s/ Nowell D. Berreth ALSTON & BIRD LLP One Atlantic Center 1201 West Peachtree St NW Suite 4200 Atlanta, GA 30309 Telephone: 404-881-7000 Facsimile: 404-881-7777 Nowell D. Berreth Georgia Bar No. 055099 W. Clay Massey Georgia Bar No. 476133 Counsel for Plaintiff Transcontinental Gas Pipe Line Company, LLC Case 1:16-cv-03244-ELR Document 5 Filed 08/30/16 Page 3 of 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC, Plaintiff, v. .24 acres, more or less, over the following parcel(s) of land: Approximately 58.985 acres, more or less, situated in Land Lots 242 and 249, of the 19th District, and 3rd Section, Paulding County, Georgia, together with approximately 39.837 acres, more or less, situated in Land Lots 172, 173, 178 and 243, of the 19th District, and 3rd Section, Paulding County, Georgia and more particularly described herein; and Mark Stephen Gober & Julia L. Gober, Defendants. _____________________________________ CIVIL ACTION NO. BRIEF IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT The Plaintiff, Transcontinental Gas Pipe Line Company, LLC (“Transco”), moves for partial summary judgment in this eminent domain action to establish its right to condemn certain permanent easements and temporary construction workspace easements pursuant to the Natural Gas Act (15 U.S.C. § 717 et seq.) and the Federal Energy Regulatory Commission’s (“FERC”) Order, dated August 3, 2016, issuing a certificate of public convenience and necessity (“FERC Certificate”) and approving Transco’s Dalton Expansion project (the “Project”). The Project is Case 1:16-cv-03244-ELR Document 5-1 Filed 08/30/16 Page 1 of 8 - 2 - an approximately 115 mile natural gas pipeline in Northwest Georgia expanding Transco’s current interstate natural gas pipeline system. Transco needs to acquire certain easements over the Defendant real property in order to complete the Project and comply with FERC’s Order. Because the Project is on a tight timeframe, Transco needs immediate, pre-trial access to and possession of the necessary easement interests. Transco has filed a motion for preliminary injunction along with this Motion and its Complaint to obtain such access. In order to satisfy the first element required in the preliminary injunction analysis, Transco must establish its right to condemn the necessary easement interests. See Fed. R. Civ. P. 65. Because the FERC Certificate, together with the undisputed facts, establish Transco’s right to condemn the easement interests at issue as a matter of law, the Court should grant Transco’s motion for partial summary judgment. ARGUMENT Transco moves this Court for partial summary judgment and an Order of Condemnation holding that Transco has the power, pursuant to its FERC Certificate and the Natural Gas Act, 15 U.S.C. § 717f(h), to condemn the easements it seeks in this condemnation action. Transco seeks this determination in order to satisfy the first element of its Fed. R. Civ. P. 65 request for an injunction granting Transco immediate access to and possession of the easements subject to this condemnation action. A. Standard of Review of FERC Certificate Under the Natural Gas Act, after the issuance of a FERC Certificate, the District Court’s role is solely to examine the scope of the Certificate and order the condemnation of property as authorized by that Certificate. Columbia Gas Transmission Corp. v. An Easement to Construct, Case 1:16-cv-03244-ELR Document 5-1 Filed 08/30/16 Page 2 of 8 - 3 - Operate & Maintain a 24-Inch Pipeline Across Properties in Shenandoah Cty., Va., No. 5:07CV04009, 2008 WL 2439889, at *2 (W.D. Va. June 9, 2008) (“[T]he role of the district court in NGA eminent domain cases extends solely to examining the scope of the certificate and ordering the condemnation of property as authorized in that certificate.”) (collecting cases); USG Pipeline Co. v. 1.74 Acres in Marion Cty., Tenn., 1 F. Supp. 2d 816, 821 (E.D. Tenn. 1998) (describing the “limited scope of the district court’s role in reviewing the FERC’s issuance of a certificate of public convenience and necessity”). The findings in a FERC Certificate cannot be collaterally attacked in this court. Williams Nat. Gas Co. v. City of Oklahoma City, 890 F.2d 255, 262 (10th Cir. 1989) (“[A] challenger may not collaterally attack the validity of a prior FERC order in a subsequent proceeding. . . . [this] prohibition on collateral attacks applies whether the collateral action is brought in state court . . . or federal court.”); All. Pipeline L.P. v. 4.360 Acres of Land, More or Less, in S/2 of Section 29, Twp. 163 N., Range 85 W., Renville Cty., N.D., 746 F.3d 362, 365 (8th Cir. 2014) (“When Congress prescribes specific procedures for the review of an administrative order, courts outside the statutory review framework are precluded from hearing challenges to that order.”). As one court succulently explained: A district court’s role in such [condemnation] proceedings, however, “‘is circumscribed by statute.’” Indeed, the Gas Act only empowers federal district courts to evaluate the scope of the certificate and to order condemnation of property (and compensation for same) as provided in the FERC certificate. Columbia Gas Transmission, LLC v. 1.092 Acres of Land in Twp. of Woolwich, Gloucester Cty., N.J., No. CIVA 15-208 JBS/KMW, 2015 WL 389402, at *3 (D.N.J. Jan. 28, 2015) (internal citations omitted). B. The Natural Gas Act and the FERC Certification Grant Transco the Substantive Right to Condemn the Subject Easements Case 1:16-cv-03244-ELR Document 5-1 Filed 08/30/16 Page 3 of 8 - 4 - Transco’s eminent domain power comes from Sections 717f(h) of the Natural Gas Act: (h) Right of eminent domain for construction of pipelines, etc. 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.A. § 717f.1 One Circuit Court of Appeals explained: “[A] certificate of public convenience and necessity gives its holder the ability to obtain automatically the necessary right of way through eminent domain, with the only open issue being the compensation the landowner defendant will receive in return for the easement. Columbia Gas Transmission, LLC v. 1.01 Acres, More or Less in Penn Twp., York Cty., Pa. [], 768 F.3d 300, 304 (3d Cir. 2014), cert. denied sub nom. Brown v. Columbia Gas Transmission, LLC, 135 S. Ct. 2051, 191 L. Ed. 2d 957 (2015). Furthermore, this Court may hear and adjudicate condemnations under the Natural Gas Act so long as the amount claimed by the owner of the property to be condemned exceeds 1 § 717f(h) also provides that “The practice and procedure in any action or proceeding for that purpose in the district court of the United States shall conform as nearly as may be with the practice and procedure in similar action or proceeding in the courts of the State where the property is situated.” Id. However, that practices and procedure clause has been superseded by Fed. R. Civ. P. 71.1. S. Nat. Gas Co. v. Land, Cullman Cty., 197 F.3d 1368, 1375 (11th Cir. 1999) (“[W]e hold that the practices and procedures of federal eminent domain actions, including those filed pursuant to the Natural Gas Act, 15 U.S.C. § 717f(h), are governed by Rule 71A [the predecessor to 71.1] and not by state law. Moreover, we hold that Rule 71A supersedes § 717f(h).”). Case 1:16-cv-03244-ELR Document 5-1 Filed 08/30/16 Page 4 of 8 - 5 - $3,000. 15 U.S.C.A. § 717f(h). Thus, if Transco (1) holds a certificate of public convenience and necessity from FERC for the Project, (2) cannot acquire the easements sought in this action by contract or agree with the owner of the properties the compensation to be paid for the easements, and the amount claimed by the owner of the property to be condemned exceeds $3,000, Transco is entitled as a matter of law to an order confirming its right to condemn the subject easements. Transco satisfies these elements. 1. Transco Possesses a FERC Certification for the Project Authorizing Condemnation of the Easements Sought Here First, it is undisputed that Transco has been issued a FERC Certificate for the Project. Statement of Undisputed Material Facts (“SOF”), ¶ 7. On August 3, 2016 FERC entered an Order issuing the FERC Certificate, which authorized the construction and operation of the Project over all the lands along the Project path. SOF, ¶ 7. Accordingly, as a “holder of a certificate of public convenience and necessity” for the Project, Transco possesses the power of eminent domain under Section 717f(h) in connection with the Project. See Rockies Exp. Pipeline, LLC v. 4.895 Acres of Land, No. 2:08-CV-554, 2008 WL 4758688, at *2 (S.D. Ohio Oct. 27, 2008) (“Plaintiff has a substantive right under the Natural Gas Act to condemn the subject property right. . . . Plaintiff has its FERC certificate, the parties have failed to reach[] an agreement resulting in the acquisition of the property rights at issue, and the condemnation is for a necessary and public purpose.”); All. Pipeline L.P. v. 4.360 Acres of Land, More or Less, in S/2 of Section 29, Twp. 163 N., Range 85 W., Renville Cty., N.D., 746 F.3d 362, 364 (8th Cir.) cert. denied, 135 S. Ct. 245, 190 L. Ed. 2d 136 (2014) (“Such a certificate also gives the recipient the authority to condemn land along the route of its pipeline under the power of eminent domain.”). As one court recently stated in holding that a pipeline company was entitled to partial Case 1:16-cv-03244-ELR Document 5-1 Filed 08/30/16 Page 5 of 8 - 6 - summary judgment: “Plaintiff is entitled to partial summary judgment holding that, pursuant to the NGA and the FERC Order, Constitution has the substantive right to condemn a permanent right of way and easement and obtain temporary easements as described in Exhibit A to the complaint.” Constitution Pipeline Co., LLC v. A Permanent Easement for 1.77 Acres & Temp. Easements for 2.14 Acres in Franklin, Delaware Cty., N.Y., No. 3:14-CV-2094 NAM, 2015 WL 1638370, at *3 (N.D.N.Y. Mar. 16, 2015). Transco is entitled to the same here. Second, Transco’s declarations and exhibits plainly establish that the easements Transco seeks to condemn in this action are within the Project path and conform in location and dimensions to the Alignment Sheets and other documents that FERC reviewed and approved pursuant to the FERC Certificate, thereby satisfying the requirements of Environmental Condition No. 4 in the FERC Certificate. See FERC Certificate, at 44 to 45; SOF ¶¶ 12.2 As evidenced by Transco’s survey plats and written descriptions, Transco seeks only “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.” 15 U.S.C. § 717f(h); S. Nat. Gas Co. v. Land, Cullman Cty., 197 F.3d 1368, 1375 (11th Cir. 1999) (“Southern’s complaint for condemnation easily 2 Notably, “Rule 71.1 does not explicitly require any particular type of map, drawing, or measurement of the interests to be acquired. Nor does it require a survey adequate for recording in local land records.” Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, No. CV ELH-15-3462, 2016 WL 1248670, at *7 (D. Md. Mar. 25, 2016). Transco has described the property interests sought “sufficiently to identify” them, in accordance with the Rule. Fed. R. Civ. P. 71.1(d)(2)(A). Case 1:16-cv-03244-ELR Document 5-1 Filed 08/30/16 Page 6 of 8 - 7 - satisfied this requirement by incorporating both a legal description and a plat map showing the placement of the pipeline and relevant easements.”). 2. Transco Is Unable to Acquire the Easements by Contract, and Owners Claim More than $3,000 for the Easements Sought Here Finally, Transco has the right to condemn the easements sought here because it has been unable to acquire them by contract and has been unable to agree with Owners on the amount of compensation to be paid for those easements. SOF, ¶¶ 11-19.3 Transco made two or more purchase offers to each Owner in an amount in excess of $3,000, and each Owner did not accept its offer. SOF, ¶¶ 11-19. Owners have thus directly or indirectly claimed the value of the sought easements to be more than $3,000, thus satisfying the Natural Gas Act’s amount-in-controversy requirement. For these reasons, Transco is entitled as a matter of law to partial summary judgment establishing that it has the substantive right to condemn the easements over the Property as described in the Complaint and attached Exhibits. 3 While Transco has shown that it has acted in good faith to acquire the easements at issue by contract, this issue is not relevant to Transco’s power to condemn the easements at issue here, because neither Fed. R. Civ. P. 71.1 nor the Natural Gas Act impose any obligation to negotiate in good faith with landowners. Maritimes & Ne. Pipeline, L.L.C. v. Decoulos, 146 F. App’x 495, 498 (1st Cir. 2005) (“Absent any credible authority making good faith negotiation a requirement precedent to the condemnation action . . . we decline the invitation to create one in this case.”); Kansas Pipeline Co. v. 200 Foot by 250 Foot Piece of Land, Located in Section 6, Sw. Quarter, Twp. 32 S., Range 10 W., Cty. of Barber, State of Kansas, 210 F. Supp. 2d 1253, 1255 (D. Kan. 2002) (“[A] showing of good faith negotiation is not required under the NGA.”). Even if such an implied duty did exist, Transco satisfied it here. Transcon. Gas Pipe Line Corp. v. 118 Acres of Land, 745 F. Supp. 366, 369 (E.D. La. 1990) (“It has been held that a single offer to purchase the right may be sufficient to constitute good faith.”); Florida Gas Transmission Co. v. 9.854 Acre Nat. Gas Transmission Pipeline Easement, No. 96-14083 CIV, 1998 WL 2018164, at *4 (S.D. Fla. June 15, 1998) (offer and rejection satisfied company’s obligation to negotiate). Case 1:16-cv-03244-ELR Document 5-1 Filed 08/30/16 Page 7 of 8 - 8 - CONCLUSION Transco possesses a certificate of public convenience and necessity under which FERC has determined that easements to be condemned here are necessary to complete the Project; Transco has been unable to acquire the easements from the Owners by contract; and the Natural Gas Act’s amount-in-controversy requirement has been met. Accordingly, Transco is entitled to an order granting partial summary judgment that it has the substantive right, under 15 U.S.C. § 717f(h), to condemn the easements in this action. Dated: August 30, 2016. By: /s/ Nowell D. Berreth ALSTON & BIRD LLP One Atlantic Center 1201 West Peachtree St NW Suite 4200 Atlanta, GA 30309 Telephone: 404-881-7000 Facsimile: 404-881-7777 Nowell D. Berreth Georgia Bar No. 055099 W. Clay Massey Georgia Bar No. 476133 Counsel for Plaintiff Transcontinental Gas Pipe Line Company, LLC Case 1:16-cv-03244-ELR Document 5-1 Filed 08/30/16 Page 8 of 8 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC, Plaintiff, v. .24 acres, more or less, over the following parcel(s) of land: Approximately 58.985 acres, more or less, situated in Land Lots 242 and 249, of the 19th District, and 3rd Section, Paulding County, Georgia, together with approximately 39.837 acres, more or less, situated in Land Lots 172, 173, 178 and 243, of the 19th District, and 3rd Section, Paulding County, Georgia and more particularly described herein; and Mark Stephen Gober & Julia L. Gober, Defendants. _____________________________________ CIVIL ACTION NO. STATEMENT OF MATERIAL FACTS IN SUPPORT OF TRANSCO’S MOTION FOR PARTIAL SUMMARY JUDGMENT Contemporaneously with the filing of its Motion for Partial Summary Judgment to establish the substantive right to condemn the easements at issue in this and other condemnation actions, Plaintiff Transcontinental Gas Pipe Line Company, LLC (“Transco”), by and through counsel, submits this Statement of Material Facts to which it contends there is no genuine dispute to be tried in support of its motion for partial summary judgment. Citations to materials supporting each statement of material fact consist of a reference to the location of materials already in the record or a reference to Case 1:16-cv-03244-ELR Document 5-2 Filed 08/30/16 Page 1 of 4 2 the materials not already in the record that are included as exhibits to the motion for partial summary judgment. THE PARTIES 1. Transco is a Delaware Limited Liability Company authorized to do business in the State of Georgia, with its principal place of business in Houston, Texas. Exhibit A, Declaration of August Nicolaus (“Nicolaus Decl.”) ¶ 2. 2. Transco is a natural gas company that constructs, owns, and operates pipelines used to transport natural gas in interstate commerce. Nicolaus Decl., ¶ 2. 3. The real property Defendant(s) over which easement interests are sought to be condemned in this action is located in Paulding County, Georgia (the “Property”). Nicolaus Decl., ¶ 4. 4. The Property is or may be owned by the individual Defendant(s) identified in the Complaint in this case. Nicolaus Decl., ¶ 2. THE DALTON EXPANSION 5. Transco is currently preparing to construct an extension to its existing natural gas pipeline facilities in Northwest Georgia. That project is called the Dalton Expansion. Exhibit B, Declaration of David T. Wells (“Wells Decl.”) ¶ 4. 6. The Dalton Expansion is an approximately $471.9 million interstate natural gas transportation infrastructure project involving pipeline construction across seven counties in Northwest Georgia and the construction of a new compressor station in Carroll County, Georgia, as well as other related facilities. Wells Decl., ¶ 4. 7. The Federal Energy Regulatory Commission (“FERC”) issued a certificate of public convenience and necessity authorizing Transco to proceed with construction of Case 1:16-cv-03244-ELR Document 5-2 Filed 08/30/16 Page 2 of 4 3 the Dalton Expansion on August 3, 2016 (“FERC Certificate”). Wells Decl., ¶ 4; see also Exhibit D to the Complaint. 8. The FERC Certificate requires Transco to construct approximately 115 miles of natural gas pipeline and required facilities. Wells Decl., ¶ 4. 9. The Dalton Expansion is necessary to serve increasing natural gas demands in Georgia. See Exhibit D to the Complaint, p. 8. 10. The Dalton Expansion will serve Atlanta Gas Light Co. and Oglethorpe Power Corp. for their power generation needs. See Exhibit D to the Complaint, p. 8. ACQUISITION OF EASEMENT RIGHTS 11. To complete construction of the Dalton Expansion in accordance with the FERC Certificate, Transco must necessarily acquire easement rights on the Property. Nicolaus Decl., ¶ 10. 12. The location of the easements sought to be acquired by Transco on the Property substantially conforms to the alignment sheets submitted to FERC that depict the route approved and deemed necessary by FERC. Wells Decl., ¶¶ 5-9. 13. Transco has attempted to acquire the easement rights necessary for this Dalton Expansion from Defendant(s) by contract. Nicolaus Decl., ¶¶ 14-16. 14. Transco has made two or more offers for these easement rights at or above the market value of the easement rights. Nicolaus Decl., ¶ 14. 15. Transco’s efforts to purchase the necessary easements on the Property culminated in a Final Offer Letter dated August 16, 2016 which is attached as Exhibit 1 to the Nicolaus Decl. Nicolaus Decl., ¶ 15. Case 1:16-cv-03244-ELR Document 5-2 Filed 08/30/16 Page 3 of 4 4 16. The amount of Transco’s final offer exceeded the fair market value of those easement rights, and exceeded $3,000. Nicolaus Decl., ¶ 15. 17. Owner(s) did not accept Transco’s final offer to acquire title to the easement rights at issue. Nicolaus Decl., ¶ 16. 18. Transco is unable to acquire the easements at issue by contract or agreement with Owner(s). Nicolaus Decl., ¶ 16. 19. Transco filed this action only after contacting Owner(s) about acquiring the easements at issue but being unsuccessful in doing so. Nicolaus Decl., ¶ 14-16. Dated: August 30, 2016. By: /s/ Nowell D. Berreth ALSTON & BIRD LLP One Atlantic Center 1201 West Peachtree St NW Suite 4200 Atlanta, GA 30309 Telephone: 404-881-7000 Facsimile: 404-881-7777 Nowell D. Berreth Georgia Bar No. 055099 W. Clay Massey Georgia Bar No. 476133 Counsel for Plaintiff Transcontinental Gas Pipe Line Company, LLC Case 1:16-cv-03244-ELR Document 5-2 Filed 08/30/16 Page 4 of 4 Exhibit A Case 1:16-cv-03244-ELR Document 5-3 Filed 08/30/16 Page 1 of 5 Case 1:16-cv-03244-ELR Document 5-3 Filed 08/30/16 Page 2 of 5 Case 1:16-cv-03244-ELR Document 5-3 Filed 08/30/16 Page 3 of 5 Case 1:16-cv-03244-ELR Document 5-3 Filed 08/30/16 Page 4 of 5 Case 1:16-cv-03244-ELR Document 5-3 Filed 08/30/16 Page 5 of 5 Exhibit 1 Case 1:16-cv-03244-ELR Document 5-4 Filed 08/30/16 Page 1 of 9 One Atlantic Center 1201 West Peachtree Street Atlanta, GA 30309-3424 404-881-7000 Fax: 404-253-8489 www.alston.com Atlanta • Beijing • Brussels • Charlotte • Dallas • Los Angeles • New York • Research Triangle • Silicon Valley • Washington, D.C. Nowell D. Berreth Email: nowell.berreth@alston.com August 16, 2016 CERTIFIED MAIL, RETURN RECEIPT REQUESTED, UPS, AND U.S. MAIL Mark Stephen Gober and Julia L. Gober C/O Roy Barnes Roy Barnes Law Group 31 Atlanta Street Marietta, GA 30060 Re: Dalton Expansion Project Tax Parcel Number 119.4.1.002.0000 Transco Parcel Number DE-PAU-055.005 FERC Docket Number CP15-117 FINAL OFFER TO ACQUIRE PIPELINE RIGHT OF WAY Dear Governor Barnes: Transcontinental Gas Pipe Line Company, LLC (“Transco”) has been attempting to acquire an easement and right of way for its natural gas transmission pipeline across property located in Paulding, Georgia, in which Mark Stephen Gober and Julia L. Gober claim to own an interest. The location of the approximate route of the right of way that Transco seeks to acquire is shown and identified on the plat(s) and/or drawing(s) attached to the proposed Right of Way Agreement enclosed herein. The proposed pipeline will be operated by Transco for the transportation of natural gas in interstate commerce. Transco is a natural gas company as that term is defined for purposes of the federal Natural Gas Act, 15 U.S.C. §715, et seq., (the “NGA”), and will be operating the pipeline pursuant to a Certificate of Public Convenience and Necessity issued by the Federal Energy Regulatory Commission (“FERC”), pursuant to the NGA. Under the NGA, 15 U.S.C. §717f(h), 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. Thus, as the holder of a Certificate of Public Convenience Case 1:16-cv-03244-ELR Document 5-4 Filed 08/30/16 Page 2 of 9 August 16, 2016 Page 2 and Necessity, Transco may condemn the necessary property rights if it is unable to acquire those rights by contract with Mark Stephen Gober and Julia L. Gober, or is unable to agree with Mark Stephen Gober and Julia L. Gober on the compensation to be paid for those rights. As you will note, the right of way interests, including permanent easement interests, temporary work space interests, and access road interests sought are depicted in the plat(s) and/or drawing(s) attached to the proposed Right of Way Agreement enclosed herein. The pipeline right of way will also be subject to such other terms, conditions, and provisions as are set forth in the enclosed Right of Way Agreement. Where feasible, the Right of Way Agreement also includes any recommendations and proposals submitted by you and to which Transco can agree. In a good faith effort to reach agreement for the acquisition of the right of way, Transco has offered more than the rights sought herein are worth. Regretfully, it has become apparent that an agreement on the terms offered cannot be reached. By this letter, Transco has authorized me to make a final offer to acquire the right of way for a total sum of $3,500.00. This offer amounts to more than the actual fair market value of the property rights sought by Transco. By this letter, Transco is offering to pay a total of $3,500.00 for the Agreement(s) enclosed herein. However, if this offer is not accepted, and it becomes necessary for Transco to condemn the rights sought under authority provided by the NGA, Transco will pursue legal action to acquire the property rights it is seeking for their true market value rather than the amount offered herein, which we believe is in excess of true fair market value. This is Transco’s final offer. Please give it serious consideration. If this final offer is refused, Transco has and will exercise its right under the laws of the United States to condemn the property rights sought. See 15 U.S.C. § 717f(h). This final offer shall remain open for ten (10) days from the date of this letter. If we do not receive notice of acceptance from you on or before such date, this offer shall terminate and Transco will be forced to conclude that this final offer has been refused and that its efforts to acquire the property rights sought by amicable agreement have failed. Transco will then pursue the acquisition of the right of way by condemnation. Although Transco would prefer to reach an agreement, and would regret having to take legal action, if a condemnation action is necessary, Transco’s position in court will be that the fair and just compensation to which Mark Stephen Gober and Julia L. Gober are entitled for the property rights taken and damages resulting from the taking is less than the total sum being offered in this final offer. If your clients accept this offer, please indicate this acceptance by calling Mary Strong, a paralegal in this office, at (404) 881-7784, and by executing the enclosed (1) Right of Way Agreement, (2) Purchase and Construction Agreement, and (3) Damages Release before a notary public and returning those executed and notarized documents to Case 1:16-cv-03244-ELR Document 5-4 Filed 08/30/16 Page 3 of 9 August 16, 2016 Page 3 Mrs. Strong in the enclosed postage paid envelope within ten (10) days of the date of this letter. Ms. Strong’s address is: Alston & Bird LLP Attn: Mary Strong, Paralegal 1201 West Peachtree Street Atlanta, Georgia 30309-3424 Upon Transco’s receipt of these fully-executed forms, Transco will remit payment. Sincerely, ALSTON & BIRD LLP Nowell D. Berreth NDB Enclosures cc: Donald Hockaday, Esq. (Williams) August Nicolaus (Williams) W. Clay Massey, Esq. (Alston & Bird LLP) Nicolas W. Steenland, Esq. (Alston & Bird LLP) LEGAL02/36399566v1 Case 1:16-cv-03244-ELR Document 5-4 Filed 08/30/16 Page 4 of 9 Page 1 of 3 [Doyle Land Services, LLC. in service to] Transcontinental Gas Pipe Line Company, LLC 3416 Cherokee St NW Kennesaw, GA 30144-1908 Purchase and Construction Agreement Mark Stephen & Julia L. Gober P. O. Box 376 Dallas, GA 30132 Re: Transcontinental Gas Pipe Line Company, LLC Dear Mr. and Mrs. Gober, This letter is to confirm our understanding and assurance to you, Mark Stephen and Julia L. Gober, hereinafter called Grantor, that Transcontinental Gas Pipeline Company, LLC, hereinafter called Grantee, agrees as follows: This Agreement and all Exhibits attached hereto constitutes the entire agreement and understanding of Grantor and Grantee with respect to the subject matter of this Agreement, and supersedes all offers, negotiations and any other written or verbal statements or agreements. Determination of Value: Acres as shown in Exhibit A: Temporary and Additional Temporary Workspace Acres: 0.17 acres Access Road Easement Acres: 0 Temporary Workspace Calculation: 0.17 acres x $10,294.11 per acre = 1,750.00 Access Road Calculation: 0 Damages Calculation: 0.17 acres x $10,294.11 per acre = $1,750.00 Purchase Price $3,500.00 is due and payable to Grantor at the exercise of this agreement. Case 1:16-cv-03244-ELR Document 5-4 Filed 08/30/16 Page 5 of 9 Page 2 of 3 Additional Purchase Price Calculation In the event that the acreage included in the "Temporary Work Space" and "Additional Temporary Work Space" based on the "pipeline as installed", is greater than the "Temporary Work Space" and "Additional Temporary Work Space" depicted on Exhibit A, then the GRANTEE shall pay to GRANTOR the amount of $10,294.11 per acre for the additional "Temporary Work Space" and "Additional Temporary Work Space". Said computation of payment amounts will be based on calculations of acreage as reflected in the final "as built" survey plat, a copy of which will be enclosed with the check or draft sent to GRANTOR by GRANTEE. The final survey plat will be attached to and become a part of this agreement. Temporary and Additional Temporary Workspace Easement Grantor does hereby permit and license unto Grantee, its successors and assigns, the right, privilege and authority to use during the pipeline construction and restoration period the strip(s) of land identified as temporary workspace and/or additional temporary workspace as shown and described on Exhibit A. Grantor understands the Temporary Workspace and Additional Temporary Workspace may change configuration from Exhibit A during the course of project. If this occurs, Grantor and Grantee "shall refer to "Additional Price Calculation" written above to resolve any compensation issues. This permit and license shall terminate upon completion of construction and restoration of Grantee's pipeline facilities on Grantor's Property. No pipeline or other permanent facilities shall be constructed within the temporary workspace or additional temporary workspace areas. In Addition: 1. Upon Grantor's written request, Grantee shall, at Grantee's sole cost and expense, design and install temporary fencing for the protection of this tract during construction activities. 2. Upon written request from Grantor, Grantee shall either construct a gate at its sole cost and expense or compensate Grantor for the reasonable costs associated with installing a gate limiting access to the Temporary Workspace Area on Grantor's property. Grantee accepts no responsibility for future maintenance of the gate. Grantee accepts no respon- sibility to to secure Grantor's property. Locks may be permitted so long as Grantee has full access to the Temporary Workspace Area. 3. Grantee will reimburse the Grantor for any physical damages which Grantor may suffer as as a consequence of construction of pipeline and in the exercise of its rights granted Case 1:16-cv-03244-ELR Document 5-4 Filed 08/30/16 Page 6 of 9 Page 3 of 3 Grantee acknowledges acceptance of these terms by executing this letter on the appropriate line, below. Yours very truly, August Nicolaus Land Representative Purchase and Construction Agreement Accepted: __________________________________________ Mark Stephen Gober Date: __________________________________________ Julia L. Gober Date: Case 1:16-cv-03244-ELR Document 5-4 Filed 08/30/16 Page 7 of 9 Case 1:16-cv-03244-ELR Document 5-4 Filed 08/30/16 Page 8 of 9 One thousand seven hundred and fifty dollars ($1,750.00) Case 1:16-cv-03244-ELR Document 5-4 Filed 08/30/16 Page 9 of 9 Exhibit B Case 1:16-cv-03244-ELR Document 5-5 Filed 08/30/16 Page 1 of 4 Case 1:16-cv-03244-ELR Document 5-5 Filed 08/30/16 Page 2 of 4 Case 1:16-cv-03244-ELR Document 5-5 Filed 08/30/16 Page 3 of 4 Case 1:16-cv-03244-ELR Document 5-5 Filed 08/30/16 Page 4 of 4 Exhibit 1 Case 1:16-cv-03244-ELR Document 5-6 Filed 08/30/16 Page 1 of 5 Case 1:16-cv-03244-ELR Document 5-6 Filed 08/30/16 Page 2 of 5 Case 1:16-cv-03244-ELR Document 5-6 Filed 08/30/16 Page 3 of 5 Case 1:16-cv-03244-ELR Document 5-6 Filed 08/30/16 Page 4 of 5 Case 1:16-cv-03244-ELR Document 5-6 Filed 08/30/16 Page 5 of 5 Exhibit 2 Case 1:16-cv-03244-ELR Document 5-7 Filed 08/30/16 Page 1 of 4 Case 1:16-cv-03244-ELR Document 5-7 Filed 08/30/16 Page 2 of 4 Case 1:16-cv-03244-ELR Document 5-7 Filed 08/30/16 Page 3 of 4 MARK STEPHEN GOBER AND JULIA L. GOBER DE-PAU-055.005 ALL THAT TRACT OR PARCEL OF LAND LYING OR BEING IN LAND LOT 242 OF THE 19TH LAND DISTRICT, 3RD SECTION, PAULDING COUNTY, GEORGIA, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: PROPOSED TEMPORARY WORK SPACE - COMMENCE FROM A THREE-QUARTER INCH OPEN TOP PIPE FOUND AT THE NORTHWESTERLY PROPERTY CORNER OF THE GRANTOR HAVING A GEORGIA STATE PLANE COORDINATE OF (N: 1430149.00’, E: 2069407.22’, NAD 83, WEST ZONE), AND ALONG THE WESTERLY PROPERTY LINE OF THE GRANTOR SOUTH 01 DEGREES 08 MINUTES 43 SECONDS WEST A DISTANCE OF 565.51 FEET TO A POINT; SAID POINT BEING THE POINT OF BEGINNING; THENCE FROM THE POINT OF BEGINNING AS THUS ESTABLISHED AND DEPARTING THE SAID WESTERLY PROPERTY LINE OF THE GRANTOR SOUTH 29 DEGREES 11 MINUTES 43 SECONDS EAST A DISTANCE OF 19.80 FEET TO A POINT; THENCE SOUTH 01 DEGREES 08 MINUTES 43 SECONDS WEST A DISTANCE OF 297.99 FEET TO A POINT; THENCE SOUTH 43 DEGREES 51 MINUTES 17 SECONDS EAST A DISTANCE OF 42.43 FEET TO A POINT; THENCE SOUTH 01 DEGREES 08 MINUTES 43 SECONDS WEST A DISTANCE OF 65.00 FEET TO A POINT; THENCE SOUTH 46 DEGREES 08 MINUTES 43 SECONDS WEST A DISTANCE OF 42.43 FEET TO A POINT; THENCE SOUTH 01 DEGREES 08 MINUTES 43 SECONDS WEST A DISTANCE OF 49.58 FEET TO A POINT; THENCE SOUTH 43 DEGREES 51 MINUTES 17 SECONDS EAST A DISTANCE OF 35.36 FEET TO A POINT; THENCE SOUTH 01 DEGREES 08 MINUTES 43 SECONDS WEST A DISTANCE OF 16.23 FEET TO A POINT; THENCE SOUTH 01 DEGREES 22 MINUTES 51 SECONDS WEST A DISTANCE OF 88.44 FEET TO A POINT ON THE NORTHERLY RIGHT-OF-WAY LINE OF SPRING ROAD (HAVING AN APPARENT 40 FOOT WIDE RIGHT-OF-WAY) AND THE SOUTHERLY PROPERTY LINE OF THE GRANTOR; THENCE ALONG THE SAID NORTHERLY RIGHT-OF-WAY LINE OF SPRING ROAD AND THE SAID SOUTHERLY PROPERTY LINE OF THE GRANTOR THE FOLLOWING TWO COURSES AND DISTANCES: ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 1,381.83 FEET, AN ARC LENGTH OF 66.29 FEET, BEING SUBTENDED BY A CHORD BEARING OF NORTH 20 DEGREES 01 MINUTES 37 SECONDS WEST AND A CHORD DISTANCE OF 66.28 FEET TO A POINT; THENCE ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 2,925.94 FEET, AN ARC LENGTH OF 28.76 FEET, BEING SUBTENDED BY A CHORD BEARING OF NORTH 20 DEGREES 41 MINUTES 14 SECONDS WEST AND A CHORD DISTANCE OF 28.76 FEET TO A POINT ON THE WESTERLY PROPERTY LINE OF THE GRANTOR; THENCE DEPARTING THE SAID NORTHERLY RIGHT-OF-WAY LINE OF SPRING ROAD AND THE SAID SOUTHERLY PROPERTY LINE OF THE GRANTOR AND ALONG THE SAID WESTERLY PROPERTY LINE OF THE GRANTOR NORTH 01 DEGREES 08 MINUTES 43 SECONDS EAST A DISTANCE OF 530.82 FEET TO THE POINT OF BEGINNING. SAID TRACT OR PARCEL OF LAND CONTAINS 0.24 ACRES (BEING 10,342 SQUARE FEET) AS SHOWN ON DRAWING NUMBER: 24-0410-40-77-A/DE-PAU-055.005. Case 1:16-cv-03244-ELR Document 5-7 Filed 08/30/16 Page 4 of 4