Transcontinental Gas Pipe Line Company, Llc v. 6.84 Acres, More or Less, Over Parcel(S) of Land of Approximately 124.8 Acres, More or Less, Situated in Land Lots 452, 453, 454 And 485, Seventeenth (17th) District, Third (3rd) Section of Bartow Cou et al

REPLY BRIEF re MOTION for Preliminary Injunction, 4 MOTION for Partial Summary Judgment

N.D. Ga.October 11, 2016

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION IN RE TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC _____________________________________ LEAD FILE NO. 1:16-CV-02991-ELR INDIVIDUAL FILE NOS. 1:16-CV-03211-ELR 1:16-CV-03212-ELR 1:16-CV-03224-ELR 1:16-CV-03228-ELR 1:16-CV-03231-ELR 1:16-CV-03234-ELR 1:16-CV-03242-ELR 1:16-CV-03258-ELR FIRST CONSOLIDATED REPLY 1 IN SUPPORT OF TRANSCO’S MOTIONS FOR PARTIAL SUMMARY JUDGMENT AND PRELIMINARY INJUNCTION INTRODUCTION Transco filed these and other consolidated eminent domain actions in September 2016 to condemn property that it needs to construct a pipeline project called the Dalton Expansion. In an August 3, 2016 Order, the Federal Energy 1 Transco filed one reply on October 7, 2014 because of a deadline (Case No. 1:16- CV-03249-ELR) but will consolidate further replies for the Court’s convenience. Case 1:16-cv-03228-ELR Document 23 Filed 10/11/16 Page 1 of 16 - 2 - Regulatory Commission (FERC) authorized the Dalton Expansion, granting Transco a certificate of public convenience and necessity to proceed with the project (“FERC Certificate”). With that Certificate in hand, Transco has eminent-domain power. See 15 U.S.C. § 717f(h). Accordingly, Transco moved for partial summary judgment on its right to condemn the property and for a preliminary injunction granting Transco the right to access the property immediately so that it can begin construction on the Dalton Expansion. Certain Defendants, recognizing the merits of Transco’s motions, did not oppose those motions. See, e.g., Brief of Defendants Bruce and Kenda Johnson in Response to Plaintiff’s Motion for Preliminary Injuction, Transcon. Gas Pipeline Co., LLC v. 1.84 acres, et al., No. 1:16-CV-03226-ELR, Dkt. No. 11, at 2 (“Defendants do not object to Plaintiff’s motion . . . Furthermore, Defendants acknowledge that Plaintiff has met the requirements for the issuance of a preliminary injunction to commence work on the pipeline.”); Conse t Order Granting Plaintiff’s Motions for Partial Summary Judgment and Preliminary Injunction, Transcon. Gas Pipeline Co., LLC., v. 9.37 acres, et al., No. 1:16-CV-03377-ELR, Dkt. No. 19, ¶ 6 (“Defendant . . . does not contest Transco’s authority under 15 U.S.C. § 717f(h) to condemn the easement interests sought in its Complaint, nd does not oppose Case 1:16-cv-03228-ELR Document 23 Filed 10/11/16 Page 2 of 16 - 3 - Transco’s Motion for Partial Summary Judgment and Motion for Preliminary Injunction . . . .”). Not so with Defendants in the above-styled actions. They try to block Transco’s efforts to build the pipeline. But Congress and the FERC have given Transco authority to condemn easements over Defendants’ l nd. There is no arguing with that point, so partial summary judgment and a preliminary injunction are warranted. ARGUMENT Defendants have opposed Transco’s Motions for Partial Summary Judgment and Preliminary Injunction on five grounds: (1) Transco’s clearly admissible evidence is allegedly inadmissible; (2) Transco’s evid nce allegedly fails to sufficiently identify the easements it seeks; (3) Transco’s negotiations with landowners were insufficient; (4) discovery is inexplicably needed as to whether the property Transco seeks to acquire is authorized by the FERC Certificate; and (5) contrary to the weight of authority, Transco has not made a sufficient showing to merit a preliminary injunction. None of those arguments is persuasive. A. Transco’s Evidence in Support of Partial Summary Judgment is Clearly Admissible. Defendants attack the admissibility of Transco’s evid nce in support of its Motion for Partial Summary Judgment, arguing that Transco’s FERC Certificate is Case 1:16-cv-03228-ELR Document 23 Filed 10/11/16 Page 3 of 16 - 4 - not authenticated under Federal Rule of Evidence 901 and that Transco’s 28 U.S.C. § 1746 declarants rely in part on business records in their declarations. Neither argument has merit. Transco’s FERC Certificate, an order of the federal government available on FERC’s website (and even through a simple Westlaw search),2 is clearly self-authenticating. See Fed. R. Evid. 902(1), (5); Rizo v. Yovino, No. 1:14-CV- 0423-MJS, 2015 WL 9260587, at *5 (E.D. Cal. Dec. 18, 2015) (“Federal courts routinely consider records from government websites to be self-authenticating.”); Williams v. Long, 585 F. Supp. 2d 679, 689 (D. Md. 2008) (a printed w bpage from a government website is self-authenticating). And declarants in support of summary judgment motions may rely on business records; and that reliance constitutes personal knowledge for purposes of Rule 56(c)(4). Stanley v. Kansas Counselors of Kansas City, 639 F. App’x 589, 590 (11th Cir. 2016) (district court properly relied on affidavit based on personal knowledge and review of business records in granting summary judgment); Colonial Pac. Leasing Corp. v. N & N Partners, LLC, 981 F. Supp. 2d 1345, 1355 (N.D. Ga. 2013) (“Affiants can h ve personal knowledge for purposes of Rule 56(c)(4) based on their review of business records and files . . . . 2 Transcon. Gas Pipe Line Co., LLC, Docket No. CP15-117, 156 FERC ¶ 61,092 (August 3, 2016). The FERC Certificate is available at 2016 WL 4198689 and through FERC’s website at http://elibrary.ferc.gov/idmws/file_list.asp?document_id=14482654. Case 1:16-cv-03228-ELR Document 23 Filed 10/11/16 Page 4 of 16 - 5 - This is because what affiants must have personal knowledge of is admissible facts. See Fed. R. Civ. P. 56(c)(4). And business records or files are admissible under a number of the Federal Rules of Evidence. E.g., Fed. R. Evid. 803(6).”). B. Transco Sufficiently Identified the Easement Interests to be Condemned. Defendants also argue that Transco failed to identify the easement interests to be condemned under Fed. R. Civ. P. 71.1 because the scope of the easement terms sought by Transco allegedly exceeds the scope of its power under the FERC Certificate and the Natural Gas Act. Even if Defenda ts were right, that would not preclude partial summary judgment on Transco’s power to condemn. The Parties agree that Transco’s condemnation authority is conclusively determined by the terms of the Certificate. For that reason, Transco submitted evidence in its Motion for Partial Summary Judgment that the “location of the easements sought to be acquired by Transco on [Defendant’s property] substantially conform to the alignment sheets submitted to FERC that depict the route approved and deemed necessary by FERC.” [Declaration of David T. Wells, Exhibit B to Motion for Partial Summary Judgment, ¶ 12].3 Defendants do not dispute that the 3 In each of the eight above-styled actions, Transco filed individual Exhibits C and E to its Complaint, and Exhibit B to its Motion for Partial Summary Judgment (the Case 1:16-cv-03228-ELR Document 23 Filed 10/11/16 Page 5 of 16 - 6 - location of the easement interests depicted in Transco’s partial summary judgment filings conform with the pipeline route as approved by the FERC. Instead, their criticisms are aimed at the proposed Easement Terms attached to Transco’s Complaint as Exhibit E. Transco’s proposed Easement Terms are consistent with the scope of the FERC Certificate, but this Court need not decide that issue to decide Transco’s Motion for Partial Summary Judgment. Sabal Trail Transmission, LLC, No. 4:16- CV-102, 2016 WL 3248367, at *3 (M.D. Ga. June 10, 216) (“This issue does not preclude partial summary judgment on [the pipeline company’s] right to condemn; at this stage in the litigation, the Court need not draft the final easement terms to be recorded as a Grant of Easement. The Court will address this issue when it takes up the compensation issue.”); Williston Basin Interstate Pipeline Co. v. Dolyniuk Family Trust, No. A1-03-66, 2005 WL 1398692, at *4 (D.N.D. June 7, 2005) (“The Court finds that the issue of pipeline capacity is an issue of compensation rather than a limitation on the terms of the easement . . . Thus, the impact of the potential for future expansion is a factor for the jury to consider in reaching a damage determination.”). Declaration of David T. Wells). References thereto apply to each action unless otherwise noted. Case 1:16-cv-03228-ELR Document 23 Filed 10/11/16 Page 6 of 16 - 7 - In either case, the plats and descriptions Transco submitted in connection with its Motions for Partial Summary Judgment sufficiently identify the easements interests sought. See Nat. Gas Co. v. Land, Cullman Cty., 197 F.3d 1368, 1375 (11th Cir. 1999) (“Southern’s complaint for condemnation easily satisfied [Rule 71A(c)(2)’s] requirement by incorporating both a legal description and a plat map showing the placement of the pipeline and relevant easements.”); Sabal Trail Transmission, LLC v. 7.72 Acres in Lee Cty., Alabama, No. 3:16-CV-173-WKW, 2016 WL 3450827, at *3 (M.D. Ala. June 20, 2016) (A Certificate holder “is not required to conduct a full survey with a metes and bounds description and plat drawn by a registered land surveyor showing the property to be taken for purposes of ordering condemnation.”). The evidence is undisputed that Transco’s FERC Certificate gives it the authority to condemn the easement interests depicted in Exhibit C to its Complaints and Exhibit 2 to the Declarations of David T. Wells in support of Transco’s Motion for Partial Summary Judgment: none of the opposing Defendants here have submitted any evidence that Transco does not have the right to condemn those easement interests depicted in Exhibit C to its Complaints. Because the Court need not decide the terms of the easements to be condemned by Transco at this time, this Case 1:16-cv-03228-ELR Document 23 Filed 10/11/16 Page 7 of 16 - 8 - issue does not preclude granting Transco partial summary judgment on the issue of whether Transco has the substantive power to condem. C. Transco Satisfied 15 U.S.C. 717f(h) Because it Atempted to, and Could Not, Acquire the Necessary Easements by Contract. Defendants contend that Transco did not comply with 15 U.S.C. 717f(h) because it did not attempt to acquire the easement rights by contract. That is so, Defendants contend, because the terms of Transco’s easements during negotiations varied from those that Transco attached to its Complaint as Exhibit E. Nothing in that statute, however, requires Transco to offer specific easement terms to each landowner before filing condemnation actions. Instead, the Natural Gas Act simply provides that a holder of a FERC Certificate may file an eminent domain action if it “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.” 15 U.S.C. § 717f. Transco satisfied that statute here by offering to purchase the easement rights depicted in Exhibit C to its Complaints, and then by seeking to condemn those rights. An investigation into the specific easement terms offered to each landowner and attached to the permanent and temporary easements shown in Exhibit C is not Case 1:16-cv-03228-ELR Document 23 Filed 10/11/16 Page 8 of 16 - 9 - necessary and would not serve the interests of judicial efficiency. As a fellow district court found, [t]he Landowners suggest that the court must resolv these factual disputes and determine whether Guardian has negotiated with each of them in good faith before Guardian’s authority to condemn the portion of their land needed for its easements can be confirmed. But to do so would require the court to conduct a series of mini-trials over who said what to whom and whether Guardian had a reasonable basis for the amount it offered each Landowner. Obviously, such a requirement could delay the project indefinitely. And to what end? Guardian Pipeline, L.L.C. v. 295.49 Acres of Land, No. 08-C-0028, 2008 WL 1751358, at *17 (E.D. Wis. Apr. 11, 2008) (subsequent history omitted); see also Sabal Trail Transmission, LLC, 2016 WL 3248367, at *3 (“[A]t this stage in the litigation, the Court need not draft the final easement terms to be recorded as a Grant of Easement.”). D. Transco is Entitled to a Preliminary Injunction for Immediate Possession. Defendants oppose Transco’s Motion for Preliminary Injunction on certain of the same grounds that they oppose its Motion for Partial Summary Judgment: that Transco did not attempt to acquire certain easement rights sought to be condemned by contract, and that Transco’s proposed Easement Terms allegedly do not comply with the FERC Order. Transco incorporates its above arguments concerning those issues. Case 1:16-cv-03228-ELR Document 23 Filed 10/11/16 Page 9 of 16 - 10 - Defendants also argue that Transco’s harm is purely economic, allegedly caused by its own actions, and a disruption of the s atus quo.4 That argument fails. The Dalton Expansion is needed to meet the energy needs of roughly 2 million homes and to prevent severe financial losses to Transco. Transco has no legal remedy whatsoever to later recover those losses from Defendants. That alone would suffice to meet Transco’s burden to show irreparable harm. See, e.g. Nw. Pipeline Corp. v. The 20' x 1,430' Pipeline Right of Way Easement, 197 F. Supp. 2d 1241, 1246 (E.D. Wash. 2002) (granting preliminary injunction where pipeline showed that it faced economic harm and that immediate possession was in the public interest); Northern Border Pipeline Co. v. 127.79 Acres of Land, 520 F. Supp. 170, 172 (D.N.D. 1981) (holding that plaintiff would suffer economic harm from delay and that national interest supported immediate possession); USG Pipeline Co. v. 1.74 Acres in Marion Cty., Tenn., 1 F. Supp. 2d 816, 825-26 (E.D. Tenn. 1998) (granting 4 Courts have granted preliminary injunctive relief in the Natural Gas Act context over landowners’ objections that such a grant runs contrary to the status quo. See, e.g., Tenn. Gas Pipeline v. 0.018 Acres of Land, No. 2:10-cv-4465-JLL (D.N.J. Sept. 28, 2010) (granting preliminary injunction, noti g that “[f]or actions pursuant to the Natural Gas Act where an order of condemnatio has issued [i.e., the court has determined that a gas company has the substantive right to condemn property], the question is not whether the status quo will change, but merely when-it is simply an issue of timing.”). Case 1:16-cv-03228-ELR Document 23 Filed 10/11/16 Page 10 of 16 - 11 - immediate possession when pipeline company risked substantial financial losses and potential job creation by plant reliant on gas linewould be delayed). But Transco’s harm is not the only reason to grant injunctive relief here: not only will Transco suffer immediate and irreparable harm to its reputation, goodwill, and financial interests in the absence of a preliminary injunction, but its customers and the public will also suffer if pipeline construction does not immediately begin. The Dalton Expansion’s primary customers, two local gas distribution companies, would be disserved by further delay. [See Exhibits 1 and 2 to the Declaration of James Mathis, Exhibit A to Motion for Preliminary Injunction]. Landowner’s purported harm can be addressed through a bond posted by Transco at the Court’s direction. And most importantly, the public would be disserved by further delay because its access to an additional supply of natural gas deemed in the public interest by the federal government will be further delayed. The weight of authority demonstrates that under facts similar to those here, a pipeline company is entitled to a Preliminary Injunction granting it immediate possession to the easements to-be-condemned. Sabal Trail Transmission, LLC, 2016 WL 3248367, at *5 (finding on June 10, 2016 that in a case with the same in- service date as Transco’s here – May 1, 2017 – the “evidence [was] sufficient to establish that [the pipeline company] will suffer irreparable harm if it is not granted Case 1:16-cv-03228-ELR Document 23 Filed 10/11/16 Page 11 of 16 - 12 - immediate possession of the easements.”); Gulf Crossing Pipeline Co. LLC v. 86.36 Acres of Land, More or Less, [], No. CIV.A. 08-689, 2008 WL 2465892, at *6 (W.D. La. June 18, 2008) (collecting cases); Rockies Exp. Pipeline, LLC v. 4.895 Acres of Land, No. 2:08-CV-554, 2008 WL 4758688, at *3 (S.D. Ohio Oct. 27, 2008) (even though some of the Plaintiff’s harm was “self-inflicted,” granting immediate possession of property). E. No Discovery is Necessary to Issue a Limited Ruling on Transco’s Motions for Partial Summary Judgment and Preliminary Injunction. Transco’s Motions for Partial Summary Judgment and Preliminary Injunction ultimately require two limited and uncontested determinations by the Court: (1) Transco has authority to exercise eminent domain as a matter of law, which involves no genuine issue of material fact; and (2) Transco and the public will face substantial harm absent an injunction for immediate possession. O these issues, there is no need for discovery. Indeed, in numerous eminent domain actions under the Natural Gas Act, preliminary injunctions and motions for summary judgment that seek the exact same relief Transco seeks here are routinely granted without discovery. See, e.g., Alliance Pipeline, LP v. 4.360 Acres, 746 F.3d 362, 364-65 (8th Cir. 2014); E. Tenn. Natural Gas Co. v. Sage, 361 F.3d 808, 828 (4th Cir. 2004); Columbia Gas Trans., LLC, v. 1.092 Acres, No. 15-208, et al., 2015 WL 389402, at *2 n.5 (D.N.J. Case 1:16-cv-03228-ELR Document 23 Filed 10/11/16 Page 12 of 16 - 13 - Jan. 28, 2015); Constitution Pipeline Co., LLC v. A Permanent Easement for 1.80 Acres and Temporary Easement for 2.09 Acres in Davenport, Delaware Cty., New York, Tax Parcel Number 24.-1-41, No. 3:14-CV-2049 (NAM/RFT), 2015 WL 1638250 at *4 n.2 (N.D.N.Y. Feb. 23, 2015). The evid nce submitted by Transco in each of these actions unambiguously demonstrates that the easement rights it seeks were submitted to and approved by FERC. Discovery apparently sought by Defendants “as to whether the property [Transco] seek to acquire was authorized by the August 3, 2016 FERC Order” is wholly unnecessary.5 F. Transco Will Post a Bond in Accordance with the Court’s Direction. Finally, Defendants argue that they are due just and adequate compensation for Transco’s taking of an easement on their land. Transco agrees, and will post a bond as directed by the Court. 5 In each of the above-styled actions, Transco has submitted a complete copy of property-specific alignment sheet(s) submitted to FERC [Motion for Partial Summary Judgment, Declaration of David T. Wells, Exhibit 1], the FERC Certificate approving those alignment sheets [Complaint, Exhibit D], and a drawing, survey plat, and/or written description sufficient to identify the easement rights sought [Complaint, Exhibit C]. Those documents alone suffice to show that Transco has the power to condemn the easements depicted in Exh bit C. Case 1:16-cv-03228-ELR Document 23 Filed 10/11/16 Page 13 of 16 - 14 - CONCLUSION Transco respectfully respects that this Court grant its Motions for Partial Summary Judgment and Preliminary Injunction. Dated: October 11, 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-03228-ELR Document 23 Filed 10/11/16 Page 14 of 16 - 15 - CERTIFICATE OF COMPLIANCE Pursuant to LR 5.1C and 7.1, NDGa, I hereby certify that certify this document has been prepared with Times New Roman 14-point font. Dated: October 11, 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-03228-ELR Document 23 Filed 10/11/16 Page 15 of 16 - 16 - CERTIFICATE OF SERVICE I hereby certify that on October 11, 2016 I electronically filed the foregoing FIRST CONSOLIDATED REPLY IN SUPPORT OF TRANSCO’S MOTIONS FOR PARTIAL SUMMARY JUDGMENT AND PRELIMINARY INJUNCTION with the Clerk of Court using the CM/ECF system, which will automatically send email notification of such filing to any filing users who may have entered an appearance in this action. 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-03228-ELR Document 23 Filed 10/11/16 Page 16 of 16 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION IN RE TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC Individual File: TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC, Plaintiff, v. 6.84 acres, more or less, over parcel(s) of land of approximately 124.8 acres, more or less, situated in Land Lots 452, 453, 454 and 485, Seventeenth (17th) District, Third (3rd) Section of Bartow County, Georgia and more particularly described herein; and Thomas & Thomas, LLP, Defendants. _____________________________________ LEAD FILE NO. 1:16-CV-02991-ELR INDIVIDUAL FILE NOS. 1:16-CV-03228-ELR PLAINTIFF’S RESPONSE TO DEFENDANT’S STATEMENTS OF MATERIAL FACTS IN SUPPORT OF RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT Case 1:16-cv-03228-ELR Document 23-1 Filed 10/11/16 Page 1 of 8 - 2 - Pursuant to LR 56.1(B)(3), Transcontinental Gas Pipe Line Company, LLC (“Transco”) files this Response to Defendant Thomas & Thomas, LLP’s (“Defendant”) Statement of Additional Material Facts Presenting Issues for Trial [Dkt. 22]. RESPONSE TO DEFENDANT’S STATEMENT 1. Plaintiff's ability to exercise the power of eminent domain under the Natural Gas Act and Rule 71.1 is dependent upon the contents of the FERC Certificate. The Document attached to Plaintiff's Complaint as Exhibit "D" is hearsay and is not properly authenticated. The actual contents of the FERC Certificate remain to be proven. (Complaint at Exhibit "D"). RESPONSE: Transco responds that this statement is a legal conclusion. Transco further disputes this fact because the FERC Certificate is a self- authenticating document. 2. Assuming, for the sake of argument that the document attached to Plaintiff's Complaint as Exhibit "D" is a copy of the FERC Certificate, it references Plaintiff's application, supplemental filings, and the Environmental Assessment, as further documents governing the Defendant's ability to exercise the right of eminent domain. These other documents are not attached to the Complaint, nor provided by Plaintiff in support of its Motion for Partial Summary Judgment. (Complaint, Exhibit "D," Doc. 1-4 at p. 40 of 52; Exhibit "D" at Appendix "C," Doc. 1-4 at p. 44 of 52). The contents of these documents are material and remain to be proven. RESPONSE: Transco responds that this statement is immaterial to a determination of Transco’s Motion for Partial Summary Judgment. Transco has submitted evidence sufficient to show it possesses the power of eminent domain Case 1:16-cv-03228-ELR Document 23-1 Filed 10/11/16 Page 2 of 8 - 3 - over Defendant’s property, and need not submit (and serve each landowner) with the entire FERC docket in order to make that showing. 3. The actual easements approved by FERC to be taken, as set forth on Alignment Sheets approved by FERC are material and remain to be proven. The Declaration of Mr. David T. Wells is insufficient to establish that the Documents attached to his Declaration have been approved by FERC, as the statement lacks foundation, and is hearsay. (Plaintiff's Motion for Partial Summary Judgment at Exhibit "B," Wells Declaration; Doc. 4-5, ¶¶ 6-7; Doc. 4-6). RESPONSE: Transco responds that this statement is a legal conclusion. Transco further responds that the cited evidence is sufficient to establish that Transco possesses the power of eminent domain over Defendant’s property. 4. Whether the Survey Plats attached to the Complaint reflect the actual path for the pipeline that has been authorized by FERC is material and remains unproven. The Declaration of Mr. David T. Wells is insufficient to establish that the Documents attached to his Declaration have been approved by FERC, as the statement refers to documents prepared by a survey expert, and Wells has failed to establish a foundation for his statement. Furthermore, the documents attached are hearsay. (Wells Declaration; Doc. 4-5, ¶¶ 8-9; Doc. 4-7). RESPONSE: Transco responds that this statement is a legal conclusion. Transco further responds that the cited evidence is sufficient to establish that Transco possesses the power of eminent domain over Defendant’s property. 5. Whether the easements set forth in Exhibit "E" to Plaintiff's Complaint are necessary is material to this action, and remains to be proven. August Nicolaus declares inconsistently, stating first that the easements set forth in Case 1:16-cv-03228-ELR Document 23-1 Filed 10/11/16 Page 3 of 8 - 4 - the Final Offer Letter are necessary to complete the pipeline, and then stating that the easements set forth in the Complaint are necessary. (Plaintiff's Motion for Partial Summary Judgment at Exhibit "A," Nicolaus Declaration, Doc. 4-3 at ¶¶ 14 and 15; Exhibit "1" thereto, Doc. 4-4). RESPONSE: Transco responds that the final easement terms applicable to the easements condemned by Transco need not be determined in order to decide Transco’s Motion for Partial Summary Judgment. Transco further responds that the Federal Energy Regulatory Commission has determined the necessary easements for Transco’s pipeline project and that Defendant cannot attack that determination in this Court. 6. Whether Plaintiff was unable to acquire the "necessary right of way" by contract from Defendant is material, and remains to be proven. The easement sought to be acquired in Plaintiff's Final Offer Letter varies in terms from the "Easement Terms" Plaintiff's set forth in Exhibit "E" to Plaintiff's Complaint, and reflect an attempt to acquire unnecessary right of way from Defendant. (Complaint, Exhibit "E," Doc. 1-5; Nicolaus Declaration, Doc. 4-3 at ¶ 14; Exhibit "A" thereto, Doc. 4-4, p. 8 and 9 of 17). Plaintiff has not made an offer to acquire by contract the easement set forth in Exhibit "E" of Plaintiff's Complaint. RESPONSE: Transco responds that the final easement terms applicable to the easements condemned by Transco need not be determined in order to decide Transco’s Motion for Partial Summary Judgment. Transco further responds that the Federal Energy Regulatory Commission has determined the necessary Case 1:16-cv-03228-ELR Document 23-1 Filed 10/11/16 Page 4 of 8 - 5 - easements for Transco’s pipeline project and that Defendant cannot attack that determination in this Court. 7. Whether the easements identified in Plaintiff's Complaint are so vague that they do not sufficiently identify the property to be taken is material and remains to be proven. (Complaint, Exhibit "E"). RESPONSE: Transco responds that the final easement terms applicable to the easements condemned by Transco need not be determined in order to decide Transco’s Motion for Partial Summary Judgment. Transco further responds that the depiction attached to Transco’s Complaint as Exhibit C clearly identifies the property sought to be condemned in this action. 8. Due to Plaintiff serving Defendant with its Motion for Partial Summary Judgment at the same time it served its Complaint, Defendant has not had the opportunity to adequately research the material issues set forth herein, nor to conduct discovery in this action. For that reason, Defendant is not able at this time to provide sufficient further facts in opposition to Plaintiff's Motion for Partial Summary Judgment. (Declaration of Michael P. Bain, Esq., Exhibit "A" hereto). RESPONSE: Transco admits it served Defendant with Transco’s Motion for Partial Summary Judgment at the same time it served its Complaint, but responds that Defendant has had sufficient time to determine that Transco possesses the power of eminent domain over Defendant’s property. Dated: October 11, 2016. Case 1:16-cv-03228-ELR Document 23-1 Filed 10/11/16 Page 5 of 8 - 6 - 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-03228-ELR Document 23-1 Filed 10/11/16 Page 6 of 8 - 7 - CERTIFICATE OF COMPLIANCE Pursuant to LR 5.1C and 7.1, NDGa, I hereby certify that certify this document has been prepared with Times New Roman 14-point font. Dated: October 11, 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-03228-ELR Document 23-1 Filed 10/11/16 Page 7 of 8 - 8 - CERTIFICATE OF SERVICE I hereby certify that on October 11, 2016 I electronically filed the foregoing PLAINTIFF’S RESPONSE TO DEFENDANT’S STATEMENTS OF MATERIAL FACTS IN SUPPORT OF RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system, which will automatically send email notification of such filing to any filing users who may have entered an appearance in this action. 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-03228-ELR Document 23-1 Filed 10/11/16 Page 8 of 8