Transcontinental Gas Pipe Line Company, Llc v. Permanent Easement For

BRIEF IN OPPOSITION re MOTION for Partial Summary Judgment

M.D. Pa.April 13, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA TRANSCONTINENTAL GAS PIPE LINE : COMPANY, LLC : 2800 POST OAK BOULEVARD : CIVIL ACTION - LAW HOUSTON, TEXAS 77251-1396 : : Docket No. 4:17-cv-00306-MWB PLAINTIFF, : (Judge Matthew W. Brann) v. : : PERMANENT EASEMENT FOR 0.64 : JURY TRIAL DEMANDED ACRES, TEMPORARY EASEMENTS : FOR 1.03 ACRES AND A : TEMPORARY ACCESS EASEMENT : IN COAL TOWNSHIP, : NORTHUMBERLAND COUNTY, : PENNSYLVANIA, TAX PARCEL : NUMBER 00A-00-068-020, PA ROUTE : 61, COAL TOWNSHIP : NORTHUMBERLAND COUNTY, PA : 17866 : : HUD, INC. : C/O JOSEPH PROCIAK, PRESIDENT : 31 NORTH MARKET STREET : NANTICOKE, PA 18634 : : AND ALL UNKNOWN OWNERS : : DEFENDANTS. : : DEFENDANT HUD, INC.’S BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND NOW COMES, the Defendant HUD, Inc., who by and through its counsel, Lavery Law, sets forth the foregoing Brief in Opposition to Plaintiff’s Motion for Partial Summary Judgment: Case 4:17-cv-00306-MWB Document 23 Filed 04/13/17 Page 1 of 12 I. SUMMARY OF ARGUMENT Defendant HUD, Inc. (hereafter “Defendant”), through its Answer to Plaintiff Transcontinental Gas Pipe Line Company, LLC’s Complaint and Response to Plaintiff’s Motion for Partial Summary Judgment challenges the authority and timeliness of Plaintiff’s ability to exercise eminent domain in an attempt to condemn various rights-of-way over its property for the Atlantic Sunrise Project. Defendant submits that there are genuine issues of material fact regarding whether the project meets the “public use” standard necessary to allow for the taking of its property and whether the proposed taking has been attempted in good- faith or is overly broad and burdensome to the property in violation of the Fifth Amendment to the United States Constitution and the Natural Gas Act, 15 U.S.C. §717(f). Furthermore, Defendant believes that the FERC Order was hastily issued without allowing all interested parties the opportunity to be heard in violation of their substantive due process rights and any determination of Plaintiff’s rights to condemn and possess the property are premature while Petitions for Review of said Order are still pending. II. COUNTER STATEMENT OF FACTS Defendant HUD, Inc., is the fee simple owner of real property located at PA Route 61, Coal Township, Northumberland County, Pennsylvania – Parcel #: 00A- Case 4:17-cv-00306-MWB Document 23 Filed 04/13/17 Page 2 of 12 00-068-020, which is subject to the above-captioned action filed by Plaintiff Transcontinental Gas Pipe Line Company, LLC (hereafter “Plaintiff”) seeking to condemn permanent and temporary easements across the parcel to construct, operate and maintain the Atlantic Sunrise Pipeline Project pursuant to the Natural Gas Act, 15 U.S.C. §717(f) et.seq. Subsequently, Plaintiff filed the Motion for Partial Summary Judgment, which is currently before the Court, as well as an Omnibus Motion for Preliminary Injunction requesting immediate access for purposes of conducting surveying and field testing along with an Order of Condemnation looking to establish their substantive right to condemn the rights-of- way and the grant of possession to the easements. Prior to the scheduled evidentiary hearing on the Motions filed by the Plaintiff, the parties entered into a Stipulation granting survey access to the Plaintiff and an extension of time for the Defendant to answer the Complaint and Motion for Partial Summary Judgment. Prior to the filing of this action on February 3 rd , 2017, the Federal Energy Regulatory Commission (“FERC”) issued an Order granting Plaintiff a Certificate of Public Convenience and Necessity relative to the Project which contemplates the construction and operation of certain pipeline facilities in Pennsylvania, Virginia, Maryland, North Carolina and South Carolina. Several environmental groups and individual landowners sought a hearing before FERC on whether enough evidence was presented to demonstrate that the Project satisfied the “public Case 4:17-cv-00306-MWB Document 23 Filed 04/13/17 Page 3 of 12 use” requirement to exercise eminent domain, but those requests were denied and ultimately, consistent with FERC’s policies and procedures, multiple Petitions for Review were filed challenging the validity and requesting a stay of the FERC Certificate Order, including the authorization of the use of eminent domain. However, due to the resignation of FERC Chairman Norman Bay, the Commission now has just two members and lacks a quorum to take action on any of the requests for re-hearing or stay, essentially leaving landowners demanding a review of the Order’s substance without an available forum to be heard. Defendant files this Brief along with its Responses in Opposition to Plaintiff’s Motion for Partial Summary Judgment and Plaintiff’s Statement of Undisputed Facts in support of its Motion setting forth its arguments against the entry of partial summary judgment at this time. III. STANDARD OF REVIEW Summary judgment is only proper when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Accord, Saldana v. K-Mart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001); EBC, Inc. v. Clark Bldg. Sys., 618 F.3d 253, 262 (3d Cir. 2010). A factual dispute is “material” if it might affect Case 4:17-cv-00306-MWB Document 23 Filed 04/13/17 Page 4 of 12 the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “genuine” only if there is sufficient evidentiary basis to allow a reasonable fact–finder to return a verdict for the non- moving party. Id. at 249. “Facts that could alter the outcome are ‘material facts’ and disputes are ‘genuine’ if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct.” Clark v. Modern Group Ltd., 9 F.3d 321, 326 (3d Cir. 1993). In making this determination, the moving party has the initial burden of showing that no genuine issues of material fact exists and the Court must view the evidence presented in the light most favorable to the nonmoving party. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983); U.S. v. United Scenic Artists Local 829 of Broth. Painters, Decorators and Paperhangers of America, D.C.N.Y.1961, 27 F.R.D. 499.All inferences, doubts and issues of credibility must be resolved against the moving party. Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); See also, Meyer, Supra. The requirement that summary judgment can be granted only if there is no genuine dispute as to any material fact is to be strictly construed so as to insure that factual issues will not be determined without the benefit of truth-seeking procedures of trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d (1986). The Court’s inquiry on summary judgment is whether evidence presents sufficient Case 4:17-cv-00306-MWB Document 23 Filed 04/13/17 Page 5 of 12 disagreement to require submission to jury, or whether evidence is so one-sided that one party must prevail as a matter of law. Leathers v. Peoria Toyota-Volvo, 824 F.Supp. 155, (C.D.Ill., 1994). The function of motion for summary judgment is not to permit the Court to decide issues of fact but solely to determine whether there is issue of fact to be tried. Byrnes v. Mutual Life, Ins. Co. of N.Y., C.A.Ariz. 1955, 217 F.2d 497, certiorari denied, 75 S.Ct. 532, 348 U.S. 971, 99 L.Ed. 756. IV. LEGAL ARGUMENT Plaintiff’s Motion for Partial Summary Judgment is premature because Defendant and similarly situated landowners have been denied the opportunity to challenge the FERC Order and its findings. Due process requires notice and an opportunity to be heard before a final taking and the right to continued use and possession of one’s property must receive strong protection. Matthews v. Eldridge, 424 U.S. 319, 323,96 S.Ct. 893, 897 (1976). “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Matthews, 424 U.S. at 333. The right to be heard before being condemned to suffer grievous loss of any kind… is a principle basic to our society.” Id. at 333. Although the judicial model of an evidentiary hearing may not be required in all cases, the right to be heard requires that the available procedures be tailored, in light of the decision to be made, to “the capacities and circumstances of those Case 4:17-cv-00306-MWB Document 23 Filed 04/13/17 Page 6 of 12 who are to be heard, to insure they are given a meaningful opportunity to present their case.” Goldberg v. Kelly, 397 U.S. 254, 268-269 (1970). Supreme Court precedent prohibits the taking of Defendant’s property until permitted a full and fair opportunity to be heard on the constitutionality of the taking. See Matthews, Supra. and Goldberg, Supra. In the case at bar, multiple landowners affected by the project were denied the opportunity to participate and challenge the findings in the FERC Order specifically whether the proposed taking is for a public use sufficient to establish rights to eminent domain under the United States Constitution and the Natural Gas Act. The rush to issue the Certificate by FERC violates Defendant’s constitutional rights under the Fifth Amendment while also abusing the established procedures of the Natural Gas Act and the Federal Rules of Civil Procedure, which prevent the “quick take” of a condemnee’s property prior to the payment of just compensation. Although “public use” jurisprudence affords legislative bodies broad latitude in determining what public needs justify the use of takings power, the inquiry is nevertheless an important constitutional limitation, which must be undertaken with due diligence. Kelo v. City of New London, 545 U.S. 469, 125 S.Ct. 2655, 2664 (2005). The United States Supreme Court has consistently held that some form Case 4:17-cv-00306-MWB Document 23 Filed 04/13/17 Page 7 of 12 of hearing is required before an individual is finally deprived of a property interest. Wolff v. McDonnell, 418 U.S. 539, 557-558 (1974). Within its Answer to the Complaint, Defendant has raised several objections and defenses to the Plaintiff’s taking that have not yet been heard by FERC or any Court of jurisdiction. Instead, the Plaintiff’s attempt to condemn a portion of the Defendant’s property without ever affording him the due process rights to challenge the validity of the Certificate Order. Defendant has presented a defense to the taking that the project does not satisfy the “public use” requirement for a taking under the Fifth Amendment to the Constitution, which is clearly a factual issue that he has a right to be addressed. It has been widely publicized that the majority of the natural gas intended to be shipped through the proposed pipeline is intended for exportation, which would prevent the project from being deemed a “public use”. In addition, Defendant has raised factual issues as to the reasonableness of the size and location of the taking as well as whether Plaintiff has fulfilled its obligation to negotiate in good faith prior to instituting the condemnation action. The premature issuance of the Order, prior to giving the affected landowners an opportunity to present their own evidence and test the findings by FERC, impinges on Defendant’s constitutional rights to due process and in and of itself present genuine issues of Case 4:17-cv-00306-MWB Document 23 Filed 04/13/17 Page 8 of 12 material fact that need to be determined before the taking of Defendant’s private property is proper. Several environmental groups and parties to Plaintiff’s condemnations have appealed the FERC Order with the filing of a Petition for Review requesting a stay of the Order until final adjudication. To the best of Defendant’s knowledge, there has been no date set to hear any of the issues raised in said petitions. However, since FERC is currently without a quorum to determine the objections raised due to the retirement of Chairman Norman Bay, the possibility exists that should this Honorable Court not address the factual issues raised by the Defendant, there is the distinct likelihood that a tolling order could be distributed to indefinitely extend the time limit, having the effect of allowing the condemnation and construction to proceed prior to an adjudication in violation of Defendant’s constitutional rights to substantive and procedural due process. As such, until there is a final determination as to the issues raised by the Defendant in its defenses and objections, a genuine issue of material fact will exist which must preclude the entry of partial summary judgment. Defendant has advanced legitimate challenges to the Plaintiff’s taking that require either discovery or an evidentiary hearing to fully resolve the factual questions concerning the “public” nature of the project, the actions of the Plaintiff during Case 4:17-cv-00306-MWB Document 23 Filed 04/13/17 Page 9 of 12 the negotiation period, the size and scope of the taking sought and if it is in violation of the Fifth Amendment and whether the procedures followed by Plaintiff are in violation of the Natural Gas Act. Whether the Court wishes to defer ruling until FERC has addressed the Petitions for Review currently before it or chooses to address the constitutionality of the taking on its own, a ruling at this stage granting the condemnation and possession for the Plaintiff is premature, given the controverted issues of fact and the potential that Defendant could be irreparably harmed prior to the final determination by FERC on the outstanding requests for review. V. CONCLUSION Based on all of the foregoing arguments and authorities, Defendant HUD, Inc., respectfully requests that Plaintiff’s Motion for Partial Summary Judgment be denied. FERC hastily and erroneously determined that the Atlantic Sunrise Project will serve a “public use” as required by the United States Constitution prior to allowing the Defendant’s challenge to be heard, in violation of its procedural and substantive due process rights. WHEREFORE, Defendant, requests that this Honorable Court deny Plaintiff’s Motion for Summary Judgment and declare that prior to a final determination by FERC on the current Petitions for Review or a full review into Case 4:17-cv-00306-MWB Document 23 Filed 04/13/17 Page 10 of 12 the constitutionality of the taking by this Court, Plaintiff does not have the authority to condemn the proposed rights-of-way. Respectfully submitted, LAVERY LAW By: s/ Peter J. Carfley Peter J. Carfley, Esquire 225 Market Street, Suite 304 P.O. Box 1245 Harrisburg, PA 17108-1245 (717) 233-6633 (telephone) (717) 233-7003 (facsimile) Atty No. PA84729 pcarfley@laverylaw.com Attorney for Defendant, HUD, Inc. Property Parcel #: 00A-00-068-020 Dated: April 13, 2017 Case 4:17-cv-00306-MWB Document 23 Filed 04/13/17 Page 11 of 12 CERTIFICATE OF SERVICE I, Aimee L. Paukovits, an employee with the law firm of Lavery Law, do hereby certify that on this 13 th day of April, 2017, I served a true and correct copy of the foregoing Brief in Opposition via the U.S. Middle District Court’s electronic case filing system, addressed as follows: Elizabeth U. Witmer, Esquire Sean T. O’Neill, Esquire Saul Ewing LLP 1200 Liberty Ridge Drive Suite 200 Wayne, PA 19807 ewitmer@saul.com soneill@saul.com (Attorneys for Plaintiffs) s/ Aimee L. Paukovits Legal Secretary to Sunshine J. Thomas, Esquire and Peter J. Carfley, Esquire Case 4:17-cv-00306-MWB Document 23 Filed 04/13/17 Page 12 of 12