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

REPLY BRIEF re MOTION for Partial Summary Judgment , 7 MOTION for Preliminary Injunction for Possession of Rights of Way

M.D. Pa.March 22, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA SAUL EWING LLP Elizabeth U. Witmer, Esq. (55808) Sean T. O’Neill, Esq. (205595) 1200 Liberty Ridge Drive, Suite 200 Wayne, PA 19087-5569 Attorneys for Plaintiff Transcontinental Gas Pipe Line Company, LLC TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC, Plaintiff, v. PERMANENT EASEMENTS FOR 2.59 ACRES AND TEMPORARY EASEMENTS FOR 5.45 ACRES IN PINE GROVE TOWNSHIP, SCHUYLKILL COUNTY, PENNSYLVANIA, et al., Defendants. : : : : : : : : : : : : : : : CIVIL ACTION – LAW Docket No. 4:17-CV-00289-MWB JOINT REPLY IN FURTHER SUPPORT OF PLAINTIFF’S MOTIONS FOR PARTIAL SUMMARY JUDGMENT AND PRELIMINARY INJUNCTION Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 1 of 53 Transco1 submits this reply brief in further support of its Motion for Partial Summary Judgment and Omnibus Motion for Preliminary Injunction for Possession of Rights of Way By March 20, 2017 Pursuant to the Natural Gas Act and Federal Rules of Civil Procedure 71.1 and 65 (the “Motions”). Because Landowners have made essentially the same arguments in opposition to both of Transco’s Motions, Transco is submitting a single reply. Despite claiming that the proposed taking is “excessive and unduly burdensome,” Landowners have failed to submit any evidence that the Rights of Way exceed those authorized by the FERC Order. Indeed, as several courts have held, this taking is not excessive as a matter of law because the Rights of Way are expressly limited to those authorized by the FERC Order. If Landowners disagree with the Project route, they may follow the review procedure codified in the Natural Gas Act, 15 U.S.C. § 717r, which does not include review by this Court. Alternatively, if they disagree with the valuation of the Rights of Way, Landowners may raise this issue in the forthcoming compensation proceedings. Either way, Landowners have not created a genuine factual dispute as to Transco’s right to condemn. “This is not a ‘normal’ preliminary injunction, where the merits await another day.” Columbia Gas Transmission, LLC v. 1.01 Acres, 768 F.3d 300, 315 (3d Cir. 2014). Transco’s Motions should be granted. 1 The same definitions used in the Verified Complaint are used in this Reply. Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 2 of 53 -3- I. LANDOWNERS’ DEFENSES TO THE TAKING HAVE NO MERIT. A. The Rights of Way Sought To Be Condemned Comport With The FERC Order. In their Response in Opposition to Transco’s Motion for Partial Summary Judgment (the “MSJ Response2”) and their Brief In Opposition to Transco’s Motion for Preliminary Injunction (“Injunction Opposition3”), Landowners oppose Transco’s right to condemn by arguing that the Rights of Way sought to be acquired “exceed[] the scope contemplated by the FERC Order.” See MSJ Response at 4; Injunction Response at 3-4. Specifically, Landowners claim that the Rights of Way violate the FERC Order because Landowners’ access to their property may be impeded. Id. Setting aside that Landowners have not proven that their property access will in fact be impeded, Landowners cite absolutely no evidence to show that the Rights of Way violate the FERC Order. To the contrary, the easements being condemned are expressly limited to what is authorized by the FERC Order and, therefore, cannot be excessive. As explained in Transco’s Motions, the Rights of Way – which are described and depicted in the drawings attached to Exhibit A of the Verified Complaint and as Exhibit B to the Sztroin Declaration – conform to the pipeline route reviewed and approved by the FERC. See Sztroin Declaration, ¶ 18; compare Exhibit B to 2 See Dkt. 23. 3 See Dkt. 24. Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 3 of 53 -4- Sztroin Declaration with Exhibit C to Sztroin Declaration; see also Proposed Partial Summary Judgment Order, Dkt. 5-1. Landowners have not offered one iota of evidence to create a genuine dispute of material fact with respect to the Rights of Way vis-à-vis the FERC Order, as the “Legal Argument” section of Landowners’ MSJ Response and Injunction Response is devoid of any factual citations. See MSJ Response at 4-6; Injunction Response at 3-6. Moreover, Landowners have not challenged the drawings and descriptions attached to Transco’s Motions, let alone offer drawings or descriptions of their own. Furthemore, the temporary access road easement Transco seeks to condemn – aside from being strictly limited by its terms to what the FERC has authorized – is not exclusive, so Landowners will be able to use that road. See Verified Compl., Dkt. 1, at ¶1(f); Mot. for Partial Summ. J., Dkt. 5, at ¶5; Proposed Partial Summary Judgment Order, Dkt. 5-1, at 2-3. Landowners’ failure to identify any material facts in dispute underscores that the Rights of Way sought to be acquired by Transco cannot be excessive as a matter of law because they conform to the route approved by the FERC. See Constitution Pipeline Co., LLC v. A Permanent Easement for 1.80 Acres & Temp. Easement for 2.09 Acres, No. 3:14-CV-2049 NAM, 2015 WL 1638250, at *4 (N.D.N.Y. Feb. 23, 2015)4 (“The Court rejects defendants’ argument that the relief 4 A copy of this unpublished opinion is attached hereto as Exhibit A. Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 4 of 53 -5- sought by Constitution in its motion for partial summary judgment exceeds the scope of the FERC Order. Defendants raise no material question of fact on this issue.”); see also Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, No. CV ELH-15-3462, 2016 WL 1248670, at *10 (D. Md. Mar. 25, 2016)5 (“[Condemnor] has only requested an order confirming its right to condemn pursuant to the terms of the FERC Certificate. . . . Because the [motion for partial summary judgment] does not seek any rights beyond those permitted by the statute and the FERC Certificate, there is no merit to the Opposing Defendants’ argument that Columbia seeks more than it is allowed under the Certificate.”); Columbia Gas Transmission, LLC v. 370.393 Acres, More or Less, No. 1:14-0469-RDB, 2014 WL 5092880, at *4 (D. Md. Oct. 9, 2014)6 (“Defendants have failed to identify a single right actually sought in [the condemnor’s] Complaint that exceeds the scope of the FERC Certificate. Accordingly, the Defendants’ contention is of no moment, and [condemnor] is entitled to summary judgment with respect to its right to condemn.”). Notably, the “Legal Argument” section of Landowners’ MSJ Response and Injunction Response is also devoid of any legal citations, and, instead, rests entirely upon unproven statements and suppositions. See MSJ Response at 4-6; 5 A copy of this unpublished opinion is attached hereto as Exhibit B. 6 A copy of this unpublished opinion is attached hereto as Exhibit C. Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 5 of 53 -6- Injunction Response at 3-6. Landowners have not, and cannot, overcome Transco’s clear right to condemn. B. Landowners Cannot Challenge the Route Approved by the FERC in this Proceeding. To the extent that Landowners challenge the route aproved by the FERC, this Court lacks jurisdiction to decide that challenge, as it should have been directed toward the FERC. See UGI Sunbury LLC v. A Permanent Easement for 0.5211 Acres, No. 3:16-CV-00798, 2016 WL 3254988, at *6 (M.D. Pa. June 14, 2016)7 (“[I]f Defendants contend that [the condemnor’s] use of the land exceeds the property rights granted in the FERC Certificate, it is again well-settled that Defendants must make that challenge directly to FERC.”); Millennium Pipeline Co. v. Certain Permanent & Temp. Easements, 777 F. Supp. 2d 475, 481 (W.D.N.Y. 2011), aff’d sub nom. Millennium Pipeline Co. v. Certain Permanent & Temp. Easements, 552 F. App’x 37 (2d Cir. 2014) (“A district court's role in proceedings involving FERC certificates is circumscribed by statute, and when a landowner contends that the certificate holder is not in compliance with the certificate, that challenge must be made to FERC, not the court.”) (internal quotations omitted); Guardian Pipeline, L.L.C. v. 529.42 Acres of Land, 210 F. 7 This unpublished opinion is attached to Transco’s Brief in Support of Emergency Motion for Preliminary Injunction in the Appendix, Tab 4. See Dkt. 8-1. Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 6 of 53 -7- Supp. 2d 971, 975 (N.D. Ill. 2002) (“FERC has approved the route. . . . Any concerns about that intrusion should have been raised before FERC.”). C. Landowners’ Dissatisfaction with the Scope of the Rights of Way Is a Compensation Issue. If it is not a direct impermissible attack on the FERC Order, Landowners’ challenge to the scope of the Rights of Way can only be characterized as a compensation issue because the Rights of Way may affect Landowners’ use and enjoyment of their property. See MSJ Response at 4 and Injunction Response at 5 (arguing that “Defendant will be unable to access at least a significant portion of his property during the tenure of the construction of the pipeline”). While Landowners are free to challenge the valuation of the Rights of Way in the forthcoming compensation proceedings, their dissatisfaction with the scope of the FERC Order, the Rights of Way authorized by same, and any Project-related impact on their property does not impact Transco’s right to condemn. See Constitution Pipeline Co., LLC v. A Permanent Easement for 1.23 Acres And Temp. Easements for 1.52 Acres, No. 3:14-CV-2036 NAM, 2015 WL 1637976, at *1 (N.D.N.Y. Feb. 21, 2015)8 (“‘[O]nce a [certificate of public convenience and necessity] is issued by the FERC, and the gas company is unable to acquire the needed land by contract or agreement with the owner, the only issue before the district court in the ensuing eminent domain proceeding is the amount to be paid to 8 A copy of this unpublished opinion is attached hereto as Exhibit D. Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 7 of 53 -8- the property owner as just compensation for the taking.’”) (quoting Maritimes & Northeast Pipeline L.L.C. v. Decoulos, 146 F. App’x 495, 498 (1st Cir. 2005)). D. No Constitutional Violations Have Occurred. In their MSJ Response, Landowners claim, in conclusory fashion, that this taking violates their rights under the “Fourteenth, Eighth, Fifth, and First Amendments” of the United States Constitution. See MSJ Response at 6. They make no attempt, however, to explain how their constitutional rights have been violated aside from noting in passing that this taking “would constitute a deprivation of property without due process.” See id. Landowners’ due process argument is both procedurally defective and entirely without merit. 1. Landowners’ Due Process Challenge Is An Impermissible Attack on the FERC Order. First, this Court lacks jurisdiction to decide Landowners’ due process challenge. Both the Natural Gas Act and a substantial body of federal case law (completely absent from Landowners’ filings) instruct that (1) challenges to the issuance of a certificate order must follow a set jurisdictional track; (2) federal district courts cannot consider challenges to the validity of certificate orders issued by the FERC; and (3) challenges to the validity of a certificate order issued by the FERC have no role in a condemnation proceeding. Landowners’ attempt to cast a collateral attack on the FERC Order as a defense to condemnation cannot prevail. Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 8 of 53 -9- The Natural Gas Act provides a comprehensive and exclusive jurisdictional mechanism through which parties aggrieved by orders issued by the FERC may challenge same. See 15 U.S.C. § 717r. First, any challenge to an order issued by the FERC must be filed with the FERC through an application for rehearing. See id. § 717r(a). Then, within 60 days of the FERC’s ruling on an application for rehearing, aggrieved parties may file a petition for review in select federal courts of appeals. See id. § 717r(b). Under the Natural Gas Act’s exclusive jurisdictional framework, federal district courts lack jurisdiction to review orders issued by the FERC. See Williams Nat. Gas Co. v. City of Oklahoma City, 890 F.2d 255, 260-264 (10th Cir. 1989), cert. denied, 497 U.S. 1003 (1990) (“Judicial review under [§ 717r(b)] is exclusive in the courts of appeals once the FERC certificate issues.”); Steckman Ridge GP, LLC v. An Exclusive Nat. Gas Storage Easement Beneath 11.078 Acres, Nos. 08- 168, et al., 2008 WL 4346405, at *4 (W.D. Pa. Sept. 19, 2008)9 (“Under the statutory framework, there is no appeal of a FERC decision save to the appropriate Court of Appeals. Disputes as to the propriety of FERC's proceedings, findings, orders, or reasoning, must be brought to FERC by way of request for rehearing. Appeals may thereafter be brought before a U.S. Court of Appeals only.”) (internal 9 This unpublished opinion is attached to Transco’s Brief in Support of Emergency Motion for Preliminary Injunction in the Appendix, Tab 8. See Dkt. 8-1. Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 9 of 53 -10- citations omitted). As the United States Court of Appeals for the Eighth Circuit recently noted in a challenge to a condemnation under the Natural Gas Act, “[w]hen 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.” All. Pipeline L.P. v. 4.360 Acres of Land, More or Less, 746 F.3d 362, 365 (8th Cir. 2014) (citing City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336 (1958)). Landowners’ due process argument must fail as an impermissible attack on the FERC Order. 2. Due Process Only Requires an Opportunity To Be Heard In The Compensation Proceedings. Further, federal courts have found that, for the purposes of a taking, due process only requires that reasonable notice and the opportunity to be heard is provided in the compensation proceedings. See, e.g., Collier v. City of Springdale, 733 F.2d 1311, 1314 (8th Cir. 1984) (“[I]t is well settled that a sovereign vested with the power of eminent domain may exercise that power consistent with the constitution without providing prior notice, hearing or compensation so long as there exists an adequate mechanism for obtaining compensation.”); see also Presley v. City of Charlottesville, 464 F.3d 480, 489 (4th Cir. 2006) (“[W]hen the alleged deprivation is effectively a physical taking, procedural due process is satisfied so long as private property owners may pursue meaningful postdeprivation procedures to recover just compensation.”) (citing Bailey v. Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 10 of 53 -11- Anderson, 326 U.S. 203, 205 (1945)). Landowners have received,10 and will receive, the due process to which they are entitled. Landowners’ unsupported allegation that their due process rights will be violated by this taking fails and does not impact Transco’s right to condemn. II. THERE IS NO GENUINE DISPUTE AS TO THE MATERIAL FACTS. Landowners claim that there are material facts in dispute, but they have failed to present any evidence to dispute the facts relevant to Transco’s right to condemn. To defeat Transco’s partial summary judgment motion, the Landowners must show a genuine issue of material fact. Columbia Gas Transmission, 768 F.3d at 308-09. They have failed to carry this burden. There is no genuine dispute that Transco holds a certificate of public convenience and necessity, that the Rights of Way are necessary to construct, operate and maintain the Project, and that Transco is unable to acquire the Rights of Way by agreement with the Landowners as to compensation. Indeed, 10 During the FERC’s consideration of Transco’s application for a certificate order authorizing the Project, the public, and all landowners affected by the Project, had an opportunity to intervene in the FERC’s proceeding and comment on Transco’s application and the Project. Moreover, Landowners also had a meaningful opportunity to be heard after the FERC Order issued through the rehearing process, 15 U.S.C. § 717r(a), but they failed to submit a request for rehearing. See Myersville Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1327 (D.C. Cir. 2015) (“[A] commenter before the Commission who has ample time to comment on evidence before the deadline for rehearing is not deprived of a meaningful opportunity to challenge the evidence.”). Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 11 of 53 -12- Landowners have admitted, or otherwise have not challenged, the relevant material facts: • Landowners admit that the FERC issued the Certificate Order authorizing the Project. See Dtk. 22 (hereinafter “Counterstatement of Facts”), ¶ 1. • Landowners state that the drawings attached to the FERC Order and the Sztroin Declaration as Exhibit B “speak for themselves” and only deny, by way of generalization, “any inaccurate, inconsistent, or incomplete descriptions.” See Counterstatement of Facts, ¶ 4. Landowners, however, did not point to any specific “inaccurate, inconsistent, or incomplete descriptions.” • Landowners admit that they have rejected, or otherwise not accepted, an offer by Transco to purchase the Rights of Way for more than $3,000. See Counterstatement of Facts, ¶ 3. As set forth in Transco’s Motion, a well-established body of federal case law holds that the right to condemn is a limited inquiry. See, e.g., Columbia Gas Transmission, 768 F.3d at 304. Because Landowners have admitted, or otherwise not disproven, the material facts relevant to condemnation, the Court should grant partial summary judgment in favor of Transco. Because Landowners do not, and cannot, challenge the facts supporting Transco’s right to condemn with any evidence, the only issue remaining is compensation. There are no remaining merits issues, and therefore, as the Third Circuit Court of Appeals has recognized, Transco’s motion for preliminary injunction should also be granted. See Columbia Gas Transmission, 768 F.3d at 315. Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 12 of 53 -13- III. CONCLUSION. For the foregoing reasons, Transco respectfully requests that the Court grant its motions for partial summary judgment and for preliminary injunction. Respectfully submitted, SAUL EWING LLP s/ Elizabeth U. Witmer Elizabeth U. Witmer, Esq. (55808) Sean T. O’Neill, Esq. (205595) 1200 Liberty Ridge Drive, Suite 200 Wayne, PA 19087-5569 (610) 251-5062 ewitmer@saul.com soneill@saul.com Attorneys for Plaintiff Transcontinental Gas Pipe Line Company, LLC Dated: March 22, 2017 Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 13 of 53 Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 14 of 53 Constitution Pipeline Co., LLC v. A Permanent Easement..., Not Reported in... 2015 WL 1638250 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2015 WL 1638250 Only the Westlaw citation is currently available. United States District Court, N.D. New York. CONSTITUTION PIPELINE CO., LLC, Plaintiff, v. A PERMANENT EASEMENT FOR 1.80 ACRES AND TEMPORARY EASEMENT FOR 2.09 ACRES IN DAVENPORT, DELAWARE COUNTY, NEW YORK, Tax Parcel Number 24.–1–41; Robert J. Lidsky; and Beverly Travis, Defendants. No. 3:14–CV–2049 (NAM/RFT). | Signed Feb. 23, 2015. Attorneys and Law Firms Saul Ewing LLP, Elizabeth U. Witmer, Esq., of counsel, Wayne, PA, and, Stockli, Slevin and Peters, LLP, John P. Stockli, Jr., Esq., of counsel, Albany, NY, and, Saul Ewing LLP, Sean T. O'Neill, Esq., of counsel, Saul, Ewing LLP, Philadelphia, PA, and, Hiscock & Barclay LLP, Yvonne E. Hennessey, Esq., of counsel, Albany, NY, for Plaintiff. Office of Anne Marie Garti, Anne Marie Garti, Esq., Bronx, NY, for Defendants. MEMORANDUM–DECISION AND ORDER Hon. NORMAN A. MORDUE, Senior District Judge. *1 On December 2, 2014, the Federal Energy Regulatory Commission (“FERC”) issued an Order which, inter alia, authorized plaintiff Constitution Pipeline Co., LLC (“Constitution”) to construct and operate approximately 124 miles of new 30–inch diameter natural gas pipeline (“the Project”). The FERC Order granted to Constitution a certificate of public convenience and necessity (“FERC certificate”) under the Natural Gas Act (“NGA”), 15 U.S.C. § 717f. The NGA grants private natural gas companies the federal power of eminent domain where they hold a FERC certificate and either cannot acquire property by contract, or are unable to agree with the owner of the property on the amount of compensation to be paid for a necessary right of way for the transportation of gas. Id. at § 717f(h). 1 District court has jurisdiction in such cases when the amount claimed by the owner of the property to be condemned exceeds $3,000. Thus, “[o]nce a [certificate of public convenience and necessity] is issued by the FERC, and the gas company is unable to acquire the needed land by contract or agreement with the owner, the only issue before the district court in the ensuing eminent domain proceeding is the amount to be paid to the property owner as just compensation for the taking.” Maritimes & Northeast Pipeline, L.L.C. v. Decoulos, 146 Fed.Appx. 495, 498 (1st Cir.2005); Millennium Pipeline Co., L .L.C. v. Certain Permanent & Temp. Easements, 777 F.Supp.2d 475, 479 (W.D.N.Y.2011), aff'd 552 Fed.Appx. 37 (2d Cir.2014). Relying on its FERC Order, Constitution filed the instant action under section 71.1 of the Federal Rules of Civil Procedure against defendants, the owners of the subject property, to take the rights of way on the property necessary to install and construct pipeline facilities as part of the Project. The complaint (Dkt. No. 1) seeks an order and judgment holding that Constitution has the substantive right to condemn the rights of way, fixing the compensation to be paid to defendants for the rights of way, and granting title to the rights of way to Constitution. The complaint avers that the FERC Order covers rights of way described in the complaint and that, although Constitution has offered at least $3,000 for the rights of way, it has been unable to acquire the rights of way by agreement with the landowners. Currently before the Court are the following motions: • Constitution's Motion for Partial Summary Judgment (Dkt. No. 4) seeking partial summary judgment holding that Constitution has the substantive right to condemn a permanent right of way and easement and temporary easement as described in Exhibit A to the complaint; • Constitution's Omnibus Motion for Preliminary Injunction (Dkt. No. 5) seeking access to, possession of, and entry to the rights of way upon the filing of a bond; and • Defendants' motion (Dkt. No. 13) to dismiss the complaint. The Court first addresses defendants' contention that they were not “personally served” as required by the Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 15 of 53 Constitution Pipeline Co., LLC v. A Permanent Easement..., Not Reported in... 2015 WL 1638250 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Court's order and Rule 4 of the Federal Rules of Civil Procedure. Rule 4(e)(1) provides: “Unless federal law provides otherwise, an individual ... may be served in a judicial district of the United States by: (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made[.]” Section 308 of New York's Civil Practice Law & Rules provides: *2 Personal service upon a natural person shall be made by any of the following methods: 1. by delivering the summons within the state to the person to be served; or 2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business ...; or * * * 4. where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such affixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing, whichever is effected later; service shall be complete ten days after such filing ... [.] (Emphasis added.) The plain language of section 308 establishes that so-called “nail and mail” service under section 308(4) constitutes “personal service.” Defendants here do not allege that the process server in the instant case did not exercise due diligence in attempting service under sections 308(1) or (2) before serving under 308(4); rather, defendants only put forward the legal argument that section 308(4) service is not personal service. The Court rejects this argument. In support of their motion, defendants rely on section 401(a)(1) of the Clean Water Act (“CWA”), which requires “[a]ny applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters [to] provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate,” and further provides: “No license or permit shall be granted until the certification required by this section has been obtained or has been waived [.]” 33 U.S.C. § 1341(a) (1). Defendants contend that the FERC Order herein is invalid or insufficient because a certificate under section 401(a)(1) of the CWA (“CWA 401 certificate”) has not yet been obtained or waived; indeed, it is undisputed that Constitution's reapplication for a CWA 401 certificate is still pending. *3 In response to defendants' argument, plaintiff correctly points out that once a FERC certificate is issued, judicial review of the FERC certificate itself is only available in the circuit court. See 15 U.S.C. § 717r(b); Millennium Pipeline, 777 F.Supp.2d at 479; Kansas Pipeline Co. v. A 200 Foot By 250 Foot Piece of Land, 210 F.Supp.2d 1253, 1256 (D.Kan.2002) (“The district court lacks jurisdiction to review the validity and/ or conditions of a FERC certificate.”). As explained by the Tenth Circuit: [A] collateral challenge to the FERC order [granting certificate of public convenience and necessity under15 U.S.C. § 717f] could not be entertained by the federal district court. We agree with the appellants that the eminent domain authority granted the district courts under § 7(h) of the NGA, 15 U.S.C. § 717f(h), does not provide challengers with an additional forum to attack the substance and validity of a FERC order. The district court's function under the Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 16 of 53 Constitution Pipeline Co., LLC v. A Permanent Easement..., Not Reported in... 2015 WL 1638250 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 statute is not appellate but, rather, to provide for enforcement. Williams Natural Gas Co. v. City of Oklahoma City, 890 F.2d 255, 264 (10th Cir.1989); accord Guardian Pipeline, LLC v. 529.42 Acres of Land, 210 F.Supp.2d 971, 974 (N.D.Ill.2002) (“The jurisdiction of [district] court is limited to evaluating the scope of the FERC Certificate and ordering condemnation as authorized by that certificate”). It is not for this Court to decide whether the FERC Order was properly issued in the absence of a CWA 401 certificate. Defendants present no persuasive authority to the contrary. The Court rejects this argument. Defendants further argue that the FERC Order is “conditioned” upon Constitution's receipt of a CWA 401 certificate, and that therefore Constitution must wait until it has obtained a CWA 401 certificate before it can initiate eminent domain proceedings. This argument is defeated by a plain reading of the FERC Order in light of relevant case law. Defendants rely on Ordering Paragraph E, which states in part: “The certificate authority issued [herein] ... shall be conditioned on the following: ... (3) Applicants' compliance with the environmental conditions listed in the appendix to this order.” The Appendix to which Ordering Paragraph E(3) refers includes the following: “8. Prior to receiving written authorization from the Director of OEP [Officer of Energy Projects] to commence construction of their respective project facilities, the Applicants shall file documentation that they have received all applicable authorizations required under federal law (or evidence of waiver thereof).” Defendants argue that “all applicable authorizations required under federal law” includes the CWA 401 certificate. In finding that these provisions do not, as defendants argue, create a “condition precedent” such that Constitution cannot commence condemnation proceedings until it has obtained the CWA 401 certificate, the Court observes first that paragraph 8 of the Appendix requires applicants to show that they have received “all applicable authorizations” prior to receiving OEP authorization to commence construction—not prior to initiating eminent domain proceedings. Further, Ordering Paragraph E also provides that the certificate authority “shall be conditioned” on “(1) Applicants' completion of the authorized construction of the proposed facilities and making them available for service within 24 months from the date of this order[.]” Certainly, the completion of construction of the facilities cannot be a condition precedent to Constitution's exercise of eminent domain. In addition, paragraph 6 of the Appendix requires Constitution to “file updated status reports with the Secretary on a weekly basis until all construction and restoration activities are complete.... Status reports shall include: (a.) an update on the Applicant's efforts to obtain the necessary federal authorizations[.]” The requirement of weekly updates on Constitution's efforts to obtain federal authorizations clearly presupposes that they have not all been obtained prior to the exercise of eminent domain. As Constitution points out in its memorandum of law, because many of the environmental conditions in the Appendix can only be satisfied if Constitution has possession of the rights of way, and because some conditions cannot be completed until construction is complete and the Project is placed in service, “if Constitution were not allowed to exercise eminent domain authority until it had satisfied all conditions in the FERC Order, the Project could never be constructed.” The Court agrees; the FERC Order cannot reasonably be read to prohibit Constitution from exercising eminent domain authority until it has complied with all conditions set forth in the Appendix. Compare Mid–Atlantic Express, LLC v. Baltimore County, Md., 410 Fed.Appx. 653, 657 (4th Cir.2011) (holding that district court lacked jurisdiction to enter a preliminary injunction awarding immediate possession where FERC Order contained significant restrictions, including: “Mid–Atlantic shall not exercise eminent domain authority ... to acquire permanent rights-of-way ... until the required site specific residential construction plans have been reviewed and approved in writing by the Director of [OEP].” (emphasis added)). In contrast to the order in Mid–Atlantic Express, the conditions in the FERC Order in the instant case do not expressly restrict Constitution's right to exercise eminent domain, and they do not prevent this Court from granting the relief requested by Constitution. See, e.g., Columbia Gas Transmission, LLC v. 370.393 Acres, 2014 WL 5092880, *4 (D.Md. Oct. 9, 2014) (“A district court's role in proceedings involving FERC Orders is circumscribed by statute, and when a landowner contends that the certificate holder is not in compliance with the certificate, that challenge must be made to FERC, not the court.” (citing Millennium Pipeline, 777 F.Supp.2d at 281)); Portland Natural Gas Transmission Sys. v. 4.83 Acres of Land, 26 F.Supp.2d 332, 336 (D.N.H.1998) (“Compliance with FERC conditions cannot be used as a defense to the right of eminent domain and cannot be cited to divest the court of the authority to grant immediate entry and possession to the holder of a FERC certificate.”). The Court rejects the argument that Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 17 of 53 Constitution Pipeline Co., LLC v. A Permanent Easement..., Not Reported in... 2015 WL 1638250 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 Constitution must wait until it has obtained a CWA 401 certificate before it can initiate eminent domain proceedings. *4 The Court rejects defendants' argument that the relief sought by Constitution in its motion for partial summary judgment exceeds the scope of the FERC Order. Defendants raise no material question of fact on this issue. 2 The proposed orders submitted herein expressly limit the rights of way being condemned to those rights and facilities “approved by the Federal Energy Regulatory Commission pursuant to the Natural Gas Act and the Order of the Federal Energy Regulatory Commission dated December 2, 2014, Docket Nos. CP13–499–000 and CPl 3–502–000, 149 FERC 61,199 (2014).” (See also Affidavit of Matthew Swift, Project Manager for Constitution's operator Williams Gas Pipeline Company, LLC, and Project Manager for the Project, Dkt. Nos. 4– 3, 16–1). The Court has reviewed all arguments raised by defendants in support of their motion to dismiss, and finds that they lack merit. The motion is denied. Plaintiff has demonstrated that it meets the requirements of 15 U .S.C. § 717f(h): it has a certificate of public convenience and necessity issued by FERC; it has not been able to acquire the needed land by contract or agreement with the owner; and the owner has rejected an offer of at least $3,000. Thus, it is authorized to exercise the federal power of eminent domain. See Millennium Pipeline, 777 F.Supp.2d at 479. On this record, resolving all ambiguities and drawing all factual inferences in defendants' favor, the Court finds no genuine issue with regard to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 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 temporary easements as described in Exhibit A to the complaint. With respect to plaintiff's motion for a preliminary injunction, “once a district court determines that a gas company has the substantive right to condemn property under the NGA, the court may exercise equitable power to grant the remedy of immediate possession through the issuance of a preliminary injunction.” East Tenn. Natural Gas Co. v. Sage, 361 F.3d 808, 828 (4th Cir.2004). The standard for a preliminary injunction is as follows: In order to justify a preliminary injunction, a movant must demonstrate (1) irreparable harm absent injunctive relief; (2) either a likelihood of success on the merits, or a serious question going to the merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in the plaintiffs favor; and (3) that the public's interest weighs in favor of granting an injunction. A showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction. Singas Famous Pizza Brands Corp. v. New York Advertising LLC, 468 Fed.Appx. 43, 45 (2d Cir.2012) (citations and quotation marks omitted). 3 With respect to the second element, the Court has already determined that Constitution has succeeded on the merits. 4 *5 Regarding the likelihood of irreparable harm in the absence of the injunction, Constitution points to the provision in the FERC Order requiring Constitution to complete construction of the Project and make the new pipeline facilities available for service within twenty four months of the date of the FERC Order, or by December 2, 2016. The affidavit of Matthew Swift, Constitution's Project Manager, states that if Constitution does not have possession of the rights of way on or about February 16, 2015 for surveys and construction, “there is a likely risk that Constitution will not be able to begin construction in time to allow the Project to be completed by the anticipated in service date of December 2, 2016, which will cause Constitution to fail to comply with the conditions of the FERC Order and to suffer substantial damages.” Swift explains: 6. The pipeline is approximately 124 miles long, and in order to expedite construction, Constitution has divided the pipeline into 5 construction spreads, each of which will have twelve crews to perform all construction tasks.... 7. The construction of large-diameter natural gas pipelines is accomplished in linear segments, with a number of different crews performing different functions as part of the overall pipeline spread. Each Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 18 of 53 Constitution Pipeline Co., LLC v. A Permanent Easement..., Not Reported in... 2015 WL 1638250 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 crew follows the one ahead of it from one end of a construction spread to the other. The crews (and equipment) proceed sequentially in an assembly- like fashion along the construction corridor at a rate (distance per day) that depends on topography, road and stream crossings, and other factors. In addition, there will be specialty crews that typically do not work sequentially with the other crews. The specialty crews perform tasks such as road borings, stream installations, and trenchless crossings of environmentally sensitive areas. 8. Pipeline construction begins with tree and vegetation clearing, and installation of environmental controls, followed by grading and trenching. Thereafter, stringing, pipe bending, welding, and coating of the pipe takes place, followed by installation, backfilling, remediation, and restoration. The newly constructed pipeline will then be pressure-tested prior to being placed in service. 9. Generally once construction starts, the crews will move sequentially through all of the tasks for each pipeline segment until construction is complete. 10. Construction of the Project is also subject to significant restrictions intended to protect the environment and minimize the impact of construction on the environment. These restrictions are time sensitive and interdependent. The Swift affidavit goes on to explain in substantial detail the construction schedule, the FERC requirements prior to construction, and other restrictions on construction, as well as potential monetary losses. Constitution has demonstrated it will sustain immediate and irreparable harm in the absence of the injunction. Defendants claim hardship on the ground that the granting of a preliminary injunction “could lead to a destruction of trees, transformation of slopes, and other negative environmental and quality of life issues before it is even determined if the Plaintiff has the right to be on their land, or if the Plaintiff has illegally expanded the scope of FERC's Certificate.” Defendants add: “Having the privacy of one's land violated, and potentially torn asunder, is an irrevocable injury, far greater than some numbers on a balance sheet. This should not be allowed to happen until it is assured that the project will be built.” Such injuries, while perhaps severe, arise from the NGA and the FERC Order themselves, not the preliminary injunction. As already noted, it is not for this Court to review the substance and validity of the FERC order. See Williams Natural Gas, 890 F.2d at 264. Faced with FERC's Order and plaintiff's motions for relief within the scope of that order, this Court's role is one of enforcement. See id. In the exercise of its discretion, the Court finds that the speculative harm alleged by defendants weighs less heavily than the harms alleged by plaintiff. *6 Regarding the public interest, Swift explains in his affidavit that the Project “will provide additional natural gas capacity to meet the increased needs of customers in the New York and New England market areas” and “will provide new natural gas service for areas currently without access to natural gas, expand access to multiple sources of natural gas supply, improve operational performance, system flexibility and reliability in the New York and New England market areas and optimize the existing systems for the benefit of both current and new customers.” FERC has issued to Constitution a certificate of public convenience and necessity, and has determined that “benefits the Constitution Pipeline Project ... will provide to the market outweigh any adverse effects on existing shippers, other pipelines and their captive customers, and on landowners and surrounding communities.” The public's interest weighs in favor of granting a preliminary injunction. Weighing all of the relevant factors, including in particular defendants' allegations of harm, the Court holds that Constitution is entitled to a preliminary injunction granting access to, possession of, and entry to the rights of way upon the filing of a bond. In setting the amount of the bond, the Court accepts $2,900 as the appraised value of the subject property, as set forth in Exhibit A to the declaration of Elizabeth U. Witmer, Esq. (Dkt. No. 5–1). Accordingly, the Omnibus Motion for Preliminary Injunction (Dkt. No. 5) is granted upon the filing of a bond in the sum of $11,600. It is therefore ORDERED that plaintiff's Motion for Partial Summary Judgment (Dkt. No. 4) is granted, and the Court will sign the submitted Order; and it is further ORDERED that plaintiff's Omnibus Motion for Preliminary Injunction (Dkt. No. 5) is granted upon the Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 19 of 53 Constitution Pipeline Co., LLC v. A Permanent Easement..., Not Reported in... 2015 WL 1638250 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 filing of a bond in the sum of $11,600, and the Court will sign the submitted Order; and it is further ORDERED that defendants' Motion to Dismiss (Dkt. No. 13) is denied. IT IS SO ORDERED. All Citations Not Reported in F.Supp.3d, 2015 WL 1638250 Footnotes 1 15 U.S.C. § 717f(h) provides: 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.... [T]he United States district courts shall only have jurisdiction of the cases when the amount claimed by the owner of the property to be condemned exceeds $3,000. 2 Although defendants complain of the Court's initial briefing schedule, the Court modified the initial briefing schedule to allow all defendants at least 21 days to respond (Dkt. No. 7). Defendants have not sought additional discovery and have made no showing supporting discovery of additional facts at this stage of the matter. See Fed.R.Civ.P. 56(d); Falso v. Rochester City School Dist., 460 Fed.Appx. 60, 61 (2d Cir.2012). 3 Even accepting defendants' characterization of the injunction sought as a mandatory injunction, which should issue “only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief,” Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir.1985), the Court finds that Constitution has met this standard for the reasons set forth herein. 4 As the Third Circuit observed in Columbia Gas Transmission, LLC v. 1.01 Acres, 768 F.3d 300, 315 (3d Cir.2014): This is not a “normal” preliminary injunction, where the merits await another day. In those situations, the probability of success is not a certainty such that weighing the other factors is paramount. Here, there is no remaining merits issue; we have ruled that Columbia has the right to the easements by eminent domain. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 20 of 53 Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 21 of 53 Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, Slip Copy (2016) 2016 WL 1248670 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2016 WL 1248670 Only the Westlaw citation is currently available. United States District Court, D. Maryland. Columbia Gas Transmission, LLC, Plaintiff, v. 252.071 Acres More or Less, in Baltimore County, Maryland, et al. Defendants. Columbia Gas Transmission, LLC, Plaintiff, v. 14.7657 Acres More or Less, in Baltimore County, Maryland, et al. Defendants. Civil Action Nos. ELH-15-3462, ELH-15-3560 | Signed 03/25/2016 Attorneys and Law Firms Richard D. Holzheimer, Jr., McGuireWoods LLP, Tysons Corner, VA, Arnold M. Weiner, Barry L. Gogel, Rifkin Weiner Livingston Levitan & Silver, LLC, Baltimore, MD, Mark E. Shaffer, McGuireWoods LLP, McLean, VA, for Plaintiff. Joseph Peter Suntum, Miller Miller and Canby, Rockville, MD, Keith R. Truffer, Royston Mueller McLean and Reid LLP, Amor Neill Thupari, Venable LLP, Andrew Martin Battista, Andrew M. Battista PA, Michael Thomas Wyatt, Hewitt, Waicker & Keelty, LLC, Towson, MD, Kurt J. Fischer, Venable LLP, Patrick Dugan McKevitt, Whiteford Taylor and Preston LLP, Cynthia E. Rodgers-Waire, Wright Constable and Skeen LLP, Baltimore, MD, Adam Cizek, Thomas Carroll Beach, III, Whiteford Taylor and Preston LLP, Columbia, MD, for Defendants. David M. Grossman, Reisterstown, MD, pro se. Jodi K. Grossman, Reisterstown, MD, pro se. MEMORANDUM OPINION Ellen Lipton Hollander, United States District Judge *1 In this Memorandum Opinion, I consider motions for partial summary judgment and for immediate access to easements in two consolidated cases brought by Columbia Gas Transmission, LLC (“Columbia”), a natural gas company, against numerous landowner s in Baltimore County, Maryland. On November 13, 2015, Columbia filed a Complaint in Condemnation, supported by voluminous exhibits, naming 56 defendant landowners. ELH-15-3462 (hereinafter, “Case 1”), ECF 1; see ECF 1-1 through ECF 1-81. Then, on November 23, 2015, Columbia filed a Complaint in Condemnation against Greenspring Elseroad Associates, LP (“Greenspring”), another landowner in Baltimore County, also supported by exhibits. ELH-15-3560 (hereinafter, “Case 2”), ECF 1; see ECF 1-1 through ECF 1-5. 1 By Order of February 22, 2016 (Case 1, ECF 150; Case 2, ECF 31), I granted Columbia's unopposed Motion to Consolidate Case 1 and Case 2. Case 1, ECF 121; Case 2, ECF 18. 2 On November 21, 2013, the Federal Energy Regulatory Commission (“FERC”) issued a Certificate of Public Convenience and Necessity (the “FERC Certificate”) to Columbia, authorizing it “to construct and operate [the Line MB] pipeline and appurtenant facilities in Baltimore and Harford Counties, Maryland (Line MB Expansion Project),” ECF 1-40 at 2. In both suits, Columbia seeks to exercise the power of eminent domain, pursuant to the Natural Gas Act, 15 U.S.C. § 717 (“NGA”), to acquire permanent and temporary construction easements over real property, so as to construct and operate Line MB, a natural gas pipeline. Line MB would supplement and provide redundancy with respect to an existing pipeline, Line MA. Initially, under the FERC Certificate, construction of the MB pipeline was to be completed by November 21, 2015. ECF 1-40 ¶ 152(B)(1). On September 30, 2015, FERC granted Columbia's “request for an additional two-year extension of time, until November 21, 2017, to complete construction and make the facilities available for service.” ECF 1-41 at 2. Although Line MB will be approximately 21 miles long, this case concerns only a portion of Line MB, about eight miles in length. See Plaintiff's Exhibit 7. Subsequent to filing suit, Columbia voluntarily dismissed its claims as to twenty-seven of the defendants, presumably because Columbia reached settlement agreements with those defendants regarding the easements. ECF 10 through ECF 15; ECF 69, ECF 70, Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 22 of 53 Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, Slip Copy (2016) 2016 WL 1248670 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 ECF 73, ECF 74, ECF 77, ECF 99, ECF 105, ECF 107, ECF 126, ECF 127, ECF 148; ECF 115-1 at 2 n.2 (“Since filing its Complaint in Condemnation, Columbia has continued to negotiate with the landowners and reached additional agreements.”). Thirty defendants remain. I shall sometimes refer to them as the “Landowners.” *2 As to Case 1, on January 11, 2016, Columbia filed a Motion for Partial Summary Judgment (“MPSJ,” ECF 115) and a Motion for Immediate Possession of the Easements (“MIP,” ECF 116), both supported by a memorandum of law (ECF 115-1; ECF 116-1) and six exhibits. ECF 115-2 through ECF 115-7; ECF 116-2 through ECF 116-7. Twenty-two defendants, who own or lease thirteen tracts of land, oppose Columbia's motions, and some of the oppositions were filed jointly. In particular, the following defendants filed oppositions: Garrison Forest Associates, LP (“Garrison Forest”) and Louis and Mary Hogan jointly oppose the MPSJ (ECF 123) and the MIP (ECF 124); Judith S. Cardin; Stephen and Linda Scherr; Stephen G. Chandler, Trustee of the Stephen G. Chandler Revocable Trust; and Avery Chandler, Trustee of the Avery Chandler Revocable Trust, jointly oppose the MPSJ (ECF 142) and the MIP (ECF 143); Steven and Lisa Luray; Dean and Jill Fiergang; Chanan and Adriana Levy; Robert and Joan Iwanowski; Timothy S. Wang and Mary M. Herndon; and Benjamin Lowentritt and Lee Snyder jointly oppose the MPSJ (ECF 133) and the MIP (ECF 132); Timothy A. Waire, Jr. and Cynthia E. Rodgers-Waire oppose the MPSJ (ECF 135) and the MIP. ECF 136. 3 Some of the oppositions are accompanied by exhibits. As to Greenspring, Columbia filed a MPSJ (Case 2, ECF 15) and a MIP (Case 2, ECF 16) on January 11, 2016. The motions are substantially identical to Columbia' filings in Case 1. (ECF 115, ECF 116). Greenspring has filed an opposition to the MPSJ (Case 2, ECF 26) and an opposition to the MIP. Case 2, ECF 27. Greenspring's oppositions adopt the reasoning of the defendants in Case 1, as set forth in ECF 123; ECF 124; ECF 132; ECF 133; ECF 135; and ECF 136. I shall refer to all of the above-referenced defendants collectively as the “Opposing Defendants.” Six defendants never opposed or no longer oppose Columbia's motions, but remain in the case: David M. and Jodi K. Grossman; Stevenson University; Five Oaks Properties, LLC (“Five Oaks”); 4 and Nicholas J. Sabie and Patricia Ann Boyle. 5 See ECF 146, ECF 152 One landowner, Jeffrey Strzelczyk, was served December 5, 2015, and has not answered. ECF 91. On January 28, 2016, the Clerk granted Columbia's Motion for Entry of Default as to Mr. Strzelczyk. ECF 134. On February 12, 2016, Columbia filed a Consolidated Reply to the various defense submissions. ECF 144; Case 2, ECF 28. The Court held an evidentiary hearing on February 23, 2016. 6 Counsel for Columbia and attorneys for Garrison Forest; Mr. and Ms. Hogan; Mr. and Ms. Luray; Mr. and Ms. Fiergang; Mr. and Ms. Iwanowski; Mr. Waire and Ms. Rodgers-Waire; Mr, Wang and Ms. Herndon; Benjamin Lowentritt and Lee Snyder; Chanan and Adriana Levy; and Greenspring appeared at the hearing. 7 *3 On February 25, 2016, in response to issues discussed at the hearing, Mr. and Ms. Fiergang; Mr. and Ms. Iwanowski; Mr. and Ms. Luray; Chanan and Adriana Levy; Benjamin Lowentritt and Lee Snyder; and Mr. Wang and Ms. Herndon filed a “Supplemental Response in Opposition to Columbia Gas Transmission LLC's Motions for Partial Summary Judgment and for Immediate Possession of the Easements.” ECF 155. Thereafter, on March 7, 2016, Columbia filed “Columbia Gas Transmission LLC's Supplemental Information and Updated Plats in Support of its Motions for Partial Summary Judgment and Immediate Possession and in Opposition to Defendants' Supplemental Response” (ECF 160), which is accompanied by several exhibits. ECF 160-1; ECF 160-2. On March 9, 2016, Columbia filed “Columbia Gas Transmission, LLC's Amendment to Supplemental Information and Updated Plats in Support of its Motions for Partial Summary Judgment and Immediate Possession and in Opposition to Defendants' Supplemental Response” (ECF 161), which is accompanied by several exhibits. ECF 161-1. On March 15, 2016, Mr. and Ms. Fiergang; Mr. and Ms. Iwanowski; Mr. and Ms. Luray; Chanan and Adriana Levy; Benjamin Lowentritt and Lee Snyder; and Mr. Wang and Ms. Herndon filed a “Supplemental Response ... to Columbia Gas Transmission, LLC's Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 23 of 53 Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, Slip Copy (2016) 2016 WL 1248670 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 Supplemental Information and Updated Plats, Etc.” ECF 162. For the reasons that follow, I will grant the MPSJ. And, as discussed, infra, upon Columbia's payment into the Registry of the Court of a sum equal to its estimation of the value of the takings, plus the posting of a cash bond or surety bond to cover potential excess damages, I will grant the MIP. I. STANDARD OF REVIEW – SUMMARY JUDGMENT Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). The non-moving party must demonstrate that there are disputes of material fact so as to preclude the award of summary judgment as a matter of law. Matsushita Elec. Indus. Co. Ltd. v. Zenith, Radio Corp., 475 U.S. 574, 586 (1986). The Supreme Court has clarified that not every factual dispute will defeat the motion. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. There is a genuine issue as to material fact “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see Dulaney v. Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012). “A party opposing a properly supported motion for summary judgment 'may not rest upon the mere allegations or denials of [its] pleadings,' but rather must 'set forth specific facts' showing that there is a genuine issue for trial.”' Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed. R. Civ. P, 56(e)), cert. denied, 514 U.S. 1042 (2004); see also Celotex, 477 U.S. at 322-24. Moreover, in resolving a summary judgment motion, a court must view all of the facts, including reasonable inferences to be drawn from them, in the light most favorable to the non- moving party. See Matsushita Elec. Indus. Co. Ltd., 475 U.S. at 587; see also Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, 721 F.3d 264, 283 (4th Cir. 2013); FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013). *4 The judge's “function” in reviewing a motion for summary judgment is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. Thus, in considering a summary judgment motion, the court may not make credibility determinations. Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007). Moreover, in the face of conflicting evidence, such as competing affidavits, summary judgment ordinarily is not appropriate, because it is the function of the fact-finder to resolve factual disputes, including matters of witness credibility. See Black & Decker Corp. v. United States, 436 F.3d 431, 442 (4th Cir. 2006); Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-15 (4th Cir. 2002). However, to defeat summary judgment, conflicting evidence must give rise to a genuine dispute of material fact. Anderson, 477 U.S. at 247-18. If “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” then a dispute of material fact precludes summary judgment. Id. at 248; see Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013). Conversely, summary judgment is appropriate if the evidence “is so one-sided that one party must prevail as a matter of law” Anderson, 477 U.S. at 252. And, “the mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [movant].” Id. II. DISCUSSION A. Motions for Partial Summary Judgment In Columbia's MPSJ (Case 1, ECF 115; Case 2, ECF 15), it seeks an order confirming its right to acquire easements over the properties, as well as the right of ingress and egress with regard to temporary easements. See also Case Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 24 of 53 Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, Slip Copy (2016) 2016 WL 1248670 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 1, ECF 115-1 at 3; Case 2, ECF 15-1 at 2-3. In particular, Columbia seeks a “permanent and exclusive easement and right-of-way to construct, operate, maintain, replace, repair, remove, or abandon Line MB, for a total of fifty feet (50') in width, measured twenty five feet (25') to the center of Line MB on each side thereof...” Case 1, ECF 1 ¶ 50; see also Case 2, ECF 1 ¶ 15. Additionally, Columbia seeks temporary construction easements of “twenty-five (25) to fifty (50) feet on either side of and adjoining the permanent easements [which] serve the purpose of enabling Columbia to construct Line MB or to later relocate the pipeline, including restoration or clean-up activities.” Case 1, ECF 1 ¶ 49; see also Case 2, ECF 1 ¶ 14. The FERC Certificate notes, ECF 1-40 ¶ 114: “Columbia's 75-foot construction right-of-way and 50-foot permanent easement widths are typical widths used industry-wide to ensure safe working conditions minimize encroachment on the pipeline.” The Natural Gas Act and Federal Rule of Civil Procedure 71.1 frame the analysis. The NGA, 15 U.S.C. § 717f(h), states: 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. *5 Fed. R. Civ. P. 71.1 provides: (a) Applicability of Other Rules. These rules govern proceedings to condemn real and personal property by eminent domain, except as this rule provides otherwise. ... (c) Complaint. ... (2) Contents. The complaint must contain a short and plain statement of the following: (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. “Anyone who wishes to construct a natural gas pipeline in the United States must first obtain a Certificate of public convenience and necessity from ... FERC ..., the federal agency responsible for supervising and coordinating the production of energy in the United States.” Alliance 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 Cnty., N.D., 746 F.3d 362, 364 (8th Cir. 2014) (citing 15 U.S.C. § 717f(c)-(e)). If the recipient of a Certificate requires easements to construct its pipeline, and cannot acquire them by contract, the recipient may acquire the easements “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. § 717f. 8 “A district court's role in proceedings involving FERC certificates is circumscribed by statute.” Millennium Pipeline Co., L.L.C. v. Certain Permanent & Temp. Easements, 777 F. Supp. 2d 475, 481 (W.D.N.Y. 2011), aff'd, 552 F. App'x 37 (2d Cir. 2014). The district court's role is simply to evaluate the scope of the Certificate and to order condemnation of property as authorized in the Certificate. USG Pipeline Co. v. 1.74 Acres in Marion Cnty., Tenn., 1 F. Supp. 2d 816, 821 (E.D. Tenn. 1998). Disputes over the reasons and procedures for issuing certificates of public convenience and necessity must be brought to the FERC. 15 U.S.C. § 717r(a). Appeals may thereafter be brought to a United States Court of Appeals. 15 U.S.C. § 717r(b). Thus, when a landowner contends that the Certificate holder is not in compliance with the certificate, that challenge must be made to FERC, not the district court. Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 25 of 53 Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, Slip Copy (2016) 2016 WL 1248670 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 The court's role is thus a limited one. In Guardian Pipeline, L.L.C. v. 529.42 Acres of Land, 210 F. Supp. 2d 971 (N.D. I11. 2002), the court explained, id. at 974 (internal citations omitted): The jurisdiction of this court is limited to evaluating the scope of the FERC Certificate and ordering condemnation as authorized by that Certificate. The validity and conditions of the FERC Certificate cannot be collaterally attacked in district court. Review of the validity of the Certificate is the exclusive province of the appropriate court of appeals. This court's role is mere enforcement. *6 As noted, a holder of a FERC Certificate of public convenience and necessity that “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 ... 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....” 15 U.S.C. § 717f(h). It is undisputed that Columbia holds a FERC Certificate. It is also clear that Columbia has proposed, but has not reached, private agreements with the Opposing Defendants, although the proposed terms of those agreements do not necessarily correspond to the terms of the FERC Certificate. See ECF 115-1 at 6-7 (averring that Columbia sent offers to the Landowners, who did not accept those offers). The Opposing Defendants lodge several objections to Columbia's MPSJ and MIP. 1. The Opposing Defendants contend that Columbia failed adequately to identify the proposed easements, as required by Fed. R. Civ. P. 71.1. See ECF 123 at 4-5, ECF 135-1 at 7; see also ECF 133 at 12. In other words, they claim the property descriptions provided by Columbia are legally deficient. Although Columbia may have provided less detail than was provided in the cases on which it relies, the Opposing Defendants have not cited any federal cases —nor has the Court found any—in which condemnation was denied because the description of the easements was insufficient. Moreover, the requirements of Fed. R. Civ. P. 71.1 are not as stringent as the Opposing Defendants suggest. In general, Columbia provided the same type of information for each tract of land over which it seeks an easement. The Complaint includes the parcel number and liber folio number of each property, as well as the precise size of the proposed easements. ECF 1 ¶¶ 4-40, 52. Columbia also attached to its Complaint two types of maps purporting to depict each of the proposed easements. One set of maps identifies each particular lot for which Columbia seeks an easement relative to adjacent properties and major roads. See, e.g., ECF 1-2. The second group of maps contains diagrams purporting to show the path of the pipeline and the proposed easement on each tract of affected land. See, e.g., ECF 1-42. Moreover, after the hearing, Columbia submitted “revised plats ( [']Revised Plats['] ) with additional detail and information that addresses the [Opposing] Defendants' alleged concerns.” 9 ECF 160 at 3; see ECF 160-2 at 12-41. Columbia avers, ECF 160 at 3-4: The Revised Plats also provide the following additional information: (1) a bar scale that depicts the actual distances on the plat, (2) the location of the existing Line MA pipeline, (3) the location of the Line MB easement as approved by FERC, and (4) the distance between the existing Line MA pipeline and the Line MB easement, (5) the distance between the Line MA pipeline and the Line MB easement at the comers for some of the property, (6) the distance between the existing Line MA pipeline and some of the nearby buildings, (7) the distance between the existing Line MA pipeline and some of the nearby wells, and (8) additional property boundary features. Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 26 of 53 Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, Slip Copy (2016) 2016 WL 1248670 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 To be sure, these diagrams do not contain a surveyor's Certificate or a metes and bounds description of the properties in issue. In fact, the diagrams submitted with the Complaint expressly state, ECF 1-42 at 2; “Provided for general discussion purposes only. This is not a survey product. It should not be used for authoritative definition of legal boundary, or property title.” *7 The Revised Plats contain a similar disclaimer. The Revised Plats provide, ECF 160-2 at 41: “The proposed and existing easements combined constitute the Permanent Right-of-Way Area. All measurements and depictions are provided for general discussion purposes only. This is not a survey product. This should not be used for authoritative definition of legal boundary, or property title.” The information provided with regard to the property owned by Mr. and Ms. Iwanowski, and the location of the proposed easements constitutes a representative example of the descriptions provided by Columbia. The Complaint states, ECF 1 ¶¶ 21 and 52: Robert and Joan M. Iwanowski are residents of Maryland and are record owners of that certain parcel of real property located in the Eighth Election District, described as Parcel Identification Number 23-00-001202, as is more particularly described in that certain deed recorded in Liber 14855, Folio 264, recorded among the land records of Baltimore County, Maryland, comprising 12.5143 acres, more or less .... * * * Columbia seeks to acquire the following rights, more or less, from the Landowners for the purpose of extending Line MB on or near the Properties: * * * Iwanowski Property (a) Permanent Easement 1.2417 acres (b) Temporary Construction Easement 0.5069 acre (c) Additional Temporary Workspace 0.2893 acre In addition, Columbia appended diagrams that depict the location of the pipeline and the proposed easements on Mr, and Ms. Iwanowski's property. See ECF 1-21; 1, ECF 1-62. The first is a map of property lots in Baltimore County, with Mr. and Ms. Iwanowski's property highlighted. ECF 1-21 at 2. The second is a drawing of Mr. and Ms. Iwanowski's property, including the location of the pipeline and proposed easements. ECF 1-62 at 2. Columbia's Revised Plat as to Mr. and Ms. Iwanowski's property provides further information, including the location of the Line MB easement as approved by FERC; the distance between the existing Line MA pipeline and the Line MB easement; and the distance between the existing Line MA pipeline and a building. ECF 160-2 at 17. As noted, similar maps are attached to the complaints for all Landowners. See ECF 1-1 through ECF 1-38, ECF 1-42 through ECF 1-80; Case 2, ECF 1-1, ECF 1-4. Columbia's subsequent submissions (ECF 160, ECF 161) provide Revised Plats for each parcel of property owned by a remaining defendant. Rule 71.1 sets forth the requirements for a complaint in condemnation. It requires plaintiff's to include in the complaint a short and plain statement 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. (Emphasis added). Of import here, Rule 71.1 does not explicitly require any particular type of map, drawing, or measurement of the Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 27 of 53 Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, Slip Copy (2016) 2016 WL 1248670 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 7 interests to be acquired. Nor does it require a survey adequate for recording in local land records. Columbia refers to several cases in support of its argument that the information it has provided is sufficient to satisfy Rule 71.1. See ECF 144 at 5-6. In Guardian Pipeline, LLC, supra, 210 F. Supp. 2d at 975, the court determined that “legal descriptions and plat maps of the proposed easements” were sufficient to satisfy the plaintiff's burden to include a description of the property. Id. at 975. Similarly, in Hardy Storage Co., LLC v. An Easement to Construct, Operate & Maintain 12-Inch & 20-Inch Gas Transmission Pipelines Across Properties in Hardy Cnty., W Va., 2006 WL 1004719 (N.D.W. Va. Apr. 12, 2006), the court found that exhibits attached to the plaintiff's complaint that included “brief explanations of the rights to be condemned and drawings” were “very specific with regard to sizes and locations of the easements and rights-of-way in questions.” Id. at *3. Although the explanations were “brief” in regard to descriptions of property interests, the court observed that reading the explanations and drawings in conjunction very clearly identified “the sizes of the easements and rights-of-way in question,” and therefore the complaint satisfied the requirements of Rule 71.1. Id; see also Southern Natural Gas Co. v. Land, Cullman County, 197 F.3d 1368, 1375 (11th Cir. 1999) (finding that property described with legal description and plat map in conjunction with parties' decision to walk centerline of proposed easement within property boundaries is adequate to describe taking); E. Tenn. Natural Gas, LLC v. 1.28 Acres in Smyth Cnty., Va., 2006 WL 1133874, at *11 (W.D. Va. Apr. 26, 2006) (“[T]he Legal Descriptions along with the attached plats meet the requirements” of Fed. R. Civ. P 71.1.). *8 The information Columbia has provided in this case may be less detailed than that provided in the above-cited cases. Unlike in Guardian Pipeline, for instance, Columbia has not provided legal descriptions of the proposed easements in addition to its maps; in fact, Columbia itself notes that its drawings of the easements are not legal boundaries. See, e.g., ECF 1-62 at 2; ECF 160-2 at 41. Furthermore, it is unclear whether the maps provided here are as detailed as the maps in Hardy Storage, which the court described as “very specific.” Nonetheless, the information provided by Columbia satisfies Rule 71.1's requirement of “a short and plain statement of the interests to be acquired.” Columbia has identified the parcel number and liber folio number for each property, has provided a lot and block map of each property, has listed the precise size of each easement, and has submitted diagrams showing the location of the pipeline and the proposed easement on each property. In light of this information, the Opposing Defendants cannot convincingly claim that they are not on notice of the location and size of the proposed easements. And, the Opposing Defendants have not identified any cases in which a comparable description of proposed easements under the NGA was held to be inadequate. In addition, I am unpersuaded by the defense argument that Columbia's submissions to the Court are inadequate because they are not sufficiently detailed to be recorded in the local land records and thus could result in a cloud on the Landowners' title. See ECF 162 at 4 (“When there is a cloud placed on title by an insufficient and casual description for an easement, that creates an additional burden on the property owner to clarify the exact location of the easement, a task which is impossible when referring to the plats that Columbia alleges it uses in its take cases.”). Columbia counters, ECF 160 at 3: Columbia's [sic] has used plats that are virtually identical to the Original Plats [attached to the Complaint] to record the numerous easements that it acquired as part of the Line MB Project. ... In fact, several of these landowners have sold their property subject to these plats.... As such, there is no basis to argue that the plats are a cloud on title. See ECF 160-2 at 2-3, ¶¶ 7-8, “Supplemental Declaration of Michael S. McClain.” Even assuming that Columbia might need to produce more detailed maps in order to record its easements in the local land records, Rule 71.1 does not require the filings to satisfy local recording requirements. 2. Mr. and Ms. Luray; Mr. and Ms. Fiergang; Mr. and Ms. Iwanowski; Mr. Wang and Ms. Herndon; Benjamin Lowentritt and Lee Snyder (ECF 133 at 12-16); Mr. Waire and Ms. Rodgers-Waire (ECF 135-1 at 7-9); and Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 28 of 53 Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, Slip Copy (2016) 2016 WL 1248670 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 8 Greenspring (Case 2, ECF 26 ¶ 2) also argue that Columbia failed to negotiate with them before bringing suit, and thus did not demonstrate an inability to acquire by contract or agreement, as required by the NGA. 10 The crux of their argument is that Columbia failed to conform their negotiations to terms consistent with the FERC Certificate. They assert, ECF 133 at 15: The NGA “implies, if not directly mandates, that Columbia negotiate for the acquisition of exactly what it is entitled to get if it proceeds under its eminent domain authority, that is, an area which meets the authority granted by the FERC Certificate for exactly the land which is 'necessary' to construct the gas pipeline at issue at the time of the negotiation and no more than what is 'necessary.”' (Underlining in original.) See also ECF 135-1 at 8 (“Columbia has never negotiated with the Waires for a right-of-way to construct only a pipeline for the transport of natural gas and certainly not one within the restrictions placed upon Columbia in the FERC Certificate.”). Rather, the Opposing Defendants claim that, prior to filing suit, Columbia sought to acquire “Right of Way Agreements” (“ROW Agreements”), which would have granted Columbia rights beyond those anticipated by the FERC Certificate, to include, inter alia, the right to install multiple pipelines and telecommunications equipment. See ECF 133 at 14-16; ECF 135-1 at 8-9; see also ECF 133-1 at 11-15, 43-47; ECF 133-2 at 7-10, 27-31; ECF 133-3 at 14-17, 30-34, 43-47; ECF 133-4 at 7-11, 26-30; ECF 133-5 at 23-32, 51-55, 61-65; ECF 133-6 at 12-16, 31-35; ECF 135-4. *9 These defendants maintain that because the ROW Agreements exceeded the scope of the FERC Certificate, Columbia has not satisfied a prerequisite to its suits. See ECF 133 at 16; ECF 135-1 at 8. They also aver that, on the eve of filing suit, Columbia sent defendants “final offer” letters, which sought to obtain even greater property rights from the Landowners than was contemplated by Columbia's previous offers. See ECF 133 at 14, ECF 135-1 at 8-9. 11 Columbia contends that, before filing suit it “engaged in extensive negotiations with all of the landowners” who might be impacted by the construction of Line MB. ECF 115-1 at 6. It relies, inter alia, on the Declaration of Michael McClain, a Project Land Manager for Columbia, 12 who avers that Columbia negotiated with the Landowners, including all of the remaining defendants. See ECF 115-5 ¶ 5. Similarly, at the hearing, Mr. McClain testified that it is Columbia's practice to negotiate for ROW Agreements that exceed the scope of a FERC Certificate. Further, he testified that, during the course of the negotiations pertinent to this case, Columbia provided all the Landowners in this case with proposed ROW Agreements that sought rights beyond what the FERC Certificate granted. Columbia maintains that, under the National Gas Act, it is only required to show that it has been unable to acquire the property by contract or agreement with the owner, and that it is not precluded from seeking to acquire by negotiation more rights than allowed under the FERC. See ECF 144 at 7. I agree with Columbia. Regardless of the terms proposed through negotiations, Columbia's right to condemn is limited to the terms of the FERC Certificate. But, the statute does not prescribe the manner in which negotiations must proceed or the form that an offer to purchase the easements must take. Rather, “the Natural Gas Act merely requires that Columbia Gas be unable to come to an agreement.” Columbia Gas Transmission, LLC v. 370.393 Acres, More or Less in, Baltimore Cty., Maryland Located on Parcel Identification No. 20-00-013434, Owned By Williams, RDB-14-0469, 2014 WL 5092880, at *3 (D. Md. Oct. 9, 2014) (citing E. Tenn. Nat. Gas, LLC v. 1.28 Acres in Smyth Cty., Va., No. CIV.A. 1:06-CV-00022, 2006 WL 1133874, at *10 (W.D. Va. Apr. 26, 2006) (“I find that nothing in the Act or Federal Rule of Civil Procedure 71A 13 requires the condemnor to negotiate in good faith. All the Act requires is a showing that the plaintiff has been unable to acquire the property by contract or has been unable to agree with the owner of the property as to the compensation to be paid.”)). 3. *10 The Opposing Defendants also contend that Columbia is not entitled to prevail because its MPSJ and MIP seek rights beyond the scope of the FERC Certificate. ECF 123 at 2-4; ECF 133 at 17-18; ECF 135-1 at 6-7; see Case 2, ECF 26 ¶ 2. They cite Columbia's proposed ROW Agreements to support their claim that Columbia seeks to condemn more property than is permitted under the FERC Certificate. See, e.g., ECF 123 at 2 (“The proposed Right of Way Agreement easement is Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 29 of 53 Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, Slip Copy (2016) 2016 WL 1248670 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 9 excessive, as it purports to give Columbia rights that are not necessary to the project or contemplated by the FERC Certificate.”); ECF 133 at 17 (“The proposed Maryland Amendment to Right of Way Agreement is excessive, as it purports to give Columbia rights that are not 'necessary' to the Project or contemplated by the FERC Certificate.”); ECF 135-1 at 7 (“[T]he Motion should be denied because Columbia is seeking property rights far beyond its legal authority.”). Columbia counters that it seeks to condemn solely the property authorized by the FERC Certificate. ECF 144 at 6. Columbia has only requested an order confirming its right to condemn pursuant to the terms of the FERC Certificate. Indeed, Columbia's MPSJ seeks “an order confirming its right to condemn the Properties pursuant to the authority conferred by 15 U.S.C. § 717f(h).” ECF 115-1 at 12. Because the MPSJ does not seek any rights beyond those permitted by the statute and the FE RC Certificate, there is no merit to the Opposing Defendants' argument that Columbia seeks more than it is allowed under the Certificate. Defendants' arguments in opposition to partial summary judgment do not withstand scrutiny. Therefore, Columbia is entitled to partial summary judgment. B. Motions for Immediate Possession of the Easements In addition to its MPSJ, Columbia has filed a MIP which, if granted, would allow it to take possession of the easements prior to a trial to determine just compensation. See Case 1, ECF 116; Case 2, ECF 16. In this circuit, once a district court determines that a natural gas company possesses the right to condemn property under the NGA, the court may grant the company immediate possession in the form of a preliminary injunction, so long as the company establishes its entitlement to a preliminary injunction. E. Tenn. Natural Gas Co. v. Sage, 361 F,3d 808, 827-28 (4th Cir. 2004) (citations omitted). The Opposing Defendants object to the grant of immediate possession on two principal grounds. First, they urge the court to rule that, notwithstanding Sage, immediate possession is unavailable under the NGA. 14 Second, they argue that Columbia has not satisfied the requirements for a preliminary injunction. I conclude that, under Sage, immediate possession is available to Columbia. Moreover, as discussed below, I am satisfied that Columbia has satisfied the requirements for a preliminary injunction. 1. “The Natural Gas Act, like most statutes giving condemnation authority to government officials or private concerns, contains no provision for quick-take or immediate possession.” Sage, 361 F.3d at 811. Despite the absence of a statutory right to immediate possession, Columbia asks the Court to exercise its equitable powers to grant a preliminary injunction allowing immediate possession. In other words, Columbia argues that (1) it has a substantive right to condemn the property (as argued in the MPSJ); and (2) it has satisfied the requirements for a preliminary injunction. Therefore, according to Columbia, it is entitled to exercise its right to condemn prior to a trial on just compensation, notwithstanding the absence of a statutory right of immediate possession. See ECF 116-1 at 7-13. Many of the defendants contend that a judicial grant of immediate possession conflicts with Congress's decision not to include in the NGA an express statutory right to immediate possession, thereby violating separation of powers principles. See, e.g., ECF 132 at 3-11. This argument was squarely rejected by the Fourth Circuit in Sage, 361 F.3d 808. *11 Although many of the defendants appear to acknowledge that the Sage Court rejected an argument substantially identical to theirs, they nonetheless ask this Court to reject the Sage decision because “Supreme Court decisions requiring separation of powers take precedence over the Sage court decision, which is clearly in conflict. ... The Defendants submit that the Sage court's decision should, accordingly, not be followed by this court.” ECF 132 at 9. I cannot disregard binding Fourth Circuit precedent. In Sage, the Fourth Circuit reviewed the “mechanics of how the federal power of eminent domain is usually exercised.” Sage, 361 F.3d at 820. The late Judge Michael, Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 30 of 53 Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, Slip Copy (2016) 2016 WL 1248670 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 10 joined by Judges Niemeyer and Motz, explained for the Court, id. at 821 (citations, quotation marks, and some alterations omitted): Congress sometimes exercises the power of eminent domain directly by enacting a statute that appropriates specific property. Congress's normal practice, however, is to delegate the power of eminent domain to government officers who may condemn property in the name of the United States for public use. And Congress may ... grant condemnation power to private corporations executing works in which the public is interested. The Sage Court recognized that an eminent domain case generally proceeds down one of two procedural paths: “straight condemnation” or “quick-take.” Id. Under the first method, “the action usually proceeds to a determination of just compensation and final judgment before the condemnor takes possession.” Id. By contrast, under the “quick-take” method, which is prescribed mainly in the Declaration of Taking Act (“DTA”), 40 U.S.C. § 3114, applicable to the government, “the government may take possession of the condemned property at the beginning of the case.” Sage, 361 F.3d at 821. Critically, the DTA only applies to condemnation proceedings “'brought by and in the name of the United States,”' making it inapplicable in Sage, id. (quoting 40 U.S.C. § 3114(a)), and inapplicable here. In this context, the Sage Court considered whether “a court may use its equitable powers to grant a preliminary injunction allowing immediate possession when there is no provision for that relief in the NGA or Rule 71 A.” Id. at 823. The Sage Court reasoned that although the NGA does not provide a statutory right of immediate possession, a gas company may obtain immediate possession through the equitable remedy of a preliminary injunction. Id. at 818. In its view, the landowners “overlook[ed] the preliminary injunction remedy provided in the Federal Rules of Civil Procedure that were adopted with the tacit approval of Congress.” Id. at 824. The Fourth Circuit continued, id.: Rule 71A provides ... that the regular rules of procedure apply to any subject not covered by the special rule; Fed. R. Civ. P. 71A(a). Under the rules, then, a gas company with condemnation power under the NGA may apply under Rule 65(a) for a preliminary injunction awarding immediate possession. Congress has never given any indication that it disapproves of this procedure. ... Indeed, because Congress has not acted to restrict the availability of Rule 65(a)'s equitable (injunctive) remedy in an NGA condemnation, we conclude that the rule applies. See Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288, 291 (1960) (“Equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command.”). Further, the Court noted that the preliminary injunction process contains procedural safeguards that are comparable to those safeguards that apply in the context of a quick-take proceeding under the DTA. Id. In particular, it said, id. at 826 (internal citations omitted): *12 In an NGA condemnation where early possession is granted to a gas company, the landowner is protected ... by “the rule that title does not pass until just compensation has been ascertained and paid.” Therefore, if the gas company's deposit (or bond) is less than the final compensation awarded, and the company fails to pay the difference within a reasonable time, “it will become a trespasser, and liable to be proceeded against as such.” Likewise, if a FERC- regulated gas company was somehow permitted to abandon a pipeline project (and possession) in the midst of a condemnation proceeding, the company would be liable to the landowner for the time it occupied the land and for any “damages resulting to the [land] and to fixtures and improvements, or for the cost of restoration.” Thus, the Opposing Defendants' argument has been squarely rejected by the Fourth Circuit. Accordingly, it is rejected here. 2. Because the remedy of a preliminary injunction is available to Columbia, the next question is whether Columbia has demonstrated that it is entitled to such injunctive relief. Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 31 of 53 Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, Slip Copy (2016) 2016 WL 1248670 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 11 As the Fourth Circuit observed in Centro Tepeyac v. Montgomery County, 722 F.3d 184, 188 (4th Cir. 2013), a preliminary injunction is “an extraordinary remedy involving the exercise of a very far-reaching power, which is to be applied only in the limited circumstances which clearly demand it.” Id. (quotation marks and citation omitted). The movant may obtain such extraordinary relief only on a clear showing of entitlement. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam). In order to obtain a preliminary injunction under Rule 65(a), the movant must satisfy all four factors articulated by the Supreme Court in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008): (1) that the movant is “likely to succeed on the merits,” (2) that the movant is “likely to suffer irreparable harm in the absence of preliminary relief,” (3) that the “balance of equities tips in [the movant's] favor,” and (4) that “an injunction is in the public interest.” Accord Pashby v. Delia, 709 F.3d 307, 320 (4th Cir. 2013); Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011); WV Ass 'n of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir. 2009); Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010), reinstated in relevant part on remand, The Real Truth About Obama, Inc. v. F.E.C., 607 F.3d 355 (4th Cir. 2010) (per curiam). 15 a. Likelihood of success on the merits *13 In the context of this case, this element is coextensive with the MPSJ. Given that Columbia is entitled to partial summary judgment, Columbia has shown that it will prevail on the merits. b. Irreparable Harm A plaintiff seeking a preliminary injunction must make a clear showing that it will likely suffer irreparable harm in the absence of a preliminary injunction. Winter, 555 U.S. at 20. Columbia advances three principal reasons why Columbia (and its customers) will suffer irreparable harm if it is not permitted to proceed immediately with construction of this portion of Line MB. First, Columbia argues that Line MA is inadequate to provide its customers with reliable natural gas service. Second, Columbia maintains that it will suffer financial loss if it does not complete Line MB by a contractual deadline of October 31, 2016. Finally, Columbia submits that it will suffer irreparable harm if it is not permitted to commence construction of this segment of Line MB immediately, because the construction schedule cannot reasonably be altered. At the hearing, John Rinkus, a Construction Superintendent for Columbia, testified that Line MA, which is over 50 years old, is the sole pipeline that supplies the greater Baltimore area and much of the Mid- Atlantic region, According to Rinkus, the materials used to construct Line MA are not as durable as materials that are used today. Rinkus testified that, to perform maintenance on Line MA, Columbia must take portions of Line MA out of service and that it can do so for only limited periods of time without disrupting the gas supply. In addition, Mr. Rinkus testified that construction must be completed between April 1 and November 1, after the end of winter and before its return. During those months natural gas use is lower than it is during the winter months. He explains in his Declaration, ECF 116-2 ¶ 12: “The November 1, 2016 construction deadline was selected to ensure that Columbia's construction activities do not interfere with the high-demand period for natural gas which commences in November of each year. November also usually marks the beginning for cold weather in this region and cold weather makes construction more difficult and less safe,” See also id. ¶ 18. The FERC Certificate is also relevant. It explains, ECF 1-40 at 9 ¶ 26: Under the existing configuration, Columbia schedules service outages required for maintenance only during periods of moderate weather, when demands on its system for power generation and residential consumption are low, to minimize impacts to end users. The proposed facilities will enable Columbia to conduct more frequent maintenance and preventative pipeline inspections, which new PHMSA [ 16 ] rules will require, performing maintenance Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 32 of 53 Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, Slip Copy (2016) 2016 WL 1248670 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 12 and inspections on one line while maintaining delivery requirements to its shippers on the other line. *14 According to the FERC Certificate, id at 7 ¶ 20, “a second line on this part of Columbia's system would enable uninterrupted service to Columbia's customers during needed repairs.” The FERC Certificate also states, id. at 9 ¶ 27: “Staff's analysis also shows, among other things, that on a typical winter day ... the proposed facilities ... would increase hourly delivery capabilities and flexibility for service to Columbia's southern New Jersey and Washington, DC market areas, as well as to Baltimore, Maryland.” Columbia avers that a failure to complete construction of Line MB “will jeopardize the delivery of natural gas to Columbia's customers and cause irreparable harm to customers throughout the area.” ECF 160 at 2. In addition, Columbia submitted a Declaration of Jacob Frederick, its Project Manager for Line MB. ECF 160-1 ¶ 4. He asserts, id. ¶ 7: “Columbia's Line MA is the only line Columbia has in the Baltimore County corridor.” According to Mr. Frederick, Columbia “is under contractual obligation with [Baltimore Gas & Electric Company ('BG&E') ] to complete construction of the Project and to have Line MB in service no later than October 31, 2016.” Id. ¶ 12. Mr. Frederick explains that the completion of Line MB cannot be delayed because Line MB is part a “larger multistate modernization and replacement plan” (ECF 160-1 ¶ 5) in which funds for 2017 have already been allocated to “several projects in Pennsylvania, Ohio, and West Virginia ...” Id. ¶ 15; see id. ¶¶ 13-15. Mr. Rinkus testified at the hearing that Columbia uses a construction technique called “linear construction,” which is standard in the industry. He explained that linear construction can begin once Columbia has acquired the right to build on all properties in the segment. See also ECF 116-2 (Rinkus Decl.), ¶ 17; ECF 116-5 (McClain Decl.), ¶ 14. In his Declaration (ECF 116-2), Mr. Rinkus explains that this method of construction “proceed[s] from both ends of the proposed Pipeline.” Id. ¶ 14. He states, id.: It is extremely inefficient, costly, and, at times, not feasible to construct the line in short segments, i.e., beginning on a property over which Columbia has the necessary easements, then demobilizing and remobilizing around a property over which Columbia does not have easements, and then returning later to construct that portion of the pipeline. At the hearing, Columbia introduced a “Phase III (8- mile) Construction Schedule,” which outlines Columbia's plans for the linear construction pertinent to this case. Plaintiff's Exhibit 7. It anticipates approximately seven months to complete the eight-mile segment of Line MB that is at issue in this case. Id. Columbia describes eleven partially overlapping construction phases: “Survey Crew,” “Clearing Crew,” “Grading,” “Stream Crossing,” “Ditching,” “Engineering,” “Welding,” “Coating and Lowering,” “Padding and Backfilling,” “Test,” and “Final Clean Up.” Id. With the exception of the “Test” phase, Columbia anticipates that each phase of construction will take approximately six to nine weeks. Id. The Opposing Defendants contend that Columbia has failed to show irreparable harm. ECF 124 at 3-4, ECF 132 at 15, ECF 135-1 at 10. They advance four primary arguments. First, they submit that Columbia has demonstrated no irreparable harm aside from delaying “Columbia's own self-serving construction schedule.” ECF 135-1 at 10. The Opposing Defendants note that Columbia has already received one extension as to its FERC Certificate, through November 2017, and could request yet another extension. ECF 124 at 4; see ECF 132 at 15, ECF 135-1 at 10. Moreover, they argue, ECF 124 at 4: “The subject gas pipeline is a redundant line.” Second, defendants contend that Columbia has created the possibility of irreparable harm because “it has failed to obtain appraisals for the property rights it seeks and it delayed filing this action, even though FERC granted its Certificate authorizing condemnation more than two years ago.” ECF 124 at 4 (emphasis in original); see ECF 155 at 3 (“as Defendant, Garrison Forest, pointed out, Columbia could have filed the condemnation suits years ago to be in a position to get early possession of each parcel, so that when it finally obtained all of its construction permits, it could immediately proceed with access and construction. Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 33 of 53 Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, Slip Copy (2016) 2016 WL 1248670 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 13 The urgency, which it now alleges, is a product of its own inattention to detail.”); see ECF 135-1 at 10. *15 Third, they argue that mere difficulties in construction, such as the difficulties that Columbia identifies if it is not given immediate access to the easements, do not constitute irreparable injuries. See ECF 132 at 15. In particular, the Opposing Defendants maintain, ECF 124 at 4: “If the loss or diminution of construction efficiency is sufficient to constitute 'irreparable harm' then there can be no conceivable pipeline project that would not qualify for immediate possession by injunction and the end run around Congress would be complete.” Finally, the Opposing Defendants submit, ECF 132 at 15: “There is no irreparable harm resulting from a delay of several months while this trial runs its course and Columbia's right to take the easements it seeks is litigated.” See ECF 124 at 4. As a preliminary matter, the defense suggestion that Columbia could litigate all of its claims and build Line MB before the expiration of the current FERC Certificate in November 2017, is unfounded. See ECF 1-41. As noted, although Columbia has dismissed claims against roughly half of the defendants, more than two dozen defendants remain, involving twenty parcels of property. Based on the testimony at the hearing, it is apparent that some of these parcels are residential and some of them are commercial. Moreover, although some of the defendants do not oppose Columbia's motions, they have not settled and they may still require trials to determine just compensation. It would be far too cumbersome to proceed to one trial with more than two dozen defendants and twenty parcels. Even assuming that some defendants and properties could be joined for trial, Columbia would need to litigate several trials before it could even begin the lengthy construction process. See Sage, 361 F.3d at 828 (citing, with approval, the district court's conclusion that “separate hearings on compensation would be required for each of the eighty- five tracts involved”). It is not at all likely that this Court could accommodate, in the requisite time, the need for multiple trials, given the Court's busy docket. Indeed, the Court expedited the litigation of the pending motions, but it has countless other cases that also require time and attention, And, I cannot overlook that some or all of the Landowners may appeal the outcome of the trials, which could add to the delay. A substantially identical condemnation case involving Columbia, Columbia Gas Transmission, LLC v. 76 Acres of Land, More or Less, in Baltimore and Harford County, Maryland, et al, JFM-14-110, illustrates the delay inherent in litigation of this sort. That case, filed in January 2014, originally involved approximately half of the number of defendants as are at issue here. Id., ECF 1. I granted Columbia's Motion for Partial Summary Judgment (id., ECF 74, ECF 75) and Motion for Immediate Possession of the Easement in June and August 2014, respectively. Id., ECF 95. For trial, the case was transferred to Judge Motz, and in July 2015 he presided over a seven-day trial concerning just compensation to six landowners. Id., ECF 226 at 1; see also id., ECF 224 through ECF 231. Columbia and some of the defendants appealed to the Fourth Circuit. See id., ECF 280, ECF 285, ECF 289. That appeal is pending. 17 In short, the contention that Columbia could litigate its claims and then build Line MB before November 2017 is fanciful. I am also unpersuaded that Columbia has created the urgency requiring expedited relief by delaying in filing this action. See ECF 124 at 7. Columbia received its FERC Certificate on November 21, 2013. ECF 1-40 at 2. Yet, many defendants, including Mr. and Ms. Fiergang (ECF 133 at 4); Mr. and Ms. Luray (id. at 5); Mr. Wang and Ms. Herndon (id. at 7); and Mr, and Ms. Iwanowski (id. 8-9), maintain that Columbia first contacted them about the construction of Line MB during 2012—before Columbia even received its FERC Certificate. *16 Moreover, Columbia and the Landowners, including many of the Opposing Defendants, engaged in more than a year of negotiations concerning Columbia's proposed ROW Agreements. See generally ECF 133-1 through ECF 133-6. As Mr. McClain testified at the hearing, Columbia reached ROW Agreements with about 230 of the roughly 300 landowners affected by the construction of Line MB. Only after Columbia failed to reach agreements with the defendants did Columbia file suit. Although the defendants were certainly under no obligation to accept Columbia's proposed ROW Agreements, that many of them participated in extensive pre-suit negotiations with Columbia belies the Opposing Defendants' contention that Columbia delayed in filing suit. Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 34 of 53 Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, Slip Copy (2016) 2016 WL 1248670 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 14 In addition, the defense argument that Columbia is likely to receive a further extension on its FERC Certificate is unavailing. See ECF 124 at 4, ECF 132 at 15, ECF 135-1 at 10. To be sure, Columbia has received a two- year extension as to its FERC Certificate. ECF 1-41. As Mr. Waire and Ms. Rodgers-Waire note (ECF 135-1 at 10), the “extension request was granted by FERC in a matter of days.” See ECF 1-41 at 2. Yet, aside from the fact that FERC granted Columbia one extension, the Opposing Defendants proffer no evidence that a further extension is likely or even possible. See, e.g., ECF 162 at 2. In particular, the Opposing Defendants provided no information about the administrative process by which FERC Certificates are extended. In essence, they ask the Court simply to assume that FERC's extended deadline to complete Line MB can again be moved. I decline to do so. Even assuming that Columbia could obtain a further extension as to its FERC Certificate, requiring Columbia to wait to build Line MB would only exacerbate the prospect of irreparable harm to Columbia's customers, and thus to Columbia. Line MA was constructed more than fifty years ago, using materials that are no longer State of the art. It is the sole source of supply of natural gas for a substantial portion of the Baltimore and Mid- Atlantic regions. Mr. Frederick states in his unrefuted Declaration, ECF 160-1 ¶ 7: “Columbia's Line MA is the only line Columbia has in the Baltimore County corridor. Moreover, Line MA is the only pipeline in the area that directly connects to BG&E's network and has the capacity to fill BG&E's demand during peak use periods, including providing supplemental natural gas deliveries for emergency replenishment” See also ECF 1-40 ¶ 5 (“Columbia states that customers served from Line MA are susceptible to prolonged outages if service is required to be interrupted for repairs or maintenance because Columbia has only a single line in that corridor. Columbia further states that no other pipelines in the area directly connected to BG&E have capacity available during high flow periods to adequately provide emergency replacement gas deliveries.”) Because there is no redundancy for Line MA, Columbia can only take Line MA out of service for comparatively brief periods of maintenance. See ECF 160-1 ¶ 10. To be sure, as defendants note, there is no indication that Line MA will suffer an immediate, catastrophic failure. See ECF 162 at 2 (“the unsupported allegations of 'possibility' of some potential disaster do not equate with either 'necessity' nor 'emergency.”'). Yet, asking Columbia to delay in constructing Line MB is only likely to enhance the danger that Columbia's customers will be left without reliable, safe natural gas service. Columbia has demonstrated that, without immediate access to the easements, it will be unable to complete Line MB before its current FERC Certificate expires in November 2017. See ECF 1-41. As outlined by Mr. Rinkus's testimony at the hearing, his Declaration (ECF 116-2), and Columbia's “Phase III (8-mile) Construction Schedule” (Plaintiff's Exhibit 7), Columbia requires at least seven months to complete the segment of Line MB at issue in this suit. And, this segment is not coextensive with the length of the entire pipeline. Mr. Rinkus also testified that construction must be completed between April 1 and November 1, because of the weather, and because it is the period of the year in which natural gas use is the lowest. Accordingly, Columbia must either begin construction of Line MB immediately or wait until about April 1, 2017. And, Mr. Frederick's Declaration suggests that delay is not financially feasible for Columbia and would result in Columbia's breach of its contract with BG&E. See ECF 160-1 ¶¶ 12-15. Even disregarding Columbia's financial losses in the event of delay, as noted, it is highly unlikely, if not impossible, that Columbia could litigate its claims as to all of the defendants, including likely appeals, by April 2017, i.e the next season for construction. And, even if construction were to begin on April 1, 2017, that would leave virtually no margin to assure completion by the expiration of the FERC Certificate. *17 Courts in the Fourth Circuit have found similar circumstances sufficient to satisfy the “irreparable harm” element of the preliminary injunction test. For example, in Sage, 361 F.3d at 828, the Fourth Circuit affirmed the district court's finding of irreparable harm, noting that the plaintiff “would suffer undue delay” without a preliminary injunction “and that this delay would cause significant financial harm both to [plaintiff] and some of its putative customers.” Id. at 828 (internal quotation marks omitted). The Court also noted, id. at 828-29 (internal citations omitted, alterations in Sage): Constructing a ninety-four-mile pipeline is a complex project that can only progress in phases. Certain portions of the project have to be completed before construction can begin on other portions. Therefore, as the district court recognized, “any single parcel has the Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 35 of 53 Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, Slip Copy (2016) 2016 WL 1248670 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 15 potential of holding up the entire project.” Continuing, the court said, “[t]o require ETNG 18 to build up to a parcel of land [it] do[es] not possess, skip that parcel, and then continue on the other side would prove wasteful and inefficient.” Similarly, in Columbia Gas Transmission Corp. v. An Easement to Construct, Operate, & Maintain a 24-inch Gas Transmission Pipeline Across Properties in Greene Cnty., 2007 WL 2220530 (W.D. Va. July 31, 2007), the court found: “Plaintiff will suffer irreparable harm [because] it will be unable to stay on schedule for the construction of the Pipelines and, therefore, may not be able to meet the time requirements contemplated by the FERC Certificate and will delay delivery of natural gas to customers who need it.” Id. at *4. Accordingly, I conclude that Columbia has demonstrated that it will suffer irreparable harm if it is not permitted to construct this portion of Line MB immediately. c. Balance of Equities The Opposing Defendants argue that the equities weigh heavily in favor of the Landowners. See ECF 124 at 4-5; ECF 132 at 16. But, there is no indication in the record that they would suffer any greater harm if Columbia is granted immediate possession of the easements than if Columbia is not allowed access to the easements until the Court determines the amount of just compensation. Moreover, Columbia is “willing to deposit a sum of money representing Columbia's determined value of the Easements into a Court account or post bond as a condition of the requested relief.” ECF 116-1 at 12. As discussed, infra, before issuing an order as to the MIP, I will require Columbia to pay into the Registry of the Court, for each Landowner, a sum equal to Columbia's proposal valuation of each taking. No defendant has contested Columbia's valuations. The Landowners will be permitted to withdraw the sum applicable to his/her/ its property before a final determination is made as to the amount of the just compensation. Accordingly, the Landowners' interests will be protected. d. Public Interest “Congress passed the Natural Gas Act and gave gas companies condemnation power to ensure that consumers would have access to an adequate supply of natural gas at reasonable prices.” Sage, 361 F.3d at 830. By virtue of the FERC Certificate, FERC found that the construction and operation of an expanded Line MB pipeline promoted these congressional goals. Furthermore, improvements to aging infrastructure, pipeline safety, and service reliability serve the public interest. At the hearing, the Opposing Defendants conceded that the provision of natural gas service is a public good. Denying immediate access to and possession of the easements would result in a delay in construction, thus delaying the benefit of a pipeline that improves reliability and safety. In turn, this would pose a risk of harm to the public. See Sage, 361 F.3d at 826 (recognizing the need for natural gas supply as a “substantial public interest”). *18 For all these reasons, Columbia has demonstrated its entitlement to the MIP. II. Immediate Payment of Estimated Compensation and Security Fed. R. Civ. P 71.1(j) requires the plaintiff in a condemnation action to “deposit with the court any money required by law as a condition to the exercise of eminent domain.” Similarly, Rule 65(c) of the Federal Rules of Civil Procedure requires that a court “may issue a preliminary injunction ... only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” And, as noted, Columbia has represented that it is “willing to deposit a sum of money representing Columbia's determined value of the Easements into a Court account or post bond as a condition of the requested relief.” ECF 116-1 at 12. At the hearing, Columbia submitted Exhibit 8, which suggests the following amounts for a bond as to each property, to which no objections were lodged: 19 At the hearing, defense counsel argued that, as Columbia seeks immediate access to the easements to begin construction, Columbia should immediately pay the Landowners for the easements that Columbia seeks to acquire. See ECF 124 at 5 (“Columbia seeks immediate possession and use of the owners' properties, but wants Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 36 of 53 Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, Slip Copy (2016) 2016 WL 1248670 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 16 to deny the owners concurrent compensation for the property rights being taken.”). Columbia has not objected to making the funds immediately available to the Landowners. I agree with the Opposing Defendants, who assert that, if the Court grants the MIP, there is no reason why the Landowners should wait until the conclusion of litigation to be paid the sums that Columbia has assigned as the value of the takings. See Sage, 361 F.3d at 829 (“In any event, as the district court observed, the early loss of use argument 'is blunted by [the landowners'] right to draw down the money ETNG has deposited with the Court based on ETNG's appraisal,' that is, an independent appraisal obtained by the company.”). As Columbia will be given immediate access to the easements, the Landowners are entitled to immediate relief for Columbia's acquisition of their property. *19 Accordingly, prior to the entry of an order granting the MIP, Columbia will be required to deposit into the Registry of the Court the total sum of $438,450, which constitutes the total of Columbia's valuation for the takings as to all remaining defendants. See Plaintiffs Exhibit 8. Thereafter, each respective Landowner(s) may immediately withdraw all or part of the funds in the following proportions: Judith Cardin $8,000 Stephen & Avery Chandler (Trustees) $8,650 Dean & Jill Fiergang $13,000 Five Oaks $103,000 Garrison Forest $6,000 David & Jodi Grossman $5,000 Louis & Mary Hogan $37,000 Robert & Joan Iwanowski $64,000 Chanan & Adriana Levy $58,000 Benjamin Lowentritt & Lee Snyder $39,000 Stephen & Lisa Luray $10,000 Nicholas Sabie & Patricia Boyle $7,800 Linda & Stephen Scherr $7,500 Stevenson University $6,000 Jeffrey Strzelczyk $3,000 Timothy Waire & Cynthia Rodgers-Waire $25,500 Timothy Wang & Mary Herndon $22,000 Greenspring $15,000 The Opposing Defendants are forewarned that, if a final just compensation award is made for less than the amount withdrawn, they will be liable to Columbia for the excess. The Court is of the view that the above mentioned deposit may not be sufficient security under Federal Rule of Civil Procedure 65(c) to adequately protect the Landowners, because the Landowners may ultimately be Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 37 of 53 Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, Slip Copy (2016) 2016 WL 1248670 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 17 awarded additional just compensation at trial. Therefore, Columbia shall post a cash bond or a surety bond, in the amount of One Hundred Thousand Dollars ($100,000.00), as protection against damages in excess of the deposited funds that may be awarded or adjudged against plaintiff. III. Conclusion The Court will grant Columbia's Motion for Partial Summary Judgment. And, the Court finds that Columbia has satisfied the requirements for a preliminary injunction granting it immediate possession of the easements. However, as a predicate to the grant of Columbia's Motion for Immediate Possession, Columbia must deposit into the Court Registry the sum of $438,450, and post a bond, as outlined herein. An Order follows. All Citations Slip Copy, 2016 WL 1248670 Footnotes 1 Greenspring was originally a defendant in Case 1. ECF 1 ¶ 23. By Order of November 20, 2015 (ECF 21), I granted Columbia's “Notice of Voluntary Dismissal of Defendants [sic] Greenspring Elseroad Associates LP” (ECF 15). 2 Case 1 is designated as the lead case, and all subsequent filings are in that case only. Unless otherwise indicated, all citations to the record refer to Case 1. 3 Rodgers-Waire is an attorney representing herself and her spouse. She filed a “Consolidated Memorandum in Support of Defendants' Opposition to Motion for Partial Summary Judgment and Motion for Immediate Possession.” See ECF 135-1; ECF 136-1. 4 By letter to the Court dated February 18, 2016, Five Oaks stated, ECF 146 at 1: “Five Oaks is the ground lessor under a ground lease with 43 years remaining in the term, and the rent will not be significantly abated by the acquisition. The primary party in interest is Defendant, Garrison Forest Associates, LP, the ground lessee with a possessory interest for the next 43 years.” 5 By letter to the Court of February 22, 2016 (ECF 152), Mr. Sabie and Ms. Boyle withdrew their opposition to the MPSJ and the MIP. See ECF 130. 6 No transcript of the hearing is available. Accordingly, I rely on my notes of testimony and argument adduced at the hearing. 7 To my surprise, counsel for Ms. Cardin, Mr. and Ms. Scherr, and the Chandlers did not appear at the hearing, although counsel had filed an opposition on their behalf to both the MPSJ and MIP. The Court was informed that the lawyer had recently been appointed to the bench in Baltimore County. Because the Opposition of these parties, filed by counsel, had adopted the arguments of other defendants (see ECF 142, ¶ 1; ECF 143, ¶ 1), for whom an attorney was present, I proceeded with the hearing. Since the hearing, the attorney for Garrison Forest and Mr. and Ms. Hogan has also entered an appearance for Ms. Cardin, Mr. and Ms. Scherr, and the Chandlers. ECF 158. 8 Of course, the power of eminent domain implicates the Fifth Amendment to the United States Constitution. It states, in part: “[P]rivate property [shall not] be taken for public use, without just compensation.” 9 Columbia subsequently filed “Revised Plats” for several tracts that “were inadvertently omitted from Columbia's supplement memorandum” (ECF 160). ECF 161 ¶ 3; see ECF 161-1 at 4-11. 10 Garrison Forest and Mr. and Ms. Hogan do not contend that Columbia failed to negotiate with them for the precise easements contemplated by the FERC Certificate. See ECF 123. Garrison Forest submits, however, ECF 124 at 5: “Columbia has not even made an offer to Garrison Forest for its property rights as long-term ground lessee of the property owned by Five Oaks Properties, LLC.” As noted, supra, note 4, Five Oaks does not oppose Columbia's MPSJ and MIP and avers, ECF 146 at 1: “The primary party in interest is Defendant, Garrison Forest Associates, LP, the ground lessee with a possessory interest for the next 43 years.” At the hearing, Michael McClain testified that Columbia attempted to negotiate with both Five Oaks and Garrison Forest, but that neither Five Oaks nor Garrison Forest was willing to negotiate. 11 Mr. Waire and Ms. Rodgers-Waire submit (ECF 135-1 at 5): “Columbia has not made any attempt to negotiate in good faith with the Waires regarding the larger property area it now seeks to condemn.” At the hearing, however, various defendants seemed to concede that Columbia is not required to negotiate in “good faith,” 12 Whether Mr. McClain works for Columbia or is a subcontractor for Columbia is unclear. In his Declaration (ECF 115-5), McClain states that he is employed by Columbia. See id. ¶ 3 (“I am employed by Columbia Gas Transmission, LLC ... as Project Land Manager.”). At the hearing, Mr. McClain testified that he was a Land Manager for Contract Land Staff, LLC, a subcontractor of Columbia. This discrepancy is not material to the issues, however. Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 38 of 53 Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, Slip Copy (2016) 2016 WL 1248670 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 18 13 Fed. R. Civ. P. 71.1 was previously codified in Rule 71A. 14 Garrison Forest and the Hogans do not join other defendants in requesting that the Court decline to follow Sage, 361 F.3d 808. See ECF 124 at 2-3. 15 Mr. and Ms. Fiergang; Mr. and Ms. Iwanowski; Mr. and Ms. Luray; Chanan and Adriana Levy; Benjamin Lowentritt and Lee Snyder; and Mr. Wang and Ms. Herndon devote several pages of their Opposition (ECF 132) to criticism of Columbia's supposed reliance on the preliminary injunction standard from Blackwelder Furniture Co. v. Seilig Mfg. Co., Inc., 550 F.2d 189, 193-96 (4th Cir. 1977), which has since been abrogated. ECF 132 at 13-16. But, they do so without citation to Columbia's submissions. Columbia has correctly articulated the preliminary injunction standard established in Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) (ECF 116-1 at 6), and acknowledges that Blackwelder Furniture Co., 550 F.2d 189, no longer states the correct standard. See ECF 116-1 at 7 n.2. In a past case, Columbia Gas Transmission, LLC v. 76 Acres of Land, More or Less, in Baltimore and Harford County, Maryland, et al, JFM-14-110, Columbia had incorrectly relied on Blackwelder Furniture Co., 550 F.2d 189. See JFM-14-110, ECF 42-1 at 5. There, two of the defendants made a substantially identical objection to Columbia's reliance on Blackwelder Furniture Co., 550 F.2d 189. ECF 53 at 11-14. It seems that the defendants mentioned above merely assumed that Columbia repeated its error here. 16 PHMSA refers to the Pipeline and Hazardous Materials Safety Administration. ECF 1-40 at 7 ¶ 21. PHMSA operates under the aegis of the U.S. Department of Transportation. Pipeline and Hazardous Materials Safety Administration, Mission & Goals (Mar. 11, 2016, 1:51 PM), http://www.phmsa.dot.gov/about/mission. According to the PHMSA, its “mission is to protect people and the environment by advancing the safe transportation of energy and other hazardous materials that are essential to our daily lives.” Id. 17 On March 7, 2016, Columbia filed a “Stipulation of Voluntary Dismissal” as to two of the defendants. JFM-14-110, ECF 299. 18 “ETNG” is an abbreviation for “East Tennessee Natural Gas Company, a regional gas transportation company.” Sage, 361 F.3d at 818. 19 In earlier submissions, some defendants submitted ECF 124 at 2, stating: “Columbia has not had the property rights it seeks to acquire appraised ....” Defendants, however, have neither objected specifically to the valuations in Exhibit 8 nor offered contrary valuations. Landowner Proposed Bond Amount Judith Cardin $8,000 Stephen & Avery Chandler (Trustees) $8,650 Dean & Jill Fiergang $13,000 Five Oaks $103,000 Garrison Forest $6,000 ($3,000 as to each of the two tracts) David & Jodi Grossman $5,000 Louis & Mary Hogan $37,000 Robert & Joan Iwanowski $64,000 Chanan & Adriana Levy $68,000 Benjamin Lowentritt & Lee Snyder $39,000 Stephen & Lisa Luray $10,000 Nicholas Sabie & Patricia Boyle $7,800 Linda & Stephen Scherr $7,500 Stevenson University $6,000 ($3,000 as to each of the two tracts) Jeffrey Strzelczyk $3,000 Timothy Waire & Cynthia Rodgers-Waire $25,000 Timothy Wang & Mary Herndon $22,000 Greenspring $15,000 Total $438,450 End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 39 of 53 Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 40 of 53 Columbia Gas Transmission, LLC v. 370.393 Acres, More..., Not Reported in... 2014 WL 5092880 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2014 WL 5092880 Only the Westlaw citation is currently available. United States District Court, D. Maryland. COLUMBIA GAS TRANSMISSION, LLC, Plaintiff, v. 370.393 ACRES, MORE OR LESS IN, BALTIMORE COUNTY, MARYLAND LOCATED ON PARCEL IDENTIFICATION NUMBER 20–00– 013434, OWNED BY Stephen A. Williams and Christine C. Williams, et. al., Defendants. Civil Action No. 1:14–0469–RDB. | Signed Oct. 9, 2014. MEMORANDUM OPINION RICHARD D. BENNETT, District Judge. *1 This case is one of several 1 initiated by Plaintiff Columbia Gas Transmission, LLC (“Columbia Gas”) in this Court in order to obtain the land necessary for the construction of a natural gas pipeline in Baltimore County, Maryland. Pending before this Court is Columbia Gas' Motion for Partial Summary Judgment 2 in which Columbia Gas seeks an order confirming its right to condemn properties of the Defendants pursuant to the Natural Gas Act, 15 U.S .C. § 717f(h). The parties' submissions have been reviewed and a hearing was held on August 20, 2014. For the reasons that follow, Plaintiff Columbia Gas Transmission, LLC's Motion for Partial Summary Judgment (ECF No. 49) is GRANTED. BACKGROUND This Court reviews the facts and all reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007); see also Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir.2013). Plaintiff Columbia Gas Transmissions, LLC (“Columbia Gas”) is a natural gas company that has sued multiple property owners, the Defendants 3 , to obtain various easements and rights-of-way on their property to build a pipeline under the Natural Gas Act, 15 U.S .C.A. § 717, et seq. 4 Since the 1950s, Columbia Gas has operated a 26– inch gas pipeline (“Line MA”) in and around Baltimore. Line MA is currently the only pipeline providing gas to certain areas in Baltimore County. Line MA was constructed before federal pipeline safety standards were enacted in 1970, leaving the pipeline vulnerable to corrosion and failure. On November 21, 2013, the Federal Regulatory Energy Commission (“FERC”) granted a Certificate of Public Convenience and Necessity to begin a project involving the construction of a redundancy pipeline (“Line MB”) to serve Baltimore County in addition to Line MA. Line MB will be an approximately 21.1 mile pipeline that will be partially located on the properties in question. These properties are located in the middle of the linear 21.1 mile strip of land that Columbia Gas plans to use to construct its pipeline. Columbia Gas seeks to obtain certain temporary and permanent easements over the properties in order to successfully complete the construction of this project. Specifically, Columbia Gas seeks a combination of five types of easements: permanent easements, access road uses, temporary construction easements, staging yard uses, and temporary construction licenses. 5 The amount of acreage requested ranges from .0084 acres to 2.9649 acres. Columbia Gas has contacted the Defendants in an attempt to secure agreements granting Columbia Gas the requested easements. See Affidavit of Jacob Frederick ¶ 23, ECF No. 49–2 (“Columbia sent written offers to Landowners in December 2013, and January and February 2014.”). Defendants contend that these interactions have mainly consisted of simple form letters from Columbia Gas. Defendants have refused to agree to the terms offered by Columbia Gas, expressing concerns about the nature and scope of the requested property rights as well as the potential for damage to or decrease in value of their property. After these attempts to negotiate, Plaintiff filed its Complaint in Condemnation on February 8, 2014. 6 Thereafter, the Plaintiff filed the pending Motion for Partial Summary Judgment (ECF No. 49). 7 Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 41 of 53 Columbia Gas Transmission, LLC v. 370.393 Acres, More..., Not Reported in... 2014 WL 5092880 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 *2 During the pendency of this matter, Columbia Gas reached settlements with several of the Defendants, including Michael and Donna Oliver and Ruth and Bradley Moore. See ECF No. 71, 70. STANDARD OF REVIEW Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). A material fact is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248 (1986). A genuine issue over a material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In considering a motion for summary judgment, a judge's function is limited to determining whether sufficient evidence exists on a claimed factual dispute to warrant submission of the matter to a jury for resolution at trial. Id. at 249. The Natural Gas Act, 15 U.S.C. 717 et seq., governs the process for siting and constructing natural gas pipelines. Under that Act, natural gas pipeline companies that have obtained a certificate of public convenience and necessity from the Federal Energy Regulatory Commission have the right to condemn property for the purposes of pipeline construction. Under Rule 71.1 of the Federal Rules of Civil Procedure, a complaint for condemnation of property must contain the following information: (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). In such condemnation proceedings, the role of the district courts is limited: The district court's role is simply to evaluate the scope of the certificate and to order condemnation of property as authorized in the certificate. Disputes over the reasons and procedures for issuing certificates of public convenience and necessity must be brought to the FERC. Thus, when a landowner contends that the certificate holder is not in compliance with the certificate, that challenge must be made to FERC, not the district court. Columbia Gas Transmission, LLC v. 76 Acres More or Less, Civ. A. No. ELH–14–0110, 2014 WL 2960836 (D. Md. June 27, 2014), reconsideration denied, Civ. A. No. ELH–14–00110, 2014 WL 4723066 (D.Md. Sept. 22, 2014) (citations and quotation marks omitted). ANALYSIS In its Motion for Partial Summary Judgment, Columbia Gas seeks an order confirming its right to condemn the properties identified in the Complaint and owned by the named Defendants in order to construct a pipeline in Baltimore County, Maryland. The Natural Gas Act, 15 U.S.C. 717 et seq., governs the process for siting and constructing natural gas pipelines. Before constructing a pipeline, one “must first obtain a certificate of public convenience and necessity from the Federal Energy Regulatory Commission (‘FERC’), the federal agency responsible for supervising and coordinating the production of energy in the United States.” Alliance 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 Cnty., N.D., 746 F.3d 362, 364 (8th Cir.2014). After obtaining the FERC Certificate of public convenience and necessity, natural gas pipeline companies are granted the authority to condemn property for the purpose of constructing pipelines: *3 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 Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 42 of 53 Columbia Gas Transmission, LLC v. 370.393 Acres, More..., Not Reported in... 2014 WL 5092880 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 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, ... 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. 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: Provided, That the United States district courts shall only have jurisdiction of cases when the amount claimed by the owner of the property to be condemned exceeds $3,000. 15 U.S.C. § 717f(h). Moreover, as Judge Hollander of this Court has recently pointed out, the role of the district courts in proceedings such as this is rather limited: A district court's role in proceedings involving FERC certificates is circumscribed by statute. The district court's role is simply to evaluate the scope of the certificate and to order condemnation of property as authorized in the certificate. Disputes over the reasons and procedures for issuing certificates of public convenience and necessity must be brought to the FERC. Thus, when a landowner contends that the certificate holder is not in compliance with the certificate, that challenge must be made to FERC, not the district court. Columbia Gas Transmission, LLC v. 76 Acres More or Less, Civ. A. No. ELH–14–0110, 2014 WL 2960836 (D. Md. June 27, 2014), reconsideration denied, Civ. A. No. ELH–14–00110, 2014 WL 4723066 (D.Md. Sept. 22, 2014) (citations and quotation marks omitted). In this case, it is undisputed that Columbia Gas has obtained a certificate of public convenience and necessity from FERC on November 21, 2013 for the MB Line. Moreover, it is clear that Columbia Gas and the remaining Defendants have been unable to agree on the compensation to be paid for the easements. See Frederick Aff. ¶¶ 23–24 (stating that Columbia Gas sent written offers to the Defendants and that there is no agreement on a contract). These facts notwithstanding, the Defendants nevertheless argue that Columbia Gas is not entitled to summary judgment with respect to their right to condemn. One of Defendants' main contentions is that Columbia Gas has failed to engage in bona fide negotiations with the Defendants. See, e.g., Oliver Opp'n Mot. Summ. J. 1, ECF No. 55. However, the Natural Gas Act merely requires that Columbia Gas be unable to come to an agreement. See E. Tenn. Natural gas, LLC v. 1.28 Acres, Civ. A. No. 06–22 et al., 2006 WL 1133874, at *29 (W.D.Va. Apr. 26, 2006) (“[N]othing in the [Natural Gas] Act or Federal Rule of Civil Procedure 71A requires the condemnor to negotiate in good faith. All the Act requires is a showing that the plaintiff has been unable to acquire the property by contract or has been unable to agree with the owner of the property as to the compensation to be paid.'); see also Columbia Gas Transmission, LLC v. 76 Acres More or Less, 2014 WL 2960836, at *8 (“The statute does not prescribe the manner in which negotiations must proceed or the form that an offer to purchase the easements must take.”). As Columbia Gas has adequately shown an inability to agree on compensation, it has demonstrated all the negotiation that is required under the Natural Gas Act in order to obtain summary judgment with respect to its right to condemn the properties. *4 The Defendants also argue that the descriptions of the easements are inadequate. Columbia Gas has identified the subject properties by parcel number and liber folio number for each property. Additionally, Columbia Gas provided two maps/drawings that identify the affected properties and the proposed easement; these drawings, however, also contain a disclaimer stating that the drawings are for general information or discussion purposes only. Defendants assert that these descriptions Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 43 of 53 Columbia Gas Transmission, LLC v. 370.393 Acres, More..., Not Reported in... 2014 WL 5092880 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 are unreliable and inadequate because they do not allow for a precise description of Columbia Gas' rights. Under Rule 71.1 of the Federal Rules of Civil Procedure, a complaint for condemnation of property must contain the following information: (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). Thus, the rule “does not explicitly require any particular type of map, drawing, or measurement of the interests to be acquired .... [n]or does it require a survey adequate for recording in local land records.” Columbia Gas Transmission, LLC v. 76 Acres More or Less, 2014 WL 2960836, at *5. Under these facts—which are essentially identical to those of Columbia Gas Transmission, LLC v. 76 Acres More or Less—Columbia Gas has satisfied its burden of identifying the property under Rule 71.1 and, therefore, no additional descriptions are needed in order for Columbia Gas to obtain an order recognizing its right to condemn the properties. 8 Next, Defendants have asserted that Columbia Gas seeks rights that exceed those granted in the FERC Certificate. See Mem. Supp. Joint Consol. Resp. Defs. Wagners, Wichter/Erickson and Toomeys 6–8, ECF No. 60–1. However, as is clear in the Defendants' papers, the Defendants protest the terms offered by Columbia Gas during the negotiation process. These terms, by Columbia Gas's own admission, were broader than those sought in Columbia Gas' actual Complaint. Defendants have failed to identify a single right actually sought in Columbia Gas' Complaint that exceeds the scope of the FERC Certificate. Accordingly, the Defendants' contention is of no moment, and Columbia Gas is entitled to summary judgment with respect to its right to condemn. Finally, Defendants suggest that Columbia Gas has failed to comply with certain conditions precedent listed in the FERC Certificate. See Mem. Supp. Joint Consol. Resp. Defs. Wagners, Wichter/Erickson and Toomeys 8, ECF No. 60–1. However, “[a] district court's role in proceedings involving FERC certificates is circumscribed by statute, and when a landowner contends that the certificate holder is not in compliance with the certificate, that challenge must be made to FERC, not the court.” Millennium Pipeline Co. v. Certain Permanent & Temp. Easements, 777 F.Supp.2d 475, 481 (W.D.N.Y.2011) aff'd sub nom. Millennium Pipeline Co. v. Certain Permanent & Temp. Easements in (No No.) Thayer Rd., S.B.L. No. 63.00– 1–24.1, Town of Erin, Cnty. of Chemung, New York, 552 F. App'x 37 (2d Cir.2014) (internal quotation marks omitted). Defendants' attempt to distinguish Millennium Pipeline on the basis of the construction status of the pipeline is unpersuasive; FERC is charged with enforcing its certificates whereas the role of the federal district courts is to ensure that the scope of the certificate is not exceeded. See Portland Natural Gas Transmission Sys. v. 4.83 Acres of Land, 26 F.Supp.2d 332, 336 (D.N.H.1998) (“Compliance with FERC conditions cannot be used as a defense to the right of eminent domain and cannot be cited to divest the court of the authority to grant immediate entry and possession to the holder of a FERC certificate.”); Columbia Gas Transmission, LLC v. 76 Acres More or Less, Civ. A. No. ELH–14–0110, 2014 WL 2960836 (D. Md. June 27, 2014) (“[W]hen a landowner contends that the certificate holder is not in compliance with the certificate, that challenge must be made to FERC, not the district court.”). This Court has already determined that Columbia Gas' Complaint complies with the scope of the FERC Certificate; therefore, this Court's inquiry is at an end. CONCLUSION *5 For the reasons stated above, Plaintiff Columbia Gas Transmission, LLC's Motion for Partial Summary Judgment (ECF No. 49) is GRANTED. A separate Order follows. ORDER For the reasons stated in the foregoing Memorandum Opinion, it is this 9th day of October, 2014, ORDERED that: Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 44 of 53 Columbia Gas Transmission, LLC v. 370.393 Acres, More..., Not Reported in... 2014 WL 5092880 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 1. Plaintiff Columbia Gas Transmission, LLC's Motion for Partial Summary Judgment (ECF No. 49) is GRANTED; and 2. The Clerk of the Court transmit copies of this Order and accompanying Memorandum Opinion to the parties. All Citations Not Reported in F.Supp.3d, 2014 WL 5092880 Footnotes 1 The cases include: Columbia Gas Transmission LLC v. 0.36 Acres, Civ. A. No. WDQ–15–638; Columbia Gas Transmission LLC v. 0.85 Acres, Civ. A. No. WDQ–14–2288; Columbia Gas Transmission, LLC v. 561 Acres, Civ. A. No. MJG–14–338; Columbia Gas Transmission, LLC v. 76 Acres, Civ. A. No. ELH–14–110; Columbia Gas Transmission LLC v. Those Certain Parcels in Baltimore County and Harford County, Civ. A. No. JFM–14–220; and Columbia Gas Transmission, LLC v. 6 Acres, Civ. A. No. JFM–15–2057. 2 Columbia Gas had originally filed a Motion for Immediate Possession of the Easements as well (ECF No. 50), but that motion has since been withdrawn. 3 Defendants are property owners and residents of Baltimore County, Maryland. Original named Defendants included Stephen A. Williams and Christine C. Williams (the “Williamses”); Edmund Childs and Marian Childs (the “Childses”); Michael James Wagner and Linda Dolores Wagner (the “Wagners”); Joseph W. Witcher and Leslie E. Erickson (“Mr. Witcher” and “Ms. Erickson”); Paul R. Toomey and Kristine D. Toomey (the “Toomeys”); Michael D. Oliver and Donna L. Oliver (the “Olivers”); Lisa G. Moore, B. Lance Moore, Diane Miller Williams, Mary Miller DiFerdinando, Carol Madeline Miller, John Walter Miller; Ruth L. Moore and Bradley G. Moore (the “Moores”); Patrick George Welsh, Jr. (“Mr.Welsh”); Anthony H. DiFerdinando and Mary DiFerdinando (the “DiFerdinandos”), William H. Brown and Cynthia Marie McNeil Brown (the “Browns”), John T. Kerr, Jr. and Beth Lynch Kerr (the “Kerrs”), J. Erich Herwig and Ellen Herwig (the “Herwigs”), and Lancaster LLC. Early in this matter, Columbia Gas voluntarily dismissed this matter with respect to the following named Defendants: John T. Kerr, Jr., Beth Lynch Kerr, Lancaster LLC, William H. Brown, Cynthia McNeil Brown, J. Erich Herwig, Ellen Herwig. See ECF No. 48, 46, 31. Moreover, as noted below, the Moores and the Olivers have been voluntarily dismissed as well. See ECF Nos. 70, 71. 4 Columbia Gas and another gas company, BGE, already possess easements on some of the Defendants' properties, which were previously obtained by these companies for the construction and operation of pipelines. The Line MB project would expand these existing easements on the Defendants' lands. Specifically, the project proposes an expansion of the existing easements of 50 feet of permanent access and 25 to 50 feet of temporary access. Witcher Aff., ECF No. 60–3. 5 The precise rights sought as to each property are listed in the Complaint. See Pl.'s Compl. ¶ 29. 6 After the Complaint was filed, multiple Defendants filed a request for a More Definite statement, which this Court denied. ECF No. 65. 7 Additionally, the Plaintiff filed a Motion for Immediate Possession (ECF No. 50). However, the Plaintiff subsequently moved to withdraw that motion, see ECF No. 72, and this Court granted that motion to withdraw on August 18, 2014. See ECF No. 73. 8 Defendants have also contended that partial summary judgment is inappropriate because there has not yet been a chance for discovery concerning the nature and scope of the easements. However, this Court has already ruled that the descriptions are adequate at this stage of the proceeding, and the Defendants have not identified any information necessary for their defense at this stage. Of course, discovery will be permitted before this Court makes any rulings on the issue of compensation to be paid to the landowners. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 45 of 53 Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 46 of 53 Constitution Pipeline Co., LLC v. A Permanent Easement..., Not Reported in... 2015 WL 1637976 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2015 WL 1637976 Only the Westlaw citation is currently available. United States District Court, N.D. New York. CONSTITUTION PIPELINE CO., LLC, Plaintiff, v. A PERMANENT EASEMENT FOR 1.23 ACRES AND TEMPORARY EASEMENTS FOR 1.52 ACRES, IN DAVENPORT, DELAWARE COUNTY, NEW YORK, Tax Parcel Number 32.–1–20.1; William J. Roche; and Christine Bender, Defendants. No. 3:14–CV–2036 (NAM/RFT). | Signed Feb. 21, 2015. Attorneys and Law Firms Saul Ewing LLP, Elizabeth U. Witmer, Esq., of counsel, Wayne, PA, Stockli, Slevin and Peters, LLP, John P. Stockli, Jr., Esq., of counsel, Saul Ewing LLP, Sean T. O'Neill, Esq., of counsel, Saul, Ewing LLP, Philadelphia, PA, Yvonne E. Hennessey, Esq., of counsel, Albany, NY, for Plaintiff. Office of Anne Marie Garti, Anne Marie Garti, Esq., Bronx, NY, for Defendants. MEMORANDUM–DECISION AND ORDER Hon. NORMAN A. MORDUE, Senior District Judge. *1 On December 2, 2014, the Federal Energy Regulatory Commission (“FERC”) issued an Order which, inter alia, authorized plaintiff Constitution Pipeline Co., LLC (“Constitution”) to construct and operate approximately 124 miles of new 30–inch diameter natural gas pipeline (“the Project”). The FERC Order granted to Constitution a certificate of public convenience and necessity (“FERC certificate”) under the Natural Gas Act (“NGA”), 15 U.S.C. § 717f. The NGA grants private natural gas companies the federal power of eminent domain where they hold a FERC certificate and either cannot acquire property by contract, or are unable to agree with the owner of the property on the amount of compensation to be paid for a necessary right of way for the transportation of gas. Id. at § 717f(h). 1 District court has jurisdiction in such cases when the amount claimed by the owner of the property to be condemned exceeds $3,000. Thus, “[o]nce a [certificate of public convenience and necessity] is issued by the FERC, and the gas company is unable to acquire the needed land by contract or agreement with the owner, the only issue before the district court in the ensuing eminent domain proceeding is the amount to be paid to the property owner as just compensation for the taking.” Maritimes & Northeast Pipeline, L.L.C. v. Decoulos, 146 Fed.Appx. 495, 498 (1st Cir.2005); Millennium Pipeline Co., L .L.C. v. Certain Permanent & Temp. Easements, 777 F.Supp.2d 475, 479 (W.D.N.Y.2011), aff'd 552 Fed.Appx. 37 (2d Cir.2014). Relying on its FERC Order, Constitution filed the instant action under section 71.1 of the Federal Rules of Civil Procedure against defendants, the owners of the subject property, to take the rights of way on the property necessary to install and construct pipeline facilities as part of the Project. The complaint (Dkt. No. 1) seeks an order and judgment holding that Constitution has the substantive right to condemn the rights of way, fixing the compensation to be paid to defendants for the rights of way, and granting title to the rights of way to Constitution. The complaint avers that the FERC Order covers rights of way described in the complaint and that, although Constitution has offered at least $3,000 for the rights of way, it has been unable to acquire the rights of way by agreement with the landowners. Currently before the Court are the following motions: • Constitution's Motion for Partial Summary Judgment (Dkt. No. 4) seeking partial summary judgment holding that Constitution has the substantive right to condemn a permanent right of way and easement and temporary easements as described in Exhibit A to the complaint; • Constitution's Omnibus Motion for Preliminary Injunction (Dkt. No. 5) seeking access to, possession of, and entry to the rights of way upon the filing of a bond; • Defendants' Cross Motion for Summary Judgment (Dkt. No. 9) seeking summary judgment dismissing the action on the ground that the FERC Order is facially invalid and thus there is no case or controversy that is ripe for judicial review; and Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 47 of 53 Constitution Pipeline Co., LLC v. A Permanent Easement..., Not Reported in... 2015 WL 1637976 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 *2 • Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction (Dkt. No. 16) on the ground that plaintiff has failed to meet a condition in the FERC Order, and therefore there is no case or controversy before this Court. In support of their motions, defendants rely on section 401(a) (1) of the Clean Water Act (“CWA”), which requires “[a]ny applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters [to] provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate,” and further provides: “No license or permit shall be granted until the certification required by this section has been obtained or has been waived [.]” 33 U.S.C. § 1341(a) (1). Defendants contend that the FERC Order herein is invalid or insufficient because a certificate under section 401(a)(1) of the CWA (“CWA 401 certificate”) has not yet been obtained or waived; indeed, it is undisputed that Constitution's reapplication for a CWA 401 certificate is still pending. In response to defendants' argument, plaintiff correctly points out that once a FERC certificate is issued, judicial review of the FERC certificate itself is only available in the circuit court. See 15 U.S.C. § 717r(b); Millennium Pipeline, 777 F.Supp.2d at 479; Kansas Pipeline Co. v. A 200 Foot By 250 Foot Piece of Land, 210 F.Supp.2d 1253, 1256 (D.Kan.2002) (“The district court lacks jurisdiction to review the validity and/or conditions of a FERC certificate.”). As explained by the Tenth Circuit: [A] collateral challenge to the FERC order [granting certificate of public convenience and necessity under15 U.S.C. § 717f] could not be entertained by the federal district court. We agree with the appellants that the eminent domain authority granted the district courts under § 7(h) of the NGA, 15 U.S.C. § 717f(h), does not provide challengers with an additional forum to attack the substance and validity of a FERC order. The district court's function under the statute is not appellate but, rather, to provide for enforcement. Williams Natural Gas Co. v. City of Oklahoma City, 890 F.2d 255, 264 (10th Cir.1989); accord Guardian Pipeline, LLC v. 529.42 Acres of Land, 210 F.Supp.2d 971, 974 (N.D.Ill.2002) (“The jurisdiction of [district] court is limited to evaluating the scope of the FERC Certificate and ordering condemnation as authorized by that certificate”). It is not for this Court to decide whether the FERC Order was properly issued in the absence of a CWA 401 certificate. Defendants present no persuasive authority to the contrary. The Court rejects this argument. Defendants further argue that the FERC Order is “conditioned” upon Constitution's receipt of a CWA 401 certificate, and that therefore Constitution must wait until it has obtained a CWA 401 certificate before it can initiate eminent domain proceedings. This argument is defeated by a plain reading of the FERC Order in light of relevant case law. Defendants rely on Ordering Paragraph E, which states in part: “The certificate authority issued [herein] ... shall be conditioned on the following: ... (3) Applicants' compliance with the environmental conditions listed in the appendix to this order.” The Appendix to which Ordering Paragraph E(3) refers includes the following: “8. Prior to receiving written authorization from the Director of OEP [Officer of Energy Projects] to commence construction of their respective project facilities, the Applicants shall file documentation that they have received all applicable authorizations required under federal law (or evidence of waiver thereof).” Defendants argue that “all applicable authorizations required under federal law” includes the CWA 401 certificate. In finding that these provisions do not, as defendants argue, create a “condition precedent” such that Constitution cannot commence condemnation proceedings until it has obtained the CWA 401 certificate, the Court observes first that paragraph 8 of the Appendix requires applicants to show that they have received “all applicable authorizations” prior to receiving OEP authorization to commence construction—not prior to initiating eminent domain proceedings. Further, Ordering Paragraph E also provides that the certificate authority “shall be conditioned” on “(1) Applicants' completion of the authorized construction of the proposed facilities and making them available for service within 24 months from the date of this order[.]” Certainly, the completion of construction of the facilities cannot be a condition precedent to Constitution's exercise of eminent domain. In addition, paragraph 6 of the Appendix requires Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 48 of 53 Constitution Pipeline Co., LLC v. A Permanent Easement..., Not Reported in... 2015 WL 1637976 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 Constitution to “file updated status reports with the Secretary on a weekly basis until all construction and restoration activities are complete.... Status reports shall include: (a.) an update on the Applicant's efforts to obtain the necessary federal authorizations[.]” The requirement of weekly updates on Constitution's efforts to obtain federal authorizations clearly presupposes that they have not all been obtained prior to the exercise of eminent domain. As Constitution points out in its memorandum of law, because many of the environmental conditions in the Appendix can only be satisfied if Constitution has possession of the rights of way, and because some conditions cannot be completed until construction is complete and the Project is placed in service, “if Constitution were not allowed to exercise eminent domain authority until it had satisfied all conditions in the FERC Order, the Project could never be constructed.” The Court agrees; the FERC Order cannot reasonably be read to prohibit Constitution from exercising eminent domain authority until it has complied with all conditions set forth in the Appendix. Compare Mid–Atlantic Express, LLC v. Baltimore County, Md., 410 Fed.Appx. 653, 657 (4th Cir.2011) (holding that district court lacked jurisdiction to enter a preliminary injunction awarding immediate possession where FERC Order contained significant restrictions, including: “Mid–Atlantic shall not exercise eminent domain authority ... to acquire permanent rights-of-way ... until the required site specific residential construction plans have been reviewed and approved in writing by the Director of [OEP].” (emphasis added)). In contrast to the order in Mid–Atlantic Express, the conditions in the FERC Order in the instant case do not expressly restrict Constitution's right to exercise eminent domain, and they do not prevent this Court from granting the relief requested by Constitution. See, e.g., Columbia Gas Transmission, LLC v. 370.393 Acres, 2014 WL 5092880, *4 (D.Md. Oct. 9, 2014) (“A district court's role in proceedings involving FERC Orders is circumscribed by statute, and when a landowner contends that the certificate holder is not in compliance with the certificate, that challenge must be made to FERC, not the court.” (citing Millennium Pipeline, 777 F.Supp.2d at 281)); Portland Natural Gas Transmission Sys. v. 4.83 Acres of Land, 26 F.Supp.2d 332, 336 (D.N.H.1998) (“Compliance with FERC conditions cannot be used as a defense to the right of eminent domain and cannot be cited to divest the court of the authority to grant immediate entry and possession to the holder of a FERC certificate.”). The Court rejects the argument that Constitution must wait until it has obtained a CWA 401 certificate before it can initiate eminent domain proceedings. *3 The Court has carefully reviewed all issues raised by defendants in their cross motion for summary judgment (Dkt. No. 9) and motion to dismiss for lack of subject matter jurisdiction (Dkt. No. 16), and finds that they lack merit. The motions are denied. The Court next turns to plaintiff's motion for partial summary judgment holding that Constitution has the substantive right to condemn a permanent right of way and easement and temporary easements as described in Exhibit A to the complaint. Summary judgment is appropriate when there is no genuine issue with regard to any material fact, and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Stated otherwise, summary judgment is appropriate “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party[.]” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When deciding a summary judgment motion, the court must “resolve all ambiguities and draw all factual inferences in favor of the party opposing the motion.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999). Constitution has demonstrated that it meets the requirements of 15 U.S.C. § 717f(h): it has a certificate of public convenience and necessity issued by FERC; it has not been able to acquire the needed land by contract or agreement with the owners; and the owners have rejected an offer of compensation in excess of $3,000. Thus, Constitution is authorized to exercise the federal power of eminent domain. See Millennium Pipeline, 777 F.Supp.2d at 479. The Court rejects defendants' argument that the relief sought by Constitution in its motion for partial summary judgment exceeds the scope of the FERC Order. Defendants raise no material question of fact on this issue. 2 The proposed orders submitted herein expressly limit the rights of way being condemned to those rights and facilities “approved by the Federal Energy Regulatory Commission pursuant to the Natural Gas Act and the Order of the Federal Energy Regulatory Commission dated December 2, 2014, Docket Nos. CP13–499–000 and CPl 3–502–000, 149 FERC 61,199 (2014).” (See Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 49 of 53 Constitution Pipeline Co., LLC v. A Permanent Easement..., Not Reported in... 2015 WL 1637976 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 also Affidavit of Matthew Swift, Project Manager for Constitution's operator Williams Gas Pipeline Company, LLC, and Project Manager for the Project, Dkt. No. 4–3). Resolving all ambiguities and drawing all factual inferences in favor of defendants, the Court finds no genuine issue with regard to any material fact. 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. Finally, the Court turns to consider plaintiff's motion for a preliminary injunction. “[O]nce a district court determines that a gas company has the substantive right to condemn property under the NGA, the court may exercise equitable power to grant the remedy of immediate possession through the issuance of a preliminary injunction.” East Tenn. Natural Gas Co. v. Sage, 361 F.3d 808, 828 (4th Cir.2004). The standard for a preliminary injunction is as follows: *4 In order to justify a preliminary injunction, a movant must demonstrate (1) irreparable harm absent injunctive relief; (2) either a likelihood of success on the merits, or a serious question going to the merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in the plaintiffs favor; and (3) that the public's interest weighs in favor of granting an injunction. A showing of irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction. Singas Famous Pizza Brands Corp. v. New York Advertising LLC, 468 Fed.Appx. 43, 45 (2d Cir.2012) (citations and quotation marks omitted). 3 With respect to the second element, the Court has already determined that Constitution has succeeded on the merits. 4 Regarding the likelihood of irreparable harm in the absence of the injunction, Constitution points to the provision in the FERC Order requiring Constitution to complete construction of the Project and make the new pipeline facilities available for service within twenty four months of the date of the FERC Order, or by December 2, 2016. The affidavit of Matthew Swift, Constitution's Project Manager, states that if Constitution does not have possession of the rights of way on or about February 16, 2015 for surveys and construction, “there is a likely risk that Constitution will not be able to begin construction in time to allow the Project to be completed by the anticipated in service date of December 2, 2016, which will cause Constitution to fail to comply with the conditions of the FERC Order and to suffer substantial damages.” Swift explains: 6. The pipeline is approximately 124 miles long, and in order to expedite construction, Constitution has divided the pipeline into 5 construction spreads, each of which will have twelve crews to perform all construction tasks.... 7. The construction of large-diameter natural gas pipelines is accomplished in linear segments, with a number of different crews performing different functions as part of the overall pipeline spread. Each crew follows the one ahead of it from one end of a construction spread to the other. The crews (and equipment) proceed sequentially in an assembly- like fashion along the construction corridor at a rate (distance per day) that depends on topography, road and stream crossings, and other factors. In addition, there will be specialty crews that typically do not work sequentially with the other crews. The specialty crews perform tasks such as road borings, stream installations, and trenchless crossings of environmentally sensitive areas. 8. Pipeline construction begins with tree and vegetation clearing, and installation of environmental controls, followed by grading and trenching. Thereafter, stringing, pipe bending, welding, and coating of the pipe takes place, followed by installation, backfilling, remediation, and restoration. The newly constructed pipeline will then be pressure-tested prior to being placed in service. *5 9. Generally once construction starts, the crews will move sequentially through all of the tasks for each pipeline segment until construction is complete. 10. Construction of the Project is also subject to significant restrictions intended to protect the environment and minimize the impact of construction Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 50 of 53 Constitution Pipeline Co., LLC v. A Permanent Easement..., Not Reported in... 2015 WL 1637976 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 on the environment. These restrictions are time sensitive and interdependent. The Swift affidavit goes on to explain in substantial detail the construction schedule, the FERC requirements prior to construction, and other restrictions on construction, as well as potential monetary losses. Constitution has demonstrated it will sustain immediate and irreparable harm in the absence of the injunction. Defendants urge that if a preliminary injunction is granted, they will suffer the irreparable injury of “an unwanted intrusion onto their land and a permanent scarring of their property.” Such injuries, while perhaps severe, arise from the NGA and the FERC Order, and will occur regardless of whether the Court grants a preliminary injunction to Constitution. Defendants further argue that, by allowing the Project to go forward now, the preliminary injunction will cause injury that they might otherwise be spared; this argument is grounded on their speculation that Constitution may never obtain a CWA 401 certificate. Inasmuch as FERC has not required Constitution to obtain a CWA 401 certificate prior to exercising its right to eminent domain, such a claim of possible injury does not weigh against allowing Constitution to exercise that right immediately. Nor do defendants raise a significant claim of injury based on the speculation that the FERC Order may be defeated in some other manner. That is not a matter properly before this Court. As noted, it is not for this Court to review the substance and validity of the FERC order. See Williams Natural Gas, 890 F.2d at 264. Faced with FERC's Order and plaintiff's motions for relief within the scope of that order, this Court's role is one of enforcement. See id. Defendants have not demonstrated that they will suffer harm resulting from the preliminary injunction itself. In the exercise of its discretion, the Court finds that the speculative harm alleged by defendants weighs less heavily than the harms alleged by plaintiff. Regarding the public interest, Swift explains in his affidavit that the Project “will provide additional natural gas capacity to meet the increased needs of customers in the New York and New England market areas” and “will provide new natural gas service for areas currently without access to natural gas, expand access to multiple sources of natural gas supply, improve operational performance, system flexibility and reliability in the New York and New England market areas and optimize the existing systems for the benefit of both current and new customers.” FERC has issued to Constitution a certificate of public convenience and necessity, and has determined that “benefits the Constitution Pipeline Project ... will provide to the market outweigh any adverse effects on existing shippers, other pipelines and their captive customers, and on landowners and surrounding communities.” The public's interest weighs in favor of granting a preliminary injunction. *6 Weighing all of the relevant factors, the Court awards Constitution a preliminary injunction granting access to, possession of, and entry to the rights of way upon the filing of a bond. In setting the amount of the bond, the Court accepts $12,500 as the appraised value of the subject property, as set forth in Exhibit A to the declaration of Elizabeth U. Witmer, Esq. (Dkt. No. 5–1). Accordingly, the Omnibus Motion for Preliminary Injunction (Dkt. No. 5) is granted upon the filing of a bond in the sum of $50,000. It is therefore ORDERED that plaintiff's Motion for Partial Summary Judgment (Dkt. No. 4) is granted, and the Court will sign the submitted Order; and it is further ORDERED that plaintiff's Omnibus Motion for Preliminary Injunction (Dkt. No. 5) is granted upon the filing of a bond in the sum of $50,000, and the Court will sign the submitted Order; and it is further ORDERED that defendants' Cross Motion for Summary Judgment (Dkt. No. 9) is denied; and it is further ORDERED that defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction (Dkt. No. 16) is denied. IT IS SO ORDERED. All Citations Not Reported in F.Supp.3d, 2015 WL 1637976 Footnotes 1 15 U.S.C. § 717f(h) provides: Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 51 of 53 Constitution Pipeline Co., LLC v. A Permanent Easement..., Not Reported in... 2015 WL 1637976 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 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.... [T]he United States district courts shall only have jurisdiction of the cases when the amount claimed by the owner of the property to be condemned exceeds $3,000. 2 Although defendants complain of the Court's initial briefing schedule, the Court modified the initial briefing schedule to allow all defendants at least 21 days to respond (Dkt. No. 13). Defendants have not sought additional discovery and have made no showing supporting discovery of additional facts at this stage of the matter. See Fed.R.Civ.P. 56(d); Falso v. Rochester City School Dist., 460 Fed.Appx. 60, 61 (2d Cir.2012). 3 Even accepting defendants' characterization of the injunction sought as a mandatory injunction, which should issue “only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief,” Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir.1985), the Court finds that Constitution has met this standard for the reasons set forth above. 4 As the Third Circuit observed in Columbia Gas Transmission, LLC v. 1.01 Acres, 768 F.3d 300, 315 (3d Cir.2014): This is not a “normal” preliminary injunction, where the merits await another day. In those situations, the probability of success is not a certainty such that weighing the other factors is paramount. Here, there is no remaining merits issue; we have ruled that Columbia has the right to the easements by eminent domain. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 52 of 53 CERTIFICATE OF SERVICE I hereby certify that on March 22, 2017, I caused a true and correct copy of the foregoing Joint Reply in Further Support of Plaintiff’s Motions for Partial Summary Judgment and Preliminary Injunction to be served on the following via the Court’s electronic filing system: Sunshine J. Thomas, Esquire Peter J. Carfley, Esquire Lavery Law 225 Market Street Suite 304 P.O. Box 1245 Harrisburg, PA 17108 Counsel for Ryan J. Regec /s/ Elizabeth U. Witmer Elizabeth U. Witmer, Esquire Date: March 22, 2017 Case 4:17-cv-00289-MWB Document 28 Filed 03/22/17 Page 53 of 53