Alliance Pipeline L.P. v. 3.304 Acres of Land
2012 U.S. Dist. LEXIS 166432
D.N.D.2012Background
- Alliance Pipeline seeks to condemn easements along the Tioga Lateral Project under the Natural Gas Act after negotiating with most landowners but remaining unable to secure all rights.
- FERC issued a certificate of public convenience and necessity authorizing construction, operation, and maintenance of a 79-mile, 12-inch pipeline from Tioga to near Sherwood, ND.
- The project aims to transport 106 mmcf/d of natural gas and liquids to markets, reducing flaring and leveraging existing mainline capacity to reach Chicago-area markets.
- Construction requires a 50-foot permanent easement, a 25-foot temporary workspace easement on either side, and additional temporary easements for special conditions.
- Alliance has already invested in pipe purchases and long-lead items, with reliance by Hess and others on timely project completion.
- Delays in obtaining easements or access would increase costs, impede topsoil removal before freezing, and disrupt construction sequencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to condemn under NGA | Alliance has certificate of convenience and h(h); cannot contract; needs eminent domain. | Morris challenges compliance with procedures/state law and validity of FERC order. | Alliance has authority to condemn under NGA; certificate valid within scope. |
| Compliance with federal rules vs state practice | Rule 71.1 governs condemnation; supersedes state conformity. | State-law conformity required by 15 U.S.C. § 717f(h). | Rule 71.1 controls; § 717f(h) conformity to state procedure is superseded. |
| Collateral attacks on FERC order | NGA review limited; proceed with condemnation given certificate. | Certificate may be improvidently issued; collateral attack allowed. | Court lacks jurisdiction to review FERC order; review limited to facial validity and scope. |
Key Cases Cited
- Williams Natural Gas Co. v. City of Oklahoma City, 890 F.2d 255 (10th Cir. 1989) (collateral attacks on FERC orders barred in condemnation actions)
- N. Border Pipeline Co. v. 64.111 Acres of Land in Will County, Ill., 344 F.3d 693 (7th Cir. 2003) (Rule 71.1 supersedes § 717f(h) state-conformity requirement)
- S. Natural Gas Co. v. Land, Cullman County, 197 F.3d 1368 (11th Cir. 1999) (Rule 71.1 supremacy over state-practice conformity)
- United States v. 93.970 Acres of Land, 360 U.S. 328 (1959) (conformity with state practice deemed repealed by Rule 71.1)
- Kirby Forest Indus., v. United States, 467 U.S. 1 (1984) (uniform procedural framework for condemnation actions)