126 F. Supp. 3d 1192
D. Or.2015Background
- GTN holds a FERC certificate authorizing construction and operation of the Carty Lateral, a 24.4-mile 20" natural-gas pipeline, and sought necessary easements across ~25 parcels.
- GTN negotiated purchases but could not agree with owners Clinton and Maureen Krebs and Pilz & Co., which had recorded a conservation easement excluding energy development on part of the route.
- GTN filed an eminent-domain complaint under 15 U.S.C. § 717f(h) and moved for an order of condemnation and immediate possession of a permanent 50-foot easement and a one-year temporary workspace easement; proposed just compensation was $148,200.
- Pilz objected, arguing GTN’s proposed takings did not conform to the FERC certificate and that GTN failed to comply with environmental conditions (e.g., avoiding Category 1 Washington ground-squirrel habitat).
- The court required GTN to amend its complaint to conform to the certificate; Pilz conceded its remaining objection was noncompliance with environmental conditions attached to the certificate.
- The court concluded challenges to compliance with or validity of a FERC certificate must be pursued before FERC (and then on appeal), not in a district-court condemnation proceeding, and granted GTN condemnation and immediate possession.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether GTN satisfied § 717f(h) prerequisites for condemnation (certificate, necessity, failed negotiations, good-faith negotiations) | GTN: FERC issued certificate, land is necessary per FERC, GTN negotiated in good faith but could not agree on price | Pilz: GTN’s proposed taking does not conform to the certificate and GTN failed to comply with environmental conditions | Held: GTN met § 717f(h) requirements; scope and validity/compliance questions are for FERC, not the district court |
| Whether the court may adjudicate alleged noncompliance with FERC certificate conditions in a condemnation action | GTN: Court should not resolve certificate compliance; that is FERC’s domain | Pilz: Court may enforce conditions of the Order Issuing Certificate and find certificate facially invalid if conditions not met | Held: District court lacks jurisdiction to review or invalidate a FERC certificate; compliance challenges must be raised before FERC and appealed to the courts of appeals |
| Whether GTN is entitled to immediate possession pending determination of just compensation | GTN: Issuance of condemnation order plus traditional injunction factors support immediate possession to meet FERC in-service deadlines and avoid irreparable harm to power supply | Pilz: Immediate possession should be denied due to GTN’s noncompliance with environmental conditions and potential harm to landowners | Held: Court granted immediate possession — GTN showed likelihood of success (condemnation granted), irreparable harm (project delays affecting power supply), no greater harm to defendants, and public interest in pipeline completion |
| Whether the public interest favors immediate possession | GTN: Pipeline supports electric-generation reliability and Congress’ NGA goals; FERC already found public convenience and necessity | Pilz: Environmental conditions implicated; public interest may be harmed if conditions are ignored | Held: Public interest favors possession; FERC’s certificate implies project serves public interest, and compliance disputes must go to FERC |
Key Cases Cited
- E. Tenn. Natural Gas Co. v. Sage, 361 F.3d 808 (4th Cir. 2004) (distinguishes condemnation authority and immediate possession; explains NGA limits)
- Transwestern Pipeline Co. v. 17.19 Acres of Prop. Located in Maricopa Cnty., 550 F.3d 770 (9th Cir. 2008) (district court must issue condemnation before compensation determination; collateral attack on FERC certificate not permitted)
- Nw. Pipeline Corp. v. The 20’ x 1,430’ Pipeline Right of Way Easement, 197 F. Supp. 2d 1241 (E.D. Wash. 2002) (standards for immediate possession mirror preliminary injunction factors)
- Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (clarifies balancing of injunction factors; stronger showing on one factor can offset weaker showing on another)
- Williams Nat. Gas Co. v. City of Okla. City, 890 F.2d 255 (10th Cir. 1989) (district courts lack authority to review substance/validity of FERC certificates)
- Millennium Pipeline Co. v. Certain Permanent & Temp. Easements, 777 F. Supp. 2d 475 (W.D.N.Y. 2011) (challenges to certificate conditions or validity must be pursued administratively before FERC)
- Tennessee Gas Pipeline Co. v. 101 Acres of Land More or Less, 749 F. Supp. 427 (D.R.I. 1990) (district court’s role is limited to evaluating certificate scope and ordering condemnation in accord with a facially valid certificate)