2016 Ohio 4647
Ohio Ct. App.2016Background
- Kinder Morgan proposed the Utopia pipeline to transport natural gas liquids (NGLs) — e.g., ethane and propane — from Ohio to Canada and conducted an Open Season to secure shippers.
- Federal permitting (FERC tariff approval) and multiple state/federal environmental and archaeological permits were required before construction; those permits required on-site surveys of every tract along the route.
- Kinder Morgan sought access to survey defendant Robert M. Simonson’s property to complete those surveys; Simonson refused entry.
- Kinder Morgan filed for declaratory relief and injunctive relief (temporary and permanent) under R.C. 1723.01 and R.C. 163.03 to obtain statutory survey access; the trial court granted relief and enjoined Simonson from blocking access.
- Simonson appealed, arguing (1) “petroleum” does not include NGLs, (2) Kinder Morgan is not a common carrier under Ohio law for this project, and (3) the court should have first determined whether the proposed use was a public use before granting injunctive relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether “petroleum” in R.C. 1723.01 includes natural gas liquids (ethane/propane) | Kinder Morgan: industry and statutory definitions cover NGLs as petroleum | Simonson: “petroleum” limited to naturally occurring hydrocarbons, not refined/by‑products | Court: "petroleum" includes NGLs; Henley and other statutory/industry definitions support inclusion |
| Whether Kinder Morgan is a common carrier for the Utopia pipeline | Kinder Morgan: holds out pipeline capacity to public (Open Season), has transportation agreements and FERC regime | Simonson: Utopia does not qualify as a common carrier pipeline under Ohio law | Court: Kinder Morgan is a common carrier for purposes of R.C. 1723.08 and survey/entry rights apply |
| Whether the trial court needed to determine public use/necessity before allowing survey entry under R.C. 163.03/1723.01 | Kinder Morgan: only surveying stage; statutory survey/entry authorized prior to appropriation proceedings | Simonson: public use/necessity should be decided before any injunctive relief that permits access | Court: No; survey access statute permits entry for examinations prior to appropriation/petition; hearing on public use occurs at appropriation stage |
| Whether injunctive relief was improperly granted without clear/convincing proof and balancing harms | Kinder Morgan: irreparable harm from permit delays; likelihood of success on statutory claims | Simonson: disputed statutory interpretation and public interest; injunction premature | Court: Trial court did not abuse discretion; injunction appropriate given statutory right to survey and evidence presented |
Key Cases Cited
- Ohio River Pipeline, LLC v. Henley, 144 Ohio App.3d 703 (Ohio Ct. App.) (construing “petroleum” broadly to include refined products and by‑products)
- Cross v. Ledford, 161 Ohio St. 469 (Ohio 1954) (definition of "clear and convincing" standard)
- Akron Transp. Co. v. Glander, 155 Ohio St. 471 (Ohio 1951) (use of definitions elsewhere in the Revised Code to interpret statutory terms)
- Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241 (Ohio 1978) (construction of terms related to petroleum in pipeline context)
- Harper v. Agency Rent–A–Car, Inc., 905 F.2d 71 (5th Cir. 1990) (definition and tests for common carriage)