907 F.3d 725
3rd Cir.2018Background
- Transcontinental ("Transco") sought to build the Atlantic Sunrise natural gas pipeline and obtained a FERC certificate of public convenience and necessity under the Natural Gas Act (NGA), 15 U.S.C. § 717f(h).
- Under § 717f(h) a pipeline company may condemn rights-of-way if it has a FERC certificate, cannot acquire property by negotiation, and the owner’s claim exceeds $3,000; Transco met all three requirements and filed Rule 71.1 condemnation complaints against four landowner groups.
- Transco moved for partial summary judgment establishing its substantive right to condemn, posted bonds, and then sought preliminary injunctive relief for immediate possession to permit surveys and construction scheduling.
- The district court granted partial summary judgment and a preliminary injunction giving Transco immediate possession; the landowners appealed solely arguing the procedure violated separation-of-powers by effecting a prohibited "quick-take" (immediate title transfer) absent Congressional authorization in the NGA.
- The Third Circuit reviewed the separation-of-powers and related constitutional/due-process arguments de novo and considered whether a preliminary injunction, after substantive rights were established, equated to an unauthorized "quick take."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court’s use of partial summary judgment plus a preliminary injunction amounted to an unconstitutional "quick-take" (impermissible judicial usurpation of legislative eminent-domain power) | Landowners: granting immediate possession via injunction is effectively "quick take," a substantive eminent-domain power only Congress may confer; NGA does not include quick-take authority | Transco: it obtained the substantive right to condemn under § 717f(h) via summary judgment and the injunction simply enforces that right; equitable remedies remain available under the Rules | Court: No. Preliminary injunction after establishment of substantive right is not a statutory "quick take" and does not violate separation of powers |
| Whether courts may grant immediate possession by injunction in NGA condemnation actions | Landowners: NGA’s grant of standard condemnation excludes immediate possession absent express Congressional authorization | Transco: Rule 71.1 incorporates other Federal Rules (including Rule 65), permitting equitable relief where Rule 71.1 is silent; courts historically have granted injunctions after substantive rights are decided | Court: Yes. Rule 71.1 and general equitable power allow injunctions when substantive right has been adjudicated |
| Whether due process or Fifth Amendment required payment of just compensation before possession | Landowners: taking without prior payment violates due process/Fifth Amendment | Transco: precedent allows occupation before compensation so long as post-deprivation procedures exist to recover just compensation | Court: No. Due process satisfied where landowners had opportunity to be heard and post-taking compensation procedures exist |
| Whether the injunction improperly circumvented FERC’s public-use determination or deprived landowners of meaningful FERC review | Landowners: injunction deprived them of meaningful ability to contest FERC’s public-use finding | Transco: landowners participated extensively in FERC process, sought rehearing and appealed to D.C. Circuit; NGA limits collateral attack in district court | Court: No jurisdiction to collaterally attack FERC certificate here; landowners had and used administrative and appellate remedies |
Key Cases Cited
- Columbia Gas Transmission, LLC v. 1.01 Acres, 768 F.3d 300 (3d Cir. 2014) (affirms procedure of summary judgment on condemnation followed by injunction when substantive right established)
- East Tennessee Natural Gas Co. v. Sage, 361 F.3d 808 (4th Cir. 2004) (preliminary injunction is available in condemnation cases after substantive right established; condemnor bears heavier burden than DTA quick-take)
- Transwestern Pipeline Co. v. 17.19 Acres, 550 F.3d 770 (9th Cir. 2008) (denies injunction where condemnor had not secured substantive right to condemn; endorses sequence of condemnation then injunction)
- Northern Border Pipeline Co. v. 86.72 Acres, 144 F.3d 469 (7th Cir. 1998) (condemnor cannot obtain immediate possession before court determines substantive entitlement)
- De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212 (1945) (equity may provide interim relief of same character as final relief)
- Bailey v. Anderson, 326 U.S. 203 (1945) (due process does not require compensation be paid before occupation if owner has post-deprivation remedies)
- Kirby Forest Indus. v. United States, 467 U.S. 1 (1984) (discusses operation of Rule 71.1 and the effect of final judgment on condemnation rights)
- Cherokee Nation v. Southern Kansas Ry. Co., 135 U.S. 641 (1890) (statutes permitting possession before payment constitutional where provision for obtaining compensation is adequate)
- Atlantic Seaboard Corp. v. Van Sterkenburg, 318 F.2d 455 (4th Cir. 1963) (recognizes condemnation court’s inherent power to authorize immediate entry after condemnation procedures complete)