ALLIANCE PIPELINE L.P., Plаintiff-Appellee v. 4.360 ACRES OF LAND, MORE OR LESS, IN the S/2 OF SECTION 29, TOWNSHIP 163 NORTH, RANGE 85 WEST, RENVILLE COUNTY, NORTH DAKOTA; 4.675 Acres of Land, More or Less, in the SE/4 of Section 30, Township 163 North, Range 85 West, Renville County, North Dakota; Leonard Smith; Ione Smith, Defendants-Appellants.
No. 13-1003
United States Court of Appeals, Eighth Circuit
Filed: March 24, 2014
Rehearing and Rehearing En Banc Denied April 25, 2014
746 F.3d 362
Submitted: Dec. 17, 2013
Robert S. Rau, Minot, ND, argued, for appellants.
Before WOLLMAN, LOKEN, and KELLY, Circuit Judges.
WOLLMAN, Circuit Judge.
Leonard and Ione Smith (the Smiths) appeal from a district court1 order condemning portions of their property for the construction of a natural gas pipeline owned and operated by Alliance Pipeline, L.P. (Alliance), and granting Alliance immediate use and possession of the condemned land. Alliance brought the condemnation action against the Smiths’ property after obtaining a certificate from the Federal Energy Regulatory Commission (FERC) authorizing Alliance to condemn land along the route of its proposed pipeline. The Smiths assert that Alliance‘s certificate is ineffective against them because Alliance failed to provide the Smiths with notice of its application for the certificate and because FERC failed to consider relevant state law in granting the certificate. The Smiths also assert that Alliance‘s condemnation action runs afoul of state and federal procedural law. We affirm.
I.
Alliance operatеs an approximately 2300-mile network of oil and natural gas pipelines in the United States and Canada. In 2011, Alliance began plans to construct a 79-mile-long underground pipeline from a natural gas processing plant near Tioga, North Dakota, to an interconnection with Alliance‘s main pipeline neаr Sherwood, North Dakota. There was at that time (and there continues to be) an oil boom in North Dakota, and occasionally oil prospectors would find reservoirs containing both petroleum and natural gas. The oil companies, having no pipeline capacity to ship the gas to major mаrkets, would burn the gas at the source—a practice called “flaring.” Alliance sought to take advantage of this market inefficiency by shipping the otherwise wasted gas east to Chicago.
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. See
The Smiths are an elderly couple who own a farm near Sherwood, North Dakota. The route оf Alliance‘s proposed pipeline crossed the Smiths’ property. Sometime in February 2012, Alliance representatives visited the Smiths’ farm to ask the Smiths if Alliance could purchase an easement across their land. Because the Smiths were in poor health, Alliance representatives met with Guy Solemsaаs, the son of Ione and stepson of Leonard, who lives next to the Smiths and helps tend the
On April 13, 2012, Alliance representatives visited the Smiths again, this time to serve them with a state-court summоns and petition to enter and survey their property. Alliance asserted that it needed access to the Smiths’ property to complete various field surveys required as part of its FERC application. The state court granted Alliance‘s petition on May 15, 2012.
On September 20, 2012, FERC granted Alliance a certificate of public convenience and necessity, and on October 16, 2012, Alliance brought a condemnation action against two parcels of land owned by the Smiths. Alliance moved for summary judgment and for immediate use and possession of the Smiths’ land. The district court granted both motions. See D. Ct. Order of Nov. 26, 2012.
II.
We review the district court‘s grant of summary judgment de novo, viewing the evidenсe in the light most favorable to the nonmoving party. Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir.2013). Summary judgment is appropriate when there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
A.
We begin with the Smiths’ challenge to the FERC certificate, which is twofold. First, the Smiths assert that Alliance failed to provide them notice of its FERC application as required by both the Due Process Clause of the Fifth Amendment and FERC‘s own landowner notice requirements, set forth in
We conclude that we lack jurisdiction to consider the Smiths’ statutory challenges (in othеr words, the challenges based on
When 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. See City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958). Section 19 of the Natural Gas Act,
(a) Any person, state, municipality, or State commission aggrieved by an order issued by the Commission in a proceeding under this chapter to which such person, State, municipality, or State commission is a party may apply for a rehearing within thirty days after the issuance of such order.... No proceeding to review any order of the Commission shall be brought by any person unless such person shall have made application to the Commission for a rehearing thereon....
(b) Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the cоurt of appeals of the
United States ... by filing in such court, within sixty days after the order of the Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified or set aside in whole or in part.... Upon the filing of such petition such court shall have jurisdiction, which upon the filing оf the record with it shall be exclusive, to affirm, modify, or set aside such order in whole or in part.
Section 19 thus requires that any challenge to a FERC order first be brought before FERC itself in a petition for rehearing within thirty days of the order‘s issuance. If, after rehearing, a party aggrieved by the order remains unsatisfied, that party may seеk further review by appealing directly to a United States court of appeals within sixty days of FERC‘s decision on rehearing.
“As the statutory language plainly states, the special judicial review provisions of § 19 are exclusive.” Williams Natural Gas Co. v. City of Oklahoma City, 890 F.2d 255, 261 (10th Cir.1989). By collaterally attacking the FERC order in this condemnation proceeding, the Smiths seek to circumvent this exclusive review scheme.
We need not determine whether
B.
The Smiths’ challenges to Alliance‘s FERC certificate now aside, we turn next to the Smiths’ allegation that Alliance violated sevеral state procedural rules in bringing this condemnation action. The Smiths refer us specifically to
In support of their premise that state law is relevant in this federal condemnation proceeding, the Smiths cite
As several other courts have observed, however,
The Smiths assert that the jury requirement set forth in
C.
Finally, the Smiths assert that Alliance violated the Natural Gas Act,
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 piрe line or pipe lines for the transportation of natural gas, and the necessary land or other property, in addition to right-of-way ... 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 сourts.
Id. Courts are split as to whether
III.
Lastly, we address the Smiths’ argument that the district court erred in granting Alliance immediate use and possession of their land. We review this exercise of the district court‘s inherent equitable powers for abuse of discretion. See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006).
The considerations that attend a motion for immediate use and possession are similar to those that attend a motion for a preliminary injunction. See N. Border Pipeline Co. v. 86.72 Acres of Land, 144 F.3d 469, 471-72 (7th Cir.1998); see also Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 113 (8th Cir.1981) (“Whether a preliminary injunction should issue involves consideration of (1) the threat of irreparable harm to the movant; (2) the state of the balаnce between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.“).
The court below determined that Alliance‘s pipeline would “fill a critical need” for the transportation of natural gas and that a delay in access to the Smiths’ land could cost Alliance as much as $540,000 per day. See D. Ct. Order of Nov. 26, 2012, at 17. The court also found that Alliance had convincingly demonstrated its right to condemn the Smiths’ property and that any prejudice to the Smiths could be offset by the $3,000 per acre that Alliance had agreed to deposit with the clerk of сourt. The district court thus considered all four of the Dataphase factors in issuing its injunction.
The Smiths’ attack on the district court‘s findings focuses primarily on Alliance‘s right to condemn the Smiths’ property—the “success on the merits” prong of the Dataphase analysis. In support of this challenge, the Smiths renew many of their previous arguments. The Smiths allege, for instance, that Alliance did not provide them notice of the FERC proceeding, did not negotiate in good faith before bringing this condemnation action, and failed to comply with state law in initiating the condemnation action. Our conclusions above foreclose these arguments. If there was any doubt that Alliance had the right to condemn the Smiths’ property, that doubt has now been resolved.
The remainder of the Smiths’ challenges to the district court‘s finding consist of unsupported allegations that Alliance will not suffer irreparable harm if not granted immediate use and possession of their land. The Smiths assert, for example, that the affidavit of one of Alliance‘s employees
IV.
The judgment is affirmed.
ROGER L. WOLLMAN
UNITED STATES CIRCUIT JUDGE