MOUNTAIN VALLEY PIPELINE, LLC, Plaintiff - Appellee, v. WESTERN POCAHONTAS PROPERTIES LIMITED PARTNERSHIP, Defendant - Appellant, and D. LANE MCMILLION; DALE L. MCMILLION; ALICIA D. MCMILLION; PACO LANE, INC.; BRIAN ARMSTRONG; BETH ARMSTRONG; JERRY ALLEN HAMMONS; MARY E. HAMMONS; BRUCE A. ROBERTS; KIMBERLY ROBERTS; TODD E. WHITE; TAMARA L. WHITE DELONG; VIRGINIA D. MCCLUNG; CONNIE MCCLUNG; ARTIE ORLENA ROBINSON; DAVID LANE ROBINSON; QUINWOOD COAL COMPANY, f/k/a Alex Energy, LLC, f/k/a Alex Energy, Incorporated, f/k/a Green Valley Coal Company, LLC; C. L. KEENER, Estate of; JAMES KEENER; JOHNNIE RAY KEENER; BRANDE NICOLE KEENER; DAVID HARMON; THOMAS KENNER; CLYDE FOX; MICHAEL FOX; NAOMI J. FOX; ROBERT W. FOX; REX COAL LAND COMPANY; EUGENE RAY TUCKWILLER; TINA ROBIN TUCKWILLER; SILAS STEVEN TUCKER; LAUREL TUCKER; JEFFREY DEWAYNE OSBORNE; MARTHA I. KESSLER, Unknown heirs of; MARY L. SURBAUGH, Unknown heirs of; NORA E. VANDALL, Unknown heirs of; AZEL FORD ZICKAFOOSE, Unknown heirs of; JOSEPH ORVILLE ZICKAFOOSE, Unknown heirs of; ROBERT C. ZICKAFOOSE, Unknown heirs of; DOREEN S. ALLEN; FREDERECK M. OSBORNE; JO LYNN BLANKENSHIP; MICKEY D. OSBORNE; SCOTT S. OSBORNE; DONNA M. HUFFMAN; NORVEL MANN; JEAN MANN; THOMAS B. MANN; HANNAH G. MANN; CHLODA CROSIER; WILLIAM H. MANN; LUCY G. BOOTH; HARRY L. MANN; NANCY L. PHILLIPS; DONALD E. MANN; CARL E. MANN; LARRY W. MANN; BONNIE K. BARBERIE; REBECCAK.BRAGG; LANDCEY RAGLAND; JOHN WHITE, II; PETRIE DOBBS BROWN; ADDISON DUNLAP DOBBS; LEE FILMORE DOBBS, III; OSCAR D. DARAGO; DAVID R. HUGHES; JAMES ROBERT PERSINGER; LILLIAN SUE PERSINGER; STEPHEN C. BROYLES; LORRIE P. BROYLES; PAULETTE A. SEARS, Trustee of the Paulette A. Sears Family Trust; MELANIE J. MILLER; ANNE C. CHAMBERS, Executrix of the Estate of Thomas P. Long; THOMAS P. LONG, The Estate of; CAROL M. VASS; KENNETH L. VASS; LACY H. TONEY, Trustee of the Lacy H. Toney Farm Trust; MOUNTAIN LAIR, LLC; DANNY SPENCE, JR., Administrator of the Estate of Dannie Lee Spence; DANNIE LEE SPENCE, The Estate of; LAURA BOWEN-COFFELT, Trustee of the Susan H. Leeper (a/k/a Ella Susan Houcins) Revocable Living Trust; SUSAN H. LEEPER, a/k/a Ella Susan Houcins, Revocable Living Trust; MONTE G. MCKENZIE; ELORA C. MCKENZIE; EARL C. WILLIAMS; ROGER D. CRABTREE; REBECCA H. CRABTREE; BONNIE LAREW WALSH; GLADYS LAREW CARTER; JAMES TULLY LAREW; JANET LAREW HAAG; ALLAN WALTER LEHR; J. H. HARRAH, Heirs of; IRA HICKMAN HARRAH; RICHARD BERKLEY; ANNE M. BERKLEY; CONNIE HARPER; MELISSA A. LESLIE; ANTHONY D. RICHMOND; DENNIS WAYNE RICHMOND; RHONDA RICHMOND, Administrator of the Estate of Roger L. Richmond; ROGER L. RICHMOND, The Estate of; SANDRA RICHMOND; ERVIN E. RICHMOND; GERALD K. RICHMOND; JESSE JAMES RICHMOND; CAROLYN S. WALLS; RICHARD DEAN WARD; ASHBY A. BOONE; EMMA JEAN BOONE; DOROTHY MARIE BOONE FOGLE; MARK GREY SMITH; CAITLYN A. GRAGG; GENE WISEMAN, Trustee of the Wiseman Living Trust; PHYLLIS M. WISEMAN, Trustee of the Wiseman Living Trust; ROBERT JACKSON HOLT; PHILIP J. HARRAH; REINHARD BOUMAN; ASHOFTEH ASSAD-BOUMAN; MEADOW CREEK COAL CORPORATION; KIRANASA SWAMI; DANNYR.BERRY; GREGORY L. BERRY; LC MILLER, JR.; JAMES R. MILLER; CHARLES D. SIMMONS; SHARON SIMMONS, Administratrix of the Estate of Charles D. Simmons; JOSHUA SIMMONS; JERRY L. CANNADY; BRYAN SIMMONS; RED HAWK TRUST; WILLIAM G. LLOYD; JAMES MCALLISTER; HILRY GORDON; CHAD W. JOHNSON; MARTHA JEAN KOTSCHENREUTHER; KAREN JEAN KOTSCHENREUTHER; ELSA LYN KOTSCHENREUTHER; BARBARA JUNE REGER, Estate of; BARRY G. PALLAY; GLENN D. MATHENY, II; CHARLES CHONG; REBECCA A. ENEIX-CHONG; COURTNEY CECIL; STACEY POSTUS; CLIFFORD S. CLEAVENGER; LAURA CLEAVENGER; TERESA D. ERICKSON, POA for Gerald Wayne Corder; GERALDWAYNEORDER; LORENA B. KRAFFT, POA for Randall N. Corder; KINCHELOE MITIGATION HOLDINGS LLC; DANNY MARTIN; TINA MARTIN; GARY CASTO; SHARON CASTO; AVERAL TODD CASTO; ARTHUR C. ROBERTS; JUDY D. ROBERTS; FRED L. GOLDEN; SHERMAN GAMBLE; MARY GAMBLE; DAVID FINSTER; DONALD J. FINSTER; PAUL W. FINSTER; DANA M. FINSTER; LEONARD G. FINSTER, JR.; VENICE EILEEN FINSTER; DIANA WIMER; BRIAN VAN NOSTRAND; HELEN MONTAGUE VAN NOSTRAND; GEORGE ERNEST BRIGHT; JOHN A. BRIGHT, Trustee of the John A. Bright Revocable Living Trust; WILLIAM TOWNSEND BRIGHT; WILLIAM H. BROWN, JR.; WILLIAM MORRISON, Trustee under the will of; ROBERT J. MORRISON, Trustee under the will of; A. L. MORRISON, for the benefit of; C. F. MORRISON; HELENA M. BERRY; HERMANRMORRISON; MARTHA M. COOPER; RUTH M. WARD; MABEL M. LEWIS; MARY E. SEBRING; MEGANN M. SHEPPARD; JESSE FRANK WILLIAMS, IV, of the WMS WVMinerals Trust; WMS WVMINERALS TRUST; ICG EASTERN, LLC; DALE EASTHAM; TRAVIS EASTHAM; ANDREW FAIRBANKS; BRENT FAIRBANKS; DAVID FAIRBANKS; MICHAEL FAIRBANKS; EDWARDCHARLES SMITH, SR.; EDWARD CHARLESSMITH, II; TODD EDWARD SMITH; JEREMY COLLINS; NANCY JANE SHEWMAKE BATES; JOHN H. MELVIN; PAMELA J. MELVIN; UNKNOWN PERSONS AND INTERESTED PARTIES; AN EASEMENT TO CONSTRUCT, OPERATE AND MAINTAIN A 42-INCH GAS TRANSMISSION LINE ACROSS PROPERTIES IN THE COUNTIES OF NICHOLAS, GREENBRIER, MONROE, AND SUMMERS, WEST VIRGINIA, et al; CHERYL L. BOONE; KERRY N. BOONE; MARJORIE BOOTHE; RODGER L. BOOTHE; CHERYL BOWERS; CYNTHIAA.BROYLES MORRIS, Trustee of the William S. Broyles Revocable Trust and the Virginia B. Broyles Revocable Trust; WILLIAM S. BROYLES, Revocable Trust; TAMMY A. CAPALDO; CARLA D. FOUNTAIN; DENNISF.FOUNTAIN; JAMES GORE; ROBERT M. JARRELL; DAVID ALLEN JOHNSON; EVERETT JOHNSON, JR.; WAYNE JOHNSON; MAURY JOHNSON; ZANE LAWHORN; BARRY G. MEADOWS; LISA B. MEADOWS; JOYCE A. REESE; ROY P. REESE; KELLEY ANNE SANDELL SILLS; CLARENCE FRANK SILLS, JR.; ELISABETH TOBEY; RONALD TOBEY; AUSTIN B. TONEY; ROSETTA B. TONEY; THOMAS E. TONEY; PATRICIA J. WILLIAMS; ORUS ASHBY BERKLEY; VIRGINIA B. BROYLES, Revocable Trust, Defendants.
No. 18-1329
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Argued: September 28, 2018 Decided: March 13, 2019
918 F.3d 353
Before GREGORY, Chief Judge, WYNN and THACKER, Circuit Judges.
Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn and Judge Thacker joined.
This appeal arises from a condemnation proceeding commenced by Appellee Mountain Valley Pipeline, LLC (“MVP“). MVP is a natural gas company that was authorized by the Federal Energy Regulatory Commission (“FERC“) to exercise the right of eminent domain in order to construct a pipeline. The United States District Court for the Southern District of West Virginia granted MVP partial summary judgment on its right to condemn certain temporary and permanent easements on the properties of several landowners, including Appellant Western Pocahontas Properties, Limited Partnership (“WPPLP“). The district court also granted MVP‘s motion for a preliminary injunction allowing MVP immediate access to the easements described in MVP‘s complaint. WPPLP appeals the district court‘s decision granting MVP‘s motions for summary judgment and a preliminary injunction. WPPLP also challenges the district court‘s exclusion of evidence proffered during the preliminary injunction hearing.
For the reasons that follow, we affirm the district court‘s order in its entirety.
I.
The Natural Gas Act (“the NGA“) authorizes the holder of a certificate of public convenience and necessity to condemn land necessary for a particular project if it cannot acquire the land through contract or cannot agree with the landowner as to the compensation.
On October 13, 2017, FERC issued a certificate of public convenience and necessity to MVP. The FERC certificate authorizes MVP to construct and operate a 303.5-mile natural gas pipeline from Wetzel County, West Virginia to Pittsylvania County, Virginia. After failing to acquire certain properties necessary for the pipeline through negotiation, MVP filed condemnation actions pursuant to the NGA against landowners in three district courts: in the United States District Courts for the Western District of Virginia and the Southern District of West Virginia on October 24, 2017, and in the United States District Court for the Northern District of West Virginia on December 8, 2017. This appeal concerns the action before the Southern District of West Virginia.1
In that action, MVP condemned easements on three parcels of land belonging to WPPLP. MVP condemned only the surface of those properties, asserting that the pipeline project did not require condemnation of the mineral rights or coal estate. MVP moved for partial summary judgment on its right to condemn temporary and permanent easements on the properties of several landowners (including those properties belonging to WPPLP) and sought a preliminary injunction allowing immediate access to the properties. MVP requested access to the landowners’ property by February 1, 2018, a
On February 7, 2018, the district court held an evidentiary hearing regarding MVP‘s motion for partial summary judgment and preliminary injunction. At a prehearing conference, WPPLP proffered testimony to be heard at the preliminary injunction hearing. The majority of the proffered evidence would not relate to the surface tracts named in MVP‘s complaint but would instead address potential damage to coal and to the interests of WPPLP‘s affiliate, Western Pocahontas Properties, LLC (“WPPLLC“) - a party that had not been joined in the condemnation action. The district court excluded the proffered evidence. After confirming with WPPLP that the proffered evidence did not relate to property that MVP sought to condemn in the complaint, the district court found the evidence to be irrelevant. In reaching its conclusion, the district court reasoned that it would not “hear evidence on properties that are not being taken.” J.A. 161.
Following the evidentiary hearing, the district court granted MVP‘s motion for partial summary judgment and preliminary injunction. This appeal followed. WPPLP argues that the district court committed reversible error by: (1) excluding WPPLP‘s proffered evidence; (2) failing to join WPPLP‘s affiliate, WPPLLC, as a party to the condemnation action; and (3) granting MVP‘s motion for summary judgment and
II.
WPPLP contends that the district court abused its discretion when it precluded WPPLP from introducing evidence regarding potential damage to WPPLP and WPPLLC‘s coal as a result of the pipeline. MVP responds that the district court did not abuse its discretion, because MVP had the sole power to define the extent of the taking and evidence related to property that MVP did not seek to condemn would therefore be irrelevant. We agree with MVP‘s position and find that the district court did not abuse its discretion in excluding the evidence.
A district court‘s evidentiary ruling is reviewed for abuse of discretion. United States v. Medford, 661 F.3d 746, 751 (4th Cir. 2011) (citing United States v. Murray, 65 F.3d 1161, 1170 (4th Cir. 1995)). Under this standard of review, the appellate court affords the evidentiary ruling “substantial deference,” and will not overturn the ruling unless the decision was “arbitrary and irrational.” Id. (quoting United States v. Weaver, 282 F.3d 302, 313 (4th Cir. 2002)). A court abuses its discretion “when it acts in an arbitrary manner, when it fails to consider judicially-recognized factors limiting its discretion, or when it relies on erroneous factual or legal premises.” United States v. Henry, 673 F.3d 285, 291 (4th Cir. 2012) (internal citations omitted).
As WPPLP acknowledges, the general rule laid out by this Court in United States v. 21.54 Acres of Land, More or Less, in Marshall County (”Marshall County“), 491 F.2d 301 (4th Cir. 1973), is that
In Marshall County, the government chose to condemn “flowage easements” along a creek because it determined that a dam project would raise the ordinary high water mark. Id. The government declared its intention to acquire easements in land lying between “the highest elevation of the land to be acquired and the existing ordinary high water mark.” Id. The government and landowners disagreed about the location of the existing ordinary high water mark. Id. Given this factual dispute as to the location of the water mark, we held that the district court could address the issue in order “to effectuate the expressed intention of the condemning authority.” Id. at 306. The landowners in Marshall County did not challenge the scope of the take or seek to force the government to take more than it described in the complaint. Rather, they sought to require the district court to determine what property the government had described in the complaint. In other words, the dispute was not whether the government had to take more than it originally intended but how to give effect to the government‘s expressed intention.
An Eighth Circuit decision we cited favorably in Marshall County further illustrates the flawed nature of WPPLP‘s argument. In United States v. 3,317.39 Acres of Land, More or Less, in Jefferson County, 443 F.2d 104, 105-06 (8th Cir. 1971)
Like the landowners in 3,317.39 Acres of Land, WPPLP asserts that MVP is going to take more property than it is representing in its complaint and that MVP therefore must condemn that additional property now. However, a gas company authorized by FERC to exercise eminent domain has “the discretion to determine the size” of the easements it needs to take, and the district court is not entitled to modify that decision. Columbia Gas, 701 F. App‘x at 227; see also Marshall Cnty., 491 F.2d at 304. Therefore, while WPPLP “may recover compensation for these damages in a separate action,” it may not “assert such collateral claims within a condemnation proceeding.” Columbia Gas, 701 F. App‘x at 227-28 (internal citations omitted). Contrary to WPPLP‘s assertion, there is a remedy available to WPPLP (and WPPLLC) should MVP take more than it described in its complaint: an inverse condemnation action. See United States v. Clarke, 445 U.S. 253, 257 (1980) (describing an inverse condemnation action as a cause of action against a condemnor “to recover the value of property which has been taken in fact by the [condemnor], even though no formal exercise of the power of eminent domain has been
The district court correctly applied our precedent regarding the extent of a taking in determining which evidence to consider at the preliminary injunction hearing. Therefore, the district court did not abuse its discretion when it excluded WPPLP‘s proffered evidence.
III.
WPPLP next argues that the district court erred by failing to join WPPLLC as an indispensable party. MVP argues that WPPLP waived its indispensable party argument when it failed to preserve that argument in its answer or to properly develop it in its opening brief. Because we agree that WPPLP waived its indispensable party argument, we find no error on this basis.
Pursuant to
IV.
According to WPPLP, even if the district court did not err in excluding WPPLP‘s evidence or failing to join WPPLLC as an indispensable party, it nevertheless erred in granting MVP‘s motion for partial summary judgment and injunction in this case. Because we find no reversible error, we affirm the district court‘s grant of summary judgment and injunction in favor of MVP.
A.
We review an award of summary judgment de novo. Adams v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 550, 556 (4th Cir. 2011) (internal citation omitted).
WPPLP argues that the district court erred in granting MVP‘s motion for partial summary judgment on its right to condemn. A plaintiff must meet three requirements to exercise eminent domain under the NGA: (1) it must hold a valid FERC certificate; (2) the property it seeks must be necessary to the project; and (3) it must have been unable to acquire the property by agreement.
WPPLP has not pointed to a genuine dispute of material fact as to MVP‘s claim to invoke its eminent domain powers. Accordingly, we hold that the district court did not err in granting MVP‘s motion for summary judgment.
Finally, WPPLP argues that the district court abused its discretion in granting MVP‘s request for a preliminary injunction. For the reasons that follow, we find that the district court did not abuse its discretion in granting MVP‘s motion for a preliminary injunction.
A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief” and may never be awarded “as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, 24 (2008) (internal citations omitted); see also Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011) (”Winter thus requires that a party seeking a preliminary injunction . . . must clear[ly] show[] that it is likely to succeed on the merits.” (alterations in original) (internal citation and quotation marks omitted)). In order to receive a preliminary injunction, a plaintiff must establish that: (1) it is likely to succeed on the merits; (2) it is likely to suffer irreparable harm without the preliminary injunction; (3) the balance of equities tips in its favor; and (4) the injunction is in the public interest. Winter, 555 U.S. at 20. Each of these four requirements must be satisfied. Id. A preliminary injunction is reviewed for abuse of discretion. Dewhurst, 649 F.3d at 290 (internal citation omitted). We review factual findings for clear error and legal conclusions de novo. Id.
As to the first Winter requirement, the probability of success on the merits, the district court properly found that it was satisfied. Because MVP had already proved that it had a right to condemn the property at issue, success on the merits was not only
As to the third Winter requirement, the balance of the equities, the district court did not abuse its discretion in determining that the significant irreparable harms faced by MVP in the absence of an injunction outweighed the potential harm of an injunction to WPPLP. We note that the district court did not expressly address the potential that immediate rather than postponed possession could be harmful to certain landowners. The district court relied heavily on our opinion in Sage in concluding that the balance of equities tipped in MVP‘s favor. J.A. 1140 (“In Sage, the Fourth Circuit conclusively spoke on this issue in the context of NGA condemnation actions.“). While Sage is indeed controlling and suggests that the balance of equities may often tip in favor of the pipeline company in the context of NGA condemnations, we take this opportunity to clarify that such an outcome is by no means guaranteed. District courts in NGA condemnation actions must consider the particular harms to landowners in weighing the balance of the equities and may never grant a preliminary injunction “as of right.” See Winter, 555 U.S. at 24.
Finally, as to the fourth Winter element, the district court reasonably determined that the preliminary injunction was in the public interest, because it would allow for expeditious construction of a FERC-approved pipeline. As we explained in Sage, the issuance of a FERC certificate signifies that the Commission - the agency charged with administering the NGA - has determined that pipeline construction will advance the congressional purposes behind that Act and “serve the public interest,” making available to consumers an adequate supply of natural gas at reasonable prices. 361 F.3d at 830. It follows, we reasoned, that granting a gas company immediate access to necessary easements during the pendency of condemnation proceedings likewise would advance the public interest, because a “delay in construction would postpone these benefits.” Id.
The district court did not abuse its discretion in applying Sage to the facts of this case. As the district court recognized, MVP‘s certificate rests on an agency finding that the proposed pipeline will benefit the public by meeting a market need for natural gas, and will do so in a way that is environmentally acceptable. J.A. 1141 (“FERC conducted a careful analysis of the [project] and determined that the project will promote [the
That is not to say, of course, that a FERC certificate necessarily will be dispositive of the public interest inquiry under Winter. Apart from setting an in-service deadline, a FERC certificate does not address timing, and so cannot establish by itself that immediate possession, as opposed to pipeline construction generally, is in the public interest. But echoing our reasoning in Sage, the district court here concluded that because delaying construction would delay the public benefits identified by the Commission, the public interest factor favored preliminary relief. And while there may be cases in which there are public-interest arguments against immediate possession that were not considered by the Commission in reviewing the public benefit of the pipeline project writ large, this is not one of them.
We note that the district court did not expressly recognize the distinction between the public interest in pipeline construction generally and in immediate access specifically. See Winter, 555 U.S. at 20 (“A plaintiff seeking a preliminary injunction must establish . . . that an injunction is in the public interest.” (emphasis added)). The district court did, however, incorporate our reasoning under the public-interest prong in Sage, which does address that issue and finished with the common-sense observation that a construction delay would postpone the benefits relied on by FERC in issuing its certificate. See J.A. 1141 (citing Sage, 361 F.3d at 830). Under these circumstances, the absence of additional analysis of the public-interest prong does not amount to an abuse of discretion. We therefore affirm the district court‘s grant of an injunction to MVP.
In sum, the district court did not abuse its discretion in excluding WPPLP‘s proffered evidence as to property that MVP did not identify in the complaint as part of its taking. The district court also properly declined to join WPPLLC as an indispensable party to the action. Finally, the district court properly granted summary judgment in favor of MVP and did not abuse its discretion in granting MVP‘s motion for a preliminary injunction. We therefore affirm the district court‘s order in its entirety.
AFFIRMED