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Dominion Carolina Gas Transmission LLC v. 1.169 Acres

United States District Court, D. South Carolina, Columbia Division

October 28, 2016

Dominion Carolina Gas Transmission, LLC, Plaintiff,
v.
1.169 Acres, in Richland County, South Carolina located on Parcel R39100-02-05; ETTA N. MANN, JOHN L. RICHARDSON, SR., HERMAN B. RICHARDSON, HERMAN DARRELL RICHARDSON, ARTHUR C. RICHARDSON, ROBERT RICHARDSON, ETHEL R. BOLDEN, LESTER E. RICHARDSON, LUCIEN V.P. RICHARDSON, JOHNELLA RICHARDSON, DEBORAH JEANNE RICHARDSON DAVIS ALEXANDER, RUBYE LUCILLE RICHARDSON ALEXANDER, JACQUELINE LEANNA RICHARDSON WILLIAMS, DWAYNE MAURICE RICHARDSON, WALTER BUTLER, JR., KAREN PERRY-TOWNSEND, JANET FARRELL, GARY WHITE, CHRISTOPHER WHITE, BERTHA RICHARDSON, CHARLES ROGERS RICHARDSON, ELIZABETH H. SIMON, AND JUDY H. GULLAX, SOUTH CAROLINA DEPARTMENT OF REVENUE, RMC FINANCIAL SERVICES, PIONEER CREDIT CO, PALMETTO HEALTH ALLIANCE DBA PALMETTO RICHLAND MEMORIAL, SOUTH CAROLINA FEDERAL CREDIT UNION, And UNKNOWN OWNERS, Defendants.

          ORDER GRANTING PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF ITS RIGHT TO CONDEMN

         Plaintiff Dominion Carolina Gas Transmission, LLC (“DCGT”) has moved for partial summary judgment as to its right to condemn the easements at issue in this action. After considering the motion, the memorandum in support, and the Affidavits of Michael R. Ferguson and James G. Barton (“Ferguson Affidavit” and “Barton Affidavit”), the Court finds the motion should be granted as set forth below.

         STATEMENT OF UNDISPUTED FACTS

         This case arises from DCGT's exercise of its eminent domain powers pursuant to the Natural Gas Act (“NGA”), 15 U.S.C. § 717, et seq. and the applicable Federal Energy Regulatory Commission (“FERC”) Certificate order, attached to the Ferguson Affidavit as Exhibit A. DCGT brought this action seeking certain easements it requires in connection with its Eastover pipeline project (“Project”).

         DCGT is an interstate natural gas company as defined by the NGA. 15 U.S.C. § 717a(6); see also Ferguson Affidavit at ¶ 8. As such, DCGT is subject to the jurisdiction of the Federal Energy Regulatory Commission (“FERC”) and is qualified to, among other things, construct and operate interstate natural gas transmission pipelines. 15 U.S.C. § 717, et seq.; Ferguson Affidavit at ¶ 8. DCGT has conducted extensive negotiations in an effort to obtain the easements required for the project and has reached an agreement with respect to the vast majority of the involved parcels and landowners. DCGT has been unable to reach an agreement as to the defendant parcels and landowners in this action, each of which is listed below (collectively, “Landowners”).

         The Landowners own or hold interests in real property located in Richland County, South Carolina described as the Estate of Janie Sims, TMS # R39100-02-05 (the “Property). Ferguson Affidavit at ¶¶ 4-7. DCGT seeks easements over the Property in connection with the Project as shown in Exhibit M of the Complaint. Id. at ¶ 10.

         The FERC Certificate order authorizes DCGT to construct and operate the Project, an approximately 28-mile long pipeline and appurtenant facilities serving an industrial customer in South Carolina. Id. at Ex. A. The FERC Certificate order and the NGA authorize DCGT to condemn property interests that are necessary for the Project in the event DCGT cannot obtain those interests through negotiation with the property owners. See 15 U.S.C. § 717f(h); Ferguson Affidavit at ¶ 17. DCGT “has tried multiple methods of negotiation, including sending multiple written offers to the landowners and, in many cases, in-person negotiations over the course of nearly two years.” Ferguson Affidavit at ¶ 20.

         DISCUSSION

         I. Summary Judgment Standard

         Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment should not be viewed as a disfavored procedural shortcut, but rather as a key component of the federal rules as a whole and their goal of promoting “the just, speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Once the moving party has met its burden, the non-moving party “must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party must present evidence, beyond a mere scintilla, from which a fact finder could find in its favor. Anderson at 247-48.

         A court must view the facts and inferences reasonably drawn from them in the light most favorable to the non-moving party. Smith v. Univ. of N.C., 632 F.2d 316, 338 (4th Cir. 1980). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a properly made and supported motion for summary judgment. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992).

         II. DCGT's Right to Exercise the Power of Eminent Domain

         DCGT is authorized by the NGA and the FERC Certificate order to exercise the power of eminent domain to condemn any easements necessary for the Project that it cannot obtain through negotiation with the property owners. As set forth by another District Court within the Fourth Circuit,

The Natural Gas Act grants a natural gas company the power to exercise eminent domain over the necessary property and right of way to construct a pipeline if 1) the company holds a certificate of public convenience and necessity, and 2) the company cannot acquire by contract, or is unable to agree with the owner of property to the compensation to be paid ....

Columbia Gas Transmission LLC v. 0.85 Acres, 2014 WL 4471541, at *3 (D. Md. Sept. 8, 2014) (quotation omitted). In this case, there is no dispute as to ...


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