United States District Court, W.D. Virginia, Roanoke Division
Richard Cranwell, Cranwell & Moore, P.L.C., Roanoke,
Virginia, and William B. Hopkins, Jr., Martin, Hopkins &
Lemon, P.C., Roanoke, Virginia, for Plaintiff and Counter
Defendant Weaver Enterprises, Inc.; Lela M. Hollabaugh,
Bradley Arant Boult Cummings LLP, Nashville, Tennessee, and
Roy David Warburton, Warburton Law Offices, Pulaski,
Virginia, for Defendant and Counterclaimant East Tennessee
Natural Gas, LLC, and Matthew P. Pritts and Justin E.
Simmons, Woods Rogers PLC, Roanoke, Virginia, for Defendant
Appalachian Power Company.
P. Jones United States District Judge.
case, involving the disputed interpretation of a property
easement, was removed from state court. The plaintiff has
moved to remand the case on the ground that this court lacks
subject-matter jurisdiction. For the reasons that follow, I
find that federal jurisdiction has not been shown, and will
remand the case.
basic facts are not in material dispute. East Tennessee
Natural Gas, LLC (“East Tennessee”) is a natural
gas transmission company that operates interstate gas
pipelines in several states, including Virginia. In 2002, it
filed an action in this court seeking a condemnation granting
a perpetual easement for a 24-inch-diameter gas pipeline
across certain land located in this judicial district and
owned by the plaintiff Weaver Enterprises, Inc.
(“Weaver”). In 2006, the parties settled the case.
The only written memorials of the settlement are (1) a
document entitled “Release in Full” which
references the condemnation suit filed by East Tennessee and
the payment amounts made to Weaver for the actual easement
and for damages to the remainder of Weaver's land, and
(2) an order by a judge of this court entered July 7, 2006,
styled as “Agreed Order Granting East Tennessee
Right-of-Way and Easement (the “Agreed Order”).
The Agreed Order provides in full as follows:
appears to the Court, as evidenced by the signature of
counsel below, that the parties are in agreement that East
Tennessee Natural Gas Company should be granted a
right-of-way and easement through and across the property
that is the subject matter of this lawsuit and as set forth
in the Complaint and the amended exhibits thereto.
Weaver will have right to cross the right of way in a manner
consistent to East Tennessee's policies and procedures
and upon receipt of ETNG's permission for such crossing.
However, East Tennessee agrees it will not unreasonable [sic]
withhold its permission for such crossings.
East Tennessee agrees that entry to the property will be by
roads on the property (existing) at the time of the entry
except in the case of an emergency. In the event of an
emergency East Tennessee may enter the property where it
deems appropriate to abate the emergency.
All other matters have been settled between the parties and
the parties are in agreement that the funds on deposit with
the Court for this action should be refunded to Plaintiff,
East Tennessee Natural Gas Company, c/o Lela Hollabaugh at
the address below.
& Countercl., Ex. A, ECF No. 13.
February 7, 2017, Weaver filed suit in state court against
East Tennessee and Appalachian Power Company
(“APCO”), a public service company providing
electric power in Virginia. Weaver's Complaint recites
that APCO has obtained by agreement an easement to build a
138-kilovolt electric power line across Weaver's property
“mostly parallel and contiguous” to East
Tennessee's gas pipeline. Compl. ¶ 9. ECF No. 1-1.
Weaver alleges that because of this power line, East
Tennessee desires to build a “cable and steel
underground grid to protect its gas line.” Id.
¶ 12. East Tennessee contends that the gas line easement
obtained in 2006 allows it the privilege of this additional
work; Weaver contends to the contrary. Weaver seeks a
declaration that East Tennessee did not obtain the right
under its existing easement to perform the desired work.
Tennessee timely removed Weaver's state action to this
court, with codefendant APCO's consent. East Tennessee
asserts that the subject-matter jurisdiction of this court
exists under 28 U.S.C. § 1331, providing jurisdiction of
civil actions arising under the laws of the United States, on
the ground that “Plaintiff seeks a determination of the
scope of an Order by this Court pursuant to authority granted
by 15 U.S.C. 717f(h) and necessarily involves the
interpretation of federal laws, including the Natural Gas Act
and the Natural Gas Pipeline Safety Act.” Notice of
Removal 3, ECF No. 1. It also contends that federal
subject-matter jurisdiction exists under 28 U.S.C. §
1337(a), providing for jurisdiction over “any civil
action or proceeding arising under any Act of Congress
regulating commerce.” Id.
its removal of the action to this court, East Tennessee filed
an Answer and Counterclaim, alleging that because of
APCO's construction of the high voltage power line, which
parallels the gas pipeline for approximately three miles on
Weaver's property, East Tennessee must install an
“Alternating Current (‘AC') mitigation system
. . . . in order to comply with federal law and to ensure the
integrity and safety of its pipeline.” Countercl.
¶¶ 13-14, ECF No. 12. ...