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Mountain Valley Pipeline, LLC v. Easements to Construct, Operate, and Maintain a Natural Gas Pipeline Over Tracts of Land in Giles County

United States District Court, W.D. Virginia, Roanoke Division

January 31, 2018



          Elizabeth K. Dillon United States District Judge.

         On October 13, 2017, the Federal Energy Regulatory Commission (FERC) issued an order (the Certificate Order) authorizing plaintiff Mountain Valley Pipeline, LLC (MVP) to construct and operate approximately 300 miles of a new 42-inch diameter natural gas pipeline through Virginia and West Virginia (the Project). That order granted to MVP a certificate of public convenience and necessity under 15 U.S.C. § 717f, a provision of the Natural Gas Act (NGA).[1] The NGA grants private natural gas companies the federal power of eminent domain where they hold a FERC certificate and either cannot acquire property by contract or are unable to agree with the owner of the property on the amount of compensation to be paid for a necessary right of way for the transportation of gas. 15 U.S.C. § 717f(h).

         Relying on the Certificate Order, MVP filed this action on October 24, 2017, pursuant to Federal Rule of Civil Procedure 71.1. Its complaint seeks to condemn portions of almost 300 properties located within this district, both for permanent easements for the path of the pipeline itself and for temporary easements to allow access needed during the construction of the pipeline.[2] Most of the properties needed for pipeline construction-about 85% of the properties in both states-MVP has acquired by agreement. (Day 1 Hr'g Tr. 112, Dkt. No. 300.) The remaining properties in Virginia are identified in this lawsuit, and the defendants in this case are the landowners of (or easement holders on) the Virginia properties that MVP seeks to condemn.[3]According to its complaint and the declaration of Robert J. Cooper, who is MVP's Senior Vice President of Engineering and Construction, MVP has been unable to acquire the properties identified in the complaint by agreement, despite having offered at least $3, 000 for each such property.[4]

         Shortly after it filed its original complaint, MVP filed a motion for partial summary judgment and for a preliminary injunction seeking immediate possession of the properties. (Dkt. No. 4.) One group of defendant landowners filed a motion to dismiss (Dkt. No. 132), and four different groups filed motions to stay the proceedings on various grounds (Dkt. Nos. 234, 241, 243, 247), including their asserted need for discovery. The court allowed limited discovery on certain topics (see Dkt. No. 205 (allowing expedited discovery)), and it held a hearing to resolve all outstanding discovery objections on December 28, 2017, issuing its order the next day. (Dkt. Nos. 254, 255.)

         After extensive briefing, the court held a hearing on all pending motions on January 12 and 13, 2018, which included testimony from a number of different witnesses, including landowners, related to MVP's motion for immediate possession. (See generally Day 1 & 2 Hr'g Trs., Dkt. Nos. 300, 306.) The court took all of the pending motions under advisement, but it permitted the parties to file post-hearing briefs (including written closing arguments), which have now been filed and which the court has considered.

         For the reasons discussed in more detail below, the court will deny the motion to dismiss because it is procedurally improper, although the court has considered the arguments raised therein when ruling on other motions. The court also denies the motions to stay for several reasons, all discussed below.

         As to MVP's motion for partial summary judgment and for a preliminary injunction, the court considers that motion in two parts. First, the court concludes that MVP has established that there are no disputes of fact and that it is entitled to condemn the land as a matter of law. Thus, it will grant MVP's motion for partial summary judgment.

         Finally, as to MVP's motion for immediate possession, the court has carefully considered the evidence before it and concludes that MVP has shown that it can satisfy the four factors required under Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008), to receive a preliminary injunction. As to most of the properties, however, MVP has not yet presented sufficient evidence to ensure that it can provide the landowners with “reasonable, certain, and adequate provision for obtaining compensation, ” which it must do before their “occupancy is disturbed.” Cherokee Nation v. S. Kansas Ry. Co., 135 U.S. 641, 659 (1890); see Sweet v. Rechel, 159 U.S. 380 (1895). Consequently, as to all but nine properties, the court cannot yet set adequate security in this matter. Thus, the court will conditionally grant the motion for immediate possession but possession will not be permitted until MVP presents sufficient additional evidence to satisfy this constitutional requirement. As to the nine properties for which the court currently has appraisals, the court will conditionally grant the motion for immediate possession and, upon MVP's posting of a deposit equal to three times the amount of each appraisal-which will be subject to a draw-down procedure by those landowners-and the posting of a bond conditioned on payment of just compensation, the court will enter an order allowing MVP immediate possession of those properties.

         I. BACKGROUND

         A. Pertinent Provisions of the Natural Gas Act

         The NGA, 15 U.S.C. §§ 717-717z, permits FERC to grant certificates that confer the NGA's power of eminent domain on gas companies for the purpose of constructing or maintaining pipelines and related facilities. Once a FERC order or certificate is granted, there are limited routes for challenging it. As this court recently explained in a related case,

[t]he NGA provides its own framework for challenges to FERC orders. Effectively, to challenge a FERC order, a party must first apply for rehearing before FERC and, thereafter, may obtain judicial review before either the United States Court of Appeals for the D.C. Circuit or any other court of appeals where the natural gas company related to the order “is located or has its principal place of business.” 15 U.S.C. § 717r(b).
The pertinent language from NGA § 19, codified at 15 U.S.C. § 717r, provides that “[a]ny person . . . aggrieved by an order issued by the Commission in a proceeding under this chapter to which such person . . . is a party may apply for a rehearing within thirty days after the issuance of such order.” § 717r(a). If, and only if, a person files for rehearing, however, may the person obtain judicial review: “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.” Id. Subsection (b) explains that a person may obtain review of FERC's order “in the court of appeals of the United States for any circuit wherein the natural-gas company to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia.” § 717r(b). It describes that review as “exclusive, ” noting that “[u]pon the filing of such petition such court shall have jurisdiction, which upon the filing of the record with it shall be exclusive, to affirm, modify, or set aside such order in whole or in part.” Id.

Berkley v. Mountain Valley Pipeline, No. 7:17-cv-357, 2017 WL 6327829, at *3 (W.D. Va. Dec. 11, 2017).[5]

         In addition to the process for review of a FERC order, a separate provision of the NGA expressly grants district courts authority to decide a condemnation proceeding like this one. 15 U.S.C. § 717f(h). The role of courts in such proceedings is circumscribed, however. Millennium Pipeline Co. v. Certain Permanent & Temp. Easements, 777 F.Supp.2d 475, 481 (W.D.N.Y. 2011), aff'd, 552 F. App'x 37 (2d Cir. 2014). That is, “[t]he NGA does not allow landowners to collaterally attack the FERC certificate in the district court, it only allows enforcement of its provisions.” Transwestern Pipeline Co. v. 17.19 Acres, 550 F.3d 770, 778 n.9 (9th Cir. 2008); see also Columbia Gas Transmission, LLC v. 252.071 Acres More or Less, No. 15-cv-3462, 2016 WL 1248670, at *5 (D. Md. Mar. 25, 2016) (“The jurisdiction of this court is limited to evaluating the scope of the FERC Certificate and ordering condemnation as authorized by that Certificate . . . . This court's role is mere enforcement.” (quoting Guardian Pipeline, L.L.C. v. 529.42 Acres, 210 F.Supp.2d 971, 974 (N.D. Ill. 2002))). Condemnation cases under the NGA are governed procedurally by Federal Rule of Civil Procedure 71.1.

         B. East Tennessee Natural Gas Co. v. Sage, 361 F.3d 808 (4th Cir. 2004)

         The Fourth Circuit's decision in East Tennessee Natural Gas Co. v. Sage, 361 F.3d 808 (4th Cir. 2004), bears at least a brief discussion at the outset because it is a focal point of the parties' arguments and the court's analysis, especially as it pertains to MVP's request for immediate possession.[6] In Sage, the Fourth Circuit affirmed the district court's grant of partial summary judgment to a natural gas company, ETNG, where the district court determined that ETNG had established its right to exercise eminent domain over the landowners' properties based on a FERC certificate of public convenience and necessity. The court also affirmed the district court's grant of the remedy of immediate possession through the issuance of a preliminary injunction. The bulk of the appellate opinion consisted of analysis leading to two conclusions: (1) district courts have equitable authority to grant immediate possession in this circumstance; and (2) the district court did not abuse its discretion in granting a preliminary injunction, based on the facts before it. Sage has been followed by a number of courts throughout the country, and MVP has cited to a long list of cases in which immediate possession has been similarly granted, both before and after Sage. (See, e.g., Dkt. No. 219 at 25-27) (collecting authority).) Sage will be discussed in more detail in context.

         C. Procedural Background

         Before FERC issued MVP its certificate, it considered MVP's application for approximately three years. As part of that process, FERC received public comments and input from landowners and other interested parties. Indeed, many of the witnesses who testified before this court indicated that they had previously provided statements to FERC. Many of the challenges and arguments raised by the parties here were addressed explicitly by FERC in the Certificate Order, and others formed the basis for one commissioner's dissent from the order. FERC, however, largely rejected those arguments. The Certificate Order concludes that the “public at large will benefit from the increased reliability of natural gas supplies” and that “upstream natural gas producers will benefit . . . by being able to access additional markets for their product.” (FERC Cert. Order ¶ 62, Dkt. No. 1-1.) It also considered potential impacts to landowners, geologic resources, groundwater, rivers and streams, wetlands, wildlife, and cultural and historical resources, concluding that the project's benefits outweigh any adverse impacts. (Id. ¶¶ 41, 55, 57, 62, 74, 157, 177, 190, 209, and 286.)

         The Project is designed to take natural gas from the producing regions in the Marcellus and Utica shales south through West Virginia and Virginia. It will connect, in Pittsylvania County, Virginia, to the Transco pipeline system, which provides gas to the east. It will also interconnect with a gas line supplying gas to the Washington, D.C. area, and a very small portion of its capacity (about a half-percent of total capacity) will supply gas to Roanoke Gas Company, a local natural gas distributor. (Cooper Decl. ¶ 6, Dkt. No. 4-1.)

         The Certificate Order requires that the Project be constructed and placed in service by October 2020, and MVP contends that it will be unable to meet that deadline if it cannot obtain possession of the properties until the conclusion of the proceedings in this case. Additionally, MVP plans to place the Project in service even earlier-by the end of 2018. (Cooper Decl. ¶ 20.) MVP claims that, to meet its preferred schedule, for which it has already hired various contractors, it needs possession of the properties in this case by February 1, 2018. (Id. ¶¶ 12, 24.) The claimed reasons for this urgency are described in the context of addressing the motion for immediate possession below.

         MVP filed its action in this court less than two weeks after the FERC Certificate Order issued. As already noted, the court allowed expedited discovery prior to holding a hearing on MVP's motion for partial summary judgment and for preliminary injunction. All of the motions have been fully briefed and are ripe for disposition.


         A. Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim (Dkt. No. 132)

         The motion to dismiss is based on two contentions: (1) that the “conditional” nature of the FERC Certificate Order precludes these condemnation proceedings and means that MVP does not have the authority to condemn property until is satisfies all of the conditions; and (2)

         that a private entity cannot condemn private property unless it first demonstrates an ability to pay just compensation to all those whose property they seek to take and that “MVP has not even attempted to do” so. (Dkt. No. 132 at 3; see Id. at 40.) Based on these two arguments, Defendants argue both that MVP has failed to state a claim and that this court lacks jurisdiction over the case.[7]

         The court does not reach the merits of the motion to dismiss -although it addresses the arguments it raises in the context of the partial summary judgment motion-because a motion to dismiss is not permitted under the plain language of Rule 71.1 and Atlantic Seaboard Corp. v. Van Sterkenburg, 318 F.2d 455 (4th Cir. 1963). Rule 71.1(e)(3) allows defendants to file a notice of appearance and an answer, and it expressly states: “No other pleading or motion asserting an additional objection or defense is allowed.” Fed.R.Civ.P. 71.1(e)(3). Based on this language, the Atlantic Seaboard Corp. court held that a motion to dismiss for failure to state a claim is “unallowable” in a condemnation action, but noted that all defenses could be raised in an answer. 318 F.2d at 458 (explaining that Rule 71.1's “prohibition of any pleading other than an answer is clear and unequivocal”);[8] see also Columbia Gas Transmission, LLC v. 370.393 Acres, No. 1:14-cv-0469, 2014 WL 2919709, at *1 (D. Md. June 26, 2014) (denying motions for more definite statement on that ground and citing Atlantic Seaboard Corp.). Based on this clear authority, the court denies the motion to dismiss as procedurally improper.

         B. Motions to Stay (Dkt. Nos. 234, 241, 243, 247)

         Two of the four motions to stay simply incorporate a third by reference, and so these three motions to stay make the same arguments. (Dkt. Nos. 234, 241, 247.) The fourth motion (Dkt. No. 243) raises some different arguments, and the court will address that motion first. In that motion to stay, defendants argue that the lawsuit has become a “hyper-accelerated litigation driven by the self-proclaimed necessity” of MVP to begin construction early, despite not having all the approvals. (Dkt. No. 244 at 2.) Defendants also note the court's inherent power to stay proceedings and to control its cases.

         The motion also points to landowners who claim the property sought in the complaint differs from what MVP previously offered to purchase. Specifically, it relies on the declarations of James Scott and Michael Slayton. Scott's property contains a historic cemetery, and he avers that MVP offered to purchase a different route from him (that would avoid the cemetery), but that the complaint references the original route of the FERC application, which would go through the cemetery. The Slayton declaration is similar, although the route in the complaint would go through an area with a known sinkhole (Slusser's Chapel sinkhole).

         These discrepancies are purportedly offered to show that the pipeline route is not yet firmly established and that MVP may still amend it. (Dkt. No. 264.) Based on this, defendants argue that granting immediate possession would be premature and that the case should be stayed until MVP can provide assurances that the route they are seeking to condemn is in fact the proper route.

         In response, MVP offers several assertions that the court finds persuasive. First, as to the Slayton property, the complaint in this matter has been amended to conform with a variation required by FERC known as “Variation 250.” This is a variation to the pipeline route in Montgomery County that the FERC Certificate Order required MVP to adopt. (Cert. Order ¶¶ 152-54.) The variation did not require the addition of any new landowners, but instead adjusted the route as to several landowners already in the case, including Slayton. As is undisputed, MVP has made the necessary filings with FERC to adjust the route and also amended its complaint in this case to incorporate Variation 250. The defendants affected by Variation 250 were served with that amendment and their answers, if any, were due and have been filed since the hearing.[9] Thus, the amended complaint seeks to condemn the same property that FERC required as part of Variation 250.

         As to the Scott property, MVP acknowledges that it seeks to condemn the original route, instead of the route that would avoid the cemetery. As MVP correctly notes, the only route that it has authority to condemn is the FERC-approved route. Put differently, it cannot unilaterally alter the route across properties that it has to obtain by condemnation. If it reaches an agreement with a landowner, however, the owner and MVP can jointly seek approval from FERC for a route variation, and those requests are usually granted. So MVP is going forward with the original route on the Scott property-the only FERC-approved route-because that is the only route it is authorized to obtain by condemnation and it has been unable to obtain it by agreement. Nonetheless, MVP explains that it continues to survey the property and that it is willing to consider an alternative route if it can reach an agreement with the Scotts. In the absence of an agreement, however, it will condemn the original route approved by FERC, and that is where it will build.

         The fourth motion to stay also argues that the discovery permitted by the court, while “appreciate[d], ” was so limited in time and scope that “meaningful review and preparation” were made “nearly impossible.” Defendants assert that forcing such hurried discovery “raises significant due process implications, especially when coupled with the extraordinary relief requested by MVP and the fundamental nature of the property rights of which MVP seeks to divest the Defendants.” (Dkt. No. 244 at 6.) Despite these complaints, defendants presented a spirited defense at the hearing and did not identify any specific discovery that they believed they needed to adequately respond to the motions, aside from evidence regarding MVP's financial strength and viability (on which the court declined to allow discovery), and perhaps discovery as to offers on all outstanding properties (which the court excluded in any event). Thus, the court does not believe that equity required a stay postponing the hearing or that it requires the postponement of its decision to allow for unspecified discovery.

         In the other three motions to stay (Dkt. Nos. 234, 241, and 243), defendants argue that the court should not grant immediate possession to MVP or consider injunctive relief until the landowners can obtain further review of the Certificate Order. They are not asking that this proceeding be stayed in its entirety, but only that the court withhold ruling on the motion for immediate possession. The court does not believe the requested stay is appropriate in this case.

         The defendants' arguments are two-fold. First, they argue that there are a number of other legal proceedings that could affect, delay, or halt the building of this pipeline and so to allow immediate possession before it is assured that the pipeline will be completed will irreparably harm defendants and their property, especially if the pipeline ultimately is not built. They cite often to the example of a woman with a maple syrup business whose property was left littered with felled maple trees after a court granted immediate possession and the pipeline project subsequently ceased.

         Second, they argue that the combined effect of the statutory review scheme and FERC's so-called “tolling order” is to allow MVP to obtain possession under a FERC Certificate Order that is effectively insulated from any judicial review. That is, in this case, a number of defendants and others filed petitions for rehearing with FERC, a step that the NGA requires before seeking judicial review of a FERC order in a court of appeals. As has become commonplace, FERC issued an order essentially taking the petition under advisement and stating that it needed more time to consider rehearing. (Dkt. No. 234-1.) That tolling order allowed FERC to give itself additional time to consider the petition for rehearing. Such orders also typically prevent challengers to a FERC order from obtaining judicial review because courts have held there is no jurisdiction in the courts of appeals until FERC actually rules on the petition for rehearing. See, e.g., Clifton Power Corp. v. FERC, 294 F.3d 108, 110 (D.C. Cir. 2002); City of Glendale v. FERC, No. 03-1261, 2004 WL 180270, at *1 (D.C. Cir. Jan. 22, 2004); see also Allegheny Defense Project v. FERC, No. 17-1098 (D.C. Cir. Nov. 8, 2017) (denying emergency motion for a stay where FERC tolling order was in effect and petition for rehearing had not yet been ruled on).[10] Defendants argue that the entire scheme denies them due process because the Certificate Order is “final” for purposes of MVP condemning property, but not “final” so as to allow review in the court of appeals. (Dkt. No. 234 at 3-4; id. at 4 (asserting that the tolling order “gores Landowners on the horns of a dilemma”).) In short, they argue that they are left without recourse to challenge the Certificate Order before their property is condemned.

         The court addresses each of these arguments in turn. First, as to the argument that the court should stay the request for injunctive relief until other judicial challenges can be decided or until all conditions on the FERC Certificate Order are satisfied, defendants cite to no authority for their request. Moreover, a stay of the order by this court is not permitted under the plain language of the statute. See Steckman Ridge GP v. Exclusive Nat. Gas Storage Easement Beneath 11.078 Acres, No. 08-cv-168, 2008 WL 4346405, at *3-4 (W.D. Pa. Sept. 19, 2008) (analyzing issue); 15 U.S.C. §717r(c) (FERC order is not stayed unless specifically ordered by the Commission, nor does the commencement of judicial proceedings operate as a stay of the FERC order unless ordered by the court). Instead, requests for a stay must be directed to FERC or to the appropriate court of appeals. By the express provisions of the statutory scheme and the cases interpreting it, then, this court does not have authority to stay the Certificate Order. And despite the landowners' claim that they are not seeking to stay the order, that seems to be the relief they ask for, albeit “indirectly.” See Sabal Trail Transmission, LLC v. Real Estate, No. 1:16-cv-63, 2016 WL 8919397, at *3 (N.D. Fla. May 23, 2016) (declining defendants' “invitation to indirectly stay FERC's order”).

         Defendants urge, though, that this court has inherent authority to stay proceedings and that a stay is warranted if the party seeking it makes out a “clear case of hardship or inequity in being required to go forward.” (Dkt. No. 234 at 2 (quoting Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936)).) Put differently, they seem to be requesting that the court circumvent the statutory scheme in the name of equity. (Dkt. No. 287 at 3-4, 6 (arguing that this court's role as “chancellor” allows it to stay the proceedings to ensure the landowners receive due process).) This court will not stay this action where other courts statutorily authorized to do so have not. Again, this court's task is to enforce the Certificate Order, not stay its own proceedings to give the landowners more time to challenge it. Thus, the court does not believe that equity requires a stay in this case.

         As to defendants' second argument-that the tolling order denies defendants due process-defendants argue that this is an issue of first impression. They contend that “no court has addressed a request for a stay of proceedings on a motion for a preliminary mandatory injunction on the basis of” a FERC tolling order, although they admit that the decision in Transcontinental Gas Pipe Line Co. v. Permanent Easement for 2.14 Acres (“Transco”), No. 17-cv-1725, 2017 WL 3624250 (E.D. Pa. Aug. 23, 2017), “comes the closest.” According to defendants, though, the Transco court's reasoning was “wrong” because it incorrectly concluded that process delayed was not process denied.

         Nonetheless, both Transco and the decision in Steckman Ridge (which did not involve a motion to stay, but did involve a FERC tolling order) rejected the landowners' argument that the court should not address the condemnation claims until after FERC rehearing was concluded, and granted the pipeline company's request for immediate possession. The court finds the reasoning in these cases persuasive. Furthermore, it is worth noting that FERC tolling orders have been repeatedly upheld against challenges. See, e.g., Kokajko v. FERC, 837 F.2d 524, 525- 26 (1st Cir. 1988) (holding that the delay in FERC's final resolution of a challenge to a rate order, which involved both a five-year delay from the filing of the case, in which two prior FERC orders on rehearing had been issued, and a four-month delay from the last tolling order, was insufficient to constitute a due process violation and thus declining to issue a writ of mandamus to compel agency action); see also City of Glendale, No. 03-1261, 2004 WL 180270, at *1 (denying petition for review of FERC order and dismissing appeal where tolling order left petition for rehearing pending, although not addressing a due process argument); Towns of Wellesley, Concord, & Norwood v. FERC, 829 F.2d 275, 278 (1st Cir. 1987) (denying writ of mandamus in case challenging FERC rates where FERC had taken 14 months to issue its final order, after court had remanded and instructed FERC to issue ruling).

         The court must also acknowledge the numerous district court cases to which MVP cites for two propositions: (1) a FERC certificate is binding in eminent domain proceedings even if subject to rehearing as long as neither FERC nor a court of appeals has issued a stay; and (2) the fact that rehearing is pending is no reason to delay summary judgment or immediate possession. (See Dkt. No. 263 at 3-4.) Those cases further support the court's conclusion that a stay here is inappropriate.

         For the reasons set forth above, all of the motions to stay will be denied.

         C. Motion for Partial Summary Judgment

         MVP's motion for partial summary judgment seeks a declaration that it is entitled to condemn the properties referenced in the complaint. Although the Fourth Circuit's decision in Sage is instructive on a number of issues, the landowners there did not challenge on appeal the district court's ruling that ETNG had the right to take their property. As a result, that case did not address the requirements for determining that an entity has the right to exercise eminent domain as outlined in a FERC certificate of public convenience and necessity. In other cases, though, courts have laid out three requirements, all of which come from 15 U.S.C. § 717f(h). It provides:

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 pipe line or pipe lines for the transportation of natural gas, and the necessary land or other property, in addition to right-of-way, for the location of compressor stations, pressure apparatus, or other stations or equipment necessary to the proper operation of such pipe line or pipe lines, 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 courts. The practice and procedure in any action or proceeding for that purpose in the district court of the United States shall conform as nearly as may be with the practice and procedure in similar action or proceeding in the courts of the State where the property is situated: Provided, That the United States district courts shall only have jurisdiction of cases when the amount claimed by the owner of the property to be condemned exceeds $3, 000.

15 U.S.C. § 717f(h).

         Based on this provision, courts have explained that, “[o]nce a [certificate of public convenience and necessity] is issued by the FERC, and the gas company is unable to acquire the needed land by contract or agreement with the owner, the only issue before the district court in the ensuing eminent domain proceeding is the amount to be paid to the property owner as just compensation for the taking.” Maritimes & Northeast Pipeline, L.L.C. v. Decoulos, 146 F. App'x 495, 498 (1st Cir. 2005); Millennium Pipeline Co., 777 F.Supp.2d at 479.

         Thus, courts have held that a plaintiff must satisfy three requirements to exercise eminent domain under § 717f(h): (1) it holds a valid FERC certificate; (2) the easements it seeks are necessary; and (3) it has been unable to acquire easements by agreement. See Columbia Gas Transmission Corp. v. An Easement to Construct, Operate, & Maintain a 24-inch Gas Transmission Pipeline, No. 3:07-cv-28, 2007 WL 2220530, at *3 (W.D. Va. July 31, 2007). Some courts have omitted the “necessary” second element and instead added as a third element that the “value of the subject property claimed by the owner exceeds $3, 000.00.” See, e.g., Steckman Ridge, 2008 WL 4346405, at *13 (setting forth three elements).

         Some of the defendants argue that there is also a requirement that the certificate holder have negotiated in “good faith” in order to obtain the easements, and at least one court has so stated. See Transcon. Gas Pipe Line Corp. v. 118 Acres, 745 F.Supp. 366, 369 (E.D. La. 1990). But MVP correctly notes that that court cited no authority for the proposition. And numerous district courts in the Fourth Circuit (and elsewhere) have rejected any requirement of “good faith negotiation.” See, e.g., Columbia Gas Transmission Corp. v. Easement to Construct, Operate & Maintain 24-Inch Pipeline, No. 5:07-cv-04009, 2008 WL 2439889, at *2 n.4 (W.D. Va. June 9, 2008) (“[N]othing in the NGA or Rule 71A requires the condemnor to negotiate in good faith.”). (See also Dkt. No. 219 at 22-23 (collecting authority).) Although MVP has not cited to a case from the Fourth Circuit rejecting a “good faith” requirement, the overwhelming lower court authority does, and there is no firm basis for it in the statute. Thus, the court rejects defendants' argument that MVP must show it engaged in “good faith” negotiations.[11]

         Defendants also raise a number of factual and legal challenges to MVP's right to condemnation, which the court addresses next.

         1. MVP's alleged failure to show it can pay just compensation is not part of the summary judgment inquiry.

         One of the primary arguments raised by the defendants is that MVP has not proven it can pay just compensation for all of the easements it seeks, which is a requirement that is imposed by the Fifth Amendment of the United States Constitution (in addition to requirements that it holds a certificate, needs the land, and could not acquire it by agreement). (Dkt. No. 196 at 15-19.) While the court agrees that the Fifth Amendment confers the due process protection of an assurance of just compensation before occupancy is disturbed, Cherokee Nation, 135 U.S. at 659, the court does not agree that this issue is properly considered as part of the motion for summary judgment.

         Defendants attempt to include the payment of just compensation as an element of MVP's condemnation claim, but it is not identified that way in the cases they cite, including Sage itself. Indeed, Sage first addressed the district court's grant of summary judgment. Separately, as part of determining whether immediate possession could be permitted, it addressed the landowners' argument that their possession could not be disturbed unless an owner has “reasonable, certain, and adequate provision for obtaining compensation.” Sage, 361 F.3d at 824 (quoting Cherokee Nation, 135 U.S. at 659). Thus, the court concludes that this issue does not affect MVP's right to condemn, as implicated by its motion for summary judgment. Rather, this issue is properly addressed as part of MVP's request for immediate possession. Accordingly, the court will discuss this issue-and all of the related issues concerning who bears the burden to establish value, or a sufficient amount for security-in ruling on MVP's motion for immediate possession.

         2. The conditional nature of the certificate does not preclude ...

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