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Atlantic Coast Pipeline, LLC v. 1.52 ACRES

United States District Court, E.D. Virginia, Richmond Division

January 9, 2019

ATLANTIC COAST PIPELINE, LLC, Plaintiff,
v.
1.52 ACRES, MORE OR LESS, IN NOTTOWAY COUNTY, VIRGINIA, et al., Defendants.

          OPINION

          JOHN A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE.

         Atlantic Coast Pipeline, LLC ("Atlantic"), seeks to exercise its eminent domain powers pursuant to Section 7(h) of the Natural Gas Act, 15 U.S.C. § 7l7f(h). Between January 18, 2018 and February 23, 2018, Atlantic filed its Complaints in Condemnation to acquire certain easements for the three underlying cases. Atlantic subsequently served the defendants named in the three underlying cases personally or through publication. On August 16, 2018, the Clerk entered default against all the defendants who have failed to respond in these underlying cases ("Non-Responding Defendants"). Atlantic filed its Motion for Default Judgment against the Non-Responding Defendants on August 20, 2018.

         As a natural gas company in possession of a certificate of public convenience and necessity from the Federal Energy Regulatory Commission, Atlantic may condemn the property interests at issue in this litigation and is thus entitled to have default judgment granted in its favor against the Non-Responding Defendants. On September 20, 2018, the Court held a bench trial to determine the just compensation owed to the Non-Responding Defendants for the property condemned.

         I. FACTS

         After the bench trial, the Court finds the following facts:

         A. Atlantic Is a Natural Gas Company in Possession of a Certificate of Public Convenience and Necessity Issued by the FERC

         Atlantic is an interstate natural gas company as defined by Section 2(a) of the Natural Gas Act, 15 U.S.C. § 717 et seq. Atlantic is subject to the jurisdiction of the Federal Energy Regulatory Commission ("FERC") and is authorized to construct, own, operate, and maintain pipelines for the transmission of natural gas in interstate commerce. See 15 U.S.C. § 717. See Dk. No. 125-1, Memo, in Supp. of Atlantic's Mot. for Default J., Ex. 1, Decl. of Jedidiah Spratt ("Spratt Decl.") ¶ 7.

         Atlantic is in the process of constructing an approximately 600-mile underground pipeline and related facilities for the purpose of transporting natural gas from West Virginia to Virginia and North Carolina (the "ACP Project"). See Spratt Decl. ¶ 5.

         The ACP Project will measure approximately 42 inches in diameter in West Virginia and Virginia, and 36 inches in diameter in North Carolina. Certain extensions of the ACP Project will measure 20 inches in diameter from Northampton County, North Carolina to the City of Chesapeake, Virginia and 16 inches in diameter in Brunswick County, Virginia and Greensville County, Virginia. See Spratt Decl. ¶ 8. Natural gas transported by the ACP Project will serve multiple public utilities. See Spratt Decl. ¶ 9.

         Atlantic filed an application for a certificate of public convenience and necessity with FERC on September 18, 2015, FERC Docket No. CP15-554-000, in which it sought permission to construct the ACP Project and attendant facilities. On October 13, 2017, FERC issued a certificate of public convenience and necessity (the "FERC Certificate") authorizing Atlantic to construct and operate the ACP Project. (Comp. Ex. 2). See Spratt Decl. ¶ 10; see also Spratt Decl., Ex. A, the October 13, 2017 Certificate of Public Convenience and Necessity Issued by the Federal Energy Regulatory Commission to Atlantic.

         B. Atlantic Seeks to Condemn Certain Property Rights from the Defendants

         Each of the Non-Responding Defendants for each underlying matter owns a property interest in the certain tracks of land sought to be condemned by Atlantic. See Compl. ¶ 16, Dk. No. 1 (2:18-cv-00106-JAG); Compl. ¶ 17, Dk. No. 1 (3:18-cv-00041); Compl. ¶ 16, Dk. No. 1 (3:18-cv-00067). Atlantic filed its Complaints in Condemnation to acquire certain easements from the Non-Responding Defendants for the three underlying matters. See Compl. ¶ 2, Dk. No. 1 (2:18-cv-00106-JAG); Compl. ¶ 2, Dk. No. 1 (3:18-cv-00041); Compl. ¶ 2, Dk. No. 1 (3:18-cv-00067).

         Specifically, Atlantic seeks to construct a portion of the ACP Project on the Properties described in detail below. The ACP Project cannot be constructed until Atlantic acquires certain permanent easements (the "Permanent Easements") and temporary easements (the "Temporary Easements") (collectively the "Easements") on the Properties. The Easements are necessary for constructing, maintaining, operating, altering, testing, replacing, and repairing the ACP Project. SeeDk.No. l, ¶ 16(2:18-cv-00106-JAG);Dk.No. l, ¶ 17 (3:18-cv-00041); Dk.No. l, ¶ 16 (3:18-cv-00067).

         The Permanent Easements to be taken on each Property include a permanent and exclusive easement and right-of-way to construct, operate, maintain, replace, repair, remove or abandon the ACP Project and appurtenant equipment and facilities, as well as the right to change the location of the installed pipeline within the area of the Permanent Easement as may be necessary or advisable. See Compl. ¶ 18, Dk. No. 1 (2:18-cv-00106-JAG); Compl. ¶ 19, Dk. No. 1 (3:18-cv-00041); Compl. ¶ 18, Dk. No. 1 (3:18-cv-00067).

         The Temporary Easements will enable Atlantic to construct the ACP Project and engage in restoration or clean-up activities. The Temporary Easements are requested as of the date of authorized entry onto the Property and their use is required until all work, including restoration, is complete. The Temporary Easements will be effective and condemned for a period not to exceed five (5) years following Atlantic's possession of the Easements. See Compl. ¶ 19, Dk. No. 1, (2:18-cv-00106-JAG); Compl. ¶ 20, Dk. No. 1 (3:18-cv-00041); Compl. ¶ 19, Dk. No. 1 (3:18-cv-00067).

         1. Underlying Case Number 2:18-cv-00106-JAG

         The defendants the Unknown Heirs of Asberry Melton and the Unknown Heirs of David H. Melton own real property located in City of Chesapeake, Virginia, in the Deep Creek Borough, as is more particularly described as Parcel Identification No. 0340000001800, as is more particularly described as on that certain Plat filed in Map Book 143, Page 97 among the land records of the City of Chesapeake, Virginia, and comprised of 5.159 acres, more or less (the "Melton Property"). See Compl. ¶ 5, Dk. No. 1 (2:18-cv-00106-JAG).

         Atlantic attempted to negotiate to acquire Easements over the Melton Property for the purpose of the construction of an interstate natural gas pipeline. See Spratt Decl. ¶¶ 12-14. There are two landowners who have already settled with Atlantic for the Melton Property. The remaining, active defendants in this case are unknown heirs who collectively have a 28.58% ownership interest in the Melton Property. Atlantic, despite negotiation efforts, has been unable to acquire by contract, or has been unable to agree with the remaining defendants as to the compensation to be paid for, the necessary easements to construct, operate, and maintain a pipeline for the transportation of natural gas.

         The area and dimensions of the Easements Atlantic seeks to condemn on the Melton Property are depicted in Exhibit 4 to the Complaint in Condemnation. See Compl., Ex. 4, Dk. No. 1-4 (2:18-cv-00106-JAG); see also Atlantic's Trial Exhibit No. 3.

         2. Underlying Case Number 3:18-cv-00041-JAG

         The defendants Glinda D. Ford, Naomi R. Waddy, Willie R. Foster, Casey L. Foster, Lawanda D. Pryor, Latisha S. Gordon, Shanna N. Gordon, Larry D. Vaughan, Francis L. Vaughan, Harold Edward Foster, Jr., J.F., and the Unknown Heirs of Willie Raymond Foster may own real property located in Nottoway County, Virginia, as is more particularly described as Parcel Identification No. 20-7, as is more particularly described in Deed Book 259, Page 591 of the ...


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