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Atlantic Coast Pipeline, LLC v. 1.52 Acres

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

March 19, 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. § 717f(h). On January 31, 2018, Atlantic filed its Complaints in Condemnation to acquire certain easements for two underlying cases. Atlantic subsequently served the defendants named in the two underlying cases personally or through publication. On August 16, 2018, the Clerk entered default against all the defendants who failed to respond in Underlying No. 2:18-cv-00058-JAG. On January 18, 2019, the Clerk entered default against all the defendants who failed to respond in Underlying No. 2:18-cv-00417-JAG (the "Non-Responding Defendants"). Atlantic filed its Motion for Default Judgment against the Non-Responding Defendants in Underlying No. 2:18-cv-00058-JAG on August 20, 2018. Dk. No. 124. Atlantic renewed its Motion for Default Judgment against the Non-Responding Defendants in Underlying No. 2:18-cv-00058-JAG and moved for default judgment against the Non-Responding Defendants in Underlying No. 2:18-cv-00417-JAG on January 18, 2019. Dk. No. 477.

         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 February 14, 2019, 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; Dk. No. 478-1, Memo, in Supp. of Atlantic's Mot. for Default J., Ex. 1, Decl. of Jedidiah Spratt ("Spratt Decl.") 17.

         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 case owns a property interest in the certain tracts of land sought to be condemned by Atlantic. See Dk. No. 1, ¶16 (2:18-cv-00058-JAG); Dk. No. 1, ¶ 16 (2:18-cv-00417-JAG). Atlantic filed its Complaints in Condemnation to acquire easements from the Non-Responding Defendants for the two underlying cases. See Dk. No. 1, ¶ 2 (2:18-cv-00058-JAG); Dk. No. 1, ¶ 2 (2:18-cv-00417-JAG). 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. See Dk. No. 1, ¶ 16 (2:18-cv-00058-JAG); Dk. No. 1, ¶ 16 (2:18-cv-00417-JAG).

         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 Dk. No. 1, ¶ 18 (2:18-cv-00058-JAG); Dk. No. 1, ¶ 18 (2:18-cv-00417-JAG).

         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 Dk. No. 1, ¶ 19 (2:18-cv-00058-JAG); Dk. No. 1, ¶ 19 (2:18-cv-00417-JAG).

         I. Underlying Case Number 2:18-cv-00058-JAG

         The defendants Muneer Elahi, Robyn Shahid, Rodyn Shahid, Gary J. Maddox, Larry Skinner, Rodney Lionel Tillery, Valencia Tillery, Cynthia A. Thompson, Barry L. Skinner, Kennedy Tyrone Skinner, Fletcher Skinner, Leroy Skinner, Andre Skinner, Damon Lovell Tillery, Eunice Willis, Marie Rivers, Ronald Parker, Sudie V. Skinner, Terrelle Warren, Lloyd E. Pettus, Ahmad Khalil Shy, Jr., the Unknown Heirs of Billy Earl Briggs, the Unknown Heirs of Brenda D. Willis, the Unknown Heirs of Earlo White, the Unknown Heirs of Georgiana Willis a/k/a Beatrice Willis a/k/a Beatrice Powell, the Unknown Heirs of Louise White, the Unknown Heirs of Margaret Armstrong, the Unknown Heirs of Mary B. White, the Unknown Heirs of Thomas Willis, and the Unknown Heirs of Viola Willis Sumler own real property located in the City of Suffolk, Virginia, and more specifically a parcel composed of 1.00 acre, more or less, and being more particularly described as the "first" tract of land described in that certain Deed recorded in Deed Book 122, Page 412, recorded among the land records of the City of Suffolk, Virginia, and as further identified as Parcel Identification No. 303677000 (27*3A) (the "Tillery Property"). See Compl. ¶ 5, Dk. No. 1 (2:18-cv-00058-JAG).

         Atlantic attempted to negotiate to acquire Easements over the Tillery Property for the purpose of the construction of an interstate natural gas pipeline. See Spratt Decl. ¶¶ 12-14. Atlantic has settled with 90 known landowners for the Tillery Property. The remaining, active defendants in this case are a mix of known landowners and unknown heirs who collectively have a roughly 41% ownership interest in the Tillery 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 Tillery Property are depicted in Exhibit 4 to the Complaint in Condemnation. See Dk. No. 1-4 (2:18-cv-00058-JAG); see also Atlantic's Trial Exhibit No. 3. Dk. No. 419. The precise legal rights that make up the Easements Atlantic seeks to condemn in the Tillery Property are enumerated in Atlantic's Trial Exhibit No. 2. Dk. No. 419.

         2. Underlying Case ...


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