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Atlantic Coast Pipeline, LLC v. 1.52 Acres

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

October 29, 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 August 15, 2018, Atlantic filed its Complaint in Condemnation to acquire certain easements in underlying case 2:18-cv-447. On August 20, 2018, Atlantic filed its Complaint in Condemnation to acquire certain easements in underlying case 3:18-cv-573. On October 19, 2018, Atlantic filed its Complaint in Condemnation to acquire certain easements in underlying case 3:18-cv-716. Atlantic subsequently served the defendants named in the three underlying cases through publication. On July 2, 2019, the Clerk entered default against the defendants who failed to respond in all three underlying cases (the "Non-Responding Defendants"). Atlantic filed its Motion for Default Judgment against the Non-Responding Defendants in all three underlying cases on July 12, 2019.

         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.

         I. 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. 622, 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. Compl. 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, ¶ 5 (2:18-cv-447); Dk. No. 1, ¶ 5 (3:18-cv-573); Dk. No. 1, ¶ 5 (3:18-cv-716). Atlantic filed its Complaints in Condemnation to acquire easements from the Non-Responding Defendants for the three underlying cases. See Dk. No. 1, ¶ 2 (2:18-cv-447); Dk. No. 1, ¶ 2 (3:18-cv-573); Dk. No. 1, ¶ 2 (3:18-cv-716).

         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 Easement") and temporary easements (the "Temporary Easement") on the Properties (collective, the "Easements"). Atlantic also seeks an easement for an access road in underlying case 3:18-cv-716 (the "Access Road Easement"). The Easements are necessary for constructing, maintaining, operating, altering, testing, replacing, and repairing the ACP Project. See Dk. No. 1, ¶ 16 (2:18-cv-447); Dk. No. 1, ¶ 16 (3:18-cv-573); Dk. No. ¶ 16 (3:18-cv-716).

         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, ¶ 19 (2:18-cv-447); Dk. No. 1, ¶ 18 (3:18-cv-573); Dk. No. 1, ¶ 18 (3:18-cv-716).

         The Temporary Easement will enable Atlantic to construct the ACP Project and engage in restoration or clean-up activities. The Temporary Easement is 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 Easement 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, ¶ 20 (2:18-cv-447);Dk.No. 1, ¶ 19 (3:18-cv-573); Dk. No. 1, ¶ 19 (3:18-cv-716).

         The Access Road Easement to be taken on the Property in underlying case 3:18-cv-716 will provide Atlantic with a mode of access to the ACP Project and related facilities, as well as the ability to transport the personnel, materials, and machinery needed to construct the ACP Project. The Access Road Easement to be taken on the Property includes use of both existing and new roads, the right to construct a permanent access road with a width not to exceed thirty feet, and the right to improve any existing access roads to a width not to exceed thirty feet. See Dk. No. 1, ¶ 20 (3:18-cv-716).

         1. Underlying Case Number 2:18-cv-447

         The Non-Responding Defendant Anthony Saunders owns real property located in the City of Suffolk, Virginia, and more particularly described as (1) Parcel Identification No. 38*20, composed of 20.48 acres, more or less per tax records, and being more particularly described as 36.5 acres in Book 407, Page 806; less and except a certain tract containing 6.0 acres, more or less, more particularly described as Parcel 1 in Plat Book 12, Page 160; less and except a certain tract containing 3.0 acres, more or less, more particularly described as Parcel 2 in Plat Book 12, Page 160; less and except a certain tract containing 1.0 acre, more or less, more particularly described as Parcel 3 in Plat Book 12, Page 160; less and except a certain tract containing 1.0 acre, more or less, more particularly described as Parcel 4 in Plat Book 12, Page 160; less and except a certain tract containing 5.023 acres, more or less, as described in Plat Book 13, Page 49 of public records of said City; and (2) Parcel Identification No. 38*20*5, composed of 5.02 acres, more or less per tax records, being more particularly described as 5.023 acres in Plat Book 13, Page 49 of the public records of said City, all among the land records of the City of Suffolk, Virginia (collectively, "the Foreman/Saunders Property"). See Dk. No. 1, ¶ 5 (2:18-cv-447).

         Atlantic attempted to negotiate to acquire Easements over the Foreman/Saunders Property for the purpose of the construction of an interstate natural gas pipeline. See Spratt Decl. ¶¶ 12-14. There are 10 landowners who have already settled with Atlantic for the Foreman/Saunders Property. Saunders has roughly a 10% ownership interest in the Foreman/Saunders Property. Atlantic has been unable to locate Saunders, despite making reasonable efforts to do so. Thus, Atlantic has been unable to acquire by contract, or has been unable to agree with Saunders 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 Foreman/Saunders Property are depicted in Exhibit 4-A and 4-B to the Complaint in Condemnation. See Dk. No. 1-4A and 1-4B (2:18-cv-447); see also Atlantic's Hearing Exhibit Nos. 2-A and 2-B, Dk. No. 640. The legal rights that make up the Easements Atlantic seeks to condemn on the Foreman/Saunders Property are recited in Atlantic's Complaint. See Dk. No. 1, ¶¶19-20(2:18-cv-447).

         2. Underlying Case Number 3:18-cv-573

         The Non-Responding Defendants Rufus Pegram, Jr., the Unknown Heirs of Georgia Pegram a/k/a Georgia Ross, and the Unknown Heirs of Georgia Pegram a/k/a Georgia E. Badgett own real property located in Brunswick County, Virginia, identified as Parcel Identification No. 8-8A, composed of 18 acres, more or less, and being more particularly described as 18 acres as shown on the Plat filed as Instrument # 010001122, being a new survey, which corrects the acreage, ...


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