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Mountain Valley Pipeline, LLC v. 1.89 Acres of Land

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

December 2, 2019

MOUNTAIN VALLEY PIPELINE, LLC, Plaintiff,
v.
1.89 ACRES OF LAND, OWNED BY BRIARWOOD DEVELOPMENT, LLC, and 0.29 ACRES OF LAND, OWNED BY BRIARWOOD DEVELOPMENT, LLC, Defendants.

          MEMORANDUM OPINION AND ORDER

          Elizabeth K. Dillon United States District Judge

         Plaintiff Mountain Valley Pipeline (MVP) is constructing an interstate natural gas pipeline. MVP commenced a condemnation action under the Natural Gas Act, 15 U.S.C. § 717 et seq., to acquire a permanent easement and temporary easements on numerous properties, including these two parcels of land located in Giles County, Virginia, and owned by Briarwood Development, LLC (Briarwood). On March 7, 2018, the court entered an order in the primary condemnation case, Mountain Valley Pipeline LLC v. Easements to Construct, No. 7:17-cv-492 (W.D. Va.) (Dkt. Nos. 518, 520), granting MVP immediate possession of the easements on this property. A trial on just compensation for the takings on the subject property is scheduled to begin on December 16, 2019.

         Before the court are the following motions: (1) MVP's motion for summary judgment on the amount of just compensation; (2) MVP's motion in limine; and (3) MVP's motion to strike Briarwood's responses to MVP's motions for summary judgment and in limine. MVP is entitled to summary judgment because Briarwood did not come forward with any admissible evidence on the difference in the market value of its property before and after the taking. Therefore, and for the reasons stated below, the court will grant MVP's motion for summary judgment and dismiss the other two motions as moot.

         I. BACKGROUND

         MVP condemned two tracts of land owned by Briarwood, identified as MVP Parcel Nos. VA-GI-200.015 and VA-GI-200.024. On October 13, 2017, the Federal Energy Regulatory Commission issued an order authorizing MVP to construct, maintain, and operate a natural gas pipeline along a route that includes this property. On October 24, 2017, MVP filed an action to condemn easements along the approved route on the property under Section 7 of the Natural Gas Act, 15 U.S.C. § 717 et seq. The easements include a permanent easement of 0.76 acres and 1.13 acres of temporary workspace on MVP Parcel No. VA-GI-200.015, and a temporary access easement of 0.29 acres on MVP Parcel No. VA-GI-200.024.

         The Scheduling Order for this case was issued on February 6, 2019. (No. 7:17-cv-492, Dkt. No. 1169.) The order set a deadline of April 8, 2019, for the disclosure of non-appraisal experts and a deadline of July 19, 2019, for the disclosure of real estate appraisal testimony. MVP timely disclosed Jared L. Schweitzer and Joseph E. Thompson as its real estate appraisal experts. Schweitzer prepared appraisal reports for both parcels, and Thompson prepared an appraisal report for MVP Parcel No. VA-GI-200.015.

         Briarwood did not disclose any experts. Briarwood's initial disclosures list various individuals as having information on value. However, Briarwood also stated that it had “not yet determined the amount it believes is just compensation for the taking of the properties.” (See Dkt. No. 21-1.) In its interrogatory answers, Briarwood stated its intention to call an accountant, Brian D. Burns, as an expert witness to testify on alleged economic damages. Separately, MVP moved to exclude Burns as an expert witness. Briarwood did not oppose this motion, and the court granted the motion to exclude Burns by oral order at the November 4, 2019 motions hearing. (Dkt. No. 20.)[1]

         II. ANALYSIS

         A. Standard of Review

         Summary judgment should be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material fact is one that “might affect the outcome of the suit under the governing law.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute of material fact is “genuine” if sufficient evidence favoring the non-moving party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.S. at 248-49.

         The moving party bears the initial burden of showing the absence of a genuine dispute of material fact. Celotex, 477 U.S. at 323. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c), 56(e). All inferences must be viewed in a light most favorable to the non-moving party, but the nonmovant “cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985).

         Rule 56 applies in this case because the rule governing condemnation proceedings in federal court (Rule 71.1) has no provisions governing summary judgment. See Fed. R. Civ. P. 71.1(a); United States v. Tree Removal Rights, NO. 3:17-CV-128-DMB-RP, 2018 WL 6072008, at *1 (N.D. Miss. Nov. 19, 2018). Summary judgment is appropriately granted in a condemnation case when there is no genuine issue of material fact regarding the fair market value of the property to be taken. See Tree Removal Rights, 2018 WL 6072008, at *1; Equitrans, L.P. v. 0.56 Acres, No. 1:15-cv-106, 2016 WL 3982479, at *1 (W.D. W.Va. July 22, 2016) (“Several courts have granted summary judgment for plaintiffs in condemnation actions regarding the amount of just compensation owed where there was no genuine issue of material fact regarding the fair market value of the property to be taken.”) (collecting cases).

         B. Just Compensation for Partial Permanent Takings, Including Severance Damages

         The Takings Clause of the Fifth Amendment prohibits the taking of private property without just compensation. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 536 (2005). When the government condemns private property for a public purpose, it must pay just compensation for that property. Just compensation is the monetary equivalent of the property taken, and the federal courts have employed the concept of “fair market value” to determine the condemnee's loss. United States v. 564.54 ...


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