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Atlantic Coast Pipeline, LLC v. 1.52 Acres, More or Less, In Nottoway County

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

December 13, 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 October 31, 2018, Atlantic filed its Complaint in Condemnation to acquire certain easements in underlying case 2:18-cv-580. Atlantic subsequently served the defendants named in the underlying case. On November 14, 2019, the Clerk entered default against the defendants who failed to respond in the underlying case (the "Non-Responding Defendants"). Atlantic filed its Motion for Default Judgment against the Non-Responding Defendants on December 4, 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. 668, 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 in the 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-580). Atlantic filed its Complaint in Condemnation to acquire easements from the Non-Responding Defendants for the underlying case. See Dk. No. 1, ¶ 2 (2:18-cv-580).

         Specifically, Atlantic seeks to construct a portion of the ACP Project on the Property 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 Property (collective, the "Easements"). The Easements are necessary for constructing, maintaining, operating, altering, testing, replacing, and repairing the ACP Project. See Dk. No. 1, ¶ 16 (2:18-cv-580).

         The Permanent Easements to be taken on the 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 Easements as may be necessary or advisable. See Dk. No. 1, ¶ 18 (2:18-cv-580).

         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-580).

         The Non-Responding Defendants Nathan Jarvis, III; Johnnie A. Griffin a/k/a Johnnie Augustus Griffin; Paulette Todd; and Jonathan Griffin own a certain tract of land located in the City of Chesapeake, Virginia, identified as Parcel Identification No. 0330000002200, comprised of 12.00 acres, more or less, as is more particularly described and depicted as Lot 8 on that certain plat containing 13.500 acres, more or less, recorded in Deed Book 94, Page 613, among the land records of the City of Chesapeake, Virginia; less and except, that certain tract containing 1.50 acres, more or less, as described in Deed Book 1472, Page 439 recorded among the land records of the City of Chesapeake, Virginia. See Dk. No. 1, ¶ 5 (2:18-cv-580); Spratt Decl. ¶ 12.

         Atlantic attempted to negotiate with the named defendants to acquire the Easements over the Property for the purpose of the construction of an interstate natural gas pipeline, but was unable to reach an agreement. See Spratt Decl. ¶¶ 13-15. The remaining, active defendants in this case have a roughly 7.86 percent ownership interest in the Property. See Spratt Decl. ΒΆ 12. Atlantic has been unable to acquire by contract, or has been unable to agree with the remaining named defendants as to the compensation to be paid for, the ...


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