The opinion of the court was delivered by: John T. Curtin United States District Judge
On May 1, 2006, defendant National Fuel Gas Supply Corporation ("Supply Corp.") filed a motion to dismiss plaintiffs' Twelfth Cause of Action pursuant to Fed. R. Civ. P. 12(b)(6) and the remaining pendent state law causes of action pursuant to Title 28 U.S.C. § 1367(c)(3). Item 51. Plaintiffs were directed to file a response to the motion on or before May 15, 2006. Plaintiffs have declined to file a response and the court will consider the motion unopposed. For the reasons that follow, defendant's motion to dismiss is granted, and the complaint is dismissed.
This action was commenced with the filing of a complaint on May 29, 2002. Item 1.*fn1 Plaintiffs' complaint asserted twelve causes of action, including two federal claims. In their First Cause of Action, plaintiffs alleged "Inverse Condemnation," an illegal and unconstitutional taking of property belonging to the landowners without notice, adequate notice, and/or an opportunity to be heard, in violation of the Fourth, Fifth, and Fourteenth Amendments. Id., ¶¶ 94-102.*fn2 In their Twelfth Cause of Action, plaintiffs allege a violation of substantive and procedural due process, in that New York's Eminent Domain Procedure Law ("EDPL") does not provide adequate notice and an opportunity to challenge the taking under New York law. Id., ¶¶ 187-90. In addition, plaintiffs assert ten common law claims under New York State law, including: Unjust Enrichment, Nuisance/Trespass, Property Damage, Duress/Coercion, Breach of Contract, Fraud and Misrepresentation, Unconscionable, Tortious Interference with Contracts, Interference with Quiet Enjoyment, and Violations of the Rule Against Perpetuities. Id., ¶¶ 103-86.
Plaintiffs include 94 landowners in the Town of Concord, New York. Underneath or adjacent to plaintiffs' land is a naturally occurring underground storage field called the Zoar Storage Field, where defendant stores natural gas in underground rock formations and, plaintiffs allege, has done so since approximately 1916. Item 1, ¶ 25.*fn3 In 1948, National Fuel's predecessor was granted a Certificate of Public Convenience and Necessity by the Federal Power Commission (predecessor to the Federal Energy Regulatory Commission-- "FERC"), covering multiple storage fields in Erie County, New York. Id., ¶ 26. This Certificate established certified boundaries for the Zoar Storage Field. Id., ¶ 27.
Item 3, Exhibit C. Thus, the com plaint filed in the current action is the third com plaint that has been filed.
In approximately 1977, upon learning that the boundaries of the Zoar Storage Field were larger than it originally believed, defendant applied to FERC for a permit to certify the Field with larger boundaries. Item 1, ¶ 73. FERC granted the application and issued an Order Amending Certificate dated July 29, 1999. Id., ¶ 74. Defendant sought to obtain storage leases from some landowners within the larger Zoar Storage Field, and was authorized in the Order Amending Certificate to condemn storage easements under the property of the remaining landowners.
In May 2000, defendant commenced 62 condemnation proceedings pursuant to the EDPL in New York State Supreme Court seeking easements permitting the underground storage of natural gas. Item 1, ¶ 81. The plaintiffs, as respondents in that action, interposed three counterclaims--the first alleging an unconstitutional taking, the second alleging public health and safety dangers, and the third alleging interference with property rights. Item 22, Exh. B. These counterclaims were dismissed without prejudice by the Hon. Eugene Fahey in an order dated September 5, 2001 as falling outside the purview of the EDPL proceeding. Id., Exh. C. Plaintiffs also raised nine affirmative defenses, including the "violation of Respondent's rights to due process of law under the Federal and State Constitutions and of the public policy of the State of New York as embodied in Article 2 of the EDPL." Item 48, Exh. B., ¶ 49. In a Memorandum Decision dated July 31, 2001, Justice Fahey granted the petitions and concluded that the EDPL proceeding did not violate the plaintiffs' due process rights. Item 3, Exh. E; Item 48, Exh. E. Specifically, Justice Fahey found that Supply Corp. applied to FERC for a certificate of public convenience and that the application was published in the Federal Register. Id., p. 4.
Thereafter, Supply Corp. commenced the condemnation proceedings, served the respondents by certified mail, and published the requisite notices in the Springville Journal in compliance with the provisions of the EDPL. Id. Justice Fahey further found that Supply Corp. was exempt from the EDPL public hearing requirement. Id.
Some landowners appealed these rulings to the New York State Supreme Court, Appellate Division, Fourth Department, specifically challenging the alleged violation of due process and the court's interpretation of the EDPL. Item 3, Exh. F; Item 48, Exh. G. Justice Fahey's determination was affirmed on appeal. See National Fuel Gas Supply Corp. v. Town of Concord, 752 N.Y.S.2d 187 (App. Div. 4th Dep't. 2002). The Appellate Division held that Supply Corp. was exempt from the public hearing requirement of the EDPL and that a challenge to the adequacy of the notice of Supply Corp.'s application for a certificate of public convenience would properly be brought pursuant to the FERC review process.*fn4 Plaintiffs' remaining arguments were found to be without merit. This order was not appealed to the New York Court of Appeals.
The 94 plaintiffs, all property owners affected by the underground storage activities of defendant at its Zoar Storage Field, fall into three categories. The first group consists of those landowners who own land within the storage field and have signed leases with defendant (referred to by defendant as the "Contract Landowners," Item 4, p. 5). This group generally contends that their agreements with defendant are invalid for various reasons, as outlined in the common law causes of action. The second group is comprised of those landowners who have refused to sign leases but have gas stored on their land (referred to by defendant as the "State Court Condemnees," Item 4, p.6). Defendant initiated condemnation proceedings in New York State Supreme Court against the members of this group. Finally, the third group is comprised of those plaintiffs who own property adjacent to the storage field, but not in it (referred to by defendant as the "Adjacent Landowners," Item 4, p. 6). These plaintiffs contend that they are prevented from utilizing the natural gas beneath their properties because, due to New York State Department of Environmental Conservation regulations, they cannot place a gas well within 1,320 feet of the storage field.
On July 23, 2002, defendant brought a motion to dismiss the complaint, arguing that this court had no subject matter jurisdiction over the plaintiffs' claims. Item 3. Following extensive briefing and oral argument, the court issued a decision and order on April 11, 2006 dismissing the inverse condemnation claim and granting defendant permission to file an additional motion to dismiss pursuant to Rule 12(b)(6). Defendant filed its motion on May 1, 2006 (Item 51), and plaintiffs declined to file a response in opposition to the motion.