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Millennium Pipeline Company, L.L.C v. Certain Permanent and Temporary Easements In (No Number) Thayer Road

April 12, 2011


The opinion of the court was delivered by: David G. Larimer United States District Judge


S.B .L. NO. 63.00-1-24.1,

This action was commenced by Millennium Pipeline Company, L.L.C. ("Millennium"), seeking an order pursuant to the Natural Gas Act, 15 U.S.C. § 717, et seq., granting Millennium temporary and permanent easements in certain real property ("Property") located in Chemung County, New York. The primary purpose of the easements would be to allow Millennium to construct a natural gas pipeline on or adjacent to the Property, which is owned by defendant Nathaniel Hendricks.

On February 15, 2008, the Court granted Millennium a preliminary injunction granting Millennium a temporary easement over the Property for the purpose of constructing and maintaining a gas pipeline. According to the terms of the injunction, the pipeline itself was to be built "on land adjacent to the Property," and the purpose of the easement was to allow Millennium to enter the Property "for the purposes of accessing, constructing, testing and operating a natural gas pipeline on land adjacent to the Property ... ." Dkt. #14 at 2. Millennium was required to post a $100,000 bond, with defendant's compensation left for future determination at trial. Id.

Hendricks took an appeal from that order to the Court of Appeals for the Second Circuit, which on December 12, 2008, dismissed the appeal on the ground that "there ha[d] not yet been a formal determination of the underlying action," which rendered the Court of Appeals "without jurisdiction to consider many of the arguments [Hendricks] raise[d] regarding factual and legal issues that ha[d] not yet been addressed by the district court." The court added that "these issues should be raised before the district court in the first instance, and, in the event an appeal is taken from a final judgment on the merits, the issues may again be raised before this Court." Dkt. #25.

Millennium now moves for summary judgment. According to Millennium, the pipeline has been completed, and the only thing that remains is for this Court to enter judgment in Millennium's favor, granting it a permanent easement over Hendricks's property, and to limit Hendricks's damages to the just compensation set forth in Rule 71.1 of the Federal Rules of Civil Procedure.*fn1

In addition, Hendricks has moved for leave to amend his answer to include Columbia Gas Transmission ("Columbia") as a party to this action, and to add a counterclaim against Millennium and Columbia. Millennium opposes that request.

I. Motions for Summary Judgment: General Principles*fn2

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted to the movant "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit under the governing law." Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008), cert. denied, 130 S.Ct. 95 (2009) (citation and internal quotation marks omitted).

In determining whether the moving party is entitled to summary judgment, the court must "constru[e] the evidence in the light most favorable to the non-moving party and draw[ ] all reasonable inferences in [his] favor." Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005). See also Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) ("The evidence of the party opposing summary judgment is 'to be believed, and all justifiable inferences are to be drawn in [that party's] favor'") (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). The nonmoving party cannot defeat a well-founded motion for summary judgment merely on the strength of a conclusory assertion that fact issues exist, however. "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. ... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986).

II. Procedure under the Natural Gas Act

The Natural Gas Act ("NGA" or "Act") provides the Federal Energy Regulatory Commission ("FERC") with jurisdiction over the transportation and sale of natural gas in interstate commerce. See 15 U.S.C. § 717(b). Section 7(c) of the Act requires companies to obtain from FERC a "certificate of public convenience and necessity" before constructing or operating interstate natural gas facilities. 15 U.S.C. § 717f(c). FERC may "attach to the issuance of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require." 15 U.S.C. § 717f(e).

Section 7(h) of the Act vests the holder of a FERC certificate of public convenience with the power to condemn necessary property. Specifically, it provides:

When any holder of a certificate of public convenience and necessity cannot acquire by contract, or is unable to agree with the owner of property to the compensation to be paid for, the necessary right-of-way to construct, operate, and maintain a pipe line or pipe lines for the transportation of natural gas, and the necessary land or other property, in addition to right-of-way, for the location of compressor stations, pressure apparatus, or other stations or equipment necessary to the proper operation of such pipe line or pipe lines, it may acquire the same by the ...

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