United States District Court, W.D. New York
DECISION AND ORDER
DAVID G. LARIMER, District Judge.
Plaintiff, Millennium Pipeline Co., L.L.C. ("Millennium"), commenced this action under the Natural Gas Act ("NGA"), 15 U.S.C. § 717 et seq., seeking an order granting Millennium temporary and permanent easements in certain real property ("Property") in Chemung County, New York. The primary purpose of the easements is to allow Millennium to construct and maintain a natural gas pipeline on the Property, which is owned by defendants Richard Miller and Acres of Land, Inc.
Pursuant to a Stipulation and Consent Order (Dkt. #11) entered February 6, 2008, the Court granted Millennium a temporary easement granting it immediate access to the Property, to allow it to construct and operate the pipeline. The pipeline has been constructed and has been in operation since 2008.
Millennium now moves for summary judgment (Dkt. #51) granting it permanent easements across the Property, and for an order appointing a three-person commission to determine the appropriate compensation in this case. Defendants' attorney has filed a declaration in opposition to the motion (Dkt. #54).
In addition, defendants' attorney, David B. Pawlak, Esq., has moved for leave to withdraw as defendants' attorney, principally due to defendants' failure to meet their financial obligations to counsel (Dkt. #58). Magistrate Judge Jonathan W. Feldman denied that motion on April 3, 2015, without prejudice to its renewal after my decision on the motion for summary judgment (Dkt. #59).
I. General Principles
The NGA grants private natural gas companies the right to obtain interests in real property through eminent domain, provided that they hold a Certificate of Public Convenience and Necessity ("Certificate") from the Federal Energy Regulatory Commission ("FERC"), and either cannot acquire property by contract, or are unable to agree with the property owner on the amount of compensation to be paid for a necessary right of way for the transportation of natural gas. Maritimes v. Northeast Pipeline, L.L.C. v. Decoulos, 146 Fed.Appx. 495, 498 (1st Cir. 2005) (citing 15 U.S.C. § 717f(h)) (per curiam).
Once a Certificate is issued by FERC, and the gas company is unable to acquire the needed land by contract or agreement with the owner, "the only issue before the district court in the ensuing eminent domain proceeding is the amount to be paid to the property owner as just compensation for the taking." Id.; Millennium Pipeline Co., L.L.C. v. Certain Permanent and Temporary Easements, 777 F.Supp.2d 475, 483 (W.D.N.Y. 2011).
With respect to just compensation, Rule 71.1 of the Federal Rules of Civil Procedure provides that if one of the parties has demanded a jury trial, the court in its discretion may appoint a three-person commission to determine the appropriate compensation, "because of the character, location, or quantity of the property to be condemned or for other just reasons." Id.; see Millennium, 777 F.Supp.2d at 478 n.1; Rockies Exp. Pipeline, LLC v. 4.895 Acres of Land, No. 08-cv-554, 2008 WL 5050644, at *2 (S.D.Ohio Nov. 20, 2008). See also Alliance Pipeline L.P. v. 4.360 Acres of Land, 746 F.3d 362, 367 (8th Cir. 2014) ("there is no constitutional right to a jury in eminent domain proceedings") (quoting United States v. Reynolds, 397 U.S. 14, 18 (1970)).
II. Application to this Case
After reviewing the parties' submissions, I conclude that Millennium's motion for a permanent easement must be granted. First, the record shows that Millennium has been issued a FERC Certificate. In addition, there is no dispute that the parties have failed to agree on a price for the taking. There also appears to be no dispute that the requested easement is necessary for the project to proceed.
Defendants' attorney Pawlak has filed a declaration in opposition to Millennium's motion for summary judgment (Dkt. #54). Pawlak states that defendants "do not take issue" with Millennium's motion, "insofar as it sets forth [the] Relief Requested, " but they dispute plaintiff's assertion that Millennium has ...