Florida Gas Transmission Company, LLC v. 0.401 Acres of Land in Putnam County, Florida

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

FLORIDA GAS TRANSMISSION

COMPANY, LLC,

Plaintiff, Case No.

3:21-cv-00230-MMH-JRK

vs.

Tract Nos:

+/- 0.401 ACRES OF LAND IN PUTNAM FLMED-PUTN-011.00

COUNTY, FLORIDA, UNKNOWN HEIRS

AND BENEFICIARIES OF THE ESTATE OF

AARON L. DAVIS, et al.,

Defendants.

_____________________________________/

ORDER

This cause is before the Court on Plaintiff’s Motion for Partial Summary

Judgment (Doc. 4) and Motion for Preliminary Injunction for Immediate

Possession (Doc. 5). As it pertains to Defendants, UNKNOWN HEIRS AND

BENEFICIARIES OF THE ESTATE OF AARON L. DAVIS, ROSE DAVIS,

CORENNE BROWN, TOMMIE L. DAVIS, AARON DAVIS, JR., CARL DAVIS,

CHARLES DAVIS, CARRIE O’NEAL, ANNIE SIMMONS, RUTH WORTHEN,

ALENE BRYANT, ALZETA DUGGAN a/k/a ALZETA LUCAS, JANET

HAMPTON a/k/a JANET RAMOS, JANICE MORTIMER, CYNTHIA BERRY,

PEARLIE MAE WHITE DAVIS, TIMOTHY DAVIS, and UNKNOWN

OWNERS, IF ANY (collectively, the “Defendants”), for the reasons discussed

herein, the Court grants both Motions.

I. Background

On March 19, 2020, the Federal Energy Regulatory Commission

(“FERC”) issued an order which, among other things, granted Plaintiff, Florida

Gas Transmission Company, LLC (“FGT”) a Certificate of Public Convenience

and Necessity (“FERC Certificate”) under the Natural Gas Act (“NGA”), 15

U.S.C. § 717f. The FERC Certificate authorizes FGT to construct and operate

the Putnam Expansion Project (“Project”), which is an interstate natural gas

pipeline. FGT filed this condemnation action against these Defendants and

others to acquire the Subject Easements necessary to complete the Project.

FGT personally served the following Defendants pursuant to Rule

71.1(d)(3)(A) and Rule 4, Federal Rules of Civil Procedure (“Rule(s)”): Rose

Davis, on March 11, 2021 (Doc. 15); Carrie O’Neal, on March 22, 2021 (Doc.

17); Corenne Brown, on March 16, 2021 (Doc. 14); Charles Davis, on March 16,

2021 (Doc. 19); Ruth Worthen, on March 17, 2021 (Doc. 16); Alzeta Duggan

a/k/a Alzeta Lucas, on March 17, 2021 (Doc. 13); and Janet Hampton a/k/a

Janet Ramos, on March 16, 2021 (Doc. 20). Additionally, on April 1, 2021, April

8, 2021, and April 15, 2021, FGT effectuated service by publication, pursuant

to Rule 71.1(d)(3)(B), on the following Defendants: Unknown Heirs and

Beneficiaries of The Estate of Aaron L. Davis, Tommie L. Davis, Aaron Davis,

Jr., Carl Davis, Annie Simmons, Alene Bryant, Janice Mortimer, Cynthia

Berry, Pearlie Mae White Davis, Timothy Davis, and Unknown Owners, if any.

(Doc. 36).

To date, none of the Defendants have responded to the Complaint or the

Motions, nor did any appear at the hearing on the Motions held by this Court

on June 2, 2021, despite due notice.

Having reviewed the record, the Court makes the following findings of

fact and conclusions of law:

II. Partial Summary Judgment – Federal Power to Condemn

A. Findings of Fact

1. FGT requests that this Court enter an order of partial summary

judgment establishing FGT’s right to condemn the Subject Easements.

2. On March 19, 2020, FERC issued an Order granting FGT a

FERC Certificate that authorizes FGT to construct and operate the Project

(Doc. 1-5; Doc. 6, ¶ 9; Doc. 6-2; Doc. 7, ¶ 9; Doc. 7-2).

3. To construct and operate the Project in accordance with the

FERC Certificate, FGT must acquire the Subject Easements described in

Exhibit 2 to the Complaint (Doc. 1-3), and attached as Exhibit A to this Order,

which are located within the jurisdiction of this Court.

4. As part of the certification process, FGT submitted, and FERC

approved, “alignment sheets” showing the final alignment of the Project and

that the Subject Easements are necessary for the construction of the Putnam

Expansion Project.

5. FGT prepared the Subject Easements, a copy of which is

attached to this Order and to Exhibit 2 to the Complaint, to conform with the

FERC-approved alignment sheets. (Doc. 1-3 & Doc. 8, ¶ 10).

6. FGT has communicated with known owners and made offers in

an attempt to purchase the Subject Easements. (Doc. 8, ¶ 11).

7. FGT was unable to acquire the Subject Easements by contract.

(Doc. 8, ¶ 13).

B. Conclusions of Law

8. A district court “shall grant summary judgment 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).

9. Congress enacted the NGA to regulate the interstate

transportation and sale of natural gas for resale to the public for domestic,

commercial, industrial or any other use. As such, the NGA governs the Project.

The pertinent section of the NGA provides as follows:

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 exercise of the right of eminent domain in the district court of the

United States for the district in which such property may be located. . .

Provided, That the United States district courts shall only have

jurisdiction of cases when the amount claimed by the owner of the

property to be condemned exceeds $3,000.

15 U.S.C. § 717f(h) (2016).1

10. The NGA authorizes a party to exercise the federal power of

eminent domain to acquire property necessary for an interstate natural gas

pipeline project when: (1) the plaintiff holds a FERC Certificate authorizing a

project; (2) FERC has determined that the property is necessary for the project;

and (3) the plaintiff is unable to acquire the property by contract.

Transcontinental Gas Pipe Line Co., LLC v. 6.04 Acres of Land, 910 F.3d 1130,

1154 (11th Cir. 2018); see also Sabal Trail Trans., LLC v. 9.669 Acres of Land

in Polk County, Fla., No. 8:16-cv-640-T-33AEP, 2016 WL 2745082, at *3 (M.D.

Fla. May 11, 2016) (citing Columbia Gas Trans., LLC v. 1.01 Acres, More or

Less, in Penn Twp., York City, Pa., 768 F.3d 300, 304 (3d Cir. 2014)).

11. The undisputed record establishes that FGT has satisfied each

condition precedent necessary to condemn the Subject Easements under the

pertinent section of the NGA: (1) FGT holds a FERC Certificate authorizing

the Project; (2) FERC has determined that the Subject Easements are

necessary for the Project; and (3) FGT has been unable to acquire the Subject

Easements by contract.

1 FGT offered to purchase the Subject Easements from known owners for at least $3,000

and the known owners rejected such offers, supporting the inference that the owners claim

the Subject Easements to be worth more than $3,000.

12. District courts have limited jurisdiction in NGA condemnation

actions. “[T]he role of the district court in Natural Gas Act eminent domain

cases extends solely to examining the scope of the certificate and ordering the

condemnation of property as authorized in that certificate.” Columbia Gas

Trans. Corp. v. An Easement to Construct, Operate & Maintain a 24-Inch

Pipeline, No. 5:07CV04009, 2008 WL 2439889, at *2 (W.D. Va. June 9, 2008).

The condemnation action “does not provide challengers with an additional

forum to attack the substance and validity of a FERC order. The district court’s

function under the statute is not appellate but, rather, to provide for

enforcement.” Sabal Trail, 2016 WL 2745082, at *3 (quoting Williams Natural

Gas Co. v. City of Oklahoma City, 890 F.2d 255, 264 (10th Cir. 1989), cert.

denied, 497 U.S. 1003 (1990)).2

“The District Court’s sole charge and authority is to evaluate the scope

of the FERC Certificate, and order the condemnation of property in

accordance with that scope.” Steckman Ridge GP, LLC, v. An Exclusive

Nat. Gas Storage Easement Beneath 11.078 Acres, More or Less, in

Monroe Twp., et al., Nos. 08-168, et al., 2008 WL 4346405, at *3 (W.D.

Pa. Sept. 19, 2008) (citations omitted).

Sabal Trail, 2016 WL 2745082, at *3.

13. Thus, this Court finds that the NGA authorizes FGT to exercise

2 As the Eleventh Circuit stated in Transcontinental Gas, to defeat the “right to condemn

property that was depicted on FERC-approved alignment sheets,” “Defendants would have

had to make its [sic] challenge to FERC’s chosen right-of-way before FERC in the first

instance, subject to review by this Court or the D.C. Circuit on a party’s petition for review.”

910 F.3d at 1156.

the power of eminent domain. FGT has the right to condemn the Subject

Easements identified in the Complaint (Doc. 1-3) and the Notice of

Condemnation (Doc. 2-1). The Subject Easements are described in Exhibit A to

this Order.

III. Preliminary Injunction and Possession

A. Findings of Fact

14. FGT also requests that the Court issue a preliminary injunction

granting it immediate possession of the Subject Easements in order to begin

pre-construction and construction activities.

15. The FERC Certificate authorizes the construction and operation

of the Project on its specified terms and conditions. (Doc. 1-5, ¶ 36(B)). FERC

found that the “…Putnam Expansion Project will not adversely affect FGT’s

existing customers as the project is designed to provide the new service while

maintaining existing services. Further, there will be no adverse impact on

other pipelines in the region or their captive customers; the proposal is

designed to meet the new incremental demand from Seminole Electric and is

not designed to replace existing service on other pipelines.” (Doc. 1-5, ¶ 13).

16. The purpose of the Project is to provide additional supplies of

natural gas to Seminole Electric for its new gas-fired, combined-cycle

generating unit and its power generation needs. Upon completion, the Project

will enable FGT to transport 169,000 dekatherms of natural gas per day for

Seminole Electric to the new FGT/SeaCoast Gas Transmission, LLC

(SeaCoast) delivery point in Putnam County. (Id., ¶ 5).

17. In connection with the Project, on April 5, 2018, FGT and

Seminole Electric entered into a Precedent Agreement whereby FGT has

agreed to provide 169,000 dekatherms per day of firm transportation service

for Seminole Electric to the new FGT/SeaCoast Gas Transmission, LLC

delivery point in Putnam County. FGT and Seminole Electric have agreed to

an in-service date of April 1, 2022. (Id., ¶ 5).

18. For the Project, FGT will be (i) constructing approximately 13.7

miles of 30-inch diameter pipeline loop (the “West Loop”) from approximately

Mile Post (“MP”) 521.3 in Columbia County to approximately MP 535.0 in

Union County, which will parallel FGT’s existing 30-inch and 24-inch diameter

mainlines; (ii) constructing approximately 7.0 miles of 30-inch diameter

pipeline loop (the “East Loop”) from approximately MP 574.8 in Clay County

to approximately MP 581.8 in Putnam County, paralleling FGT’s existing 26-

inch and 24-inch diameter mainlines; (iii) relocating two pig receiver stations,

one from Columbia County to Union County and the other from Clay County

to Putnam County; and (iv) modifying existing Compressor Station 18 in

Orange County, Florida to allow for one unit at the station to have bi-

directional gas flow capability into the existing mainline. (Doc. 6, ¶ 11; Doc. 7,

¶ 11).

19. The nature of the Project requires extensive construction along

several segments of the Project in a specified order. (Id., ¶¶ 14-15). A delay in

the acquisition of the easements for one property will delay the entire project

as a result of the linear construction method used for pipeline construction,

and will result in significant unrecoverable costs to FGT. (Id. ¶¶ 21-23). The

process is comparable to an assembly line, with specialized teams following

each other down the right of way, successively performing tasks such as

staking and fencing, clearing and grading, pipe stringing, welding, trenching,

lowering-in and backfilling, hydrostatic testing, clean-up and restoration, and

commissioning. (Id. ¶ 15).

20. On February 2, 2021, FERC issued the Notice to Proceed with

Construction for the Putnam Expansion Project, authorizing FGT to begin

construction activities. (Id., ¶ 10, Exh. C).

21. FGT must begin pre-construction activities as soon as possible.

This Project requires a complex and coordinated construction process, with

work activities being performed in sequential phases. To mitigate construction

risks that threaten FGT’s ability to meet the in-service date of April 1, 2022

(including, but not limited to, potential construction risks associated with

installation methods, possible unexpected groundwater conditions, weather

delays, and force majeure events such as tropical storms and hurricanes), FGT

needs to begin construction on the Project in Clay, Columbia, Putnam, and

Union Counties by August 1, 2021. (Id., ¶ 13-14).

22. FGT must take immediate possession to perform pre-

construction activities in order to start construction on August 1, 2021, and to

meet the in-service date of April 1, 2022. To timely commence and complete

the Project, it is critical that FGT provide its contractors with immediate access

to all properties within the spread. Construction has been planned so that

there will not be conflicting activities occurring at any location along the

FERC-authorized route. Thus, FGT’s inability to enter even a single parcel as

soon as possible could have a domino effect and delay completion of the entire

Project. (Id., ¶ 19). In addition to the pre-construction activities, FGT’s

contractors need access to the authorized construction areas to mobilize

equipment and resources in order to begin the construction and installation

activities by August 1, 2021. (Id., ¶ 20).

23. If FGT’s contractors cannot begin construction by August 1, 2021,

the unrecoverable delay costs that FGT will incur on a daily basis are

significant, and the cumulative effect could be exorbitant. (Id., ¶ 21).

Specifically, if construction of the pipeline facilities in Florida is delayed just

one week beyond August 1, 2021, FGT would incur $1,896,000.00 in delay costs

per week. (Id.).

24. Once construction begins, FGT will be liable to its contractor

for any delays that occur if a contractor cannot access a property in sequential

order. Neither delaying the start of the Project nor halting construction upon

reaching an unresolved parcel are tenable options, as either event would delay

completion of the Project indefinitely, and involve significant costs as detailed

in the Declaration of Adam Broad and the Declaration of Diego Aponte. (Id.,

¶¶ 21-23). The “move around” option would disrupt the efficient, linear

workflow previously described and delay completion of the Project for at least

as long as it takes to acquire the necessary easement interests. Moreover, each

such “move around” is costly. (Id., ¶ 23). In that event, FGT will incur delay

costs that are estimated to range between $20,000.00 and $316,000.00 per day.

(Id., ¶ 22).

25. If FGT is delayed in its construction of the Project and is unable

to meet the in-service date, FGT will suffer damage to its reputation and

business goodwill that cannot be reasonably calculated. (Id. at ¶ 24).

B. Conclusions of Law

26. It is well established that granting immediate possession of

property through a preliminary injunction is appropriate where a pipeline

company holds a valid FERC Certificate, a court has entered an order

establishing the pipeline company’s right to condemn the necessary easements,

and the pipeline company has satisfied the standard for injunctive relief. See,

e.g., Transcon. Gas Pipe Line, 910 F.3d at 1153; E. Tenn. Nat. Gas Co. v. Sage,

361 F.3d 808, 828 (4th Cir. 2004) (“Sage”), cert. denied, 543 U.S. 978 (2004);

Alliance Pipeline, LP, v. 4.360 Acres, 746 F.3d 362, 368-69 (8th Cir. 2014), cert.

denied, 135 S. Ct. 245 (2014); Columbia Gas Trans., 768 F.3d at 315-16.

27. In the Eleventh Circuit, as in other circuits, a party satisfies the

standard for injunctive relief and is “entitled to a preliminary injunction if it

show[s]: ‘(1) a substantial likelihood of success on the merits; (2) that

irreparable injury will be suffered unless the injunction is issued; (3) the

threatened injury to the moving party outweighs whatever damage the

proposed injunction might cause the non-moving party; and (4) if issued, the

injunction would not be adverse to the public interest.’” Jysk Bed’N Linen v.

Dutta-Roy, 810 F.3d 767, 774 (11th Cir. 2015) (citations omitted).

28. By granting FGT’s Motion for Partial Summary Judgment as to

these Defendants, this Court has determined FGT has the right to condemn

the Subject Easements. Accordingly, there is a substantial likelihood that FGT

will prevail on the merits.

29. FGT will suffer irreparable injury if the requested preliminary

injunction is not granted. Economic harm is considered irreparable where, as

here, there is no adequate remedy at law to recover damages for the harm

suffered. Transcon. Gas, 910 F.3d at 1165–66. The Eleventh Circuit has found

such irreparable harm based on the declarations of pipeline representatives

attesting that the pipeline company would incur unrecoverable costs for each

day that construction was delayed, as well as harm to its reputation and

business goodwill. Id. at 1163–66.

30. Any delay in granting FGT possession of the Subject Easements

will impede its ability to provide the needed energy delivery services that

FERC has already conclusively determined to be in the best interest of the

public.

31. The irreparable injury at stake for FGT outweighs any damage

the proposed injunction may cause these Defendants, which damage is entirely

reparable by the payment of compensation. The right to compensation under

the NGA is not harmed by immediate possession of the Subject Easements,

and “[t]he damages that a preliminary injunction would cause [these]

Defendants, on the other hand, comes down only to any damages that might

result from a defendant losing possession of the property in question sooner,

rather than later, after compensation for the taking has been finally

determined.” Transcon. Gas, 910 F.3d at 1166. The Defendants are guaranteed

the right to just compensation for the condemned property interests, and any

damages suffered based on the timing of the taking are “capable of

determination at the compensation stage of the litigation.” Id. Weighing the

balance of harms supports an award of preliminary relief, where, as in

Transcontinental Gas, the harm to FGT outweighs the harm to these

Defendants from FGT “accessing their properties sooner rather than later,

especially because Defendants should be able to recover all recoverable

damages in full at the compensation stage of the litigation, while [FGT’s]

damages would be irrecoverable.” Id. The relief that FGT seeks in the form of

immediate possession will not harm Defendants’ right to compensation. Any

such damages must and will be remedied with money. Upon the grant of

injunctive relief, there will remain the proceeding to determine just

compensation.

32. Granting FGT immediate possession of the Subject Easements

to construct the Project in a timely manner would serve the public interest.

This conclusion is supported by the NGA and the FERC Certificate. “Congress

passed the Natural Gas Act and gave gas companies condemnation power to

ensure that consumers would have access to an adequate supply of natural gas

at reasonable prices.” Sage, 361 F.3d at 830. Congress did so because supplying

natural gas for the generation of electricity and other energy needs advances

the public interest. Id. (finding pipeline project served public interest because

it would make gas available to consumers and electric power plants, as well as

help local communities to attract new business). This Court, along with other

federal courts in the Eleventh Circuit, have held that supplying natural gas to

generate electricity and to fulfill other energy needs is in the best interest of

the public. Indeed, in affirming the award of a preliminary injunction in a

pipeline condemnation case, the Eleventh Circuit noted that “[a]ny delays in

construction would delay the realization of these public benefits.” Transcon.

Gas, 910 F.3d at 1167 & n.21; see also, e.g., Sabal Trail Transmission, LLC v.

+/– 0.4 Acres of Land in Marion County Florida, 5:16-cv-210-Oc-30PRL, 2016

WL 2997672, at *5 (M.D. Fla. May 25, 2016) (stating that “supplying natural

gas for the generation of electricity and other energy needs advances the public

interest”); Sabal Trail Transmission, LLC v. Estate, 1:16-cv-100, 2016 WL

8919397, at *8 (N.D. Fla. May 23, 2016) (same).

33. Here, FERC determined that the “…Putnam Expansion Project

will not adversely affect FGT’s existing customers as the project is designed to

provide the new service while maintaining existing services. Moreover, there

will be no adverse impact on other pipelines in the region or their captive

customers; the proposal is designed to meet the new incremental demand from

Seminole Electric and is not designed to replace existing service on other

pipelines.” (Doc. 1-5, ¶ 13).

34. Supplying natural gas for the generation of electricity and other

energy needs advances the public interest. Sage, 361 F.3d at 830 (finding

pipeline project served public interest because it would make gas available to

consumers and electric power plants, as well as help local communities to

attract new business); E. Tenn. Nat. Gas, 2006 WL 1133874, at *14 (“[T]here

is a substantial public interest at stake in this case – the need to capture and

supply as much natural gas to the market as soon as possible.”). The Florida

Gas Putnam Expansion Project allows FGT to expand its system to deliver

169,000 dekatherms per day of firm transportation service for Seminole

Electric’s new gas-fired, combined-cycle generating unit, which will replace

and retire an existing coal-fired generating unit. (Doc. 1-5, ¶ 5).

35. To satisfy the requirement under Rule 65(c) of the Federal Rules

of Civil Procedure that a movant give security upon issuance of a preliminary

injunction, FGT proposes to deposit into the Court Registry twice the appraised

value of the parcel.3 This Court finds such security to be sufficient. See

Transcon. Gas, 910 F.3d at 1174 (finding that a security bond equal to twice

the appraised value of the easements was adequate security under Rule 65(c));

Sage, 361 F.3d at 824 (observing the financial strength of the gas company and

its parent corporation would enable payment if the security fell short).

36. In consideration of the foregoing factors, this Court finds that

FGT’s request for a preliminary injunction as to these Defendants should be

granted. The Court conditions the entry of preliminary injunction on FGT

making a cash deposit into the Registry of the Court in the amount of $2,200,

which is twice FGT’s most recent appraisal of the compensation owed for Tract

FLMED-PUTN-011.00. The cash deposit will “blunt” or negate any potential

claim of irreparable harm to Defendants. Sage, 361 F.3d at 829.

Accordingly, it is

3 This appraised value has been reached by Florida Gas’s expert(s) and has not been

tested. It is subject to challenge at the valuation phase of the proceeding.

ORDERED, ADJUDGED, and DECREED:

1. Plaintiff's Motion for Partial Summary Judgment (Doc. 4) is

GRANTED, and FGT has the right to condemn the Subject Easements.

2. Plaintiffs Motion for Preliminary Injunction and Immediate

Possession (Doc. 5) is GRANTED.

3. Upon FGT’s deposit of $2,200 into the Registry of the Court, the

following shall occur:

a. FGT shall have immediate access to, and possession of, the

Subject Easements described in Exhibit A to this Order; and

b. FGT may immediately begin pre-installation activities so

that construction-related activities can commence by August 1, 2021, for

the purposes of constructing the Project.

4, All pre-installation and construction-related activities must be

consistent with the FERC Certificate and all other applicable regulatory

permits.

DONE and ORDERED in Jacksonville, Florida, this Ist day of July

2021.

United States District Judge

Copies furnished to:

Counsel/Parties of Record

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