The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
COLUMBIA GAS TRANSMISSION, *
LLC,
*
Plaintiff,
* Civil Action No. GLR-19-1444
v.
*
0.12 ACRES OF LAND, MORE OR
LESS, IN WASHINGTON COUNTY, *
MARYLAND, et al.,
*
Defendants.
***
MEMORANDUM OPINION
THIS MATTER is before the Court on Defendant State of Maryland, Department
of Natural Resources’ (“MDNR”) Renewed Motion to Dismiss (ECF No. 63). The Motion
is ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2021).
For the reasons set forth below, the Court will deny Defendant’s Motion.
I. BACKGROUND1
On July 19, 2018, the Federal Energy Regulatory Commission (“FERC”) granted
Plaintiff Columbia Gas Transmission, LLC (“Columbia Gas”) a certificate of public
convenience and necessity (“the Certificate”) to construct and operate a gas pipeline, part
of which would run through Washington County, Maryland. (Compl. ¶¶ 7–8, ECF No. 1).
“The Natural Gas Act [“NGA”] expressly permits a holder of a Certificate to acquire the
1 Unless otherwise noted, the Court takes the following facts from Columbia Gas’s
Complaint (ECF No. 1) and accepts them as true. See Erickson v. Pardus, 551 U.S. 89, 94
(2007).
necessary land and rights ‘by the exercise of the right of eminent domain’ if it is unable to
reach an agreement with the landowner.’” (Id. ¶ 25 (quoting 15 U.S.C. § 717f(h)). MDNR
is the record title holder of the land that Columbia Gas seeks to access in Washington
County (“Tract No. 1”). (Id. ¶ 30). Columbia Gas began its easement-acquisition efforts in
2016, and after negotiations, offered MDNR consideration for the easement in the amount
of $5,000.00. (Id. ¶¶ 15, 18). Conveyance of the easement required approval by the
Maryland Board of Public Works (“BPW”). (Id. ¶ 20). On January 2, 2019, BPW denied
Columbia Gas’s easement application. (Id.). Thereafter, Columbia Gas sought to condemn
the easement by authority of the Certificate and under § 717f(h) of the NGA. (Id.).
On May 16, 2019, Columbia Gas filed its Complaint in Condemnation (ECF No. 1)
and a Motion for an Order of Condemnation and for Preliminary Injunction (ECF No. 2).
On June 17, 2019, MDNR opposed preliminary injunctive relief (ECF No. 30) and filed a
Motion to Dismiss for Lack of Jurisdiction, arguing that its sovereign immunity, although
waivable, had not been waived. (Mot. Dismiss at 1, ECF No. 29). Columbia Gas filed its
Response on July 8, 2019. (ECF No. 38). The Court heard oral arguments on August 13,
2019 and August 21, 2019. (ECF Nos. 41, 45).
On August 21, 2019, the Court issued a ruling from the bench denying the
preliminary injunction and dismissing the Complaint. (ECF No. 46). The Court explained:
[A]lthough the Natural Gas Act certainly does grant [Columbia
Gas] the power of eminent domain to condemn land . . . the
Natural Gas Act does not abrogate state sovereign immunity or
delegate the United States’ state sovereign exemption to permit
Columbia [Gas] to sue the State of Maryland for an order of
condemnation without Maryland’s consent.
(Aug. 21, 2019 Tr. at 2:22–3:4, ECF No. 47). The Court determined that Columbia Gas
failed to establish “three of the four mandatory requirements for obtaining preliminary
injunctive relief, most notably, a likelihood of success on the merits simply because the
Eleventh Amendment precludes [MDNR] from being sued by Columbia [Gas] as a private
party.” (Id. at 3:5–9). Thus, the Court dismissed the case and denied MDNR’s Motion to
Dismiss as moot. (Id. at 19). Columbia Gas appealed on September 20, 2019. (ECF No.
48).
On June 21, 2021, the Supreme Court decided PennEast Pipeline Co. v. New Jersey.
141 S.Ct. 2244 (2021). In PennEast, the Court held that “the Federal Government can
constitutionally confer on pipeline companies the authority to condemn necessary rights-
of-way in which a State has an interest.” Id. at 2251. Following the PennEast decision, the
Fourth Circuit Court of Appeals remanded the case to this Court. (ECF No. 52). The Fourth
Circuit further denied Columbia Gas’s Motion for Summary Reversal and vacated this
Court’s August 21, 2019 Order, directing the Court to engage in “further consideration[s]
in light of PennEast.” (4th Cir. Order at 2, ECF No. 52).
On July 29, 2022, MDNR filed a Renewed Motion to Dismiss for Lack of
Jurisdiction under Federal Rule of Civil Procedure 12(b)(1). (Def.’s Mot. Dismiss [“Mot.”]
at 1, ECF No. 63). Columbia Gas filed its Opposition on August 29, 2022, (ECF No. 66),
and MDNR filed its Reply on September 26, 2022 (ECF No. 69).
II. DISCUSSION
A. Standard of Review
Federal Rule of Civil Procedure 12(b)(1) requires a plaintiff to establish the Court’s
subject-matter jurisdiction by showing the existence of either a federal question under 28
U.S.C. § 1331 or diversity jurisdiction under 28 U.S.C. § 1332. A plaintiff may establish
federal question jurisdiction by asserting a claim that arises from a federal statute or from
the U.S. Constitution. Fed.R.Civ.P. 12(b)(1). To show that the claim arises on one of these
bases, the federal question must appear “on the face of the plaintiff’s properly pleaded
complaint.” AES Sparrows Point LNG, LLC v. Smith, 470 F.Supp.2d 586, 592 (D.Md.
2007) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)). However, when a
party challenges subject-matter jurisdiction, the Court may consider “evidence outside the
pleadings” to resolve the challenge. Richmond, Fredericksburg & Potomac R. Co. v.
United States, 945 F.2d 765, 768 (4th Cir. 1991).
A defendant challenging a complaint under Rule 12(b)(1) may advance a “facial
challenge, asserting that the allegations in the complaint are insufficient to establish subject
matter jurisdiction, or a factual challenge, asserting ‘that the jurisdictional allegations of
the complaint [are] not true.’” Hasley v. Ward Mfg., LLC, No. RDB-13-1607, 2014 WL
3368050, at *1 (D.Md. July 8, 2014) (alteration in original) (quoting Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009)). When a defendant raises a facial challenge, the
Court affords the plaintiff “the same procedural protection as he would receive under a
Rule 12(b)(6) consideration.” Kerns, 585 F.3d at 192 (quoting Adams v. Bain, 697 F.2d
1213, 1219 (4th Cir. 1982)). As such, the Court takes the facts alleged in the complaint as
true and denies the motion if the complaint alleges sufficient facts to invoke subject-matter
jurisdiction.
The Court may determine on its own initiative that it lacks subject-matter
jurisdiction, regardless of whether a party to the case has raised this claim. Arbaugh v. Y
& H Corp., 546 U.S. 500, 506 (2006); see also Fed.R.Civ.P. 12(h)(3). “Whenever it appears
by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject
matter, the court shall dismiss the action.” Arbaugh, 546 U.S. at 506 (quoting Kontrick v.
Ryan, 540 U.S. 443, 455 (2004)). The Court “ha[s] an independent obligation to determine
whether subject-matter jurisdiction exists, even in the absence of a challenge from any
party.” Id. at 501, 514. When the Court establishes that it does not have subject-matter
jurisdiction, it “must dismiss the complaint in its entirety.” Id. at 514.
B. PennEast Pipeline Co. v. New Jersey
In PennEast, Plaintiff PennEast Pipeline Company sought an order for
condemnation and a preliminary injunction for immediate access to property owned by the
State of New Jersey. See 141 S.Ct. at 2251. The Supreme Court held that the Federal
Government constitutionally conferred on pipeline companies the authority to condemn
rights-of-way in which States have an interest in the NGA. Id. The Court determined that
“[a]lthough nonconsenting States are generally immune from suit, they surrendered their
immunity from the exercise of the federal eminent domain power when they ratified the
Constitution.” Id. at 2251–52. Thus, “the Natural Gas Act delegates the federal eminent
domain power to private parties,” allowing “those parties [to] initiate condemnation
proceedings, including against state-owned property.” Id. at 2252. The Court further
reasoned that precluding Federal Government delegatees from bringing condemnation
proceedings “would violate the basic principle that a State may not diminish the eminent
domain authority of the federal sovereign.” Id. at 2260. Thus, a court may not “divorce the
eminent domain power from the power to bring condemnation actions.” Id.
In coming this conclusion, the Court emphasized the long history of eminent domain
power:
[T]he Framers . . . sought to create a cohesive national
sovereign in response to the failings of the Articles of
Confederation. Over the course of the Nation’s history, the
Federal Government and its delegatees have exercised the
eminent domain power to give effect to that vision, connecting
our country through turnpikes, bridges, and railroads—and
more recently through pipelines, telecommunications
infrastructure, and electric transmission facilities. And we have
repeatedly upheld these exercises of the federal eminent
domain power—whether by the Government or a private
corporation, whether through an upfront taking or a direct
condemnation proceeding, and whether against private
property or state-owned land. The NGA fits well within this
tradition.
Id. at 2263.
The Court further addressed New Jersey’s argument that despite the established
eminent domain power in the NGA, it was immune from suit due to sovereign immunity:
States’ immunity from suit is a fundamental aspect of the
sovereignty which the States enjoyed before the ratification of
the Constitution . . . Under our precedents, a State may be
subject to suit only in limited circumstances. A State may of
course consent to suit . . . and Congress may also abrogate state
sovereign immunity under the Fourteenth Amendment.
Furthermore, a State may be sued if it has agreed to suit in the
“plan of the Convention,” which is shorthand for the structure
of the original Constitution itself. The “plan of the convention”
includes certain waivers of sovereign immunity to which all
States implicitly consented at the founding. We have
recognized such waivers in the context of bankruptcy
proceedings, suits by other States, and suits by the Federal
Government.
Id. at 2258 (cleaned up). The Court found that the third exception to States’ immunity
applied in this instance−the States had implicitly agreed to condemnation suits when they
ratified the Constitution. Id. at 2251−52.
Justice Gorsuch dissented and argued that even if States consented to condemnation
proceedings in the plan of the Convention, “the Eleventh Amendment nonetheless divests
federal courts of subject-matter jurisdiction over a suit filed against a State by a diverse
plaintiff.” Id. at 2262. He posited that “States have two distinct federal-law immunities
from suit.” Id. at 2264 (Gorsuch, J., dissenting). The first is “structural immunity” which
is “derive[d] from the structure of the Constitution” and the ratification of the Convention.
Id. Justice Gorsuch agreed with the majority that this immunity is waivable. Id. The second
form of state immunity is “textual immunity,” also known as Eleventh Amendment
immunity, which is “derive[d] from the text of the Eleventh Amendment.” Id. The Eleventh
Amendment provides that “[t]he Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Id.
(quoting U.S. Const. amend. XI). Justice Gorsuch argued that the majority failed to answer
whether Eleventh Amendment immunity is waivable when a federal suit is commenced
against a State by a citizen of another State. Id. at 2264–65. He further argued that the
Eleventh Amendment constitutes an “ironclad rule for a particular category of diversity
suits” where immunity is not waivable because the Amendment’s plain language mandates
that federal courts “shall not” hear suits that fall within its parameters. Id. Because the
circumstances of PennEast presented “‘the rare scenario’ that comes within the Eleventh
Amendment’s text,” New Jersey and other states sued by a diverse plaintiff should be
immune from suit. Id. at 2265. Justice Gorsuch concluded by stating that “lower
courts . . . have an obligation to consider this issue on remand before proceeding to the
merits.” Id.
The majority opinion briefly addressed Justice Gorsuch’s argument. It stated that
despite the Eleventh Amendment’s language, “States retain their immunity from suit
regardless of the citizenship of the plaintiff” and “we have understood the Eleventh
Amendment to stand not so much for what it says, but for the presupposition of our
constitutional structure which it confirms.” Id. at 2258 (majority opinion). The Court
further reasoned that:
Under our precedents that no party asks us to reconsider here,
we have understood the Eleventh Amendment to confer a
personal privilege which a State may waive at pleasure. When
a State waives its immunity and consents to suit in federal
court, the Eleventh Amendment does not bar the action. Such
consent may, as here, be inherent in the constitutional plan.
Id. at 2262 (cleaned up).
C. Analysis
In its Motion to Dismiss, MDNR primarily relies on Justice Gorsuch’s dissent in
PennEast. It argues that the Eleventh Amendment’s textual immunity may not be waived
by the States, and thus, this Court does not have subject matter jurisdiction to hear this
case. (Mot. at 7). MDNR further argues that the majority in PennEast “signaled its openness
to reconsidering” cases which have held that States may waive the Eleventh Amendment’s
conferral of privilege. (Id. at 11). The Court did this, according to MDNR, by adding the
qualification that “no party asks us to reconsider [those cases] here,” rather than
conclusively foreclosing Justice Gorsuch’s suggestion that textual immunity is not
waivable. (Id. at 12 (quoting PennEast, 141 S.Ct. at 2262 (emphasis added))). Thus, MDNR
argues that this Court may consider and grant its Renewed Motion to Dismiss because the
State is entitled to textual immunity. (Id.). MDNR acknowledges that “[o]f course, this
Court is not free to overrule or disregard decisions of the Supreme Court” and recognizes
“that some of its arguments here may ultimately be better suited for Supreme Court
review.” (Id. at 13 n.5).
Columbia Gas counters that MDNR’s Eleventh Amendment argument is foreclosed
by PennEast and other Supreme Court precedents. (Pl.’s Resp. Opp’n [“Opp’n”] at 1, ECF
No. 66). At bottom, the Court agrees with Colombia Gas and will deny MDNR’s Renewed
Motion to Dismiss.
This Court interprets the Supreme Court’s opinion in PennEast as explicitly holding
that Federal Government delegatees have federal eminent domain power to “initiate
condemnation proceedings, including against state-owned property.” See 141 S.Ct. at
2252. It is undisputed that FERC has granted Columbia Gas a certificate of public
convenience and necessity, thus delegating federal eminent domain power to Columbia
Gas. (See Compl. ¶¶ 7, 8, 11–13, 25; Mot. at 1–2). Further, MDNR is the record title holder
for Tract No. 1. (Mot. at 2). Thus, as a Federal Government delegatee, Columbia Gas has
federal eminent domain power to initiate condemnation proceedings against the property
owned by MDNR. PennEast, 141 S.Ct. at 2252.
If this Court were to hold that it lacked subject matter jurisdiction to hear this case,
it would be “divorc[ing] the eminent domain power from the power to bring condemnation
actions.” Id. at 2260. The Supreme Court stated that such a ruling “would violate the basic
principle that a State may not diminish the eminent domain authority of the federal
sovereign.” Id. Thus, the Court has subject matter jurisdiction to hear Colombia Gas’s suit
for condemnation.
Further, the Court is not persuaded by MDNR’s argument that the Supreme Court
is open to reconsidering cases holding that Eleventh Amendment immunity is waivable.
(Mot. at 6–7); see also PennEast, 141 S.Ct. at 2265 (Gorsuch, J., dissenting). The Supreme
Court clearly stated that the Eleventh Amendment confers a waivable privilege, and the
consent to waive this privilege “may, as here, be ‘inherent in the constitutional plan.’”
PennEast, 141 S.Ct. at 2262 (majority opinion) (quoting McKesson Corp. v. Div. Alcoholic
Beverages and Tobacco, 496 U.S. 18, 30 (1990)). The Court interprets this statement as an
express rejection of the MDNR’s arguments. The majority considered Justice Gorsuch’s
argument that the Eleventh Amendment “divests federal courts of subject-matter
jurisdiction over a suit filed against a State by a diverse plaintiff” and reaffirmed that the
States waived their Eleventh Amendment immunity at the ratification of the Constitution.
Id. Thus, this Court may entertain federal-court condemnation suits commenced against a
State by a citizen of another State.
This Court will not attempt to determine whether the Supreme Court’s holding
applies only to structural immunity rather than textual immunity. The Supreme Court did
not make such a distinction, and this Court will “simply apply the[] commands” of the
Supreme Court. See Payne v. Taslimi, 998 F.3d 648, 654 (4th Cir. 2021). The Court’s
dictate was clear: a court must not “divorce the eminent domain power from the power to
bring condemnation actions.” PennEast, 141 S.Ct. at 2260. Columbia Gas correctly argues
that MDNR’s textual immunity theory, and the sources that support it, may not “properly
suggest to this [Court] what it must do on remand,” as that is “exclusively the province of
the majority of Supreme Court Justices who have written for the Court.” (Opp’n at 9). If
this Court were to grant the Motion, it would ignore the essential holding in PennEast by
allowing MDNR to separate Columbia Gas’ eminent domain power from its condemnation
authority. The Supreme Court expressly decided that this is something “[a] State may not
do.” PennEast, 141 S.Ct. at 2247. Indeed, MDNR acknowledged that “this Court is not free
to overrule or disregard decisions of the Supreme Court.” (Mot. at 13 n.5). Accordingly,
the Court finds that it must adhere to the precedent established in PennEast and deny
MDNR’s Renewed Motion to Dismiss.
III. CONCLUSION
For the foregoing reasons, the Court will deny Defendant MDNR’s Renewed
Motion to Dismiss (ECF No. 63). A separate Order follows.
Entered this 16th day of December, 2022.
/s/ .
George L. Russell, III
United States District Judge