Columbia Gas Transmission, LLC v. Heaster

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

COLUMBIA GAS TRANSMISSION, LLC,

Plaintiff,

v. Crim. Action No. 1:20-CV-238

(Judge Kleeh)

MICHAEL P. HEASTER, JR.,

Defendant.

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR PRELIMINARY

INJUNCTION [DKT. NO. 2], MOTION TO DISMISS [DKT. NO. 9], AND

MOTION TO STRIKE [DKT. NO. 16]

Pending before the Court is the Plaintiff’s Motion for

Preliminary Injunction [Dkt. No. 2], Defendant’s Motion to Dismiss

[Dkt. No. 9], and Plaintiff’s Motion to Strike [Dkt. No. 16]. For

the reasons discussed herein, each of those motions is DENIED.

I. PROCEDURAL HISTORY

On October 2, 2020, Plaintiff Columbia Gas Transmission, LLC,

(“Columbia Gas”) filed a verified complaint against Defendant

Michael P. Heaster, Jr., (“Mr. Heaster”) alleging three causes of

action: (1) Preliminary Injunction, (2) Permanent Injunction, and

(3) Breach of Contract. [ECF No. 1]. On the same day, Columbia Gas

filed a Motion for Preliminary Injunction [ECF No. 2], wherein it

asks the Court to enter a preliminary injunction to enjoin Mr.

Heaster as well as any non-parties from preventing Columbia from

accessing its pipeline, and requiring Mr. Heaster to unlock the

gate, pre-judgment and post-judgment interest, and any other

relief the Court may deem appropriate.1

On October 8, 2020, Mr. Heaster filed a Motion to Dismiss for

failure to join indispensable parties under Rule 12(b)(7) of the

Federal Rules of Civil Procedure. [ECF No. 9]. At the October 9,

2020, hearing, the Court heard argument on the Motion to Dismiss

and took testimony and documentary evidence on the Motion for

Preliminary Injunction. At the hearing, the Court ordered the

parties to file supplemental briefs in support of their respective

positions on the Motion for Preliminary Injunction on or before

5:00 p.m. on October 14, 2020 and were instructed to include

pictures and maps in support to clarify for the Court the morass

of referenced roads, paths and rights of way. On October 14, 2020,

Mr. Heaster filed “Defendant’s Brief in Opposition to Preliminary

1 In addition to the Court’s reasoning outlined below in denying

Columbia Gas’s Motion for Preliminary Injunction against Mr.

Heaster individually, it also declines to issue a preliminary

injunction against any non-party as Columbia Gas has failed to

show, as required under Rule 65 of the Federal Rules of Civil

Procedure, a non-party is acting in concert or participation with

Mr. Heaster, the only named party. See F.R.C.P. 65(d)(2)(C); see

also Little v. Associated Tech. Training Servs., Inc., 1993 WL

498282, *4 (D.S.C. Dec. 3, 1993). As Judge Learned Hand stated:

"[A court] cannot lawfully enjoin the world at large, no matter

how broadly it words its decree. If it assumes to do so, the decree

is pro tanto brutum fulmen, and the persons enjoined are free to

ignore it." Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832–33 (2d

Cir. 1930); see also Trump v. Hawaii,- U.S. -, 138 S. Ct. 2392,

2425 (2018) (Thomas, J. concurring) (expressing skepticism

district courts possess the authority to issue universal

injunctions).

Injunction” [ECF No. 12], and Columbia Gas filed “Plaintiff’s

Supplemental Memorandum in Support of Motion for Preliminary

Injunction” [ECF No. 13]. On October 15, 2020, Mr. Heaster filed

“Defendant’s Response to Plaintiff’s Supplemental Memorandum in

Support of Motion for Preliminary Injunction” [ECF No. 14].2 That

same day, Columbia Gas filed “Plaintiff’s Motion to Strike

Defendant’s Response to Plaintiff’s Supplemental Memorandum in

Support of Motion for Preliminary Injunction or, in the

Alternative, Reply in Opposition to Defendant’s Response to

Plaintiff’s Supplemental Memorandum” [ECF No. 16]. The issues

relevant to the Motion for Preliminary Injunction, Motion to

Dismiss and Motion to Strike have been fully briefed and the

parties were afforded the opportunity to be fully heard on each of

those motions, including offering evidence to the Court. Thus,

those motions are ripe for decision.

II. FINDINGS OF FACT

Based on the pleadings and the testimony during the hearing,

the Court makes the following factual findings. Defendant Michael

P. Heaster, Jr., Charles P. Heaster, Patsy J. Heaster, Clarence B.

Connor, Dawn E. Connor, Michael P. Heaster, Keiko A. Heaster,

2 Having failed to include any drawings or maps in his initial

post-hearing submission, Mr. Heaster finally included pictures and

maps for the Court’s review, despite the Court’s order the parties

file such illustrative exhibits with their initial submissions by

5:00 p.m. on October 14, 2020.

Michael P. Heaster, Jr., and Misty Heaster, are owners of certain

real property located in West Union District, Doddridge County,

WV, and consisting of approximately 901.72 acres (the “property”).

Compl., ECF No. 1, at ¶ 9.

The property is subject to at least five (5) agreements dated

January 12, 2018: The Easement and Right-Of-Way Agreement (Compl.

Ex. B, Doc. 1-2), Addendum to the Easement and Right-Of-Way

Agreement (Compl. Ex. C, Doc. 1-3), Temporary Work Space Easement

Addendum (Compl. Ex. D, Doc. 1-4), and Temporary Access Easement

with attached Addendum (Compl. Ex. E, Doc. 1-5).3 Id. ¶ 10. These

agreements are by and between Columbia Gas and all owners of the

property. The Easement and Right-Of-Way Agreement provides

Columbia Gas with an easement and right-of-way for the purposes of

constructing, inspecting, maintaining, operating, repairing,

replacing, altering, changing the size of, upgrading,

reconstructing, and removing or abandoning in place one pipeline

for the transportation of natural gas on, under, across, or through

a strip of land 50 feet in width on the property. Id. ¶ 11. In

exchange for execution of the agreements, Mr. Heaster was

compensated monetarily. Id. ¶ 18. Specifically, Mr. Heaster

3 The Court notes that “at least” 5 agreements may apply as the

parties referenced another document applicable to the “Harper

tract” during the October 9, 2020 hearing. As discussed herein,

the Court remains ignorant to that agreement’s applicability and

provisions as no party has submitted it for the record.

received $228,000 while the entire amount paid to members of the

Heaster family exceeded $650,000.

The Temporary Access Easement executed by Mr. Heaster and

Columbia Gas is the agreement most at issue in this case. The

Temporary Access Easement gives Columbia Gas “the right, license,

liberty . . . and easement to use that certain strip of land

located on [the property] described . . . in Exhibit A . . . for

the movement of equipment, machinery, vehicles, personnel,

supplies and any other purpose associated with the original

construction of the Project, including . . . construction of . .

. reclamation, mitigation and restoration activities related to []

the Project.” See Id. ¶ 13 (Compl. Ex. E, ECF No. 1-5). The

Temporary Access Easement commenced on January 12, 2018 and does

not terminate until completion of the original construction of the

Project, including completion of any reclamation, mitigation, or

construction activities. Compl. ¶ 15. The Temporary Access

Easement also provides that Columbia Gas has all rights and

privileges necessary for the full use of the rights granted by the

Temporary Access Agreement. Id. ¶ 14. (Compl. Ex. E, ECF No. 1-

5).

The three documents attached as Exhibit A to the Temporary

Access Easement contain maps depicting an overview of the

Mountaineer Xpress Project. The first attached Exhibit A includes

Access Road 010 (“AR 010”) and Access Road 011 (“AR 011”). That

document portrays AR 010 and AR 011 splitting into a “Y” shape,

with both roads running perpendicular to the proposed pipeline.

See ECF No. 1-5 at 8.. Both AR 010 and AR 011 intersect with the

proposed pipeline as shown at two distinct points the map. See id.

Exhibit A to the Temporary Access Easement also includes a legend

to the map, located at the bottom left of the page, defining AR

011 as an “Access Road Centerline” while AR 010 is not so marked.

See id. The parties do not dispute Columbia Gas’s contractual right

to use AR 011; the conflict lies in whether Columbia Gas has a

contractual right to use AR 010 under the Temporary Access

Easement.

Pursuant to these agreements, Columbia Gas began initial

construction and reclamation phases of the Mountaineer Xpress

Pipeline: a multi-phase project. Compl. ¶ 16. The final reclamation

has not yet been completed, and Mr. Heaster has requested that

Columbia Gas perform additional reclamation associated with the

construction. Id. The Mountaineer Xpress Pipeline is a thirty-six-

inch pipeline with natural gas currently flowing through it at

approximately 2.1bcf and at a pressure of 1,400#. Id. ¶ 17.

In 2019,4 a slip on the property occurred, and has continued

to grow in severity. Id. ¶ 19. On or about September 17, 2020,

4 There is a discrepancy in the record regarding exactly when the

slip occurred. Columbia Gas states in the complaint that it

occurred in spring 2019, a Columbia Gas witness testified it

Columbia Gas began its work to mitigate and repair the slip via AR

010. Id. ¶ 19. On or about October 1, 2020, Mr. Heaster locked the

gate to the property on AR 010, which locked out Columbia Gas from

access to AR 010 and allegedly locked in several pieces of Columbia

Gas’s equipment. Id. ¶ 19–20. Columbia Gas alleges that the locked

gate further prevents it from accessing the pipeline construction

project and prevents it from continuing its mitigation efforts.

Id. ¶ 20. Columbia Gas also alleges it is necessary for the gate

to be unlocked so that Columbia Gas can stabilize and mitigate the

potential damage created by the slip. Id. ¶ 21. The slip is at

direct risk of increasing in size and causing negative

environmental impacts. Id. ¶ 22.

At the October 9, 2020 hearing, testimony was taken from a

variety of witnesses, notably Anthony V. Capp, the Land Project

Manager for Columbia Gas. Mr. Capp testified on direct examination

that Columbia Gas is faced with no other way to access the slip

for repairs other than through AR 010 without creating a

significant safety concern. Mr. Capp further testified in rebuttal

that if Columbia Gas in fact has a contractual right to use AR

010, the documentation supporting such contention was not

presented to the Court or entered into evidence at the hearing. In

occurred in February 2020, and Mr. Heaster, through his testimony,

contends it occurred in November 2019. Regardless, the slip

occurred at least several months before Columbia began remediation

work to repair the slip or sought relief in this Court.

fact, Mr. Capp testified that there is no agreement in the record

before the Court that shows Columbia Gas has an express right to

use AR 010. Mr. Heaster’s testimony was similar on this issue,

further contending that such agreement regarding Columbia Gas’s

rights to AR 010 was never signed. Further, Defendant’s counsel

elicited testimony that called into question whether Mr. Heaster

owns the “Harper Tract” which AR 010 traverses upon.

Justin Taylor, Pipeline Integrity Engineer for TC Energy,

testified that safety hazards were created by Mr. Heaster’s locking

the gate to AR 010 such as an increased probability of impact on

the pipeline itself, possibly causing it to rupture and ignite

into flame. Further, because the slip remains open, its condition

continues to be unstable, and invites the possibility of

retrogressing, causing further damage to the pipeline and

environment. John Delachapelle, an associate of Golder Associates,

Inc., testified to certain mitigation recommendations, such as

unlocking the gate for access to stabilize the slip. He further

testified regarding the risks involved in failing to mitigate the

slip, such as retrogressing across the pipeline and damaging it.

III. DISCUSSION

A. Preliminary Injunction Standard

A preliminary injunction is “an extraordinary remedy that may

only be awarded upon a clear showing that the plaintiff is entitled

to such relief.” Dewhurst v. Century Aluminum Co., 649 F.3d 287,

290 (4th Cir. 2011) (quoting Winter v. Nat. Res. Def. Counsel,

Inc., 555 U.S. 7 (2008)); see Peterson v. Nat'l Telecomms. & Info.

Admin., 505 F. Supp.2d 313, 317 (E.D. Va. 2006) (quoting Direx

Israel Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th

Cir. 1992)) (recognizing that “[a] preliminary injunction is an

extraordinary remedy involving the exercise of a very far-reaching

power, which is to be applied only in the limited circumstances

which clearly demand it”).

In order to justify the extraordinary remedy that

a preliminary injunction provides, the movant has the burden of

demonstrating the following: (1) “that he is likely to succeed on

the merits”; (2) “that he is likely to suffer irreparable harm in

the absence of preliminary relief”; (3) “that the balance of

equities tips in his favor”; and (4) “that an injunction is in the

public interest.” Dewhurst, 649 F.3d at 290 (internal quotation

marks and citations omitted); see Direx Israel, 952 F.2d at 812

(indicating that the moving party bears the burden of demonstrating

the propriety of a preliminary injunction). In Dewhurst, the

United States Court of Appeals for the Fourth Circuit emphasized

the fact that controlling precedent from the Supreme Court mandates

that a plaintiff “clearly show” that he is likely to succeed on

the merits. Dewhurst, 649 F.3d at 290 (quoting Winter, 555 U.S. at

22) (emphasis added).

The demanding standard outlined in Dewhurst becomes even

more exacting when, as here, a plaintiff seeks

a preliminary injunction that mandates action, as opposed to the

typical form of preliminary injunctive relief seeking to preserve

the status quo pending trial. See East Tenn. Nat. Gas Co. v. Sage,

361 F.3d 808, 828 (4th Cir. 2004) (quoting Wetzel v. Edwards, 635

F.2d 283, 286 (4th Cir. 1980)) (noting that

“mandatory preliminary injunctions do not preserve the status quo

and normally should be granted only in those circumstances when

the exigencies of the situation demands such

relief”). Preliminary injunctions are ordinarily intended to

“protect the status quo and to prevent irreparable harm during the

pendency of the lawsuit or alternately to preserve the court's

ability to render a meaningful judgment on the merits.” In re

Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir.

2003). In Microsoft, the Fourth Circuit elaborated that such

“[m]andatory preliminary injunctive relief in any circumstance is

disfavored, and warranted only in the most extraordinary

circumstances.” Id. (citation omitted). The court further noted

that the “application of th[e] exacting standard of review

[for preliminary injunctions] is even more searching” when the

movant requests relief that “is mandatory rather than prohibitory

in nature.” Id.

B. Application of Preliminary I

njunction Standard

i. Likelihood of Success on the Merits

Considering the record before the Court at this stage,

Columbia Gas has failed to make a clear showing that it would

likely be successful on the merits. At issue is whether the

Agreements, specifically the Temporary Access Easement, provide

Columbia Gas with the express rights to use AR 010 as proposed. As

stated in the agreements, West Virginia law governs. To form a

valid, enforceable contract, there must be “competent parties,

legal subject-matter, valuable consideration, and mutual assent.”

Syl. Pt. 5, Virginian Export Coal Co. v. Rowland Land Co., 131

S.E. 253 (W. Va. 1926). A prima facie breach of contract claim

under West Virginia law requires

(1) that there is a valid, enforceable

contract; (2) that the plaintiff has performed

under the contract; (3) that the defendant has

breached or violated its duties or obligations

under the contract; and (4) that the plaintiff

has been injured as a result.

Corder v. Antero Res. Corp., 322 F. Supp. 3d 710, 717 (N.D.W. Va.

2018). “[A] valid written instrument which expresses the intent of

the parties in plain and unambiguous language is not subject to

judicial construction or interpretation but will be applied and

enforced according to such intent.” Syl. Pt. 1, Cotiga Dev. Co. v.

United Fuel Gas Co., 128 S.E.2d 626 (W. Va. 1962).

While the Temporary Access Easement and the Addendum attached

are valid enforceable contracts, they do not expressly provide for

Columbia Gas’s right to use AR 010 for the natural gas production

and, at issue before the Court, for mitigation and reformation of

the slip on the property. While Columbia Gas argues that Mr.

Heaster has breached the agreements by locking the gate leading to

AR 010, Columbia Gas has failed to provide the Court with evidence

showing that a valid contract by and between Columbia Gas and Mr.

Heaster provides Columbia Gas the right to use AR 010. In fact,

Mr. Capp testified the agreement which allegedly provides such an

easement was not provided to the Court or admitted into evidence.

His testimony was even murkier as to whether the “Harper tract”

agreement was assigned or transferred to Mr. Heaster or any other

of the Heasters. Mr. Capp also testified that any alternative route

to the slip on the property other than through AR 010 would create

a significant safety concern.

In summary, the Court cannot conclude, based on the record

before it now, that Columbia Gas has made a clear showing it has

an express right to access the slip area via AR 010 or that it has

no other alternative path to the slip. Mr. Capp was, at best,

equivocal as to the options available to Columbia Gas to access

the slip area. Likewise, he testified the agreement that may

provide for such access via AR 010 was not provided to the Court

despite the request to this Court for extraordinary relief and

left significant question as to whether it passed from “Harper” to

any member of the Heaster family including Defendant Heaster. The

agreements, addendums, drawings and maps in the record at this

point certainly do not clearly establish Columbia Gas has a right

to use AR 010. Those documents, for the reasons discussed,

indicate the opposite frankly. For these reasons, Columbia Gas

has failed to make a clear showing that it is likely to succeed on

the merits in its breach of contract claim against Mr. Heaster.5

This finding precludes this Court from granting the relief

Columbia as has requested. Regardless, as this order only

dispenses with the request for a preliminary injunction and other

remedies remain at issue, the Court will continue with its required

analysis under the Winter factors, again, based on the current

record.

ii. Irreparable Harm

Columbia Gas will likely suffer irreparable harm in the

absence of injunctive relief even though this Court cannot award

5 Although the Court has found Columbia Gas has not clearly

demonstrated a likelihood to prevail on the merits, that finding

is based on the record as it exists after the October 9, 2020

hearing and the parties’ post-hearing submissions. It is entirely

possible the “missing” agreements and any other relevant evidence

could lead to a different result as this matter progresses;

however, that, to state the obvious, depends upon the evidence

provided to this Court.

that remedy at this stage.6 Gene

rally, economic damages are not

sufficient to establish irreparable harm. See Di Biase v. SPX

Corp., 872 F.3d 224, 230 (4th Cir. 2017) (“Mere injuries, however

substantial, in terms of money, time and energy expended in the

absence of [an injunction] are not enough.”). Workers’ safety and

environmental hazards are clearly at risk in this case. This Court

has previously considered safety as a factor supporting

irreparable harm. See Dominion Energy Transmission, Inc. v. 0.11

Acres of Land, No. 1:19CV182, 2019 WL 4781872, at *6 (N.D.W. Va.

Sept. 30, 2019) (finding that Dominion faced irreparable harm

without an injunction and noting that “if left unchecked, the slip

will threaten the safety of Dominion employees, who work in close

proximity to heavy machinery”).

The Court makes this finding based, in part, on the safety

issues that have arisen due to Mr. Heaster’s interference with AR

010. Pursuant to Mr. Capp’s testimony, any route alternative to AR

6 The Court is certainly mindful of the emergent need to address

the slip at issue here. Columbia Gas offered overwhelming evidence

of the consequences of leaving the slip unattended. Mr. Heaster

testified that he also believed the slip needed repaired and that

he desired Columbia Gas to do so. Nonetheless, he locked the gate

preventing Columbia Gas from accessing AR 010. It has become clear

that alternative routes exist which Columbia Gas has the right to

use albeit less convenient and perhaps even less safe to do so.

This Court’s Order should not be construed as standing for anything

other than its plain reading including expressing an opinion as to

whether the slip should or should not be remediated, how Columbia

Gas navigates within its rights to do so and whether the parties

could or should reach some arrangement or resolution accommodating

those issues.

010 to the slip on the property would create a significant safety

concern. Mr. Taylor testified that Mr. Heaster’s action of locking

the gate to AR 010 has created safety hazards such as increasing

the probability of the slip impact on the pipeline, and that the

pipeline could rupture and ignite into flame due to such impact.

The impact could cause environmental wreckage and safety risks to

Columbia Gas employees. Mr. Delachapelle further confirmed the

dangers at play in allowing the slip to persist, due to the

pipeline possibly becoming damaged by moisture and other

environmental effects while its mitigation is stalled. While “it

is well-settled that unauthorized interference with a real

property interest constitutes irreparable harm as a matter of law,

given that a piece of property is considered a unique commodity

for which a monetary remedy for injury is an inherently inadequate

substitute[,]” Columbia Gas failed to provide the Court with a

clear showing of evidence that it possesses a real property

interest in AR 010, and directly contradicted such argument through

the testimony elicited from Mr. Capp at the hearing. Therefore,

while the potential harm is likely actual and perhaps even

imminent, and Columbia Gas is likely to suffer irreparable harm in

the absence of a preliminary injunction, Columbia Gas fails under

the stringent standard outlined above.

iii. Balance of Equities

The balance of equities tips in Columbia Gas’s favor. This

Court has previously found:

When weighing the parties’ respective injuries

and balancing the equities to determine

whether a preliminary injunction should be

issued, the court should consider the

following: (1) the relative importance of the

rights asserted and the act sought to be

enjoined; (2) the preservation of the status

quo; and (3) the balancing of damage and

convenience generally.

SWN Prod. Co., LLC v. Edge, No. 5:15CV108, 2015 WL 5786739, at *6

(N.D.W. Va. Sept. 30, 2015) (citing Sinclair Refining Co. v.

Midland Oil Co., 55 F.2d 42, 45 (4th Cir. 1932)). While the

agreements in place are enforceable as drafted, Columbia Gas argues

that it is merely seeking to exercise its express rights pursuant

to the Temporary Access Easement by using AR 010 to access the

slip. However, Mr. Capp testified that no agreement by and between

Columbia Gas and Mr. Heaster that gives Columbia Gas access to AR

010 is on the record. Mr. Heaster argues such agreement does not

exist. The balance of equities tips in favor of Columbia Gas

because of the environmental and employee hazards created by Mr.

Heaster blocking Columbia Gas from its safest route to the slip so

that mitigation can be completed.

While in granting a preliminary injunction for Columbia Gas,

the benefit to it would not be disproportionate to the injury of

Mr. Heaster, by ordering him to u nlock the gate.7 However, because

Columbia Gas failed to make a clear showing it would prevail on

the merits, Mr. Heaster cannot be preliminarily enjoined.

iv. Public Interest

The public interest factor is a much closer call than any of

the other factors. Both by statute and by court decision, the

public policy in West Virginia is to encourage the exploration and

development of natural resource interests. The West Virginia

Legislature has explicitly stated that “[a]llowing the responsible

development of our state’s natural gas resources will enhance the

economy of our state and the quality of life for our citizens while

assuring the long term protection of our environment.” W. Va. Code

§ 22-6A-2(a)(8). The Legislature has further declared that

“[e]xploration for and development of oil and gas reserves in this

state must coexist with the use, agricultural or otherwise, of the

surface of certain land and that each constitutes a right equal to

the other.” Id. § 22-7-1(a)(1). This interest has been recognized

7 The Court does not intend to minimize Mr. Heaster’s interest at

issue here. The right to control one’s private property is a basic

one in our society. See Bell v. State of Md., 378 U.S. 226, 268

(1964) (“[t]he individual is protected in the right both to use

his own property as he sees fit and to receive the full fruits of

its use . . . .”); see also The Oakmar, 20 F. Supp. 650, 651 (D.

Md. 1937)(“[O]ur law must always keep inviolate certain basic

rights inherent in any free people, and one of these rights is

the right to use one's property without molestation from mere

trespassers. Such right will be protected by this court as long as

it sits, without fear or favor.”).

by this Court. See Edge, 2015 WL 5786739, at *6 (citing the same

statutory provisions).

The public also has an interest in the enforcement of

contracts. See Western Sur. Co. v. Rock Branch Mech., Inc., No.

5:16-cv-09550, 2016 WL 6462100, at *3 (S.D.W. Va. Oct. 31, 2016);

see also Edge, 2015 WL 5786739, at *6 (“The public certainly has

an interest in enforcing valid leases and ensuring that parties to

those leases comply with their terms. The public also has an

interest in respecting the valid property rights of others.”).

However, as this Court has noted, “[t]he public does not,

however, have an interest in condoning the violation of . . .

agreements, or refraining to respect the agreed-to rights of the

parties.” Edge, 2015 WL 5786739, at *6. Here, while Columbia Gas

alleges Mr. Heaster is interfering with Columbia Gas’s contractual

rights to use the property to mitigate the slip, Columbia Gas has

failed to provide evidence that there is a valid agreement between

the parties for Columbia Gas’s use of AR 010, and, in fact, has

provided evidence by testimony of the opposite. Therefore, while

the public interest weighs in favor of protecting natural gas

resources and reclamation of the slip, it also weighs in favor of

protecting the contractual rights of Mr. Heaster. Because Columbia

Gas has failed to make a clear showing that it is likely to succeed

on the merits in its breach of contract claim against Mr. Heaster,

Columbia Gas fails under the stringent standard to succeed on the

motion for preliminary injunction.

C. Easement Implied by Necessity

Although arguably relevant to certain of the preliminary

injunction factors this Court is required to consider, Columbia

Gas has focused on the alleged impossibility to access the slip

and its equipment via ANY route other than AR 010.8 To the extent

that Columbia Gas attempts to secure the relief it seeks here by

an easement by necessity theory, this claim fails. West Virginia

law certainly recognizes easement implied by necessity. Cantrell

v. Cantrell, 829 S.E.2d 274, 285 (W. Va. 2019). The burden of

proving an easement by necessity is one that must be shown by clear

and convincing proof and rests with the moving party. Id.

To establish an easement implied by necessity[,] . . .

a party must prove four elements: (1) prior common

ownership of the dominant and servient estates; (2)

severance (that is, a conveyance of the dominant and/or

servient estates to another); (3) at the time of the

severance, the easement was strictly necessary for the

benefit of either the parcel transferred or the parcel

retained; and (4) a continuing necessity for an

easement.

8 Again, the record has morphed since the filing of the Verified

Complaint and Motion for Preliminary Injunction. The record

currently indicates Columbia Gas has multiple options in how it

accesses the slip to remediate it. The Court certainly lacks the

independent knowledge and the record is not clear on how best

Columbia Gas might proceed currently so the Court leaves that

question to those best qualified to decide.

Id. (quoting Cobb v. Daugherty, 693 S.E.2d 800 (W. Va. 2010).

However, “[m]ere convenience or even reasonable necessity are

insufficient. If there is an alternate route, even if more

difficult or more expensive to use, then no easement is implied by

necessity: An easement by necessity is implied only where any other

route would be practicably or economically impossible.” Cantrell

v. Cantrell, 829 S.E.2d at 286. To establish an easement implied

by necessity, the moving party must show that it is “strictly

necessary to the productive, beneficial, economical or physical

use of the dominant estate.” Id.

Here, if Columbia Gas is attempting to argue an easement by

implied necessity, it did not allege sufficient facts to prove an

easement by implied necessity has been created for AR 010 nor did

it elicit sufficient evidence to support such a claim at this stage

during the October 9, 2020 hearing. In its most recent filing,

Columbia Gas concedes it would be willing to proceed by accessing

AR 010 from another direction, as offered by Mr. Heaster. [ECF No.

16]. Mr. Capp testified that while AR 010 is perhaps the safest

route Columbia Gas can take to access the slip, it is not the only

route. Because Columbia Gas failed to plead or prove facts showing

AR 010 is strictly necessary to the productive, beneficial,

economical or physical use of Columbia Gas’s rights at issue, any

easement by implied necessity must be denied.

D. Motion to Dismiss [ECF No. 9

] and Motion to Strike [ECF No.

16].

Also presently pending before this Court are Mr. Heaster’s

Motion to Dismiss [ECF No. 9] and Columbia Gas’s Motion to Strike

[ECF No. 16]. For reasons stated on the record at the October 9,

2020, hearing, the Motion to Dismiss [ECF No. 9] is DENIED.

Second, Columbia Gas’s Motion to Strike is DENIED. As noted,

the Court asked for post-hearing briefs by 5:00 p.m. on October

14, 2020, and both parties complied with that instruction. The

Court further directed the parties to include drawings or maps in

those submissions to assist the Court in deciphering the layout of

the property at issue. Defendant neglected to comply with that

directive instead waiting until this challenged filing to offer

illustrative examples. However, the Court does not find this lack

of compliance, although obvious and unexplained, to be of such a

degree to warrant the extreme sanction of striking Defendant’s

Response to Plaintiff’s Supplemental Memorandum in Support of

Motion for Preliminary Injunction. No directive or order was in

place concerning response briefs leaving the Local Rules to fill

the void. Defendant’s submission certainly complied with the Local

Rules’ schedule. The Court has received and considered both

Defendant’s Response as well as Plaintiff’s Reply to that response

in crafting this Memorandum Opinion and Order.

IV. CONCLUSION

For the foregoing reasons, Columbia Gas has not made a clear

showing it is likely to succeed on the merits of its claims.

Columbia Gas failed to carry its burden of a clear showing that it

is entitled to an order requiring Mr. Heaster to unlock the gate

leading to AR 010 and other such relief, as it failed to show, to

date, it has any contractual right to use AR 010.

THEREFORE, considering the evidence elicited at the October

9, 2020, hearing, the parties’ supplemental briefings, and the

pertinent statutory and case law, the Court DENIES the Motion for

Preliminary Injunction [ECF No. 2]. The Court also DENIES the

Motion to Dismiss [ECF No. 9] and the Motion to Strike [ECF No.

16]. This Order shall remain in force and effect pending final

judgment on the merits. The October 23, 2020 hearing on the issue

of a permanent injunction remains scheduled for 11:00 a.m. that

day.

It is so ORDERED.

The Clerk is directed to transmit copies of this Order to all

counsel of record herein.

DATED: October 16, 2020

/s/ Thomas S. Kleeh

THOMAS S. KLEEH

UNITED STATES DISTRICT JUDGE