Reply Brief — Karolyn Givens, et al., Petitioners v. Mountain Valley Pipeline, LLC

No. 19-54

In The

Supreme Court of the United States

¾¾¾¾¾ ¨ ¾¾¾¾¾

KAROLYN GIVENS, ET AL.,

Petitioners,

v.

MOUNTAIN VALLEY PIPELINE, LLC,

Respondent.

¾¾¾¾¾ ¨ ¾¾¾¾¾

On Petition For Writ of Certiorari

To The United States Court of Appeals

For The Fourth Circuit

¾¾¾¾¾ ¨ ¾¾¾¾¾

REPLY BRIEF FOR PETITIONERS

¾¾¾¾¾ ¨ ¾¾¾¾¾

Ryan P. Bates

BATES PLLC

919 Congress Avenue

Suite 750

Austin, Texas 78701

512-694-5268

rbates@batespllc.com

Christopher S. Johns

Counsel of Record

Christen Mason Hebert

JOHNS & COUNSEL PLLC

14101 Highway 290 West

Suite 400A

Austin, Texas 78737

512-399-3150

cjohns@johnsandcounsel.com

Counsel for Petitioners

September 6, 2019

i

TABLE OF CONTENTS

Page

Table of Authorities ........................................... iii

Reply Brief .......................................................... 1

Argument ............................................................ 1

I.

II.

Courts Are Divided on the Question

Presented ............................................... 1

A.

The

approaches

of

the

Seventh and Fourth Circuits

are irreconcilable........................... 2

B.

Attempts to deny the split are

unavailing...................................... 4

This Is the Right Case to Resolve the

Circuit Split ........................................... 7

A.

The petitioners have live

claims ............................................. 7

B.

Meaningful

redress

is

available ........................................ 9

C.

Other factors make this case

an ideal vehicle............................ 10

III. The Fourth Circuit’s Decision Runs

Headlong

Into

Constitutional

Problems, Warranting Intervention ... 13

ii

TABLE OF CONTENTS—Continued

Page

A.

The decision below ignores

critical limits on federal

judicial power .............................. 13

B.

Abandoning those limits, the

Fourth

Circuit’s

decision

invites rather than avoids

constitutional problems .............. 15

Conclusion......................................................... 17

iii

TABLE OF AUTHORITIES

Page

CASES

Allegheny Defense Project v. Fed. Energy

Reg. Comm’n,

932 F.3d 940 (D.C. Cir. 2019) ................ 7, 8, 9

Columbia Gas Transmission, LLC v.

76 Acres,

701 F. App’x 221 (4th Cir. 2017) .................... 9

Danforth v. United States,

308 U.S. 271 (1939) ...................................... 14

Douglas v. Indep. Living Ctr. of

S. Cal., Inc.,

565 U.S. 606 (2012) ...................................... 13

E. Tenn. Nat. Gas Co. v. Sage,

361 F.3d 808 (4th Cir. 2004) ...................... 3, 4

Grupo Mexicano de Desarrolo S.A. v.

Alliance Bond Fund, Inc.,

527 U.S. 308 (1999) ...................................... 15

Kingdomware Techs., Inc. v. United

States,

136 S. Ct. 1969 (2016) .................................. 11

Kirby Forest Indus., Inc. v. United

States,

467 U.S. 1 (1984) .................................... 14, 15

Knick v. Township of Scott, Pa.,

139 S. Ct. 2162 (2019) .................................. 16

iv

TABLE OF AUTHORITIES—Continued

Page

Loretto v. Teleprompter Manhattan

CATV Corp.,

458 U.S. 419 (1982) ........................................ 9

N. Border Pipeline Co. v. 86.72 Acres

of Land,

144 F.3d 469 (7th Cir. 1998) ................. passim

Secombe v. Milwaukee & St. P. R. Co.,

90 U.S. 108 (1874) ........................................ 15

Transcon. Gas Pipe Line Co. v. 6.04 Acres,

910 F.3d 1130 (11th Cir. 2018) ...................... 9

United States v. Carmack,

329 U.S. 230 (1946) ...................................... 14

STATUTES AND RULES

18 C.F.R. 380.15 ............................................... 12

15 U.S.C. §717f ................................................... 7

15 U.S.C. §717r ............................................... 5, 7

28 U.S.C. §2072 ................................................ 15

OTHER AUTHORITIES

Alan Bailey, Appalachia to the rescue,

PETROLEUM NEWS (Jan. 27, 2008),

https://perma.cc/WNQ5-TXQX?type

=image .......................................................... 12

v

TABLE OF AUTHORITIES—Continued

Page

FAQ, BOSTON ATHLETIC ASSOCIATION,

http://baa.org/faq ............................................ 2

PennEast Pipeline Co., 163 FERC ¶61,159,

2018 WL 2453596 (May 30, 2018) ............... 10

1

REPLY BRIEF

This case is about much more than eminentdomain procedure in Natural Gas Act (NGA)

takings cases. It also implicates important limits

on the injunctive power of federal courts. The

approach of the Fourth Circuit and its followers

disregards those critical limits, encroaches on

Congress’s power to prescribe the methods of

federal condemnation, and permits pipeline

companies to violate the Takings Clause. The

Seventh Circuit’s approach honors the limits of

injunctive

power

and

thereby

avoids

constitutional problems. The two approaches

could not be more different—either in how they

frame the question presented or the outcomes

they produce.

As numerous amici attest, this case is

exceptionally important. Besides presenting an

abiding circuit split, the petition raises questions

about federal judicial power to create substantive

rights that Congress never authorized and that

the Constitution does not allow. The petition

should be granted.

ARGUMENT

I. Courts Are Divided on the Question

Presented.

There is a definite and mature circuit split on

the question presented. This case would have

2

turned out differently under the Seventh

Circuit’s approach. As Judge Flaum explained in

Northern Border, neither the NGA nor state law

give a pipeline company any “preexisting

entitlement” to immediate possession. N. Border

Pipeline Co. v. 86.72 Acres of Land, 144 F.3d 469,

472 (7th Cir. 1998). That lack of a substantive

“entitlement to the defendants’ land right now”

always answers the question presented in favor

of landowners. Id. at 471. The decisions of the

Fourth Circuit and five other courts of appeals,

in contrast, always answer that question in favor

of pipeline companies.

A.

The approaches of the Seventh

and

Fourth

Circuits

are

irreconcilable.

An analogy illustrates the reality of the

conflict between the Seventh and Fourth Circuits.

Every year, thousands of runners apply to run

the Boston Marathon. The Boston Athletic

Association extends certain qualifying runners

an invitation to participate. The invitation is the

applicant’s ticket to run. Only those runners who

cross the finish line are offered finisher’s medals.

Most finishers accept the medal; a few decline.

See FAQ, BOSTON ATHLETIC ASSOCIATION,

http://baa.org/faq.

Under the Seventh Circuit’s approach, the

FERC certificate plays the same function as the

3

marathon’s invitation letter: it allows the

applicant to participate in a process. Like

qualified runners, qualified pipeline companies

can take steps toward the finish line. For pipeline

companies, the finish line comes when there is a

final judgment setting the amount of just

compensation. To get the finisher’s medal

(possession of property), the company must pay

the amount of the final judgment.

A FERC certificate entitles a pipeline

company to a process, not the finisher’s medal.

To take the finisher’s medal without first

crossing the finish line, the company under the

Seventh Circuit’s approach must point to

substantive law allowing it to take first and pay

later. See N. Border, 144 F.3d at 471-472.

Neither the NGA nor the FERC certificate grants

that substantive right. Ibid. Courts cannot

simply assume the pipeline company will finish

the course and give it a finisher’s medal at mile

marker 3.

The Fourth Circuit approach, by contrast,

hands every pipeline company a finisher’s medal

at the starting line. Under Sage, the invitation

itself (the FERC certificate) qualifies the

company for immediate possession—as long as

the district court determines, by summary

judgment, that the FERC order is valid and that

Rule 65’s injunction factors are otherwise

satisfied. See E. Tennessee Nat. Gas Co. v. Sage,

4

361 F.3d 808, 828-830 (4th Cir. 2004). Sage and

its progeny transform possession of the property

from a finisher’s medal into a mere participation

trophy. The two approaches are irreconcilable.

B.

Attempts to deny the split are

unavailing.

The Fourth Circuit believes that the pipeline

company in Northern Border would have

prevailed if only it had sought “an order

determining that it had the right to condemn.”

Sage, 361 F.3d at 826. Not so. A summaryjudgment order affirming the company’s

eminent-domain power under the NGA would

not have changed Northern Border’s outcome.

The Seventh Circuit’s analysis accepts the very

thing that such an order purports to confirm—

the pipeline company’s “substantive claim to

property, based on its eminent domain power

under [NGA] §717f.” N. Border, 144 F.3d at 471.

Yet the Seventh Circuit still finds no authority to

confer prejudgment possession.

The Seventh Circuit rightly identifies the

FERC certificate, not judicial recognition of its

validity, as the true source of a pipeline

company’s condemnation power; it further

recognizes that district courts cannot decide (and

thus must presume) a certificate’s validity. N.

Border, 144 F.3d at 471-472 (“[N]o one disputes

the validity of the FERC certificate conferring

5

the eminent domain power, nor could they do so

in this proceeding.”); 15 U.S.C. §717r(b)

(granting FERC and certain courts of appeals

“exclusive” jurisdiction “to affirm, modify, or set

aside” a FERC certificate). Blessing a certificate

holder’s eminent-domain power—by granting

partial summary judgment—is thus purely

symbolic. Northern Border makes clear that

judicial recognition of the pipeline company’s

takings power under the NGA would not have

changed the Seventh Circuit’s analysis.

MVP attempts to distinguish Northern

Border based on the concession of the pipeline

company there that it had no substantive right to

immediate possession. But MVP effectively

makes the same concession here. It points to no

substantive right to immediate possession

because it cannot. After conceding that the NGA

contains no such provision, MVP also concedes

that no one has a right to equitable relief. Br. in

Opp.21. MVP thus puts itself in the same boat as

the Northern Border pipeline company: both

companies admit, as they must, that no

substantive right to immediate possession exists.

MVP’s attempted distinction thus fails to

harmonize the Seventh and Fourth Circuit

approaches.

Indeed, MVP’s theory of the case confirms

the conflict. MVP argues that an underlying

substantive right to immediate possession was

6

not necessary to support the equitable relief

granted here—and that proving up the four

injunction factors was enough. In doing so, MVP

ignores that the Seventh Circuit squarely

addresses—and rejects—that argument. N.

Border, 144 F.3d at 471-472 (dismissing the

argument that a district court has “equitable

power to enter a preliminary injunction order”

when the company holds a “FERC certificate

conferring the eminent domain power” and

“satisfies all the other equitable preliminary

injunction factors”).

As Judge Flaum explains, the injunctivefactors-are-enough argument that MVP echoes

here “misapprehends the relief available in

preliminary injunction proceedings.” N. Border,

144 F.3d at 471. “A preliminary injunction may

issue only when the moving party had a

substantive entitlement to the relief sought” that

“was fully vested even before initiation of the

lawsuit.” Id. at 471-472. The pipeline company in

Northern Border could not obtain an injunction

because it could not point to any “substantive

entitlement to the defendants’ land right now.”

Id. A FERC certificate is no basis for awarding

immediate possession. Id.

MVP would have lost at the Seventh Circuit.

At the Fourth Circuit, MVP’s injunctive-factorsare-enough argument prevailed. The circuits are

thus split on the question presented.

7

II.

This Is the Right Case to Resolve the

Circuit Split.

A.

The petitioners have live claims.

Congress set up a “balanced framework” for

NGA takings. Allegheny Defense Project v. Fed.

Energy Reg. Comm’n, 932 F.3d 940, 952 (D.C. Cir.

2019) (Millett, J., concurring). FERC first decides

whether a particular pipeline is in the public

interest. If it is, FERC issues a certificate and

attaches conditions to it, such as securing federal

and state permits.

A FERC certificate triggers a two-track

system. The landowners, after exhausting

administrative remedies, can challenge FERC’s

public-interest determination and the required

permits in designated federal courts. 15 U.S.C.

§717r(a)-(b). The certificate also allows the

pipeline company to begin the ordinary

condemnation process in district court. 15 U.S.C.

§717f(h).

Through this two-track system, Congress

intended to create space for judicial review of

required permits and of FERC’s public-use

determination

before

allowing

pipeline

companies to take possession and inflict

“functionally irreversible” harm to the land.

Allegheny Defense, 932 F.3d at 952 (Millett, J.,

concurring). That is why Congress granted

pipeline companies only the straight power of

8

condemnation—not quick-take power—under

the NGA. See ibid. (explaining that “as Congress

designed the . . . system, eminent domain

proceedings would likely not conclude” before

“judicial review of the public-use determination”).

FERC and federal courts—other than the

Seventh Circuit—have “upend[ed] that balanced

framework.” Allegheny Defense, 932 F.3d at 952

(Millett, J., concurring). Challenges to a pipeline

company’s power to take were supposed to be

resolved before pipeline companies obtained

possession. But the combination of FERC tolling

orders and district-court orders granting

immediate

possession

flipped

Congress’s

intended process. Ibid. By granting immediate

possession, the courts subvert Congress’s intent,

“run[] roughshod over basic principles of fair

process,” and “forestall judicial review while

people’s homesteads are being destroyed.” Id. at

950.

Most landowners simply give up and settle

once the pipeline company has “bulldoz[ed] and

blast[ed] its pipeline into their homesteads.”

Allegheny Defense, 932 F.3d at 950 (Millett, J.,

concurring). Once that damage is done, courts

are reluctant “to unshuffle the deck.” Id. at 953.

MVP’s mantras—that 85% of the pipeline is

constructed, that 85% of landowners have settled,

and that it has spent billions on the project—

9

thus expose reasons to grant review, not deny it.

By the time a landowner’s challenge to an

immediate-possession

order

reaches

the

appellate level, the pipeline is usually already

“cemented” in place, Allegheny Defense, 932 F.3d

at 950 (Millett, J., concurring), and trials on just

compensation have usually occurred. See, e.g.,

Transcon. Gas Pipe Line Co. v. 6.04 Acres, 910

F.3d 1130, 1151 (11th Cir. 2018); Columbia Gas

Transmission, LLC v. 76 Acres, 701 F. App’x 221,

225, 231 (4th Cir. 2017).

Here, however, the petitioners’ claims are

live: none of the petitioners has had a trial on just

compensation. Indeed, MVP has not installed the

pipeline on their lands. This case thus offers the

Court a rare opportunity to resolve the circuit

split and restore the balanced system that

Congress created for NGA condemnations.

B.

Meaningful redress is available.

Landowners “suffer[] a special kind of injury

when a stranger directly invades and occupies

the owner’s property.” Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419, 436

(1982). Court intervention would redress the

violation of the petitioners’ right to exclude

others from their homesteads at least through

the time of trial. By invoking the specter of

“looming” mootness (Br. in Opp.27-28), MVP

10

concedes that the petitioners’ claims are still

alive and that at least some redress is possible.

And if MVP ultimately fails in its “hopes” to

obtain missing permits (Br. in Opp.6 n.2), a

decision from this Court could prevent

landowners from “suffer[ing] needless and

avoidable

harm”

from

the

remaining

construction activities. PennEast Pipeline Co.,

163 FERC ¶61,159, 2018 WL 2453596, at *4

(May 30, 2018) (Glick, Comm’r, concurring).

The opportunity for meaningful redress will

not disappear. It is unlikely that all nine of the

petitioners’ trials would be over before the Court

issued a decision. Further, if the Court grants

review, the petitioners will again ask the courts

below—and, if necessary, this Court—for a stay

of proceedings.1 And in any event, an exception

to the mootness doctrine would ensure

continuing jurisdiction. See infra.

C.

Other factors make this case an

ideal vehicle.

The petitioners preserved the key arguments

on the question presented: whether immediate-

1 The petitioners repeatedly asked the district courts

and the court of appeals for stays of the immediateinjunction orders, but all such requests were denied.

11

possession injunctions exceed the scope of the

district courts’ equitable powers, violate the

Rules Enabling Act, offend the NGA, and breach

constitutional separation-of-powers limits.2 The

courts of appeals have drawn clear lines on those

issues (Part I), rendering further percolation

unnecessary.

Jurisdiction is also protected through the

“capable of repetition, yet evading review”

exception to mootness. That exception applies

“where (1) the challenged action is in its duration

too short to be fully litigated prior to cessation or

expiration” and “(2) there is a reasonable

expectation that the same complaining party will

be subject to the same action again.”

Kingdomware Techs., Inc. v. United States, 136 S.

Ct. 1969, 1976 (2016).

This case checks both boxes. Compensation

trials usually occur before orders granting

pretrial possession reach this Court. And

regardless of when trials happen here, there is

2 Contrary to MVP’s suggestion (Br. in Opp.19 & n.11),

the petition explicitly argues that “the injunctions are a

judicial infringement on Congress’s power to prescribe the

methods of condemnation” and inflicts “structural harm to

constitutional separation of powers.” Pet. 23-24, 27.

12

more than a “reasonable expectation” that the

petitioners will face such orders again.

Three undisputed facts demonstrate that

likelihood. First, as the country’s largest source

of natural gas, the Marcellus Shale will undergo

continued development, requiring additional

pipelines for transport to the East Coast. 3

Second, FERC requires applicants to consider

colocating new pipelines along the same path as

existing ones. 18 C.F.R. 380.15(e)(1) (FERC’s

rule that “[t]he use, widening, or extension of

existing rights-of-way must be considered in

locating proposed [pipeline] facilities”). Third,

pipeline companies have uniformly obtained

immediate possession in the Fourth Circuit.

Because additional pipelines are a certainty,

because those pipelines are likely to be colocated

with MVP’s line, and because Fourth Circuit

courts have repeatedly awarded immediate

possession, the petitioners can reasonably expect

to face such orders again.

3

See Alan Bailey, Appalachia to the rescue,

PETROLEUM NEWS (Jan. 27, 2008), https://perma.cc/WNQ5TXQX?type=image.

13

III.

The Fourth Circuit’s Decision Runs

Headlong

Into

Constitutional

Problems, Warranting Intervention.

A.

The decision below ignores

critical limits on federal judicial

power.

In awarding equitable relief, the first

principle is that “equity follows the law.” Douglas

v. Indep. Living Ctr. of S. Cal., Inc., 565 U.S. 606,

619-620 (2012). More than a pithy maxim, the

rule is an if-then statement:

If a claimant has a substantive legal

right, then the court can consider

granting equitable remedies tailored to

enforce or protect that underlying legal

right.

MVP’s brief focuses exclusively on the “then”

statement, arguing that federal courts are

presumed to have broad equitable powers to

fashion remedies. Br. in Opp.17-18. But that

misses the point. The problem is with the “if”

statement: pipeline companies have no

substantive right to immediate possession in

NGA condemnations and thus cannot satisfy the

condition precedent to obtaining such relief.

The Court has described a condemnor’s right

in straight-condemnation proceedings: the

condemnor is entitled to a process, not possession.

14

Straight condemnation is merely “a means by

which the sovereign may find out what any piece

of property will cost.” Danforth v. United States,

308 U.S. 271, 284 (1939). Payment of the final

judgment—not the condemnation process

itself—is what creates the right to possession.

Kirby Forest Indus., Inc. v. United States, 467

U.S. 1, 4 (1984). (holding that “[i]f the

[condemnor] wishes to exercise that option, it

tenders payment to the private owner,

whereupon title and right to possession vest”);

Danforth, 308 U.S. at 284-285 (“[T]itle does not

pass until compensation has been ascertained

and paid.”).

The Court has also instructed that a

condemnor’s right to take property is limited to

those “sovereign powers . . . expressed or

necessarily implied” in the condemnation statute.

United States v. Carmack, 329 U.S. 230, 243 n.13

(1946); see also Pet.23-24.

The Fourth Circuit’s approach departs from

both of those norms. It creates a right to

immediate possession that far exceeds a

condemnor’s rights in a straight-condemnation

proceeding, which is all an NGA condemnation is.

And the Fourth Circuit’s approach also violates

the Court’s prohibition on giving condemnors

rights beyond what the legislature has expressly

provided.

15

By endorsing a remedy untethered from any

right to immediate possession, the Fourth

Circuit blessed giving pipeline companies a new

right and abridging landowners’ substantive

rights under state property law. This trespasses

both “traditional principles of equity jurisdiction,”

Grupo Mexicano de Desarrolo S.A. v. Alliance

Bond Fund, Inc., 527 U.S. 308, 318-319 (1999),

and the Rules Enabling Act’s prohibition on

using the federal rules to “abridge, enlarge, or

modify any substantive right,” 28 U.S.C.

§2072(b). Pet.15-18.

B.

Abandoning those limits, the

Fourth Circuit’s decision invites

rather than avoids constitutional

problems.

The failure to heed the limits of judicial

power led the Fourth Circuit into a thicket of

constitutional problems. Its decision strays into

the exclusive domain of Congress and authorizes

violations of the Takings Clause.

Congress decides not only who may exercise

the federal eminent-domain power but also how

that power may be used. See, e.g., Kirby Forest,

467 U.S. at 3-5; Secombe v. Milwaukee & St. P. R.

Co., 90 U.S. 108, 118 (1874) (“[T]he mode of

exercising the right of eminent domain . . . is

within the discretion of the legislature.”).

16

Congress gives pipeline companies holding a

FERC certificate only the straight power of

condemnation. The injunctions here subvert that

choice, giving pipeline companies an additional

sovereign right that Congress withheld. The role

of the federal judiciary is to enforce rights, not

create them. The district courts’ injunctions

invade

Congress’s

territory,

violating

constitutional separation of powers.

And after Knick v. Township of Scott,

Pennsylvania, 139 S. Ct. 2162 (2019), there

should be no confusion that immediatepossession orders exceed judicial power for

another reason: “a property owner has a claim for

a violation of the Takings Clause as soon as a

government takes his property for public use

without paying for it.” Id. at 2170. These

injunctions allow pipeline companies to take the

properties

without

first

paying

just

compensation. Regardless of whether the

petitioners have a stand-alone Takings Clause

claim, it cannot be that district courts can use

injunctive power to authorize constitutional

violations.

Those problems make this case about more

than just interpreting federal statutes and

resolving the entrenched circuit split. This case

involves questions about constitutional limits

and the proper scope of federal judicial power.

The petitioners ask the Court to protect the

17

property rights of landowners, restore Congress’s

prerogative to prescribe the methods for

exercising federal eminent-domain power, and

reattach equitable powers to their traditional

moorings.

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

RYAN P. BATES

BATES PLLC

919 Congress Avenue

Suite 750

Austin, Texas 78701

512-694-5268

rbates@batespllc.com

September 6, 2019

CHRISTOPHER S. JOHNS

Counsel of Record

CHRISTEN MASON HEBERT

JOHNS & COUNSEL PLLC

14101 Highway 290 West

Suite 400A

Austin, Texas 78701

512-399-3150

cjohns@johnsandcounsel.com

chebert@johnsandcounsel.com