Mountain Valley Pipeline, LLC v. Western Pocahontas Properties ( 2019 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1329
MOUNTAIN VALLEY PIPELINE, LLC,
Plaintiff - Appellee,
v.
WESTERN POCAHONTAS PROPERTIES LIMITED PARTNERSHIP, Parcel ID
No. 6-5F-1 (Terminated: 1/11/2018), 1-31-10, 1-30-8, 5-26-2,
Defendant - Appellant,
and
D. LANE MCMILLION, Parcel ID No. 1-13-49, 1-13-68; DALE L. MCMILLION,
Parcel ID No. 1-13-49, 1-13-68; ALICIA D. MCMILLION, Parcel ID No. 1-13-49,
1-13-68; PACO LANE, INC., Parcel ID No. 1-18-69; BRIAN ARMSTRONG,
Parcel ID Nos. 1-18-86, 1-18-84; BETH ARMSTRONG, Parcel ID Nos. 1-18-86,
1-18-84; JERRY ALLEN HAMMONS, Parcel ID No. 1-24-35; MARY E. HAMMONS,
Parcel ID No. 1-24-35; BRUCE A. ROBERTS, Parcel ID No. 5-34-2;
KIMBERLY ROBERTS, Parcel ID No. 5-34-2; TODD E. WHITE, Parcel ID No.
5-34-4; TAMARA L. WHITE DELONG, Parcel ID No. 5-34-4;
VIRGINIA D. MCCLUNG, Parcel ID No. 1-24-7; CONNIE MCCLUNG, Parcel
ID No. 1-24-7; ARTIE ORLENA ROBINSON, Parcel ID No. 5-14-22;
DAVID LANE ROBINSON, Parcel ID No. 5-14-22; QUINWOOD COAL
COMPANY, f/k/a Alex Energy, LLC, f/k/a Alex Energy, Incorporated, f/k/a Green
Valley Coal Company, LLC, Parcel ID No. 5-15-28, 5-20-48, 11-30-19;
C. L. KEENER, Estate of (Parcel ID No. 11-22-75); JAMES KEENER, Parcel ID
No. 11-22-75; JOHNNIE RAY KEENER, Parcel ID No. 11-22-75;
BRANDE NICOLE KEENER, Parcel ID No. 11-22-75; DAVID HARMON,
Parcel ID No. 11-22-75; THOMAS KENNER, Parcel ID No. 11-22-75;
CLYDE FOX, Parcel ID No. 11-30-5; MICHAEL FOX, Parcel ID No. 11-30-5;
NAOMI J. FOX, Parcel ID No. 11-30-5; ROBERT W. FOX, Parcel ID No. 11-30-
5; REX COAL LAND COMPANY, Parcel ID No. 11-39-7; EUGENE RAY TUCKWILLER,
Parcel ID No. 11-54-13; TINA ROBIN TUCKWILLER, Parcel ID No. 11-54-13;
SILAS STEVEN TUCKER, Parcel ID No. 11-54-12; LAUREL TUCKER, Parcel
ID No. 11-54-12; JEFFREY DEWAYNE OSBORNE, Parcel ID No. 11-68-33;
MARTHA I. KESSLER, Unknown heirs of (Parcel ID No. 3-13-24);
MARY L. SURBAUGH, Unknown heirs of (Parcel ID No. 3-13-24);
NORA E. VANDALL, Unknown heirs of (Parcel ID No. 3-13-24);
AZEL FORD ZICKAFOOSE, Unknown heirs of (Parcel ID No. 3-13-24);
JOSEPH ORVILLE ZICKAFOOSE, Unknown heirs of (Parcel ID No. 3-13-24);
ROBERT C. ZICKAFOOSE, Unknown heirs of (Parcel ID No. 3-13-24);
DOREEN S. ALLEN, Parcel ID No. 11-68-10; FREDERECK M. OSBORNE,
Parcel ID No. 11-68-10; JO LYNN BLANKENSHIP, Parcel ID No. 11-68-10;
MICKEY D. OSBORNE, Parcel ID No. 11-68-10; SCOTT S. OSBORNE, Parcel
ID No. 11-68-10; DONNA M. HUFFMAN, Parcel ID No. 09-13-10.1;
NORVEL MANN, Parcel ID No. 05-25-31.3; JEAN MANN, Parcel ID No. 05-25-
31.3; THOMAS B. MANN, Parcel ID No. 05-25-31.3; HANNAH G. MANN,
Parcel ID No. 05-25-31.3; CHLODA CROSIER, Parcel ID No. 05-25-31.3;
WILLIAM H. MANN, Parcel ID No. 05-25-31.3; LUCY G. BOOTH, Parcel ID
No. 05-25-31.5; HARRY L. MANN, Parcel ID No. 05-25-31.5; NANCY L. PHILLIPS,
Parcel ID No. 05-25-31.5; DONALD E. MANN, Parcel ID No. 05-25-31.5;
CARL E. MANN, Parcel ID No. 05-25-31.5; LARRY W. MANN, Parcel ID No.
05-25-31.5; BONNIE K. BARBERIE, Parcel ID No. 05-25-31.5;
REBECCA K. BRAGG, Parcel ID No. 05-5-27; LANDCEY RAGLAND, Parcel ID
No. 05-14-1, 05-14-19.2, 05-14-24; JOHN WHITE, II, Parcel ID No. 05-14-21,
05-18-3.1, 05-19-11.2; PETRIE DOBBS BROWN, Parcel ID No. 05-18-3;
ADDISON DUNLAP DOBBS, Parcel ID No. 05-18-3; LEE FILMORE DOBBS, III,
Parcel ID No. 05-18-3; OSCAR D. DARAGO, Parcel ID No. 05-18-11;
DAVID R. HUGHES, Parcel ID No. 03-12-9; JAMES ROBERT PERSINGER,
Parcel ID No. 03-12-19; LILLIAN SUE PERSINGER, Parcel ID No. 03-12-19;
STEPHEN C. BROYLES, Parcel ID No. 05-31-25.3; LORRIE P. BROYLES,
Parcel ID No. 05-31-25.3; PAULETTE A. SEARS, Trustee of the Paulette A. Sears
Family Trust (Parcel ID No. 03-18-32, 03-18-4); MELANIE J. MILLER, Parcel ID
No. 03-18-8, 03-18-9, 03-18-10; ANNE C. CHAMBERS, Executrix of the Estate
of Thomas P. Long (Parcel ID No. 03-18-23.3); THOMAS P. LONG, The Estate of
(Parcel ID No. 03-18-23.3); CAROL M. VASS, Parcel ID No. 03-18-23.4;
KENNETH L. VASS, Parcel ID No. 03-18-23.4; LACY H. TONEY, Trustee of the
Lacy H. Toney Farm Trust (Parcel ID No. 03-30-18); MOUNTAIN LAIR, LLC,
Parcel ID No. 03-30-38; DANNY SPENCE, JR., Administrator of the Estate of
Dannie Lee Spence (Parcel ID No. 03-12-7); DANNIE LEE SPENCE, The Estate
of (Parcel ID No. 03-12-7); LAURA BOWEN-COFFELT, Trustee of the Susan H.
Leeper (a/k/a Ella Susan Houcins) Revocable Living Trust (Parcel ID No. 09-17-
10); SUSAN H. LEEPER, a/k/a Ella Susan Houcins, Revocable Living Trust
(Parcel ID No. 09-17-10); MONTE G. MCKENZIE, Parcel ID No. 09-17-21;
ELORA C. MCKENZIE, Parcel ID No. 09-17-21; EARL C. WILLIAMS, Parcel
ID No. 05-25-1.13; ROGER D. CRABTREE, Parcel ID No. 03-30-18.8;
2
REBECCA H. CRABTREE, Parcel ID No. 03-30-18.8; BONNIE LAREW WALSH,
Parcel ID No. 05-14-25; GLADYS LAREW CARTER, Parcel ID No. 05-14-25;
JAMES TULLY LAREW, Parcel ID No. 05-14-25; JANET LAREW HAAG,
Parcel ID No. 05-14-25; ALLAN WALTER LEHR, Parcel ID No. 03-12-22;
J. H. HARRAH, Heirs of (Parcel ID No. 3-12-23); IRA HICKMAN HARRAH,
Parcel ID No. 3-18-15; RICHARD BERKLEY, Parcel ID No. 7-4-20;
ANNE M. BERKLEY, Parcel ID No. 7-4-20; CONNIE HARPER, Parcel ID No.
7-4-19; MELISSA A. LESLIE, Parcel ID No. 7-4-19; ANTHONY D. RICHMOND,
Parcel ID No. 7-4-19; DENNIS WAYNE RICHMOND, Parcel ID No. 7-4-19;
RHONDA RICHMOND, Administrator of the Estate of Roger L. Richmond
(Parcel ID No. 7-4-19); ROGER L. RICHMOND, The Estate of (Parcel ID No. 7-
4-19); SANDRA RICHMOND, Parcel ID No. 7-4-19; ERVIN E. RICHMOND,
Parcel ID No. 7-4-19; GERALD K. RICHMOND, Parcel ID No. 7-4-19;
JESSE JAMES RICHMOND, Parcel ID No. 7-4-19; CAROLYN S. WALLS,
Parcel ID No. 7-4-19; RICHARD DEAN WARD, Parcel ID No. 7-4-19;
ASHBY A. BOONE, Parcel ID No. 7-7-27.3; EMMA JEAN BOONE, Parcel ID
No. 7-7-27.3; DOROTHY MARIE BOONE FOGLE, Parcel ID No. 7-7-27.3;
MARK GREY SMITH, Parcel ID No. 7-15A-5; CAITLYN A. GRAGG, Parcel ID
No. 7-15-125; GENE WISEMAN, Trustee of the Wiseman Living Trust (Parcel ID
No. 7-15-25); PHYLLIS M. WISEMAN, Trustee of the Wiseman Living Trust
(Parcel ID No. 7-15-25); ROBERT JACKSON HOLT, Parcel ID No. 3-23-16, 3-
23-12, 3-23-15; PHILIP J. HARRAH, Parcel ID No. 3-23-12.3, 3-23-12.4;
REINHARD BOUMAN, Parcel ID No. 3-18-17, 3-23-12.2, 3-23-24, 3-18-16, 3-
23-12.5; ASHOFTEH ASSAD-BOUMAN, Parcel ID No. 3-18-17, 3-23-12.2, 3-
23-24, 3-18-16, 3-23-12.5; MEADOW CREEK COAL CORPORATION, Parcel
ID No. 7-4-20.1; KIRANASA SWAMI, Parcel ID No. 3-18-17.1;
DANNY R. BERRY, Parcel ID No. 7-15-80.7-80.13; GREGORY L. BERRY, Parcel
ID No. 7-15-80.7-80.13; LC MILLER, JR., Parcel ID No. 7-13D-11;
JAMES R. MILLER, Parcel ID No. 7-13D-11; CHARLES D. SIMMONS, Parcel
ID No. 7-13D-11, 7-13-D-15; SHARON SIMMONS, Administratrix of the Estate
of Charles D. Simmons (Parcel ID No. 7-13D-11, 7-13D-15);
JOSHUA SIMMONS, Parcel ID No. 7-13D-11, 7-13D-15; JERRY L. CANNADY,
Parcel ID No. 7-13D-11, 7-13D-15; BRYAN SIMMONS, Parcel ID No. 7-13D-11;
RED HAWK TRUST, Parcel ID No. 7-13E-10; WILLIAM G. LLOYD, Parcel ID
No. 7-12F-11; JAMES MCALLISTER, Parcel ID No. 7-13F-2;
HILRY GORDON, Parcel ID No. 14-123-41; CHAD W. JOHNSON, Parcel ID
No. 14-163-86; MARTHA JEAN KOTSCHENREUTHER, Parcel ID No. 14-
163-86; KAREN JEAN KOTSCHENREUTHER, Parcel ID No. 14-163-86;
ELSA LYN KOTSCHENREUTHER, Parcel ID No. 14-163-86;
BARBARA JUNE REGER, Estate of (Parcel ID No. 14-163-86);
BARRY G. PALLAY, Parcel ID No. 18-242-23.1; GLENN D. MATHENY, II,
Parcel ID No. 18-282-108; CHARLES CHONG, Parcel ID No. 18-322-14;
REBECCA A. ENEIX-CHONG, Parcel ID No. 18-322-14;
3
COURTNEY CECIL, Parcel ID No. 18-321-40; STACEY POSTUS, Parcel
ID No. 18-321-40; CLIFFORD S. CLEAVENGER, Parcel ID No. 18-321-40;
LAURA CLEAVENGER, Parcel ID No. 18-321-40; TERESA D. ERICKSON,
POA for Gerald Wayne Corder (Parcel ID No. 20-362-20);
GERALDWAYNEORDER, Parcel ID No. 20-362-20; LORENA B. KRAFFT, POA
for Randall N. Corder (Parcel ID No. 20-362-21); KINCHELOE MITIGATION
HOLDINGS LLC, Parcel ID No. 20-421-8, 20-421-5, 20-421-4, & 20-421-6, 03-
4A-27 & 03-4A-29; DANNY MARTIN, Parcel ID No. 18-321-40.5, 18-321-41;
TINA MARTIN, Parcel ID No. 18-321-40.5, 18-321-41; GARY CASTO, Parcel
ID No. 02-4J-39.1; SHARON CASTO, Parcel ID No. 02-4J-39.1;
AVERAL TODD CASTO, Parcel ID No. 02-4J-39.1; ARTHUR C. ROBERTS,
Parcel ID No. 02-4L-19, 02-4L-12; JUDY D. ROBERTS, Parcel ID No. 02-4L-19,
02-4L-12; FRED L. GOLDEN, Parcel ID No. 01-4M-10, 01-4M-10.1;
SHERMAN GAMBLE, Parcel ID No. 01-5P-5; MARY GAMBLE, Parcel ID No.
01-5P-5; DAVID FINSTER, Parcel ID No. 02-4L-16; DONALD J. FINSTER,
Parcel ID No. 02-4L-16; PAUL W. FINSTER, Parcel ID No. 02-4L-16;
DANA M. FINSTER, Parcel ID No. 02-4L-25; LEONARD G. FINSTER, JR.,
Parcel ID No. 02-4L-25; VENICE EILEEN FINSTER, Parcel ID No. 02-4L-25;
DIANA WIMER, Parcel ID No. 02-4L-25; BRIAN VAN NOSTRAND, Parcel ID
No. 6-6D-10; HELEN MONTAGUE VAN NOSTRAND, Parcel ID No. 6-6D-10;
GEORGE ERNEST BRIGHT, Parcel ID No. 6-6E-1; JOHN A. BRIGHT, Trustee
of the John A. Bright Revocable Living Trust (Parcel ID No. 6-6E-1);
WILLIAM TOWNSEND BRIGHT, Parcel ID No. 6-6E-1;
WILLIAM H. BROWN, JR., Parcel ID No. 6-6E-1; WILLIAM MORRISON,
Trustee under the will of (Parcel ID No. 6-6E-1); ROBERT J. MORRISON,
Trustee under the will of (Parcel ID No. 6-6E-1); A. L. MORRISON, for the
benefit of (Parcel ID No. 6-6E-1; C. F. MORRISON, Parcel ID No. 6-6E-1;
HELENA M. BERRY, Parcel ID No. 6-6E-1; HERMAN R MORRISON, Parcel ID
No. 6-6E-1; MARTHA M. COOPER, Parcel ID No. 6-6E-1; RUTH M. WARD,
Parcel ID No. 6-6E-1; MABEL M. LEWIS, Parcel ID No. 6-6E-1;
MARY E. SEBRING, Parcel ID No. 6-6E-1; MEGANN M. SHEPPARD, Parcel ID
No. 6-6E-1; JESSE FRANK WILLIAMS, IV, of the WMS WVMinerals Trust
(Parcel ID No. 6-6E-1); WMS WVMINERALS TRUST, Parcel ID No. 6-6E-1;
ICG EASTERN, LLC, Parcel ID No. 4-4P-01, 4-4Q-13.1, 4-4Q-15, 4-4Q-16;
DALE EASTHAM, Parcel ID No. 4-14-39.3; TRAVIS EASTHAM, Parcel ID No.
4-14-39.3; ANDREW FAIRBANKS, Parcel ID No. 4-14-39.3;
BRENT FAIRBANKS, Parcel ID No. 4-14-39.3; DAVID FAIRBANKS, Parcel ID
No. 4-14-39.3; MICHAEL FAIRBANKS, Parcel ID No. 4-14-39.3;
EDWARD CHARLES SMITH, SR., Parcel ID No. 4-14-39.3; EDWARD CHARLES SMITH,
II, Parcel ID No. 4-14-39.3; TODD EDWARD SMITH, Parcel ID No. 4-14-39.3;
JEREMY COLLINS, Parcel ID No. 4-14-39.3; NANCY JANE SHEWMAKE BATES,
Parcel ID No. 04-35-11; JOHN H. MELVIN, Parcel ID No. 04-29A-1.14;
PAMELA J. MELVIN, Parcel ID No. 04-29A-1.14; UNKNOWN PERSONS AND
4
INTERESTED PARTIES; AN EASEMENT TO CONSTRUCT, OPERATE AND
MAINTAIN A 42-INCH GAS TRANSMISSION LINE ACROSS PROPERTIES
IN THE COUNTIES OF NICHOLAS, GREENBRIER, MONROE, AND
SUMMERS, WEST VIRGINIA, et al; CHERYL L. BOONE, Parcel ID No. 7-7-
27.2; KERRY N. BOONE, Parcel ID No. 7-7-27.2; MARJORIE BOOTHE, Parcel
ID No. 03-18-3; RODGER L. BOOTHE, Parcel ID No. 03-18-3;
CHERYL BOWERS, Parcel ID No. 03-18-11; CYNTHIA A. BROYLES MORRIS,
Trustee of the William S. Broyles Revocable Trust and the Virginia B. Broyles
Revocable Trust, Parcel ID No. 03-24-39; WILLIAM S. BROYLES, Revocable
Trust (Parcel ID No. 03-24-39); TAMMY A. CAPALDO, Parcel ID No. 7-15-125;
CARLA D. FOUNTAIN, Parcel ID No. 05-19-36, 05-19-24;
DENNIS F. FOUNTAIN, Parcel ID No. 05-19-36, 05-19-24; JAMES GORE, Parcel
ID No. 03-12-7, 03-12-8; ROBERT M. JARRELL, Parcel ID No. 7-11-15;
DAVID ALLEN JOHNSON, Parcel ID No. 05-19-9; EVERETT JOHNSON, JR.,
Parcel ID No. 05-19-9; WAYNE JOHNSON, Parcel ID No. 05-19-9;
MAURY JOHNSON, Parcel ID No. 05-19-9; ZANE LAWHORN, Parcel ID No.
03-12-18; BARRY G. MEADOWS, Parcel ID No. 03-12-18;
LISA B. MEADOWS, Parcel ID No. 03-12-18; JOYCE A. REESE, Parcel ID No.
03-30-20; ROY P. REESE, Parcel ID No. 03-30-20; KELLEY ANNE SANDELL SILLS,
Parcel ID No. 05-25-1, 05-25-1.6; CLARENCE FRANK SILLS, JR., Parcel ID No.
05-25-1, 05-25-1.6; ELISABETH TOBEY, Parcel ID No. 11-84-10;
RONALD TOBEY, Parcel ID No. 11-84-10; AUSTIN B. TONEY, Parcel ID No.
03-12-6; ROSETTA B. TONEY, Parcel ID No. 03-12-6; THOMAS E. TONEY,
Parcel ID No. 03-12-6; PATRICIA J. WILLIAMS, Parcel ID No. 05-25-1.13;
ORUS ASHBY BERKLEY, Parcel ID No. 7-15A-13, 7-15A-13.1;
VIRGINIA B. BROYLES, Revocable Trust (Parcel ID No. 03-24-39),
Defendants.
Appeal from the United States District Court for the Southern District of West Virginia at
Charleston. John T. Copenhaver, Jr., Senior District Judge. (2:17-cv-04214)
Argued: September 28, 2018 Decided: March 13, 2019
Before GREGORY, Chief Judge, WYNN and THACKER, Circuit Judges.
Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which
Judge Wynn and Judge Thacker joined.
5
ARGUED: George A. Patterson, III, BOWLES RICE, LLP, Charleston, West Virginia,
for Appellant. Nicolle Renee Snyder Bagnell, REED SMITH LLP, Pittsburgh,
Pennsylvania, for Appellee. ON BRIEF: Fazal A. Shere, BOWLES RICE, LLP,
Charleston, West Virginia, for Appellant. Colin E. Wrabley, REED SMITH LLP,
Pittsburgh, Pennsylvania, for Appellee.
6
GREGORY, Chief Judge:
This appeal arises from a condemnation proceeding commenced by Appellee
Mountain Valley Pipeline, LLC (“MVP”). MVP is a natural gas company that was
authorized by the Federal Energy Regulatory Commission (“FERC”) to exercise the right
of eminent domain in order to construct a pipeline. The United States District Court for
the Southern District of West Virginia granted MVP partial summary judgment on its
right to condemn certain temporary and permanent easements on the properties of several
landowners, including Appellant Western Pocahontas Properties, Limited Partnership
(“WPPLP”). The district court also granted MVP’s motion for a preliminary injunction
allowing MVP immediate access to the easements described in MVP’s complaint.
WPPLP appeals the district court’s decision granting MVP’s motions for summary
judgment and a preliminary injunction. WPPLP also challenges the district court’s
exclusion of evidence proffered during the preliminary injunction hearing.
For the reasons that follow, we affirm the district court’s order in its entirety.
I.
The Natural Gas Act (“the NGA”) authorizes the holder of a certificate of public
convenience and necessity to condemn land necessary for a particular project if it cannot
acquire the land through contract or cannot agree with the landowner as to the
compensation. 15 U.S.C. § 717f(h). Our holding in East Tennessee Natural Gas Co. v.
Sage allows district courts to utilize their equitable power to grant injunctions to gas
companies in NGA condemnation proceedings where the company has demonstrated that
7
it has a substantive right to the property pursuant to the NGA and has met the
requirements for a preliminary injunction. 361 F.3d 808, 828 (4th Cir. 2004).
On October 13, 2017, FERC issued a certificate of public convenience and
necessity to MVP. The FERC certificate authorizes MVP to construct and operate a
303.5-mile natural gas pipeline from Wetzel County, West Virginia to Pittsylvania
County, Virginia. After failing to acquire certain properties necessary for the pipeline
through negotiation, MVP filed condemnation actions pursuant to the NGA against
landowners in three district courts: in the United States District Courts for the Western
District of Virginia and the Southern District of West Virginia on October 24, 2017, and
in the United States District Court for the Northern District of West Virginia on
December 8, 2017. This appeal concerns the action before the Southern District of West
Virginia. 1
In that action, MVP condemned easements on three parcels of land belonging to
WPPLP. MVP condemned only the surface of those properties, asserting that the
pipeline project did not require condemnation of the mineral rights or coal estate. MVP
moved for partial summary judgment on its right to condemn temporary and permanent
easements on the properties of several landowners (including those properties belonging
to WPPLP) and sought a preliminary injunction allowing immediate access to the
properties. MVP requested access to the landowners’ property by February 1, 2018, a
1
Other landowners in the three condemnation actions challenge the district courts’
issuance of preliminary injunctions before this Court in a consolidated appeal. See
Mountain Valley Pipeline, LLC v. 6.56 Acres of Land, No. 18-1159(L).
8
date MVP claimed would allow it to adhere to its construction schedule, complete tree-
clearing in accordance with environmental requirements, and place the pipeline into
service in late 2018. On January 19, 2018, WPPLP filed a motion to dismiss the
condemnation action for failure to join an indispensable party. The district court granted
MVP’s motion to strike WPPLP’s motion to dismiss from the record, arguing that no
pleadings outside of the answer are permitted in an eminent domain proceeding.
On February 7, 2018, the district court held an evidentiary hearing regarding
MVP’s motion for partial summary judgment and preliminary injunction. At a
prehearing conference, WPPLP proffered testimony to be heard at the preliminary
injunction hearing. The majority of the proffered evidence would not relate to the surface
tracts named in MVP’s complaint but would instead address potential damage to coal and
to the interests of WPPLP’s affiliate, Western Pocahontas Properties, LLC (“WPPLLC”)
– a party that had not been joined in the condemnation action. The district court excluded
the proffered evidence. After confirming with WPPLP that the proffered evidence did
not relate to property that MVP sought to condemn in the complaint, the district court
found the evidence to be irrelevant. In reaching its conclusion, the district court reasoned
that it would not “hear evidence on properties that are not being taken.” J.A. 161.
Following the evidentiary hearing, the district court granted MVP’s motion for
partial summary judgment and preliminary injunction. This appeal followed. WPPLP
argues that the district court committed reversible error by: (1) excluding WPPLP’s
proffered evidence; (2) failing to join WPPLP’s affiliate, WPPLLC, as a party to the
condemnation action; and (3) granting MVP’s motion for summary judgment and
9
preliminary injunction. We address each of WPPLP’s challenges below and affirm the
district court’s order in its entirety.
II.
WPPLP contends that the district court abused its discretion when it precluded
WPPLP from introducing evidence regarding potential damage to WPPLP and
WPPLLC’s coal as a result of the pipeline. MVP responds that the district court did not
abuse its discretion, because MVP had the sole power to define the extent of the taking
and evidence related to property that MVP did not seek to condemn would therefore be
irrelevant. We agree with MVP’s position and find that the district court did not abuse its
discretion in excluding the evidence.
A district court’s evidentiary ruling is reviewed for abuse of discretion. United
States v. Medford, 661 F.3d 746, 751 (4th Cir. 2011) (citing United States v. Murray, 65
F.3d 1161, 1170 (4th Cir. 1995)). Under this standard of review, the appellate court
affords the evidentiary ruling “substantial deference,” and will not overturn the ruling
unless the decision was “arbitrary and irrational.” Id. (quoting United States v. Weaver,
282 F.3d 302, 313 (4th Cir. 2002)). A court abuses its discretion “when it acts in an
arbitrary manner, when it fails to consider judicially-recognized factors limiting its
discretion, or when it relies on erroneous factual or legal premises.” United States v.
Henry, 673 F.3d 285, 291 (4th Cir. 2012) (internal citations omitted).
As WPPLP acknowledges, the general rule laid out by this Court in United States
v. 21.54 Acres of Land, More or Less, in Marshall County (“Marshall County”), is that
10
“the extent of the take is a discretionary decision for the condemning authority which
may not be modified by the judiciary.” 491 F.2d 301, 304 (4th Cir. 1973). 2 We
recognized, however, that the judiciary could take up a landowner’s challenge where “the
issue . . . is not the extent of the take but rather whether [the condemning authority] has,
in fact, accurately described the land in which it intends to take easements.” Id. at 305.
In Marshall County, the government chose to condemn “flowage easements” along a
creek because it determined that a dam project would raise the ordinary high water mark.
Id. The government declared its intention to acquire easements in land lying between
“the highest elevation of the land to be acquired and the existing ordinary high water
mark.” Id. The government and landowners disagreed about the location of the existing
ordinary high water mark. Id. Given this factual dispute as to the location of the water
mark, we held that the district court could address the issue in order “to effectuate the
expressed intention of the condemning authority.” Id. at 306. The landowners in
Marshall County did not challenge the scope of the take or seek to force the government
to take more than it described in the complaint. Rather, they sought to require the district
court to determine what property the government had described in the complaint. In
other words, the dispute was not whether the government had to take more than it
originally intended but how to give effect to the government’s expressed intention.
2
In Marshall County, the Court applied this rule to the government, but the rule
also applies to a gas company to which eminent domain power has been delegated. See
Columbia Gas Transmission, LLC v. 76 Acres, More or Less, in Baltimore and Hartford
Counties, Maryland, 701 F. App’x 221, 226 (4th Cir. 2017).
11
Here, MVP’s expressed intention is to condemn easements on the surface of
WPPLP’s property. Unlike the landowners in Marshall County, WPPLP does not debate
what the term “surface” means or claim that the surface begins at a different point than
MVP asserts. Nor does WPPLP assert that MVP’s conception of the “surface” it intends
to take is mistaken or that it inaccurately describes the easements listed in the complaint.
Rather, WPPLP argues that the pipeline will likely result in damage to coal that belongs
to WPPLP and WPPLLC and that MVP must condemn the coal in addition to the
properties designated in the complaint. 3 In other words, WPPLP argues that MVP should
be required to take more than MVP described in its complaint. However, allowing
evidence as to property not described in the complaint in an effort to compel the
condemnor to condemn additional property does not comport with our holding in
Marshall County. Indeed, consideration of such evidence would serve to frustrate the
intention of MVP rather than effectuating its expressed intention.
An Eighth Circuit decision we cited favorably in Marshall County further
illustrates the flawed nature of WPPLP’s argument. In United States v. 3,317.39 Acres of
3
To the extent evidence of damage to coal within the area condemned by MVP
could support the posting of a higher bond, we note that the district court expressly
considered an affidavit submitted by WPPLP in which WPPLP’s general partner,
Gregory Wooten, asserted that the value of its property was far above MVP’s estimate
due to damage to “near-surface coal” that would be caused by the pipeline. See J.A.
1145. After considering the affidavit and other evidence, the district court required MVP
to deposit an amount four times the preliminary estimate of its appraiser before taking
possession of the condemned property described in the complaint. Similarly, to the
extent that the taking impacts the value of improvements on the surface or the value of
WPPLP’s minerals below the surface, this would also factor in to the ultimate
compensation determination in this action.
12
Land, More or Less, in Jefferson County, 443 F.2d 104, 105–06 (8th Cir. 1971)
(“3,317.39 Acres of Land”), the government acquired flowage easements in connection
with a project on a river, and the landowners contended that the taking failed to include
an additional amount of land that would also be flooded upon completion of the project.
Given the landowners’ contention, the district court admitted evidence of valuation
addressing the “increased” take. Id. at 106. The Eighth Circuit reversed, finding that
damages must be limited to the land described in the government’s declaration of taking.
Id.Like the landowners in 3,317.39 Acres of Land, WPPLP asserts that MVP is going
to take more property than it is representing in its complaint and that MVP therefore must
condemn that additional property now. However, a gas company authorized by FERC to
exercise eminent domain has “the discretion to determine the size” of the easements it
needs to take, and the district court is not entitled to modify that decision. Columbia Gas,
701 F. App’x at 227; see also Marshall Cnty., 491 F.2d at 304. Therefore, while WPPLP
“may recover compensation for these damages in a separate action,” it may not “assert
such collateral claims within a condemnation proceeding.” Columbia Gas, 701 F. App’x
at 227–28 (internal citations omitted). Contrary to WPPLP’s assertion, there is a remedy
available to WPPLP (and WPPLLC) should MVP take more than it described in its
complaint: an inverse condemnation action. See United States v. Clarke, 445 U.S. 253,
257 (1980) (describing an inverse condemnation action as a cause of action against a
condemnor “to recover the value of property which has been taken in fact by the
[condemnor], even though no formal exercise of the power of eminent domain has been
13
attempted” by the condemnor). As WPPLP freely admitted at oral argument, all of its
potential losses are compensable. Thus, any losses it may potentially suffer could be
recovered in an inverse condemnation action if necessary. However, evidence of
potential damage to property outside MVP’s complaint is irrelevant in the condemnation
proceeding.
The district court correctly applied our precedent regarding the extent of a taking
in determining which evidence to consider at the preliminary injunction hearing.
Therefore, the district court did not abuse its discretion when it excluded WPPLP’s
proffered evidence.
III.
WPPLP next argues that the district court erred by failing to join WPPLLC as an
indispensable party. MVP argues that WPPLP waived its indispensable party argument
when it failed to preserve that argument in its answer or to properly develop it in its
opening brief. Because we agree that WPPLP waived its indispensable party argument,
we find no error on this basis.
Pursuant to Federal Rule of Civil Procedure 71.1, a defendant in a condemnation
proceeding must state all its objections and defenses to the taking in its answer and
waives any objections and defenses not so included. Fed. R. Civ. P. 71.1(e)(3).
Moreover, no other pleading or motion asserting an additional objection or defense is
allowed. Id. Here, WPPLP raised its arguments regarding indispensable parties in a
motion to dismiss MVP’s complaint, which the district court struck from the record.
14
Under the plain language of Rule 71.1 and our precedent, a defendant in a condemnation
action is not permitted to file any pleading or motion aside from the initial answer. See
Washington Met. Area Transit Auth. v. Precision Small Engines, 227 F.3d 224, 228 n.2
(4th Cir. 2000) (“Simply put, no other pleading beside the answer is contemplated.”
(internal citation omitted)); see also Atl. Seaboard Corp. v. Van Sterkenburg, 318 F.2d
455, 458 (4th Cir. 1963) (holding that a defendant’s motion for a more definite statement
and motion to dismiss in a condemnation proceeding were unallowable and recognizing
that “[o]ne pleading to raise all objections and defenses to the taking and one hearing to
dispose of them are contemplated, not successive pleadings and successive hearings”).
Because WPPLP did not raise the indispensable parties argument in its answer to MVP’s
complaint, it waived its objection on this basis. Therefore, the district court did not err in
declining to join WPPLLC in the condemnation action.
IV.
According to WPPLP, even if the district court did not err in excluding WPPLP’s
evidence or failing to join WPPLLC as an indispensable party, it nevertheless erred in
granting MVP’s motion for partial summary judgment and injunction in this case.
Because we find no reversible error, we affirm the district court’s grant of summary
judgment and injunction in favor of MVP.
A.
We review an award of summary judgment de novo. Adams v. Trs. of the Univ. of
N.C.-Wilmington, 640 F.3d 550, 556 (4th Cir. 2011) (internal citation omitted).
15
Summary judgment is appropriate if “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). In
considering the matter on appeal, we construe the evidence in the light most favorable to
the non-moving party and draw all reasonable inferences in its favor. See Adams, 640
F.3d at 556; FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013). However, we do not
weigh evidence or make credibility determinations. Foster v. Univ. of Maryland-Eastern
Shore, 787 F.3d 243, 248 (4th Cir. 2015) (internal citation omitted).
WPPLP argues that the district court erred in granting MVP’s motion for partial
summary judgment on its right to condemn. A plaintiff must meet three requirements to
exercise eminent domain under the NGA: (1) it must hold a valid FERC certificate; (2)
the property it seeks must be necessary to the project; and (3) it must have been unable to
acquire the property by agreement. 15 U.S.C. § 717f(h); see also Equitrans, L.P. v.
Moore, 725 F. App’x 221, 224 (4th Cir. 2018) (per curiam) (holding that where property
was necessary for the pipeline, FERC had issued the gas company a certificate, and the
gas company was unable to acquire the land by agreement, “the only issue before the
district court in the ensuing eminent domain proceeding is the amount to be paid . . . as
just compensation”). WPPLP does not dispute that MVP holds a valid FERC certificate
and that the property it seeks to condemn is necessary to the pipeline. Rather, WPPLP
argues that the motion for summary judgment should have been denied, because: (1)
MVP made no offer to WPPLP or WPPLLC that included any valuation for coal; and (2)
MVP failed to negotiate in good faith when it withheld its third-party engineering firm’s
evaluation of the effect of the pipeline on WPPLP’s coal.
16
We do not find either of WPPLP’s arguments persuasive. First, because MVP did
not seek to condemn WPPLLC’s property in the eminent domain action, MVP was not
required to attempt to negotiate or reach an agreement with WPPLLC. 4 See Marshall
Cnty., 491 F.2d at 304. Nor was MVP required to make an offer to WPPLP for any of its
property that was not described in the complaint. Second, as to WPPLP’s argument
regarding good faith, we note that this Court has never directly addressed the issue of
whether the NGA requires gas companies to seek property by agreement in good faith
before exercising eminent domain. We need not resolve that issue here, however,
because WPPLP has failed to point to any authority that required MVP to disclose the
results of its engineering analysis during negotiations for the surface easements in order
to act in good faith. Indeed, WPPLP has not pointed to any evidence in the record that it
requested and was denied the analysis. Because MVP was unable to reach an agreement
with WPPLP as to the easements described in the complaint, the district court did not err
when it granted summary judgment to MVP on its right to condemn. See 15 U.S.C.
§ 717f (h).
WPPLP has not pointed to a genuine dispute of material fact as to MVP’s claim to
invoke its eminent domain powers. Accordingly, we hold that the district court did not
err in granting MVP’s motion for summary judgment.
4
For the same reason, even if the FERC certificate required MVP to negotiate
with landowners of condemned property, as WPPLP argues, such a requirement would
not compel MVP to negotiate for land it was not condemning or with a party that did not
own condemned property.
17
B.
Finally, WPPLP argues that the district court abused its discretion in granting
MVP’s request for a preliminary injunction. For the reasons that follow, we find that the
district court did not abuse its discretion in granting MVP’s motion for a preliminary
injunction.
A preliminary injunction is “an extraordinary remedy that may only be awarded
upon a clear showing that the plaintiff is entitled to such relief” and may never be
awarded “as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22, 24 (2008)
(internal citations omitted); see also Dewhurst v. Century Aluminum Co., 649 F.3d 287,
290 (4th Cir. 2011) (“Winter thus requires that a party seeking a preliminary injunction
. . . must clear[ly] show[] that it is likely to succeed on the merits.” (alterations in
original) (internal citation and quotation marks omitted)). In order to receive a
preliminary injunction, a plaintiff must establish that: (1) it is likely to succeed on the
merits; (2) it is likely to suffer irreparable harm without the preliminary injunction; (3)
the balance of equities tips in its favor; and (4) the injunction is in the public interest.
Winter, 555 U.S. at 20. Each of these four requirements must be satisfied. Id. A
preliminary injunction is reviewed for abuse of discretion. Dewhurst, 649 F.3d at 290(internal citation omitted). We review factual findings for clear error and legal
conclusions de novo. Id.As to the first Winter requirement, the probability of success on the merits, the
district court properly found that it was satisfied. Because MVP had already proved that
it had a right to condemn the property at issue, success on the merits was not only
18
probable but guaranteed. As to the second Winter requirement, the district court properly
determined that MVP had proven that it was likely to suffer irreparable harm absent an
injunction. We note that under our precedent, economic damages may constitute
irreparable harm where no remedy is available at the conclusion of litigation. See, e.g.,
Sage, 361 F.3d at 830. MVP set forth evidence that it would suffer significant
unrecoverable financial damages and that it would face delays and miss an internal
construction deadline in the absence of an injunction. Accordingly, the district court did
not abuse its discretion in finding that MVP had satisfied the second Winter requirement.
As to the third Winter requirement, the balance of the equities, the district court
did not abuse its discretion in determining that the significant irreparable harms faced by
MVP in the absence of an injunction outweighed the potential harm of an injunction to
WPPLP. We note that the district court did not expressly address the potential that
immediate rather than postponed possession could be harmful to certain landowners. The
district court relied heavily on our opinion in Sage in concluding that the balance of
equities tipped in MVP’s favor. J.A. 1140 (“In Sage, the Fourth Circuit conclusively
spoke on this issue in the context of NGA condemnation actions.”). While Sage is indeed
controlling and suggests that the balance of equities may often tip in favor of the pipeline
company in the context of NGA condemnations, we take this opportunity to clarify that
such an outcome is by no means guaranteed. District courts in NGA condemnation
actions must consider the particular harms to landowners in weighing the balance of the
equities and may never grant a preliminary injunction “as of right.” See Winter, 555 U.S.
at 24.
19
After thoroughly reviewing the particular evidence in this case, we agree with the
district court that there was no evidence presented of harm to WPPLP resulting from the
injunction, as opposed to the pipeline itself, that would outweigh the irreparable harm
that MVP would likely suffer absent an injunction. Indeed, there is no indication that
WPPLP will suffer any non-compensable harms from the issuance of an injunction. On
this record, the district court did not abuse its discretion in finding that the balance of
equities tipped in MVP’s favor.
Finally, as to the fourth Winter element, the district court reasonably determined
that the preliminary injunction was in the public interest, because it would allow for
expeditious construction of a FERC-approved pipeline. As we explained in Sage, the
issuance of a FERC certificate signifies that the Commission – the agency charged with
administering the NGA – has determined that pipeline construction will advance the
congressional purposes behind that Act and “serve the public interest,” making available
to consumers an adequate supply of natural gas at reasonable prices. 361 F.3d at 830. It
follows, we reasoned, that granting a gas company immediate access to necessary
easements during the pendency of condemnation proceedings likewise would advance the
public interest, because a “delay in construction would postpone these benefits.” Id.
The district court did not abuse its discretion in applying Sage to the facts of this
case. As the district court recognized, MVP’s certificate rests on an agency finding that
the proposed pipeline will benefit the public by meeting a market need for natural gas,
and will do so in a way that is environmentally acceptable. J.A. 1141 (“FERC conducted
a careful analysis of the [project] and determined that the project will promote [the
20
NGA’s] goals and serve the public interest.” (quoting Sage, 361 F.3d at 830)). A delay in
construction would therefore result in a delay of the benefits of the pipeline.
That is not to say, of course, that a FERC certificate necessarily will be dispositive
of the public interest inquiry under Winter. Apart from setting an in-service deadline, a
FERC certificate does not address timing, and so cannot establish by itself that immediate
possession, as opposed to pipeline construction generally, is in the public interest. But
echoing our reasoning in Sage, the district court here concluded that because delaying
construction would delay the public benefits identified by the Commission, the public
interest factor favored preliminary relief. And while there may be cases in which there
are public-interest arguments against immediate possession that were not considered by
the Commission in reviewing the public benefit of the pipeline project writ large, this is
not one of them.
We note that the district court did not expressly recognize the distinction between
the public interest in pipeline construction generally and in immediate access specifically.
See Winter, 555 U.S. at 20 (“A plaintiff seeking a preliminary injunction must establish
. . . that an injunction is in the public interest.” (emphasis added)). The district court did,
however, incorporate our reasoning under the public-interest prong in Sage, which does
address that issue and finished with the common-sense observation that a construction
delay would postpone the benefits relied on by FERC in issuing its certificate. See J.A.
1141 (citing Sage, 361 F.3d at 830). Under these circumstances, the absence of
additional analysis of the public-interest prong does not amount to an abuse of discretion.
We therefore affirm the district court’s grant of an injunction to MVP.
21
V.
In sum, the district court did not abuse its discretion in excluding WPPLP’s
proffered evidence as to property that MVP did not identify in the complaint as part of its
taking. The district court also properly declined to join WPPLLC as an indispensable
party to the action. Finally, the district court properly granted summary judgment in
favor of MVP and did not abuse its discretion in granting MVP’s motion for a
preliminary injunction. We therefore affirm the district court’s order in its entirety.
AFFIRMED
22