Columbia Gas Transmission v. Janet Haas ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-2039
COLUMBIA GAS TRANSMISSION, LLC, d/b/a Columbia Pipeline Group, Inc.,
Plaintiff – Appellant,
v.
JANET MALIN HAAS; MELVIN LEROY HAAS,
Defendants – Appellees.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Theodore D. Chuang, District Judge. (8:17-cv-00147-TDC)
Submitted: November 2, 2020 Decided: November 25, 2020
Before KING, WYNN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Colin E. Wrabley, Pittsburgh, Pennsylvania, Michael S. Dingman, REED SMITH LLP,
McLean, Virginia, for Appellant. Bradshaw Rost, TENENBAUM & SAAS P.C., Chevy
Chase, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Columbia Gas Transmission, LLC, d/b/a Columbia Pipeline Group, Inc., initiated
this breach of contract action in early 2017 in the District of Maryland against Janet Malin
Haas and Melvin Leroy Haas to enforce a pipeline right-of-way agreement over the Haases’
residential property in Brinklow, Maryland. Columbia Pipeline claimed that a 40-year-old
Japanese red maple tree on the property interfered with its contract rights and the safe
operations of its natural gas pipeline. After a three-day bench trial conducted in May 2019,
the district court ruled that the maple tree did not unreasonably interfere with Columbia’s
contract rights and entered judgment in favor of the Haases. See Columbia Gas
Transmission, LLC v. Haas, No. 8:17-cv-01147 (D. Md. Aug. 21, 2019), ECF No. 110 (the
“Trial Opinion”). Columbia has appealed from the court’s judgment and, as explained
herein, we affirm.
I.
A.
In 1955, Columbia Pipeline’s predecessor in interest, Atlantic Seaboard
Corporation, was granted an easement pursuant to a right-of-way agreement (the “ROW
agreement”) over real property now located at 421 Brighton Knolls Drive in Brinklow.
Pursuant to the ROW agreement, a pipeline could “be constructed and maintained below
cultivation, so that [the property owner] may fully use and enjoy the premises, subject to
the rights of [the pipeline operator] to maintain and operate said line[].” See Trial Opinion
2. Also in 1955, Atlantic Seaboard installed within the easement a 26-inch high-pressure
2
natural gas transmission pipeline known as Line MB 26. That pipeline has been operated
continuously since 1955 and is a major source of natural gas for parts of Pennsylvania,
Maryland, Virginia, and Washington, D.C.
In March 1975, the Haases purchased the property subject to the ROW agreement.
In July 1976, the Haases planted the Japanese red maple within the easement. 1 Nearly 34
years later, in May 2010, the Haases received a letter from Columbia Pipeline stating that
it would be conducting vegetation clearing operations in the easement. Nonetheless, no
one from Columbia followed up regarding the vegetation clearing. Six years later, in
October 2016, the Haases received another letter from Columbia, asserting that it would
soon begin clearing vegetation. Again, there was no follow up. Finally, in March 2017,
Columbia put a flyer on the Haases’ front door informing them that vegetation clearing in
the easement would begin imminently. Soon thereafter, Mr. Haas spotted Columbia
employees on his neighbor’s property and spoke with them. The job foreman informed
Mr. Haas that the Columbia employees would be removing trees, including the Haases’
Japanese red maple. When Mr. Haas objected to the removal of the maple tree, the foreman
suggested that Mr. Haas contact Columbia officials.
Mr. Haas promptly contacted Columbia Pipeline and requested that one of its
representatives come and examine the Japanese red maple and see that it did not interfere
1
A Japanese red maple tree features deeply lobed leaves that are red or
reddish-purple in the spring and fall. A Japanese red maple can grow to a height of 15 to
25 feet and thus is smaller than most other species of maple tree. According to the district
court, the Haases’ tree “is the centerpiece of [their] front yard.” See Trial Opinion 3.
3
with the pipeline. After several communications, Mr. Haas was referred to Karen
Stephenson, Columbia’s corporate representative and manager of its right-of-way
maintenance program, who visited the Haas property. During a visit on March 24, 2017,
Stephenson, Antonio Redd (a senior land agent for Columbia), and another Columbia
representative insisted that the maple tree had to be removed. Redd informed Mr. Haas
that Columbia personnel would be coming the following Monday or Tuesday to remove
the tree.
On March 30, 2017, Mr. Haas saw Redd’s vehicle and a truck driving up to the Haas
property. Mr. Haas called the police as Redd got out of his Columbia Pipeline vehicle.
Redd informed Mr. Haas that they had come to remove the Japanese red maple, but Mr.
Haas advised Redd to stay back and that he had called the police. Efforts to cut down the
maple tree ceased when police officers arrived at the Haas property and directed the
Columbia personnel to leave the premises.
B.
1.
In April 2017, Columbia Pipeline filed this breach of contract action in the District
of Maryland to enforce the ROW agreement and remove the Japanese red maple. Columbia
sought an injunction to authorize removal of the maple tree and to prohibit the Haases from
planting any other trees within the easement without Columbia’s permission. The Haases
opposed removal of the tree and filed a counterclaim against Columbia.
Following discovery, Columbia Pipeline moved for summary judgment, but the
district court denied that motion in part and scheduled a trial. The court explained that “the
4
natural reading of . . . the [ROW agreement] contemplates that there will be cultivation
within the easement and generally requires that the pipeline remain at a depth below the
level to which plant roots, including the roots of cultivated trees, descend.” See Columbia
Gas Transmission, LLC v. Haas, No. 8:17-cv-01147, slip op. at 12 (D. Md. Sept. 14, 2018),
ECF No. 70. The court determined that, under the ROW agreement, “the planting of trees
is limited only to the extent that it actually interferes with the maintenance and operation
of the pipeline.” Id. at 13. The court identified issues that would need to be resolved at a
trial concerning whether the Japanese red maple unreasonably interfered with Columbia’s
operations and maintenance of the pipeline.
2.
In May 2019, the district court conducted the bench trial in Greenbelt. During the
trial, Columbia Pipeline presented evidence that included its expert Andrew Kvasnicka, a
pipeline engineer who worked for Columbia. Kvasnicka testified, inter alia, that trees
located in rights-of-way are hazards to pipelines. He explained that pipeline companies
assume that the roots of trees are threats to pipelines because it is “proven” in the industry
that tree “roots go to the pipeline and compromise the coating and allow the pipe to
corrode.” See J.A. 652a. 2 Several Columbia employees also testified at trial about their
past experiences with root entanglement and how roots are a known hazard to pipelines.
2
Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by
the parties in this appeal.
5
According to Kvasnicka, aerial surveillance is the industry’s preferred method for
evaluating pipeline status because it is most accurate and efficient. Kvasnicka explained
that trees located in pipeline rights-of-way “interfere with the ability to conduct aerial
surveys” because tree canopies block an aerial view. See J.A. 647-48a. Kvasnicka also
explained that pipeline markers above ground are required by law in order to “alert people
of the presence of a pipeline,” and he emphasized that it is “important to be able to visually
see [from] one pipeline marker to the next” so that it can be determined “where the pipeline
is going” and damage to the line can be avoided. Id. at 649-50a.
Turning to the Haases’ Japanese red maple, Kvasnicka opined that the maple tree
and its roots were a “potential hazard” to the pipeline. See J.A. 652-53a. He further
asserted that because the tree interfered with the aerial surveys Columbia Pipeline had to
perform, Columbia’s ability to identify potential hazards was adversely impacted.
Kvasnicka also posited that any leak in the pipeline would be considered a “hazardous
leak” that would have to be “repaired promptly” pursuant to applicable federal regulations,
id. at 646a, and that any delay in getting to the pipeline is a “potential hazard,” id. at 660a.
In Kvasnicka’s opinion, the maple tree had to be removed, and “[e]very pipeline safety
professional would require the tree be removed.” Id. at 664a.
The Haases called several trial witnesses. Lewis Bloch was qualified as an expert
arborist on their behalf in connection with root structures. Bloch explained that Japanese
red maples have “very shallow root systems” and are used often in landscaping because
their roots do not damage nearby sidewalks and structures. See J.A. 848a. Bloch advised
that the average root depth of such trees is 20 to 24 inches and that the roots of the Haases’
6
tree “would not be deeper than 27 inches” based on data from a tree radar unit (“TRU”)
test. Id. at 855a. John Kelly Lewis, the general manager of a nursery, was qualified as an
expert on tree valuation, tree roots, and the removal of trees. Lewis explained that he
moves Japanese red maples frequently, “rarely finds roots deeper than 20” inches, and has
seen roots of such trees reach, “[a]t the most, 24 inches.” Id. at 874a. He opined that the
roots of the Haases’ tree were no deeper than 24 inches. Bloch also testified that the root
tips of a Japanese red maple are “really fine, almost like hair” that very easily break off
because they are “tiny and fragile.” Id. at 850a. Columbia Pipeline’s own expert agreed
that “Japanese red maple tree[s] [are] generally known as having a shallow and non-
invasive root system.” Id. at 1103a.
3.
To complete the trial, the district court filed its carefully crafted Trial Opinion in
August 2019. The court therein rejected Columbia Pipeline’s contention that, under federal
regulations and Columbia’s internal policies, the Japanese red maple’s presence on the
Haas property was a per se interference with the easement. The court then engaged in fact
finding concerning whether “this Maple Tree, in this location, over this particular pipeline,
unreasonably interferes with [Columbia’s] ability to operate and maintain” the pipeline.
See Trial Opinion 25. The court found that the pipeline passes approximately two feet
from the trunk of the tree, without passing directly under its trunk. The court also found
that the pipeline is “between four and five feet (48-60 inches) below the ground upon which
the Maple Tree sits,” id. at 7, and the tree’s roots “extend approximately 20-27 inches
below the ground,” id. at 9.
7
 Specifically assessing the Haases’ expert witnesses, the Trial Opinion found
credible Bloch’s testimony regarding a Japanese red maple’s roots as well as his opinions
regarding the roots of the Haases’ tree. The district court observed that Bloch’s opinion
was corroborated by Lewis’s testimony and that Columbia Pipeline “provided no [expert]
testimony inconsistent” with the court’s finding. See Trial Opinion 10. Evaluating
Columbia’s expert witness, the court rejected Kvasnicka’s testimony as “so lacking in
precision, detail, and a consideration of relevant facts” that the court could not rely upon
it. Id. at 33.
The Trial Opinion found that, although Columbia Pipeline claimed that the Haases’
tree would interfere with aerial patrols and that “aerial patrols are the primary method for
conducting leakage surveys to detect gas leaks,” there was no conclusive evidence that the
Japanese red maple would interfere with such patrols. See Trial Opinion 12. The district
court concluded that aerial patrols are not always required in order to conduct leakage
surveys and that Columbia also conducts such pipeline surveys by walking or driving.
Further, the court found that, in the event of an emergency, the tree “could be removed in
four to eight hours, depending on the conditions.” Id. at 14. Finally, the court explained
that “the risk that a third party will dig at or near the Maple Tree without knowledge of the
Pipeline’s presence is minimal to nonexistent,” because the trial judge himself visited the
Haas property and found the pipeline markers to be visible. Id. at 18-19.
The Trial Opinion then carefully analyzed whether each of Columbia Pipeline’s five
assertions about the Japanese red maple’s interference with the pipeline — relating to
8
surveillance and testing, roots, emergency removal, a tap, 3 and third-party damage —
constituted unreasonable interference with Columbia’s easement rights. As to surveillance
and testing, the district court concluded that the maple tree did not unreasonably interfere
with Columbia’s ability to conduct the essential surveillance and testing of the pipeline.
Regarding the maple tree’s roots, the court explained that, because the tree’s root structure
presented a reduced risk to the pipeline, Columbia “needed to present some evidence
showing that this particular tree presents an actual risk.” See Trial Opinion 32. The court
explained that, because there was no evidence the roots were interfering with the pipeline
and because of the tree’s “spotless 40-year track record,” Columbia had “failed to establish
that the general risk posed by tree roots necessitates the removal of the Maple Tree as an
unreasonable interference with pipeline maintenance.” Id. at 33.
Turning to Columbia Pipeline’s assertions about a possible emergency removal of
the Japanese red maple, the Trial Opinion rejected Columbia’s “blanket opinion that no
delay is acceptable” and ruled that a potential delay of four to eight hours in an emergency
situation does not constitute unreasonable interference. See Trial Opinion 35. Addressing
Columbia’s tap claim, the district court found that the evidence was insufficient to show
the location of the alleged tap. As a result, the court determined that the maple tree “does
not unreasonably interfere with pipeline maintenance based on the tap.” Id. at 38. Finally,
with regard to asserted third-party damage, the court concluded that because the tree does
3
According to the district court, “[a] tap is a small branch connected to the main
transmission pipeline that was once intended to facilitate supplying gas to customers on
the property where it is located.” See Trial Opinion 15.
9
not completely obstruct the view from one pipeline marker to the next, and because the
Haas property is fenced, Columbia’s speculative concerns about third-party damage based
on the tree’s presence failed to prove unreasonable interference.
Rejecting each of Columbia Pipeline’s assertions of interference with the pipeline,
both individually and cumulatively, the Trial Opinion ruled that Columbia had failed to
demonstrate that the Japanese red maple unreasonably interfered with its right to operate
and maintain the pipeline over the Haas property. The district court thus concluded that
Columbia was “not entitled to a declaratory judgment or injunction requiring the removal
of the Maple Tree.” See Trial Opinion 41. The court dismissed the Haases’ counterclaim
as moot. Columbia noted this appeal from the final judgment, and we possess jurisdiction
pursuant to 28 U.S.C. § 1291.
II.
This Court reviews “a judgment following a bench trial under a mixed standard of
review.” See Butts v. United States, 930 F.3d 234, 238 (4th Cir. 2019). Although we
review conclusions of law de novo, “we may reverse factual findings only if they are clearly
erroneous.” Id. A factual finding is only clearly erroneous if we are “left with the definite
and firm conviction that a mistake has been committed.” See United States v. Chandia,
675 F.3d 329, 337 (4th Cir. 2012). In reviewing factual findings under the clearly
erroneous standard, we will not “substitute our version of the facts for that found by the
district court.” See Equinor USA Onshore Props. Inc. v. Pine Res., LLC, 917 F.3d 807,
813 (4th Cir. 2019). Rather, if the court’s “account of the evidence is plausible in light of
10
the record viewed in its entirety, [we] may not reverse it even though convinced that had
[we] been sitting as the trier of fact, [we] would have weighed the evidence differently.”
See Butts, 930 F.3d at 238. Being in the nature of a jury verdict, a “court’s factual findings
[that] turn on assessments of witness credibility or the weighing of conflicting evidence
during a bench trial . . . are entitled to even greater deference.” See Helton v. AT & T Inc.,
709 F.3d 343, 350 (4th Cir. 2013).
III.
On appeal, Columbia Pipeline presents several contentions of error. First, Columbia
maintains that the district court applied an incorrect legal standard in its review of the trial
evidence. Second, Columbia asserts that certain of the court’s factual findings are clearly
erroneous. And third, Columbia claims that the Japanese red maple unreasonably interferes
with Columbia’s contract rights for four reasons — the applicable federal regulations,
Kvasnicka’s expert testimony, Columbia’s inability to conduct aerial surveys, and resulting
delays in emergency responses. We reject each of those contentions in turn.
A.
Columbia Pipeline initially contends on appeal that the district court erred by
reviewing the evidence pursuant to an inappropriate “actual risk” legal standard. More
specifically, Columbia argues that the court erroneously created a new legal standard under
which a pipeline operator will always have to prove an actual risk before removing
obstructions from an easement or right-of-way. But this characterization by Columbia is
incorrect, and the Trial Opinion does not support Columbia’s contention.
11
In reaching its conclusion that the roots of the Japanese red maple do not
unreasonably interfere with Columbia Pipeline’s easement rights, the district court
observed that Columbia “needed to present some evidence showing that this particular tree
presents an actual risk to the Pipeline.” See Trial Opinion 32 (emphasis added). Read in
context, we are satisfied that the court did not apply an “actual risk” legal standard. Rather,
the court carefully explained that “[b]ecause of the risk of damage that tree roots can cause,
the Court does not conclude that there must be evidence of actual contact between tree
roots and a pipeline, or actual emergency relating to a pipeline, before the roots would be
deemed to present an unreasonable interference.” See Trial Opinion 31. In fact, the court
recognized that “[u]nder certain circumstances, the presence of a tree in close proximity to
a pipeline, by itself, may be sufficient to establish an unreasonable interference because of
such potential risk.” Id. What the court ruled with respect to the Haases’ maple tree is that
because the tree’s roots are substantially shallower than the pipeline and the tree has
coexisted with the pipeline for more than 40 years without complaints or issues, Columbia
had an obligation to present stronger evidence of interference. Thus, the court did not
depart from the applicable legal principles with respect to an unreasonable interference.
B.
Columbia Pipeline next contends that the district court made factual findings that
are clearly erroneous and prejudicial. More specifically, Columbia submits that the court
clearly erred in finding that the Japanese red maple’s roots were only 27 inches deep and
in deciding that there was little to no risk of third-party damage because the pipeline’s
markers were not obscured by the tree.
12
Each of those factual challenges is without merit. Columbia Pipeline’s primary
problem rests on the rejected evidence of its expert witness, Kvasnicka. The district court
rejected that testimony as lacking in credibility. As a court of appellate review, we are in
no position to disturb a trial court’s credibility finding because, when a “court’s factual
finding in a bench trial is based upon assessments of witness credibility, such finding is
deserving of the highest degree of appellate deference.” See Evergreen Int’l, S.A. v.
Norfolk Dredging Co., 531 F.3d 302, 308 (4th Cir. 2008) (internal quotation marks
omitted).
In these circumstances, the district court was justified in deciding that Kvasnicka’s
testimony was lacking in credibility. According to Kvasnicka, the Japanese red maple had
been a potential threat since it was first planted in 1976, yet Columbia Pipeline made no
serious effort to remove it until 2017, more than 40 years later. Kvasnicka also erroneously
assumed that the roots of the maple tree touch the pipeline itself. That assumption is
especially dubious given Kvasnicka’s testimony that if Columbia prevails in this case, the
maple tree’s roots will not be immediately removed. Finally, Kvasnicka could not identify
the distance at which tree roots no longer present a danger to a pipeline, relying on several
variables that favor Columbia. He ignored the variables in the Haases’ favor, such as the
tree’s 40-year track record and evidence that the roots of Japanese red maples are not only
shallow but also have a fine, hair-like material at their tips. Thus, there is ample support
in the trial record for the court’s rejection of Kvasnicka’s testimony.
Turning specifically to the depth of the Japanese red maple’s roots, the Haases’
experts and Columbia Pipeline’s expert agreed that the average root depth for such a tree
13
is 20 to 24 inches below ground, although Columbia’s expert cautioned against relying
solely on averages. The district court found that the roots of the Haases’ tree might be as
deep as 27 inches, in favor of Columbia. Rather than viewing the record as a whole,
however, Columbia now focuses on isolated items of evidence that the court relied on in
making its challenged finding. For example, Columbia attacks the reliability of a TRU
radar test that purported to measure the root depth at 27 inches, as well as the averages
presented by the Haases’ expert arborists. The court recognized, however, that “TRU radar
generally has a 20 to 30 percent error rate.” See Trial Opinion 10. Furthermore,
Kvasnicka’s testimony was that if Columbia prevailed in this lawsuit, the maple tree will
simply be “cut at grade” — meaning at ground level — without removing the roots. See
J.A. 817-18a. That evidence undermines Columbia’s assumption that the tree’s roots are
in contact with the pipeline.
Notably, with respect to obstruction of the pipeline’s markers, the district court
actually visited the Haas property and, as part of the trial proceedings, took a “view” of it.
The court explained that, “when standing on the Property’s lawn, between the pipeline
markers, both [markers] can be seen, in opposite directions, from the same location,
approximately midway between them.” See Trial Opinion 19. Given the court’s firsthand
observations, we are simply in no position to second guess its findings regarding the
visibility of the pipeline’s markers and the likelihood of third-party damage. 4
4
While Columbia Pipeline purported to make additional challenges to the district
court’s factual findings, they are more appropriately categorized as challenges to the
(Continued)
14
C.
Finally, we turn to Columbia Pipeline’s primary contention on appeal, which is that
the record conclusively establishes that the Japanese red maple unreasonably interferes
with its contract rights. More specifically, Columbia asserts that four aspects of the trial
record — (1) the applicable federal regulations on pipeline safety, (2) Kvasnicka’s expert
testimony, (3) Columbia’s asserted inability to conduct aerial surveys, and (4) any delay in
emergency responses — separately establish that the maple tree unreasonably interferes
with its right to operate and maintain the pipeline. Each of those propositions also fails, as
explained further below.
1.
First, Columbia Pipeline argues that the applicable federal regulations concerning
pipeline safety require that the Japanese red maple be removed and that the district court’s
ruling establishes a dangerous precedent that threatens to substantially impair pipeline
safety and impede pipeline operators’ compliance with federal safety requirements.
Notably, the pertinent regulations do not establish bright-line rules regarding trees that are
located in rights-of-way. In this appeal, however, Columbia asks us to create a bright-line
rule. Put another way, Columbia is touting federal regulations because it would have us
forgo a fact-specific inquiry.
court’s legal conclusions. We address those challenges under the applicable de novo
standard elsewhere within this decision.
15
The Third Circuit has explicitly cautioned against acceding to litigants’ efforts to
establish bright-line rules. See Texas Eastern Transmission LP v. Bowers, 65 F. App’x
791, 796 n.3 (3d Cir. 2003) (unpublished) (rejecting a pipeline company’s endeavor to
create a bright-line rule that would thwart “property owners who wish to carve out
exceptions to pipeline easement boundaries for the purpose of preserving individual trees”
because the role of the court “is to decide only the case on hand, not to provide favorable
[future] precedent”). The Third Circuit is not alone in mandating fact-specific inquiries to
decide such easement disputes. See, e.g., Andrews v. Columbia Gas Transmission Corp.,
544 F.3d 618, 626 (6th Cir. 2008) (noting “each easement case is factually unique”);
Columbia Gas Transmission, LLC v. Grove Ave. Devs., Inc., 357 F. Supp. 3d 506, 519-20
(E.D. Va. 2019) (explaining that the “critical question in this case is not whether an asphalt
crossing, in the abstract, unreasonably interferes . . . with safe operation . . . but rather,
whether this specific road . . . would constitute an ‘unreasonable’ interference”); Rogers v.
P-M Hunters’ Ridge, LLC, 967 A.2d 807, 819 (Md. 2009) (explaining that when easement
is reserved in general terms, courts must look to surrounding circumstances to determine
whether unreasonable interference exists). We also decline to establish a precedent that
would authorize Columbia Pipeline and litigants in similar situations to use the federal
regulations as a bar to fact-specific inquiries.
2.
Columbia Pipeline places great emphasis on its expert Kvasnicka’s rejected
evidence because he was the trial’s sole pipeline safety expert. According to Columbia,
Kvasnicka’s testimony that the Japanese red maple is a potential hazard conclusively
16
established that the tree has to be removed under the applicable regulations and that its
presence in the easement therefore constitutes an unreasonable interference with
Columbia’s contract rights. As emphasized heretofore, however, the district court rejected
Kvasnicka’s testimony because it was not credible. This contention of error therefore also
fails.
3.
Columbia Pipeline next contends that the Japanese red maple unreasonably
interferes with its ability to conduct aerial surveillance of the pipeline. That is problematic,
Columbia argues, because the federal regulations require that it conduct routine
surveillance to identify leaks, deterioration of cathodic protection, and other unusual
operating or maintenance conditions. See 49 C.F.R. § 192.613(a). Assuming that the
maple tree somehow inhibits the aerial surveys of that section of the pipeline, however, the
presence of the tree does not, as the district court ruled, unreasonably interfere with
Columbia’s easement rights.
Columbia Pipeline argues that aerial surveillance is essential because it is more
accurate than any other surveillance method. If the alternatives to aerial surveillance were
so inaccurate, however, Columbia would not have written such alternatives into its own
policies. See J.A. 483a (explaining that “facility patrols may be performed by any of the
following methods: walking, driving, flying or other appropriate methods of observing the
right-of-way”). Further, Columbia failed to produce any evidence that attempted aerial
surveys were actually thwarted by the Japanese red maple. As the Trial Opinion explained,
an inspection of the pipeline only has to take place once a year and there was no evidence
17
that an aerial inspection could not be conducted in winter. In conjunction with Columbia’s
own policies, that fact supports the district court’s conclusion that the maple tree does not
constitute an unreasonable interference with aerial surveillance.
4.
Finally, Columbia Pipeline claims that a four- to eight-hour delay caused by the
Japanese red maple in accessing the pipeline through the Haas property in an emergency
situation constitutes an unreasonable interference. To be sure, there could be danger from
a pipeline emergency, and the public interest supports ensuring that Columbia can “repair
and service natural gas pipelines as quickly, safely, and reasonably as possible.” See
Andrews, 544 F.3d at 629. According to the federal regulations and Columbia’s own
Facility Patrol and Leakage Protection Plan, a Grade 1 leak requires “immediate action.”
See J.A. 1450a; see also 49 C.F.R. § 192.711(a). Yet Columbia did not present any
evidence explaining “immediate action.” It simply relied on Kvasnicka’s expert opinion
that no delay of any type is ever acceptable. And Kvasnicka’s rejected testimony was
inconsistent. When asked by the district court what would happen to the maple tree should
Columbia prevail, Kvasnicka said it would simply “be cut at grade,” without removing the
roots, even though he repeatedly emphasized that the time spent cutting away roots was a
significant factor underlying his concern for potential delays caused by the tree. See J.A.
817-18a. Likewise, the court concluded that Columbia failed to establish “a need to
remove the Maple Tree based on potential delay in reaching the pipeline if needed,
particularly when its own proposed removal plan includes a partial wait-and-see approach.”
18
See Trial Opinion 36. We are obliged to accept the court’s view and conclude that this
evidence undermined Kvasnicka’s claim that any potential delay must be avoided.
Columbia Pipeline has also failed to direct us to any authority as to what constitutes
an unacceptable delay, relying only on a Sixth Circuit decision noting that pipeline
operators must be able to “repair and service natural gas pipelines as quickly, safely, and
reasonably as possible.” See Br. of Appellant 47 (quoting Andrews, 544 F.3d at 629). The
Andrews court upheld the trial court’s determination that trees should be removed pursuant
to the parties’ easement agreement. See 544 F.3d at 630. But Andrews involved multiple
pine trees, rather than a single Japanese red maple. And one of Columbia’s trial witnesses
described pine trees as some of the worst offenders of pipeline damage.
Further, other courts have found that longer delays than that discussed here will not
constitute unreasonable interference. For example, the Third Circuit upheld a “district
court’s determination that the additional ten hours (at the outside) to repair the pipeline is
only a ‘minimal burden’ and that the continued presence of the Tree will not significantly
interfere with emergency repair of the pipeline.” See Bowers, 65 F. App’x at 795; see also
Grove Ave. Devs., Inc., 357 F. Supp. 3d at 527 (doubting that eight-hour delay in
emergency pipeline repair resulting from proposed asphalt crossing would constitute
unreasonable interference on its own). In sum, we are satisfied with the district court’s
decision that a four- to eight-hour delay in an emergency situation does not constitute an
unreasonable interference with Columbia Pipeline’s contract rights.
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IV.
Pursuant to the foregoing, we affirm the district court’s judgment in favor of the
Haases.
AFFIRMED
20