Enbridge Pipelines, LLC v. Troyer , 2015 IL App (4th) 150334 ( 2015 )


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  •                                                                                  FILED
    
    2015 IL App (4th) 150334
                     September 22, 2015
    Carla Bender
    NO. 4-15-0334                         th
    4 District Appellate
    Court, IL
    IN THE APPELLATE COURT
    OF ILLINOIS
    FOURTH DISTRICT
    ENBRIDGE PIPELINES (ILLINOIS), L.L.C., n/k/a                 )      Appeal from
    ILLINOIS EXTENSION PIPELINE COMPANY, L.L.C.,                 )      Circuit Court of
    Plaintiff-Appellee,                            )      McLean County
    v.                                             )      No. 14ED12
    LESLIE DEAN TROYER, MARY TERESA TROYER,                      )
    FIRST NATIONAL BANK OF SULLIVAN, as                          )
    Mortgagee, and NON-RECORD CLAIMANTS and                      )      Honorable
    UNKNOWN OWNERS,                                              )      Paul G. Lawrence,
    Defendants-Appellants.                         )      Judge Presiding.
    PRESIDING JUSTICE POPE delivered the judgment of the court, with opinion.
    Justices Holder White and Steigmann concurred in the judgment and opinion.
    OPINION
    ¶1             Plaintiff, Enbridge Pipelines (Illinois), L.L.C., now known as Illinois Expansion
    Pipeline Company, L.L.C. (IEPC), obtained eminent-domain authority from the Illinois
    Commerce Commission (ICC) over certain real property upon which it is constructing a liquid
    petroleum pipeline. Multiple landowners have been subject to IEPC's eminent-domain authority.
    Defendants (Landowners) in this matter are landowners in McLean County who have been
    unable to reach an agreement with IEPC on the amount of just compensation to be paid and are
    scheduled for jury trials later this year on that issue. In April 2015, IEPC sought and received an
    injunction granting it the right to access the permanent and temporary easements it obtained in
    condemnation proceedings so it can begin construction of the pipeline on Landowners' tracts.
    Landowners filed the instant interlocutory appeal asking this court to dissolve the injunction until
    the juries have determined the just compensation due and said compensation has been paid by
    IEPC. We affirm the trial court's order granting IEPC access to the real estate so it can construct
    the pipeline.
    ¶2                                    I. BACKGROUND
    ¶3              In August 2007, IEPC filed an application for a certificate in good standing and
    other relief pursuant to section 15-401 of the Common Carrier by Pipeline Law (Pipeline Law)
    (220 ILCS 5/15-401 (West 2006)). IEPC's application sought approval from the ICC to
    construct and operate a liquid petroleum pipeline project named the "Southern Access
    Extension" (SAX). IEPC described the proposed extension as a 36-inch-diameter underground
    pipeline that would originate from its Flanagan terminal located near Pontiac, Illinois, and
    terminate approximately 170 miles south at its Patoka terminal located near Patoka, Illinois.
    IEPC's application also sought to acquire, when necessary, easements on private property to
    construct the SAX pipeline pursuant to eminent domain, as authorized by section 8-509 of the
    Public Utilities Act (Act) (220 ILCS 5/8-509 (West 2006)).
    ¶4              In July 2009, the ICC issued an order in docket No. 07-0446 granting IEPC's
    application for a certificate in good standing, which effectively authorized construction of the
    SAX pipeline. The ICC, however, denied IEPC's request for eminent-domain authority, urging
    instead that IEPC continue negotiations with landowners who declined the compensation IEPC
    offered in exchange for an easement on the landowners' properties. Despite its denial, the ICC
    stated, "in the event [IEPC] is still unable to obtain the necessary easement rights through the
    negotiation process, it can renew its request for authority to exercise eminent[-]domain authority
    by *** demonstrating that it has made reasonable attempts to obtain easements, through good-
    faith negotiations."
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    ¶5             Intervenors appealed the ICC's order granting IEPC a certificate in good standing,
    and this court affirmed. Pliura Intervenors v. Illinois Commerce Comm'n, 
    405 Ill. App. 3d 199
    ,
    200, 
    942 N.E.2d 576
    , 578 (2010). In January 2011, the Supreme Court of Illinois denied
    Intervenors' petition for leave to appeal. Pliura Intervenors v. Illinois Commerce Comm'n, 
    239 Ill. 2d 589
    , 
    943 N.E.2d 1108
    (2011).
    ¶6             In July 2013, IEPC filed a petition renewing its request for eminent-domain
    authority under section 8-509 of the Act. IEPC sought to apply that authority to 148 of the 680
    tracts of land comprising the SAX pipeline project route, claiming further negotiations with the
    owners of those respective properties would be futile.
    ¶7             In April 2014, the ICC granted IEPC the right to exercise eminent domain, subject
    to certain conditions not relevant here. This court affirmed the ICC's grant of eminent domain in
    May 2015. See Pliura Intervenors v. Illinois Commerce Comm'n, 
    2015 IL App (4th) 140592-U
    .
    ¶8             On March 26, 2015, IEPC filed a motion seeking to enjoin Landowners from
    interfering with its access to the tracts of real estate at issue so IEPC would be able to construct
    the pipeline in an efficient, effective, and timely manner. IEPC's verified motion set forth the
    following:
    (1) The pipeline, an $800 million project, is scheduled to be in service in
    December 2015. To achieve that in-service date, IEPC must adhere to an intricate, interrelated
    construction schedule consisting of a carefully orchestrated series of tasks to be performed in a
    specific order by specialized crews and equipment, sequentially through the relevant tracts.
    (2) Timely completion of the project is necessary for IEPC to fulfill its
    contractual obligations.
    (3) Landowners have refused to allow IEPC access to their tracts, despite IEPC's
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    clear right to construct the pipeline on those tracts.
    (4) If the construction process is disrupted and fragmented by lack of access to
    certain tracts, if may be necessary to employ time-consuming and expensive move-around
    techniques. A single substantial skip along the route can easily result in as much as $500,000 or
    more in increased construction costs as well as significant delays in workflow due to repeated
    relocation of personnel and equipment.
    (5) In addition to the significant lost revenue resulting from construction delays,
    any delay in the in-service date would significantly impair the reputation of IEPC and its
    affiliated Enbridge entities for reliability and dependability as common-carriers-by-pipeline.
    (6) Landowners' only remaining issue in the litigation is the amount of just
    compensation to be paid by IEPC for access to the tracts.
    (7) IEPC will deposit with the court the full amount of the compensation awards
    sought by Landowners for the value of the easements and a bond to cover all alleged damages to
    the remainder. (IEPC's motion makes clear it believes the actual values are much lower than
    Landowners have calculated, it expects the jury verdicts to be much lower than the amounts
    sought, and if the jury awards less than the amount IEPC deposits with the court, IEPC is entitled
    to have the remaining balance returned.)
    (8) IEPC has no adequate remedy at law because it has no recourse against any
    party for the increased costs, loss of revenue or customers, or damage to its reputation.
    (9) Landowners will suffer no harm because the deposited funds are sufficient to
    cover the values of the easements demanded by them.
    ¶9              Landowners contended IEPC does not have a right to access the tracts until a jury
    determines the amount of just compensation due and that amount is paid by IEPC.
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    ¶ 10           On April 20, 2015, the trial court issued a written order granting IEPC access to
    Landowners' tracts. The court found (1) IEPC established it had a clear and certain right in
    Landowners' property to construct, operate, and maintain a pipeline; (2) its right was in need of
    protection; (3) absent an injunction, IEPC would suffer immediate and irreparable harm; (4)
    there was no remedy at law, as Landowners even admitted; (5) IEPC had already succeeded on
    the merits of the litigation, only the issue of "just compensation" remained to be determined; (6)
    through a variety of methods, IEPC had succeeded in obtaining access to approximately 650 of
    the 680 tracts needed to construct the pipeline. The McLean County tracts were "all that remain
    between start and finish of the route"; (7) under these circumstances, Landowners' tracts are a
    barrier to the timely completion of the pipeline project and are being used to delay a project
    determined by the ICC to be needed in the public interest; and (8) the public interest in an
    adequate and dependable supply of refined petroleum products, as determined by the ICC in its
    certification order, requires an adequate transport infrastructure for crude petroleum and the
    timely completion of IEPC's project serves that interest and weighs in favor of the injunction.
    ¶ 11           The trial court granted IEPC's motion and ordered Landowners to refrain from
    impeding IEPC's access to the subject tracts for the purpose of constructing, operating, and
    maintaining the pipeline. The court directed IEPC to deposit $1.7 million with the McLean
    County treasurer to cover the maximum amounts Landowners claimed for the permanent and
    temporary easements. The court also required IEPC to post a surety bond in the amount of $27
    million to secure Landowners' claims for any damages to the remainder.
    ¶ 12           This appeal followed.
    ¶ 13                                     II. ANALYSIS
    ¶ 14           Landowners appeal from the grant of injunctive relief, contending the trial court
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    abused its discretion in granting IEPC access before just compensation was determined and paid.
    This court has jurisdiction pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010)
    (an appeal may be taken from an interlocutory order granting an injunction). We review the
    decision to grant an injunction for an abuse of discretion. Roxana Community Unit School
    District No. 1 v. WRB Refining, LP, 
    2012 IL App (4th) 120331
    , ¶ 27, 
    973 N.E.2d 1073
    ("We
    review a trial court's decision granting or denying a preliminary injunction for an abuse of
    discretion, which occurs only when its ruling is arbitrary, fanciful, or unreasonable, or when no
    reasonable person would adopt the court's view." (Internal quotation marks omitted.)).
    ¶ 15           Landowners also contend the trial court had no legal authority to support its
    decision to grant access to IEPC before a jury determined just compensation and IEPC paid that
    amount to Landowners. As a legal question, we review this issue de novo. See Clinton Landfill,
    Inc. v. Mahomet Water Valley Authority, 
    406 Ill. App. 3d 374
    , 378, 
    943 N.E.2d 725
    , 730 (2010);
    Advanced Imaging Center of Northern Illinois Ltd. Partnership v. Cassidy, 
    335 Ill. App. 3d 746
    ,
    748, 
    781 N.E.2d 664
    , 666 (2002).
    ¶ 16         A. Trial Court Had Equitable Authority To Issue A Preliminary Injunction
    ¶ 17           We turn to the legal question first, because if the trial court did not have legal
    authority to issue an injunction, we need not determine whether it abused its discretion in doing
    so. A court would have no discretion to issue an injunction without legal authority.
    ¶ 18           Both parties cite Forest Preserve District of Du Page County v. West Suburban
    Bank, 
    161 Ill. 2d 448
    , 
    641 N.E.2d 493
    (1994), as support for their respective positions. In that
    case, the trial court issued a preliminary injunction to prevent the bank from constructing a
    parking lot on land subject to condemnation proceedings. The forest preserve district (District),
    like IEPC here, did not have "quick take" powers. 
    Id. at 450,
    641 N.E.2d at 494. The purpose of
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    the condemnation proceeding was to preserve flora and fauna on the property. In issuing a
    preliminary injunction, the court found the District was likely to succeed on the merits because it
    had a statutory right to condemn the property. 
    Id. at 451,
    641 N.E.2d at 495. The court also
    found the District had no adequate remedy at law because the property would sustain irreversible
    damage and the cost of restoration would exceed the original purchase price of the land. 
    Id. at 451-52,
    641 N.E.2d at 495. The order enjoined the defendants from any construction on the
    property but allowed the defendants to continue farming the property, to perform maintenance on
    an existing wash pit, to erect a soil erosion fence, and to continue parking equipment on the
    property. 
    Id. at 452,
    641 N.E.2d at 495.
    ¶ 19           The appellate court reversed, finding the request for an injunction in the
    condemnation proceeding amounted to a "quick take" of the property, exceeding the District's
    condemnation authority. 
    Id. The supreme
    court reversed the appellate court, finding the
    injunction did not amount of a "quick take" of the defendants' property because it did not grant
    the District title or possession of the property. 
    Id. at 453-54,
    641 N.E.2d at 496. As the supreme
    court noted, "[i]n an ordinary condemnation proceeding, a landowner continues to enjoy title and
    possession of the land pending a final determination of just compensation and the deposit of that
    amount for his benefit." 
    Id. at 453,
    641 N.E.2d at 496.
    ¶ 20           In the case at bar, the condemnation proceeding does not fit into the category of
    an "ordinary" condemnation proceeding as described above. Landowners retain both title to and
    possession of their tracts. When these proceedings terminate, Landowners will continue to hold
    title and possession of their tracts. The injunction simply prevents Landowners from impeding
    IEPC's access to the tracts for the purpose of installing, operating, and maintaining a pipeline,
    rights which have been approved by the ICC and upheld by this court. As in West Suburban
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    Bank, "[t]he injunction did not radically curtail defendants' right to use the property or deprive
    defendants of all economically viable use of the property." 
    Id. at 457,
    641 N.E.2d at 497. There
    the defendants continued to have the right to farm and store equipment on the property, just as
    Landowners do here. As a result, since the injunction did not deprive the defendants of all
    economically viable use of the property, it did not amount to a regulatory taking. 
    Id. As the
    supreme court specifically noted, in the context of condemnation proceedings, a preliminary
    injunction cannot be considered a taking without compensation, as the very purpose of a
    condemnation proceeding is to determine the amount of just compensation constitutionally owed
    to the landowner. 
    Id. See also
    Northern Border Pipeline Co. v. 64.111 Acres of Land, 125 F.
    Supp. 2d 299 (N.D. Ill. 2000) (where parties agreed plaintiff had no statutory authority to
    immediate possession of the property, court nevertheless found it had equitable power to issue
    preliminary injunction granting possession even though just compensation had yet to be
    determined).
    ¶ 21           Landowners refer to the preliminary injunction as an unconstitutional taking.
    They fail to develop this argument at all as required by Illinois Supreme Court Rule 341(h) (eff.
    Feb. 6, 2013), and thus, they have forfeited it. See Sakellariadis v. Campbell, 
    391 Ill. App. 3d 795
    , 804, 
    909 N.E.2d 353
    , 362 (2009). Nevertheless, we point out the constitution " 'does not
    require just compensation be paid in advance of, or even contemporaneously with, the taking.' "
    West Suburban 
    Bank, 161 Ill. 2d at 458
    , 641 N.E.2d at 498 (quoting Beverly Bank v. Illinois
    Department of Transportation, 
    144 Ill. 2d 210
    , 229-30 (1991), citing Williamson County
    Regional Planning Comm'n v. Hamilton Bank, 
    473 U.S. 172
    , 194 (1985)) (noting our supreme
    court interprets the present state constitutional protection against taking property without just
    compensation in the same way as quoted above).
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    ¶ 22            The supreme court in West Suburban Bank went on to state, even if the
    preliminary injunction constituted a taking, because the defendants were engaged in an adequate
    process for receiving just compensation for their property, immediate payment of compensation
    was not required. 
    Id. ¶ 23
               In the case at bar, the ICC granted eminent-domain authority to IEPC, and this
    court affirmed the grant of that power. Pliura Intervenors, 
    2015 IL App (4th) 140592-U
    . Thus,
    IEPC has established its condemnation rights. Nothing remains to be done but to set just
    compensation.
    ¶ 24            As noted above, this is not an ordinary condemnation case. Landowners retain
    title to their land and will still retain title when these proceedings finally come to an end.
    Landowners also retain possession of the real estate and will still retain possession when these
    proceedings finally end. Under these circumstances, the trial court retained its equitable
    authority to order Landowners not to impede IEPC's access to their property for pipeline
    purposes. In addition, as discussed more fully below, the court took steps to protect Landowners
    by requiring IEPC to deposit with the county treasurer $1.7 million and a $27 million surety
    bond.
    ¶ 25              B. Trial Court Did Not Abuse Its Discretion in Granting the Injunction
    ¶ 26            Based on the facts outlined above, the trial court correctly weighed the factors
    which determine whether an injunction should issue. A preliminary injunction may issue if "(1)
    a clearly ascertainable right requires protection, (2) irreparable injury will result in the absence of
    an injunction, (3) no adequate remedy at law is available, and (4) the moving party is likely to
    succeed on the merits of the case." Roxana Community Unit School District No. 1, 2012 IL App
    (4th) 120331, ¶ 23, 
    973 N.E.2d 1073
    (citing Clinton Landfill, 
    Inc., 406 Ill. App. 3d at 378
    , 943
    -9-
    N.E.2d at 729). A preliminary injunction should issue only if the harm to the plaintiff in the
    absence of such relief likely outweighs the harm to the defendant if the relief is granted. 
    Id. ¶ 27
               Here, IEPC had clearly established its rights in Landowners' properties by
    obtaining a certificate to build the pipeline from the ICC, as well as the right of condemnation.
    As noted above, this court affirmed both of those rights. Further, due to the intricate scheduling,
    sequential moving parts, deadlines, et cetera, IEPC proved it would suffer irreparable financial
    harm for which it could not seek recompense, as well as harm to its reputation as a certificated
    common-carrier pipeline company. IEPC has already succeeded on the merits of the
    condemnation proceeding. It has the right to build the pipeline on the subject tracts, and the
    issuance of the injunction granting access protects that right.
    ¶ 28            Further, IEPC offered, and the trial court required it, to deposit enough cash ($1.7
    million) to cover the full amount claimed by Landowners as the value of their easements. IEPC
    also posted a $27 million surety bond to cover any damages to the remainder. The amount of
    just compensation will be decided by a jury, but clearly IEPC has the wherewithal to fully
    compensate Landowners for any amount the juries may assess. Further, IEPC agreed the trial
    court can allow Landowners access to the funds deposited with the treasurer upon application
    and a hearing. Thus, the funds are available to Landowners prior to any determination of just
    compensation.
    ¶ 29            We find the trial court, under the circumstances here, did not abuse its discretion
    in granting IEPC an injunction to prevent Landowners from impeding IEPC's access to construct,
    operate, and maintain the pipeline on Landowners' tracts.
    ¶ 30                                   III. CONCLUSION
    ¶ 31            In balancing the hardships to the parties and considering the appropriate factors in
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    making the decision to grant IEPC access to Landowners' tracts, as well as requiring the posting
    of sufficient funds and security to ensure just compensation will be paid, the trial court did not
    abuse its discretion by issuing an injunction to allow IEPC access without impediment by
    Landowners.
    ¶ 32           We affirm the trial court's judgment.
    ¶ 33           Affirmed.
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