Transcontinental Gas Pipe Line Co. v. Permanent Easement for 2.59 Acres, Temporary Easements for 5.45 Acres & Temporary Access Easement for 2.12 Acres in Pine Grove Township

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1829
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TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC
v.
PERMANENT EASEMENT FOR 2.59 ACRES,
TEMPORARY EASEMENTS FOR 5.45 ACRES AND
TEMPORARY ACCESS EASEMENT FOR 2.12 ACRES
IN PINE GROVE TOWNSHIP, SCHUYLKILL COUNTY, PA,
TAX PARCEL NUMBER 21-04-0016.000, 361 CHAPEL DRIVE,
PINE GROVE, PINE GROVE TOWNSHIP, SCHUYLKILL COUNTY, PA;
RYAN J. REGEC
Ryan J. Regec,
Appellant
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 4-17-cv-00289)
District Judge: Honorable Matthew W. Brann
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 11, 2017
Before: SHWARTZ, COWEN and FUENTES, Circuit Judges
(Opinion filed: September 12, 2017)
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OPINION*
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PER CURIAM
Ryan J. Regec appeals the District Court’s order granting Appellee
Transcontinental Gas Pipe Line Company’s motion for partial summary judgment and
request for a preliminary injunction. For the reasons below, we will affirm the District
Court’s order as to the preliminary injunction.
The procedural and factual history of this case are well known to the parties, set
forth in the District Court’s opinion, and need not be discussed at length. Briefly, in
February 2017, the Federal Energy Regulatory Commission (FERC) granted Appellee a
certificate of public convenience and necessity (certificate), authorizing it to construct a
natural gas pipeline. In order to build the pipeline, Appellee requires rights of way on a
piece of property Regec owns. The certificate was issued after a lengthy administrative
review process which included notice to property owners affected and an opportunity to
respond. Regec did not participate in the administrative proceedings.
After Regec and Appellee could not agree on the compensation to be paid for the
needed property interests, Appellee filed a complaint in condemnation for temporary and
permanent easements against Regec and his land. Appellee moved for partial summary
judgment, seeking condemnation of the rights of way and leaving the issue of just
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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compensation for later litigation. It also filed a motion for a preliminary injunction for
immediate possession of the rights of way. After a hearing at which Regec was
represented by counsel, the District Court granted both motions, giving Appellee
possession of the rights of way at issue. Regec filed a pro se notice of appeal.
The District Court had jurisdiction pursuant to 15 U.S.C. § 717f(h), which
provides for jurisdiction in the District Court for eminent domain actions under the
Natural Gas Act. We have jurisdiction over the grant of the preliminary injunction
pursuant to 28 U.S.C. § 1292(a)(1). The grant of partial summary judgment, however, is
not before us as the order did not end the litigation as to all claims and all parties. See
Andrews v. United States, 373 U.S. 334, 340 (1963). Nor was the order certified by the
District Court pursuant to Fed. R. Civ. P. 54(b), which provides that the District Court
may direct entry of judgment as to fewer than all claims if it “expressly determines that
there is no just reason for delay.” Fed. R. Civ. P. 54(b).1
We review the denial of a motion for a preliminary injunction for an abuse of
discretion but review the District Court’s underlying legal conclusions de novo. Brown
1
By its citation of Operating Sys. Support, Inc. v. Wang Labs., Inc., 52 F. App’x 160,
164-65 (3d Cir. 2002), Appellee appears to argue that we should assert pendent appellate
jurisdiction over the District Court’s grant of partial summary judgment. “Pendent
appellate jurisdiction exists where an appealable issue is so inextricably intertwined with
a nonappealable issue that one cannot resolve the former without addressing the latter.”
Griswold v. Coventry First LLC, 762 F.3d 264, 269 (3d Cir. 2014). The doctrine of
pendent appellate jurisdiction is narrow and should be used sparingly. See id. We
decline to assert pendent appellate jurisdiction to review the District Court’s ruling on the
merits here. If he chooses, Regec may appeal the grant of partial summary judgment
when the District Court issues its final order resolving all claims.
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v. City of Pittsburgh, 586 F.3d 263, 268 (3d Cir. 2009). To obtain injunctive relief, a
party must show a likelihood of success on the merits, irreparable harm if the injunction
is not granted, that relief will not cause greater harm to the nonmoving party, and that
relief is in the public interest. Miller v. Mitchell, 598 F.3d 139, 147 (3d Cir. 2010).
Likelihood of success on the merits
In order to bring suit in federal court under the Natural Gas Act, the plaintiff must
have been granted a certificate by the FERC, it must have been unable to acquire the
rights of way by a contract with the property owner, and the value of the property interest
as claimed by the owner must be more than $3000. 15 U.S.C. § 717f(h). Regec does not
dispute any of these elements. The Act provides that if the holder of a certificate is
unable to acquire the needed rights of ways by contract with the landowner, it may
automatically acquire the rights of way through eminent domain in a United States
District Court. See 15 U.S.C. § 717f(h); Columbia Gas Transmission, LLC v. 1.01
Acres, 768 F.3d 300, 304 (3d Cir. 2014). The only remaining issue to be decided by the
District Court is the compensation the landowner receives in return for the condemnation.
Columbia Gas Transmission, LLC, 768 F.3d at 304. As Appellee fulfilled the
requirements under § 717f(h) for taking the property interests by eminent domain, it has
demonstrated a likelihood of success on the merits of its condemnation claim.
While Regec claims that several statutes and rules relied on by the District Court
violated the United States and Pennsylvania constitutions, the argument underlying these
claims is that the condemnation of his property interests violated his constitutional right
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to due process. However, Regec received notice that Appellee was seeking a certificate
that included necessary rights of way on his property. He had the opportunity to
comment on and intervene in the administrative process before the FERC. He did not do
so. Because he received notice and the opportunity to respond in the FERC proceedings
and will have the opportunity to litigate just compensation in the District Court, Regec
has received the process he was due. See Williamson Cty. Reg’l Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985) (“The Fifth Amendment does
not proscribe the taking of property; it proscribes taking without just compensation. Nor
does the Fifth Amendment require that just compensation be paid in advance of, or
contemporaneously with, the taking; all that is required is that a ‘reasonable, certain and
adequate provision for obtaining compensation’ exist at the time of the taking.”) (internal
citation omitted); Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)
(fundamental requirements of due process are notice and opportunity to be heard);
Elterich v. City of Sea Isle City, 477 F.2d 289, 290 (3d Cir. 1973) (exercise of eminent
domain power does not violate due process). Regec’s arguments do not undermine
Appellee’s likelihood of success on the merits.
Regec argues that Appellee’s taking of his property goes beyond the reach of the
FERC certificate because the permanent right of way for the pipeline will cut off his
access to part of the property not covered by the certificate. Regec also claims that the
taking of the property constitutes an unreasonable seizure in violation of the Fourth
Amendment because he will be unable to access the property. However, as noted by the
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District Court, the impact of the taking on the rest of his property is an issue for the
determination of just compensation. Moreover, we note that Appellee explained at the
hearing in the District Court the measures it takes to assure that a landowner has access to
his property during construction. Tr. 3/23/17 at 25-26.
Because Appellee demonstrated success on the merits of its condemnation claim,
this factor weighed heavily in favor of the injunction. See also In re Revel AC, Inc., 802
F.3d 558, 568 (3d Cir. 2015) (when considering motions to stay, the most important
factor is whether the petitioner has made a strong showing of the likelihood of success on
the merits).
Irreparable Harm
To support its need for immediate possession of the rights of way, Appellee set
forth in the District Court the significant monetary and contractual harms it would suffer
if the extensive, complicated construction of the pipeline were to be delayed.2 Regec
complains that he was not given discovery to determine the veracity of testimony given
by Appellee’s witnesses at the hearing. However, he does not point to any statements
that he believes were inaccurate. He also contends that the injunction is premature as
Appellee needs to complete several field surveys and conditions before construction
begins. But Appellee requires the right to access the property at issue in order to
2
Appellee asserted that unless it was given immediate possession, it would lose $500,000
per month, and revenues of $33 million per month would be delayed. Delay in
possession would also cause Appellee to breach contracts with subcontractors and
vendors. Appellee’s brief at 29.
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complete those field surveys. While generally a harm that can be remedied by monetary
relief is not considered irreparable, a financial loss may be irreparable if the expenditures
cannot be recouped. See Philip Morris USA Inc. v. Scott, 131 S. Ct. 1, 4 (2010) (Scalia,
J.) (in chambers). We believe such is the case here. The monetary harm the Appellee
would have suffered if immediate possession had not been allowed weighed in favor of
the injunction.
Harm to nonmoving party
Regec argues several sources of harm to him from the injunction: (1) he will be
subject to liability if a pipeline worker is hurt on his property; (2) there will be a loss of
timber during the construction; and (3) he will lose the ability to develop his property.
However, as noted above, the impact of the condemnation on his property’s value can be
addressed during the just compensation determination. Further, Regec does not explain
why he would be held legally liable for an injury during construction by Appellee. And
while he claims that the District Court’s decision has “stigmatized” him, he does not
describe how it has hurt his reputation. And even if we were to consider the harm to
Regec as weighing against the injunction, it would not counterbalance the likelihood of
success and irreparable harm factors which weigh strongly in favor of the injunction.
Public Interest
As noted by the District Court, the public interest factor weighed in favor of
granting the injunction because the pipeline will give the public access to the natural gas
carried by the pipeline. Regec argues that a “public need” satisfying the “public use” has
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not been pleaded to support the injunction. However, in its brief in support of its motion
for the injunction, Appellee clearly set forth the public need for the pipeline.
Conclusion
The District Court did not err legally or abuse its discretion in its weighing of the
relevant factors or in issuing the preliminary injunction. For the reasons above and those
set forth by the District Court, we will affirm the District Court’s order concerning the
preliminary injunction.
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