Opinion
Civil No. A1-03-66
June 30, 2003
ORDER GRANTING PLAINTIFF'S MOTION FOR IMMEDIATE USE AND POSSESSION
I. BACKGROUND
This is a condemnation action brought by the plaintiff, Williston Basin Interstate Pipeline Company (Williston Basin). This action is brought to obtain a permanent easement and a right-of-way for a temporary workspace and to access roads to construct, operate, and maintain a buried natural gas pipeline under the power of eminent domain and pursuant to the Natural Gas Act, 15 U.S.C. § 717(h).
Williston Basin is the owner of a Certificate of Public Convenience and Necessity issued by the Federal Energy Regulatory Commission (FERC) on June 2, 2003. This certificate authorizes the construction, operation, and maintenance of a natural gas pipeline transportation system to be used for the transport of natural gas from northeastern Wyoming to northwestern North Dakota. The project is known as the Grasslands Pipeline Project and it involves approximately 253 miles of pipeline which is designed to be in service and operational by November 1, 2003. The condemnation action was filed on June 6, 2003.
On June 6, 2003, Williston Basin also filed a Motion for Immediate Use and Possession. The motion was made on the grounds that Williston Basin will suffer irreparable harm if immediate possession is not granted so that the project can be completed prior to the 2003-2004 winter heating season. Williston Basin also requested an immediate hearing on the motion.
Williston Basin has alleged that despite good faith efforts to negotiate and secure rights-of-way and easements for most of the pipeline system, they have been unable to acquire such rights-of-way and easements across certain lands located by the defendants in Billings, Dunn, Golden Valley, and Stark Counties. It is alleged that the amount claimed by each defendant exceeds the sum of $3,000 which is the jurisdictional limit under 15 U.S.C. § 717f(h).
On June 30, 2003, the Court held a hearing on Williston Basin's Motion for Immediate Possession. The only defendant who initially resisted the motion was Edwin Wheeler, pro se. Mr. Wheeler resides in the State of Washington and owns land on the North Dakota-Montana border which will be impacted by the Grasslands Pipeline Project. Wheeler had opposed Williston Basin's Motion for Immediate Use and Possession and relies upon a case entitled Northern Border Pipeline Co. v. 86.72 Acres of Land, 144 F.3d 469 (7th Cir. 1998), in support of his position. The Court was informed at the hearing that Wheeler had withdrawn his Motion to Dismiss and had consented to the Court's jurisdiction. See Stipulation filed June 30, 2003.
There are numerous federal court decisions which recognize the equitable power of the district court to grant immediate possession when such relief is essential to a pipeline construction project. See Northern Border Pipeline Co. v. 127.79 Acres of land, more or less in Williams County, N.D., 520 F. Supp. 170 (D.N.D. 1981); Kern River Gas Transmission Co. v. Clark County, Nev., 757 F. Supp. 1110, 1116 (D.Nev. 1990) (granting motion for immediate occupancy); USG Pipeline Co. v. 1.74 Acres in Marion County, Tenn., 1 F. Supp.2d 816, 825-826(D. Tenn. 1998) (granting immediate possession where pipeline company would suffer substantial financial detriment if construction were delayed); Northern Border Pipeline Co. v. 64.111 Acres of Land, 125 F. Supp.2d 299 (N.D.Ill. 2000) (granting immediate possession when right to easement not contested because judgment of condemnation was already entered and defendants did not show any harm from early possession); Tennessee Gas Pipeline Co. v. New England Power, C.T.L., Inc., 6 F. Supp.2d 102, 104 (D.Mass. 1998) (the district court has equitable power to grant immediate entry and possession where such relief is essential to the pipeline construction schedule).
In this case, the Court has carefully considered the evidence submitted by the parties and the legal arguments presented at the hearing conducted on June 30, 2003. The Court expressly finds that there is urgency and a need on behalf of the Williston Basin Interstate Pipeline Company for the immediate use and possession of the land at issue. Williston Basin has demonstrated that it faces immediate and irreparable harm if construction does not commence immediately and has also demonstrated a likelihood it will prevail in the underlying condemnation action. The FERC certificate clearly entitles Williston Basin to a construction and maintenance easement. In declarations filed in support of its motion, Williston Basin has established that in order to meet its contractual deadlines and obligations, it must begin constructing the Grasslands Pipeline in late June 2003 with completion in November 2003. If the Grasslands Pipeline Project is not completed by November 1, 2003, Williston Basin stands to lose revenue in the amount of $24,000.00 per day. See Affidavit of Tony Finneman. Other declarations clearly establish that Williston Basin will sustain significant losses and the project will be at risk of failure if construction does not proceed immediately. See Affidavit of Robert Bendure.
Based upon the declarations of Tony Finneman and Robert Bendure, as well as the arguments presented at the June 30, 2003, hearing, the Court finds that Williston Basin has met the equitable considerations needed to warrant their immediate use and possession of the land at issue. The Court further finds that it would be in the best interests of the public to grant immediate possession of the properties to Williston Basin and that the public interest will be prejudiced by any delay in granting Williston Basin immediate possession of the land in order to commence construction on the Grasslands Pipeline Project to ensure its timely completion by November 2003.
IT IS ORDERED,
(1) That the plaintiff, Williston Basin Interstate Pipeline Company, shall have immediate possession of the specific tracts of land identified in the condemnation complaint for the purpose of constructing a natural gas pipeline transportation system, i.e., the Grasslands Pipeline Project;
(2)That Williston Basin shall take immediate possession of the land at issue as identified in the condemnation complaint upon depositing with the Clerk of the District Court the sum of $300,000 in cash or surety bond as a condition of immediate use and possession;
(3) That Williston Basin shall have such authority under this Court's award of immediate possession as it would have if the landowners had granted an easement and right-of-way;
(4) That defendant Alfred Wittinger has not yet been served despite exhaustive efforts by Williston Basin to do so. However, Mr. Wittinger is represented by attorney Vince Ficek. Wittinger retains a 1/3rd interest in a parcel of land which will be effected by the project. Williston Basin has obtained an easement on the remaining 2/3rds of the land. This Order covers the entire parcel of land of which Wittinger presently owns a 1/3rd interest. However, the Court will afford Mr. Wittinger a reasonable opportunity to show cause why the Order should not cover his 1/3rd interest. Mr. Wittinger and/or his attorney will be afforded such an opportunity to show cause in writing to be received by the Court on or before 5:00 p.m. on Monday, July 7, 2003.
The Court is very cognizant of the interests of the landowners and their need for assurances that the land will be reasonably restored to its original contour and condition just as it was before the commencement of the pipeline construction project. Williston Basin has made repeated assurances to the Court and to the defendants that the land will be reasonably restored to the same condition as when entered by Williston Basin. See Condemnation Complaint, ¶¶ 14-17; see also the Williston Basin Interstate Pipeline Company "Agreement for Pipeline Easement" and Williston Basin's Reply Brief in Support of Motion for Immediate Use and Possession, p. 3. Based upon such assurances, the Court further finds that an order granting Williston Basin immediate possession is warranted and appropriate under the circumstances.