The opinion of the court was delivered by: Moran, Senior District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff has moved to confirm condemnation of permanent and
temporary easements. That motion is granted, subject to rulings
herein made.
The project involves the installation of a 142-mile long
natural gas pipeline from the vicinity of Joliet, Illinois, into
Wisconsin. This condemnation action concerns the acquisition of
a corridor of land rights from Joliet through four Illinois
counties to the Wisconsin border. That process is governed by
federal law.
In 1977 Congress created the Federal Energy Regulatory
Commission (FERC), 42 U.S.C. § 7171. FERC then took over from
the Federal Power Commission the responsibility for determining
the public necessity for the development of natural gas
pipelines. 42 U.S.C. § 7172. An entity proposing to construct
such a pipeline must obtain a certificate of public convenience
and necessity from FERC (FERC Certificate). 15 U.S.C. § 717f(c).
The holder of an FERC Certificate is accorded rights of eminent
domain by 15 U.S.C. § 717f(h):
(h) Right of eminent domain for construction of
pipelines, etc.
When any holder of a certificate of public
convenience and necessity cannot acquire by
contract, or is unable to agree with the owner of
property to the compensation to be paid for, the
necessary right-of-way to construct, operate, and
maintain a pipe line or pipe lines for the
transportation of natural gas, and the necessary
land or other property, in addition to
right-of-way, for the location of compressor
stations, pressure apparatus, or other stations or
equipment necessary to the proper operation of such
pipe line or pipe lines, it may acquire the same by
the exercise of the right of eminent domain in the
district court of the United States for the
district in which such property may be located, or
in the State courts. The practice and procedure in
any action or proceeding for that purpose in the
district court of the United States shall conform
as nearly as may be with the practice and procedure
in similar action or proceeding in the courts of
the State where the property is situated:
Provided, That the United States district courts
shall only have jurisdiction of cases when the
amount claimed by the owner of the property to be
condemned exceeds $3,000.
Any review of the FERC order is by way of petition to the court
of appeals where the proposed pipeline is located or the holder
of the FERC Certificate has its principal place of business or
to the Court of Appeals for the District of Columbia.
15 U.S.C. § 717r. The condemnation procedures are set forth in Rule 71A of
the Federal Rules of Civil Procedure.
Those statutory and rule directions have translated into
judicial admonitions. One is a judicial gloss that the holder
must engage in good faith negotiations with the landowner before
it can invoke the power of eminent domain, e.g.,
Transcontinental Gas Pipe Line Corp. v. 118 Acres of Land,
745 F. Supp. 366, 369 (E.D.La. 1990), although the statutes have no
such specific requirement and we are unaware of any case in
which condemnation has been denied or even delayed because of an
alleged failure to engage in good faith negotiations. That same
case
suggests that the holder must present some evidence of public
necessity other than the FERC determination. Id. at 370. USG
Pipeline Co. v. 1.74 Acres in Marion County, Tennessee,
1 F. Supp.2d 816, 820 (E.D.Tenn. 1998), concludes that is just
plain wrong, and we agree. The jurisdiction of this court is
limited to evaluating the scope of the FERC Certificate and
ordering condemnation as authorized by that certificate. Id.,
Tennessee Gas Pipeline Co. v. 104 Acres of Land More or Less, in
Providence County of the State of Rhode Island, 749 F. Supp. 427,
430 (R.I. 1990). The validity and conditions of the FERC
Certificate cannot be collaterally attacked in district court.
Review of the validity of the certificate is the exclusive
province of the appropriate court of appeals. Williams Natural
Gas Co. v. City of Oklahoma City, 890 F.2d 255, 262 (10th Cir.
1989), cert. denied, 497 U.S. 1003, 110 S.Ct. 3236, 111
L.Ed.2d 747 (1990). This court's role is mere enforcement.
Tennessee Gas Pipeline Co. v. Massachusetts Bay Transportation
Authority, 2 F. Supp.2d 106, 110 (Mass. 1998). And the
proceedings in this court are governed by Rule 71A, not state
law. Southern Natural Gas Co. v. Land, Cullman County,
197 F.3d 1368, 1373 (11th Cir. 1999).
Given that legal framework, we turn to the objections and
defenses advanced here as they relate to the administrative and
condemnation record, which are included with the pleadings in
this case. The objections and defenses are many and varied: a
50-foot right-of-way for a 36" pipe is excessive; the temporary
construction space easement is excessive, and there is no legal
description for those easements; the legal description of the
pipeline easement is imprecise; the 48" cover is inadequate; the
temporary easement is far longer than the end of construction;
there is no provision for compliance with the Illinois
Agricultural Impact Mitigation Plan, as required by the FERC
Certificate; the proposed easements provide for the replacement,
relocation and enlargement of the pipeline, they are not
restricted to 36" pipe, and they indicate a right to assign,
none of which is authorized by the FERC Certificate; there is
not adequate provision for all damages; plaintiff has not
negotiated in good faith; the easements do not provide for
segregation of topsoil from subsoil; the route should be changed
to avoid some specific problems; and that other routes are
preferable.
This court may reject objections and defenses when it is clear
that they are legally insubstantial. United States v. 416.81
Acres of Land, 514 F.2d 627 (7th Cir. 1975). The FERC
Certificate is the conclusive answer to most of those objections
and defenses. Issued March 14, 2001, it incorporated the
extensive specifications and requirements of the Final
Environmental Impact Statement (FEIS) issued in January 2001, as
well as certain subsequent filings by plaintiff. The result is
that FERC has determined public convenience and necessity; has
determined the route (subject to possibly minor adjustments
because of specific circumstances); and has determined pipe
size, depth of cover, topsoil segregation procedures, size and
location of easements and a host of other matters. FERC has made
it clear that it will monitor the construction and will enforce
all requirements. Landowners who believe that plaintiff is not
in compliance with any requirement may complain directly to
FERC. Plaintiff has entered into an Illinois Agricultural Impact
Mitigation Plan (Appendix J to the FEIS). The FERC Certificate
provides only for a 36" natural gas pipe and plaintiff does not
claim otherwise. And, indeed, it could not claim additional
rights as it is bound by the FERC Certificate. Plaintiff can
assign or alienate its interests to another, but only if FERC
approves. It can repair the pipeline and alter its configuration
to meet new circumstances, e.g., to go
deeper under a new road, but it cannot alter the project, a 36"
natural gas pipeline along an established route, and it would be
liable for any resulting damage.
Other objections and defenses are conclusively answered by the
pleadings. They set forth the legal descriptions and plat maps
of the proposed easements. Those legal descriptions and plat
maps easily satisfy the federal requirement that a condemnation
complaint include a description for the property sufficient for
its identification. Southern Natural Gas Co. v. Land, Cullman
County, supra. And others, such as the amount of compensation
for alienation of interests and damages, await a determination
here. The objection raised by some landowners, that plaintiff
has not negotiated in good faith, is adequately answered by the
Declaration of Thomas C. Davis, describing the efforts made to
negotiate easement agreements, and by his Supplemental
Declaration describing the efforts made to negotiate such
agreements with specific landowners. We see no need to replicate
here the information therein contained and, rather, refer to
those declarations for that information.
Finally, the McHenry County Conservation District (MCCD) and
the Forest Preserve District of DeKalb County (FPDC), both
contend that public land held by them for public use cannot be
condemned by plaintiff. They raise a number of reasons why this
is so, and plaintiff has countered with an additional claim
against MDDC, Count II, contending that MCCD has violated
28 U.S.C. § 1983. We think it unnecessary, however, to address each
of the defendants' arguments or Count II. Plaintiff has the
overriding authority to obtain easements from the governmental
authorities. It may proceed.
The FERC Certificate authorizes plaintiff to acquire easements
by exercise of the right of eminent domain, and specifically
recognizes that state and local laws cannot be used to prohibit
or unreasonably delay the construction of the approved pipeline
(FERC Order at 40-41). FERC there relied upon Schneidewind v.
ANR Pipeline Co., 485 U.S. 293, 294, 108 S.Ct. 1145, 99 L.Ed.2d
316 (1988) and National Fuel Supply Corp. v. Public Service
Commission of the State of N.Y., 894 F.2d 571, 575 (2d Cir.
1990). Schneidewind, without dissent, recognized that
Congress, in the Natural Gas Act, had enacted a comprehensive
scheme that preempted state law when that law was an obstacle to
fulfillment of the NGA purposes. In National Fuel Gas Supply
Corp. the court pointed out that preemption is rooted in the
Supremacy Clause and that it extends to bar the enforcement of
state law when that law forms an obstacle to realization of
congressional purpose. See also Public Utilities Commission v.
Federal Energy Regulatory Commission, 900 F.2d 269, 277
(D.C.Cir. 1990).
FERC has approved the route. That route requires the granting
of easements (and not very intrusive easements) across some land
dedicated to public uses. Any concerns about that intrusion
should have been raised before FERC. Williams Natural Gas Co.
v. City of Oklahoma City, supra. Any objections to the
condemnation of public land for the construction of a natural
gas pipeline is preempted. USG Pipeline Co. v. 1.74 Acres in
Marion County, Tennessee, supra. See also Tennessee Gas Pipeline
Co. v. Massachusetts ...