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Enbridge Pipelines (Illinois) L.L.C v. Michael S. Moore

January 24, 2011

ENBRIDGE PIPELINES (ILLINOIS) L.L.C., PLAINTIFF-APPELLEE,
v.
MICHAEL S. MOORE, ET AL., DEFENDANTS-APPELLANTS.



Appeals from the United States District Courts for the Central and Southern Districts of Illinois. Nos. 08-2215, et al.; 08-cv-697-DRH, et al. Harold A. Baker,Judge, and David R. Herndon, Chief Judge.

The opinion of the court was delivered by: " Posner, Circuit Judge.

ARGUED DECEMBER 1, 2010

Before BAUER and POSNER, Circuit Judges, and

PALLMEYER, District Judge.

Before us for decision are consolidated appeals from judgments, all in favor of the plaintiff, in 18 lawsuits brought in two federal district courts in Illinois under the diversity jurisdiction. (Originally there were 25 suits; three of the other seven were settled; presumably the defendants in the other four simply accepted their defeat.) Illinois law is agreed to govern the substantive issues. The plaintiff, Enbridge, sought in each suit a declaration that its easement to operate an oil pipeline under the defendant's property is-as the defendants deny-still in force. The district judges granted summary judgment for Enbridge in each of the cases, and entered the declaration that it sought.

"Hon. Rebecca R. Pallmeyer, of the Northern District of Illinois, sitting by designation.

Enbridge is trying to build a 170-mile-long pipeline in Illinois as part of a larger project of pipeline construction to meet increased American demand for Canadian oil. A 120-mile segment of the 170-mile construction route already contains a pipeline, though it has only a 10-inch diameter and has not been in use for many years. The construction and operation of that pipeline, built in 1939, was made possible by easements granted to a predecessor of Enbridge by the farmers owning the land under the surface of which the pipeline passes. Enbridge wants to replace the 10-inch pipeline with a 36-inch one. The defendants contend that Enbridge's predecessors (the existing pipeline has had several owners since it was built), and hence Enbridge, have forfeited the easements by failing to maintain the pipeline in good working condition.

The easements gave the original grantee "the right to lay, operate, and maintain a pipe line for the transportation of oil, gasoline and/or other fluids," and gave "its successors and assigns"-thus including Enbridge- the same rights "so long as such pipe lines or other structures are maintained." The holder of the easement must pay the landowner "for any and all damages to crops owned by [him], fences, and land which may be suffered from the construction, operation or maintenance of such pipe lines." (The parties attach no significance to the fact that "pipe line" is singular in the first clause and plural in the others.) The existing pipeline had been inactive for almost a quarter of a century when Enbridge acquired it and the easements, and, according to the defendants, was in a state of dis-repair. They contend that cathodic protection (running an electrical current through the pipeline to prevent rust) had been neglected; missing segments of the pipe had not been replaced (thus disrupting the electrical current at times when the pipeline owner did try to provide cathodic protection); valves and pumps had not been maintained and some of them had been removed and not replaced; the interior of the pipeline had not been cleaned and various seam and joint failures had not been repaired.

The defendants' allegations are exaggerated. Although the pipeline was indeed not in use between 1988 and 2006, considerable maintenance was performed in 1992, 1993, and 2004. There is no evidence of any missing segments, and an engineer who performed 27 "integrity digs" (excavations for the purpose of inspection) testified that "the pipeline is capable of transporting liquid." His affidavit described "the pipeline [as] close to being as good as new and could with relative ease be placed back into active service as a crude oil line, a gas line, or a water line."

One of the district judges determined, in disagreement with the defendants' allegations, that maintenance appropriate for an inactive pipeline had been conducted; the other that the easements were valid as long as the pipeline remained in existence, no matter how dilapidated it became.

A threshold question is whether, as the diversity statute requires, the amount in controversy in each of the suits exceeds $75,000. 28 U.S.C. § 1332. Enbridge alleged in its complaints that it did. Most though not all of the defendants denied the allegation, though without presenting any evidence or reason to doubt its truth. A plaintiff is required to supply "competent proof" of the amount in controversy if the "jurisdictional facts are challenged by his adversary in any appropriate manner." McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936). But what is an "appropriate manner"? The cases do not appear to require more than a bare denial to put the plaintiff to his proof, see, e.g., McMillian v. Sheraton Chicago Hotel & Towers, 567 F.3d 839, 844-45 (7th Cir. 2009); Rexford Rand Corp. v. Ancel, 58

F.3d 1215, 1218 (7th Cir. 1995), even if the result is merely to slow down litigation and increase its costs. But no matter; Enbridge did respond to the defendants' denial, presenting evidence that to build its pipeline around the defendants' properties would cost at least $75,000, per property, in pipe alone, ignoring construction costs, which would bring the total cost well above $75,000.

The defendants reply that maybe Enbridge wouldn't have to do any building around; maybe it could buy a new easement in each of the defendants' properties for less than $75,000. But why for less? If it would cost Enbridge at least $75,000 to build around a property, it should be willing to pay that amount for an easement for the pipeline in its current location-even more, when construction costs are taken into account, not to mention the possible unwillingness of a neighboring property owner to allow Enbridge to build the pipeline on his property without payment of a substantial price for an easement. There are also costs of cumulative delay to be considered. To build around one or two properties would delay the completion of the new pipe-line (the 36-inch replacement for the existing 10-inch one) by only a little. But to build around 25 properties? And any delay, by postponing the day on which Enbridge begins to earn revenues from the pipeline project, would impose costs. These additional costs would increase the amount that Enbridge would be willing to pay to buy a new easement from each of the defendants. Knowing all this, each defendant would demand a very high price.

The district court was thus on solid ground in concluding that Enbridge had satisfied the amount in controversy requirement with respect to all of the defendants' properties. See McCarty v. Amoco ...


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