Florida Southeast Connection, LLC v. 0.821 Acres of Land, More or Less, in Polk County

223 F. Supp. 3d 1227, 2016 U.S. Dist. LEXIS 188199, 2016 WL 8902586
District Court, M.D. Florida·Decided May 11, 2016·No. Case No. 8:16-cv-672-T-36JSS·Published

Opinion

ORDER

VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT JUDGE

Before the Court is Florida Southeast Connection, LLC’s (FSC) Motion for Pre[1229] liminary Injunction for Immediate Possession filed pursuant to Federal Rule of Cml Procedure 65 and Middle District of Florida Local Rule 4.06, which was referred to the undersigned for disposition (Doc. # 9). FSC seeks a preliminary injunction granting it immediate possession and use of the Easements in this case for pre-installation activities to begin as soon as possible so that construction can begin by June 1, 2016. Similar motions have been filed in the related or companion cases.

I. BACKGROUND

Pursuant to the Natural Gas Act (NGA), 15 U.S.C. § 717f, the Federal Energy Regulatory Commission (FERC) issued an “Order Issuing Certificates and Approving Abandonment” on February 2, 2016.1 That order issued FSC a certificate of public convenience and necessity (FERC Certificate) authorizing it to construct and operate the Florida Southeast Connection Project (the FSC Project or Project). The Project encompasses approximately 126 miles of new pipeline, and related facilities that will transport natural gas in interstate commerce from central Florida to Florida Power & Light Company’s (FPL) Martin Clean Energy Center in Martin County, Florida (the Martin Clean Energy Center).

If FSC, as the holder of a FERC Certificate, “cannot acquire by contract, or is unable to agree with the owner of the property to the compensation to be paid,” it may acquire the necessary right-of-way (including land or other property necessary for the proper operation of the pipeline) “by the exercise of the right of eminent domain in” the United States district court in which the property is located. 15 U.S.C. § 717f(h).

Over the past two years, FSC purchased from landowners approximately 87% of the easement interests necessary for the Project. However, FSC has been unable to purchase all of the required easement interests through voluntary acquisitions. As a result, FSC filed this action pursuant to 15 U.S.C. § 717f(h), and Rule 71.1, Fed. R. Civ. P.,' to condemn the right-of-way and other property interests identified in the Complaint (the Easements).2 FSC has filed a number of related cases to acquire other necessary easement interests in this District and the Southern District of Florida.

In such NGA condemnation cases, the district court’s role is limited to ordering “condemnation of property in accord with a facially valid certificate.” Tenn. Gas Pipeline Co. v. 104 Acres of Land More or Less, in Providence Cty. of the State of R.I., 749 F.Supp. 427, 430 (D.R.I. 1990) (citing Williams Nat. Gas Co. v. Okla. City, 890 F.2d 255, 262 (10th Cir. 1989)). In other words, “[t]he District Court’s role is to evaluate the scope of the certificate and to order condemnation of property as authorized in the certificate.” Id. at 430; Columbia Gas Transmission Corp. v. An Easement to Construct, Operate & Maintain a 24-Inch Pipeline Across Props. in Shenandoah Cty., Va., No. 5:07cv04009, 2008 WL 2439889, at *2 (W.D. Va. June 9, 2008).

II. RELATED CASE PRECEDENT

“[Ojnce a district court determines that a gas company has the substantive [1230] right to condemn property under the NGA, the court may exercise equitable power to grant the remedy of immediate possession through the issuance of a preliminary injunction.” E. Tenn. Nat. Gas Co. v. Sage (Sage), 361 F.3d 808, 828 (4th Cir. 2004). And, FSC is

entitled to a preliminary injunction if it show[s]: “(1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered unless the injunction is issued; (3) the threatened injury to the moving party outweighs whatever damage the proposed injunction might cause the non-moving party; and (4) if issued, the injunction would not be adverse to the public interest.”

Jysk Bed’N Linen v. Dutta-Roy, 810 F.3d 767, 774 (11th Cir. 2016) (quoting BellSouth Telecomms., Inc. v. MCIMetro Access Transmission Servs., LLC, 425 F.3d 964, 968 (11th Cir. 2006)). FSC satisfies each of the elements and, therefore, is entitled to the injunction it seeks.

Granting such injunctions is consistent with well-settled law. Courts throughout the country have granted preliminary in-junctive relief when a natural gas pipeline company holding a valid FERC Certificate, and which satisfied the standard for injunctive relief, sought immediate possession of the necessary right-of-way interests. See, e.g., Columbia Gas Transmission, LLC v. 1.01 Acres, More or Less in Penn Twp., York Cty. Penn., Located on Tax ID No. 440002800150000000 Owned by Dwyane P. Brown & Ann M. Brown, 768 F.3d 300, 304 (3d Cir. 2014) (reversing district court and granting immediate possession of the easement, and noting, “a certificate of public convenience and necessity gives its holder the ability to obtain automatically the necessary right of way through eminent domain, with the only open issue being the compensation the landowner defendant will receive in return for the easement.”); Sage, 361 F.3d at 828.3

III. FINDINGS ON THE NECESSARY ELEMENTS FOR A PRELIMINARY INJUNCTION

A. FSC Has Established a Substantial Likelihood of Success on the Merits

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Florida Southeast Connection, LLC v. 0.821 Acres of Land, More or Less, in Polk County, 223 F. Supp. 3d 1227, 2016 U.S. Dist. LEXIS 188199, 2016 WL 8902586 (M.D. Fla. 2016).

223 F. Supp. 3d 1227 (Florida Southeast Connection, LLC v. 0.821 Acres of Land, More or Less, in Polk County) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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