Portland Natural Gas v . Martin, et al CV-98-436-JM 11/03/98 P
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Portland Natural Gas Transmission System
v. Civil N o . 98-436-JM
4.83 Acres of Land, et a l .
O R D E R
Before me in this condemnation action under the Natural Gas
Act, 15 U.S.C. § 717f(h), are the following motions filed by
defendant Frederick W . Martin: a motion for a 90-day letter
(document n o . 9 ) ; a motion for relief (document n o . 7 ) , a motion
to dismiss under Fed. R. Civ. P. 12(h)(3) (document n o . 2 0 ) ; and
a motion for a preliminary injunction, entitled “Motion for
Alternate Temporary Restraining Order” (document n o . 2 3 ) . For
the following reasons, all four motions are denied. Background
The following facts are undisputed. M r . Martin owns the
strip of land at issue, approximately 4.83 acres, which is part
of a larger parcel of cleared and wooded farm land. Plaintiff
(“Portland Gas”) is a Maine partnership that holds certificates
of public convenience and necessity, issued by the Federal Energy
Regulatory Commission (“FERC”) in 1997. Portland Gas instituted this eminent domain action by
depositing money with the court and filing a verified complaint
in condemnation against the property. Portland Gas seeks to
obtain temporary easements for the purpose of constructing a
natural gas pipeline, and to obtain a permanent easement for the
purpose of operation and maintenance of the pipeline and related
facilities.
On July 2 1 , 1998, Portland Gas obtained an Order (document
n o . 4 ) granting its ex parte motion for immediate entry and
possession. A request for reconsideration of that Order was
denied on September 1 7 , 1998 (document n o . 1 0 ) . M r . Martin
thereafter filed his first motion for a temporary restraining
order (“TRO”) and for other preliminary injunctive relief, which
was denied in an Order (document n o . 19) issued on September 2 4 ,
1998.
After the motion for a TRO was denied, Portland Gas actually
took possession of the easements by bringing heavy equipment onto
Mr. Martin’s land, cutting down trees, excavating soil, burying a
pipe, and bulldozing a road on the strip of land at issue. See
Affidavits of Fred W . Martin (dated Oct. 9, 1998 & Oct. 1 9 , 1998)
(document nos. 24 and 2 8 ) . According to M r . Martin, a Portland
Gas representative told him on October 1 9 , 1998 that the “pipe
would be past [his] property by October 28.” Affidavit of Fred
2 W . Martin (Oct. 1 9 , 1998). Analysis I. Motion under Rule 12(h)(3) and Motion for Relief In his motion to dismiss for lack of subject matter jurisdiction under Rule 12(h)(3), M r . Martin contends that Portland Gas obtained a right of entry and possession in July 1998, before it complied with a condition of its FERC certificate known as “Condition 31,” and before FERC had complied with the National Historic Preservation Act, 16 U.S.C. § 470f.1 As a result, this court lacked authority to grant a right of entry and possession to Portland Gas in July 1998 and presently lacks subject matter jurisdiction over the action. M r . Martin makes essentially the same arguments in his motion for relief.
Condition 31 is one of more than sixty environmental conditions relating to the construction and operation of the gas line project (covering, among other things, wetland mitigation, wellhead protection, cultural resources, fisheries, erosion controls, and a hazardous materials inventory), which FERC
1 This court lacks subject matter jurisdiction to review a challenge to the validity of the certificate, including any claim relating to whether FERC complied with the National Historic Preservation Act, 16 U.S.C. § 470f, or its own regulations. See Tennessee Gas Pipeline C o . v . Massachusetts Bay Transp. Auth., 2 F. Supp.2d 106, 110 (D. Mass. 1998) (“Tennessee Gas II”) (“The District Court’s sole charge and authority is to evaluate the scope of the FERC Certificate, and order the condemnation of property in accordance with that scope.”).
3 included in an appendix to the certificate. Condition 31 directs
Portland Gas to defer construction, among other things, until it
files with the Secretary of FERC certain information about
cultural and historic resources.2
There is no dispute that Portland Gas began construction on
Mr. Martin’s land after FERC acknowledged that Portland Gas had
satisfied the requirements of Condition 3 1 . Portland Gas
received a letter from FERC, dated August 2 0 , 1998, notifying it
of FERC’s determination that Portland Gas had complied with
Condition 3 1 . Portland Gas actually entered the property and
began cutting trees and clearing M r . Martin’s land more than a
month after the August 2 0 , 1998 letter was issued.
a. Subject Matter Jurisdiction
Mr. Martin is mistaken in contending that subject matter
2 Condition 31 provides, in pertinent part: The applicants shall defer construction of facilities and use of all staging, storage, and temporary work areas, and new or to-be-improved access roads until:
i. the applicants file with the Secretary [of FERC] cultural resource reports and treatment plans, as appropriate, and the [State Historic Preservation Officer’s] comments; and
ii. the Director of [the Office of Pipeline Regulation] reviews and approves all reports, considers the comments of the Advisory Council on Historic Preservation, and notifies the applicants in writing that they may proceed.
4 jurisdiction is contingent on compliance with the pre-
construction conditions of the FERC certificate. The federal
statute providing a cause of action to Portland Gas to pursue a
condemnation action in federal district court does not contain
any such limitation. A holder of a FERC certificate may bring an
action in federal district court to acquire land by eminent
domain if it cannot acquire the land by contract or agree on the
purchase price with the landowner. See 15 U.S.C. § 717f(h).
Since M r . Martin has not agreed to allow Portland Gas, a
holder of a FERC certificate, to acquire the land at issue,
Portland Gas was entitled to initiate this action under section
717f(h). Accordingly, the district court has subject matter
jurisdiction over the action pursuant to 15 U.S.C. § 717f(h) and
28 U.S.C. § 1331. Portland Gas’s delayed compliance with
Condition 31 is not a basis for dismissing this action under Fed.
R. Civ. P. 12(h)(3).
b. Right to Enter and Possess
The issuance of an order granting Portland Gas a right to
enter and possess before Portland Gas complied with Condition 31
was within the court’s authority. Courts have concluded that a
landowner cannot use a FERC certificate-holder’s alleged non-
compliance with the conditions in the certificate to prevent a
taking of private property by eminent domain. See, e.g.,
5 Tennessee Gas Pipeline C o . v . 104 Acres of Land, 749 F. Supp.
427, 433 (D.R.I. 1990) (“Tennessee Gas I ” ) .
In Tennessee Gas I , the court considered whether a gas
pipeline company’s failure to obtain a permit required by a FERC
order prevented it from condemning land. The court concluded
that, absent a stay issued by FERC, “the lack of a required
permit does not prevent condemnation of land in preparation for
construction.” 749 F. Supp. at 433. The First Circuit denied
Mr. Martin’s request for a stay. M r . Martin has not requested a
stay from the D.C. Circuit and, therefore, has not obtained such
a stay. In sum, there is no authority for this court to vacate
its order granting Portland Gas an immediate right of entry and
possession.
Mr. Martin contends that the holding in United States v .
162.20 Acres of Land, 639 F.2d 299, 305 & n.4 (5th Cir. 1981),
upon which Tennessee Gas I relies, does not apply to Portland
Gas, a private entity. The court in 162.20 Acres reasoned that
since the initiation of an eminent domain proceeding and an
immediate transfer of title is a neutral act that does not
prevent the government from later complying with the consultation
and review requirements of the National Historic Preservation
Act, 16 U.S.C. § 470f, an allegation that an agency has not
complied with the Act cannot be a defense in an eminent domain
6 action. See 162.20 Acres, 639 F.2d at 305; accord United States ex rel. TVA v . Three Tracts of Land, 415 F. Supp. 586, 588 (E.D. Tenn. 1976). According to M r . Martin, the rationale for 162.20 Acres does not apply in this case because Portland Gas, a private entity, is not entitled to an immediate transfer of title under any federal law. Since State law, N.H. Rev. Stat. Ann. (“RSA”) 371:15, V , provides a holder of a FERC certificate with a right to such a “quick take,” it is irrelevant whether or not such a right is available under federal law.
RSA 371:15, V , provides that after initiating an eminent domain proceeding, the pipeline company may immediately “enter upon and take possession of the real estate upon providing such security as justice may require to pay any damages occasioned by the entry.” Pursuant to RSA 371:15, V , and in accordance with 15 U.S.C. § 717f(h), this court had the authority to grant Portland Gas’s motion for immediate entry and possession, without reference to whether it had complied with pre-construction conditions.
Mr. Martin contends that the procedures specified in RSA 371:15, V , are available only to pipeline companies that file their actions in State court under RSA 371:15, I , and are not available to companies that file in federal court under 15 U.S.C.
7 § 717f(h). The Natural Gas Act, however, provides that “[t]he
practice and procedure in any action or proceeding in the
district court . . . shall conform as nearly as may be with the
practice and procedure in [a] similar action or proceeding in the
courts of the State where the property is situated . . . .” 15
U.S.C. § 717f(h). RSA 371:15, V , is thus properly construed in
this context to provide the same substantive right to a quick
take, whether the forum is a State or federal court.
Therefore, the principle underlying 162.20 Acres and
Tennessee Gas I applies in this case. Compliance with FERC
conditions cannot be used as a defense to the right of eminent
domain and cannot be cited to divest the court of the authority
to grant immediate entry and possession to the holder of a FERC
certificate. Because Portland Gas followed the pertinent
procedures required under RSA 371:15, V , it was entitled to an
order granting it the right to immediate entry. The court had
the requisite authority to grant Portland Gas’s motion and will
neither dismiss the case nor vacate the July 1998 Order.
II. Motion for 90-Day Letter
In his motion for a 90-day letter, M r . Martin seeks an order
requiring Portland Gas to provide him with written notice before
requiring him to move his farming operation from the land at
issue, in accordance with 42 U.S.C. § 4651(5) and certain
8 regulations. In addition, Mr. Martin seeks an order “remov[ing]”
Portland Gas “from possession of” the easements. M r . Martin
maintains that he harvests timber from a larger parcel of land
that includes the property at issue, so that the property at
issue qualifies as a “farm operation” pursuant to 42 U.S.C.
§ 4651(5). 3 Portland Gas’s removal of trees from the easement is
allegedly a circumstance in which M r . Martin is “required to move
his business or farm operation,” for which prior notice should be provided.4 Id.
3 The cited statute provides, in pertinent part:
[H]eads of Federal agencies shall, to the greatest extent practicable, be guided by the following policies: . . . (5) The construction or development of a public improvement shall be so scheduled that, to the greatest extent practicable, no person lawfully occupying real property shall be required to move from a dwelling . . . or to move his business or farm operation, without at least ninety days’ written notice from the head of the Federal agency concerned, of the date by which such move is required.
42 U.S.C. § 4651(5) (emphasis added). 4 In light of M r . Martin’s admissions that Portland Gas has entered his land and cut trees, and that Portland Gas estimated that it would be done placing pipe on his property by October 2 8 , 1998, his motion for prior notice would appear to be moot. Because M r . Martin has also requested an order removing Portland Gas from the easements, however, the merits of the motion are addressed below.
9 A. Federal Statute
As discussed more fully in my September 2 4 , 1998 Order, the
statute at issue, 42 U.S.C. § 4651(5), does not create any
substantive rights and cannot be cited as an impediment to an
eminent domain action. See Tennessee Gas Pipeline C o . v . New
England Power, C.T.L., Inc., 6 F. Supp.2d 1 0 2 , 104-05 (D. Mass.
1998) (“Tennessee Gas III”); see also 42 U.S.C. § 4602(a).
Therefore, the federal statute provides no basis for relief.
B. Federal Regulations
Mr. Martin also contends that he has a right to prior notice
under 49 C.F.R. Part 2 4 , the regulations promulgated to implement
the Uniform Relocation Assistance and Real Property Acquisition
Policies of 1970, 42 U.S.C. §§ 4601-4655. As discussed below,
the regulations are not applicable to M r . Martin’s circumstances
and, therefore, do not provide any basis for granting the motion.
The regulation cited by M r . Martin, 49 C.F.R. § 2.203(c)(1),
provides that “no lawful occupant shall be required to move
unless he or she has received at least 90 days advance written
notice of the earliest date by which he or she may be required to
move.” See also 42 C.F.R. § 24.203(a)(3) (similar). This
regulation applies to the relocation of “displaced persons,” see
49 C.F.R. § 24.202, which is further defined in a manner that
10 clarifies its inapplicability to M r . Martin’s circumstances.
The pertinent part of the regulatory definition of
“displaced persons” is any person who moves from the real property or moves his or her personal property from the real property: . . . (iii) As a direct result of . . . the acquisition, rehabilitation or demolition o f , in whole or in part, other real property on which the person conducts a business or farm operation . . . . However, eligibility for such person under this paragraph applies only for purposes of obtaining relocation assistance advisory services under [49 C.F.R.] § 24.205(c) and moving expenses under [49 C.F.R.] § 24.301, § 24.302 or § 24.303.
49 C.F.R. § 24.2(g)(1)(iii) (emphasis added).
The cited definition contains a limitation that makes M r .
Martin’s motion unavailing:
[E]ligibility . . . applies only for purposes of obtaining relocation assistance advisory services under [49 C.F.R.] § 24.205(c) and moving expenses under [49 C.F.R.] § 24.301, § 24.302 or § 24.303.
49 C.F.R. § 24.2(g)(1)(iii) (emphasis added). M r . Martin has not argued that he is entitled to relocation assistance or payments
for moving expenses. Since the regulation regarding prior notice
of a date certain, 49 C.F.R. § 24.203(c), is included within a
subpart of the regulations that governs the provision of
relocation payments and other relocation assistance, see 49
C.F.R. § 24.201, M r . Martin has not demonstrated that he is
entitled to such notice.
11 Moreover, M r . Martin does not satisfy the regulatory
definition of a displaced person. M r . Martin lives in
Massachusetts, not on the property. This is clearly not a case
involving the wholesale relocation of M r . Martin’s farm or
business. At issue is the removal of trees from a strip of land
included within a larger parcel from which M r . Martin
periodically harvests timber. M r . Martin will likely be able to
harvest timber from the remainder of the parcel. As Portland Gas
has conceded in its memorandum in opposition to M r . Martin’s
first motion for a TRO, M r . Martin may be compensated in this
proceeding for the value of timber removed from his property,
along with the compensation he may receive for the loss of
ornamental trees, damage to a spring, and alteration of the
property’s character because of a permanent utility corridor.
See generally RSA 371:15, III (owner may recover damages).
Mr. Martin’s contention is that Portland Gas’s cutting of
standing timber satisfies the part of the cited definition
referring to the movement of M r . Martin’s “personal property.”
Mr. Martin’s reading of the regulation is not consistent with the
meaning of “personal property” implied in the regulatory
provision cited in the definition relating to the payment for
moving expenses for any “farm operation which qualifies as a
displaced person,” 49 C.F.R. § 24.303. The regulation, which
12 relates to such matters as storage, packing, and disconnecting
personal property, contains no provision suggesting that Portland
Gas’s removal of growing timber from a right of way acquired by a
quick take procedure, is intended to make M r . Martin into a
“person who moves . . . his or her personal property,” 49 C.F.R.
§ 24.2(g). C f . Plumer v . Prescott, 43 N.H. 2 7 7 , 278 (1861)
(until cut, trees “may be regarded as part of the soil in which
they are rooted,” not as personal property); accord Nutting v .
Stratton, 77 N.H. 7 9 , 8 0 , 87 A . 2 5 1 , 251-52 (1913). Thus, M r .
Martin is not a displaced person under the regulations. Because
Mr. Martin’s case is not covered by the regulations, he is not
entitled to any relief based on these regulations.
B. Entitlement to Preliminary Injunctive Relief
Even if the regulations could be construed as providing M r .
Martin with a right to earlier notice of a specific date, an
order removing Portland Gas from possession at this time would
not be a proper remedy, based on the evidence of equitable
factors produced by M r . Martin in support of his request for such
preliminary relief. See Weinberger v . Romero-Barcelo, 456 U.S.
305, 313 (1982) (“a federal judge sitting as chancellor is not
mechanically obligated to grant an injunction for every violation
of law”); Narragansett Indian Tribe v . Guilbert, 934 F.2d 4 , 5
(1st Cir. 1991) (setting forth four-part test for preliminary
13 injunctions, including irreparable harm and balance of equities).
In this case, as in most eminent domain cases, “just
compensation will take the form of money to compensate a property
owner for a physical invasion.” Wisconsin Cent. Ltd. v . Public
Serv. Com'n, 95 F.3d 1359, 1369 (7th Cir. 1996). “With the
question being one of monetary compensation, a plaintiff would be
hard pressed to demonstrate either irreparable harm or an
inadequate remedy at law.” Id. The harm alleged by M r . Martin
includes the removal of trees from a tree farm and the clearing
of a utility corridor on a portion of a farm dating back to the
colonial period. Trees can be replanted, and cleared land
revegetated. Compensation for losses is available in the award
of just compensation or damages. Therefore, in this case, M r .
Martin has not made a sufficient showing of irreparable harm.5
USG Pipeline C o . v . 1.74 Acres, 1 F. Supp.2d 816, 825 (E.D. Tenn.
1998) (“If Defendants are successful in having the FERC's
decision overturned, Defendants' property could be restored
5 A West Virginia case cited by M r . Martin, Bettman v . Harness, 26 S.E. 271 (W. V a . 1896), regarding a claim of competing owners of mineral rights relating to the pumping of oil and gas from private land, is inapposite. The Bettman court found that equitable relief is not available in an ordinary trespass action, but is available to enjoin the removal of oil and gas, an exhaustible resource. Bettman did not concern an eminent domain case such as this, where diminished property value may be compensated, cleared land running through a tree farm can be restored, and buried pipe can be removed.
14 substantially to the condition it was in prior to the incursion.
Monetary damages could also be awarded to compensate Defendants
for the trespass to their properties, as well as any damages to
their properties.”).
Mr. Martin has not demonstrated any prejudice as a result of
the lack of notice of a date certain, while counsel for Portland
Gas represented as to M r . Martin’s first request for a TRO that
his client would suffer increased costs if the project were
delayed or rerouted. M r . Martin was aware that Portland Gas
intended to obtain the easements months before construction
began. On the date on which he received Portland Gas’s motion to
enter, more than a month before Portland Gas actually started to
cut down trees, M r . Martin was notified of Portland Gas’s
intention to enter his land “immediately.”
Mr. Martin has also not demonstrated how an injunction to
rectify lack of notice would be anything more than a paper
exercise since Portland Gas could resume construction after the
notice period expired. While M r . Martin contends that the D.C.
Circuit will soon issue a stay of further construction because
his property may be included on the National Register of Historic
Places, the prospect of such a stay remains speculative. Mr.
Martin has no right to an automatic stay. See 15 U.S.C.
§ 717r(c). M r . Martin has not filed a request for a stay with
15 the D.C. Circuit. He has represented that he will not do so
until he receives a ruling from the Department of the Interior
regarding the inclusion of his property on the Register. The
D.C. Circuit may deny his stay application. Therefore, even if
the cited regulation on notice covered M r . Martin, ordering
Portland Gas off the easements for failing to provide notice of a
date certain when trees would be cut would not be an appropriate
equitable remedy, in light of the evidence in the record.
III. Motion for Alternate TRO
In his second motion for a TRO or other preliminary
injunctive relief, M r . Martin cites two bases for ordering
Portland Gas off of the land at issue. First, M r . Martin
contends that the July 1998 Order granting a right of entry and
possession to Portland Gas was invalid because of Portland Gas’s
noncompliance with Condition 3 1 , and FERC’s noncompliance with
the National Historic Preservation Act, 16 U.S.C. § 470f, at the
time the Order was issued. As explained previously, the argument
as to Condition 31 is without merit, and, since it relates to the
validity of the FERC certificates, the claim as to section 470f
is not within the district court’s subject matter jurisdiction,
see 15 U.S.C. § 717r.
Mr. Martin’s second basis for such preliminary relief is
that Portland Gas has failed to comply with Conditions 17 or 19
16 of its certificate.6 These conditions relate to certain pre- and
post-construction reports relating to well or spring locations
and yields.7 In its August 2 0 , 1998 letter to Portland Gas, FERC
specifically authorized construction of the pipeline across M r .
Martin’s land, subject to compliance with Conditions 17 and 1 9 .
M r . Martin cites no authority for the proposition that the district court has the jurisdiction in an eminent domain
proceeding under the Natural Gas Act to ensure that a holder of a
FERC certificate has complied with FERC’s conditions. This
6 Mr. Martin’s motion refers only to Condition 1 7 . His arguments suggest, however, that his concerns relate in fact to Condition 1 9 . At the hearing on his motion, counsel for Portland Gas represented that it had provided evidence to M r . Martin on the morning of the hearing demonstrating that Portland Gas had fully complied with Condition 1 9 . 7 Conditions 17 and 19 provide as follows:
17. Prior to construction the applicants shall file with the Secretary [of FERC] the locations of all wells and springs identified within 150 feet of the construction work area. The applicants shall indicate the distance and directions of each well or spring from both the pipeline centerline and construction work area and indicate whether they are public or private. . . . 1 9 . The applicants shall conduct, with the well- or spring- owner’s permission, pre- and post-construction monitoring of well or spring yield and water quality for all wells or springs within 150 feet of pipeline construction activities that are used for drinking water. Within 30 days of placing the facilities in service, the applicants shall file a report with the Secretary discussing any complaints concerning well or spring yield or water quality and how they were resolved.
17 court’s jurisdiction extends solely to examining the scope of the
certificate and ordering condemnation of property as authorized
in the certificate. See Tennessee Gas I I , 2 F. Supp.2d at 110
(D. Mass. 1998). The district court does not have the authority
to enforce compliance with pre-construction conditions.
The relevant statute and regulations place the power to
police compliance squarely upon FERC. FERC’s authority for
imposing such conditions is provided in 15 U.S.C. § 717f(e): “The
Commission shall have the power to attach to the issuance of the
certificate and to the exercise of the rights granted thereunder
such reasonable terms and conditions as the public convenience
and necessity may require.” Section 717m authorizes FERC to
investigate violations of provisions of FERC’s orders, see 15
U.S.C. § 717m(a), and FERC regulations specify procedures for
such investigations, see 18 C.F.R. §§ 1b.1 - . 2 0 . In accordance
with 18 C.F.R. § 1b.8, any person may request that FERC institute
an investigation. FERC can bring an action in district court to
enforce its orders. See 15 U.S.C. § 717s(a).
Condition 2 of the certificate clearly specifies that the
agency has the authority to police compliance with Conditions 17
and 1 9 . Under Condition 2 , FERC declared that the Director of
the Office of Pipeline Regulation (“OPR”) has the delegated
authority to ensure compliance, to issue stop work orders, to
18 modify the conditions, or to impose additional measures, as
necessary “to assure continued compliance with the intent of the
environmental conditions as well as the avoidance or mitigation
of adverse environmental impact resulting from project
construction and operation.” Therefore, M r . Martin may complain
to OPR should he believe that Portland Gas has not complied with
FERC’s conditions. OPR may thereafter investigate and issue an
appropriate order, including a stop work order. M r . Martin may
appeal any order issued by FERC to the Courts of Appeals in
accordance with 15 U.S.C. § 717r.
Under the doctrine of exhaustion of administrative remedies,
Mr. Martin must present his concerns to FERC first. The
doctrine, in the context of cases where Congress has not required
exhaustion, is applied to prevent resort to judicial relief until
after prescribed administrative remedies have been exhausted.
See Portela-Gonzalez v . Secretary of the Navy, 109 F.3d 7 4 , 77
(1st Cir. 1997).
This case presents no facts justifying a departure from the
procedure of allowing the agency to deal with the issue first.
See id. (factors justifying relaxation of exhaustion doctrine
include risk of unreasonable delay, particularly if such delay
may result in irreparable harm, lack of agency procedures to
grant meaningful redress, or agency bias). While M r . Martin
19 represented that he telephoned FERC’s enforcement office, M r .
Martin has not shown that he followed the procedures set forth in
18 C.F.R. § 1b.8 for filing a complaint. He has neither alleged
FERC bias, nor provided evidence on which I can find a likelihood
of unreasonable delay.
While M r . Martin maintains that construction of the pipeline
may result in irreparable harm to an aquifer (because gravel used
as a bed for the pipeline “may well conduct the flow of water
away from the spring”), he has not advanced an argument that
complaining first to FERC will result in irreparable harm. His
argument is rather that this court’s schedule for considering his
TRO motion entailed delays that probably already resulted in such
irreversible injury. The upshot is thus that the entire issue of
irreparable harm may be moot at this time, not that M r . Martin
has no obligation to present his complaint to FERC in the first
place, pursuant to FERC’s regulations and Condition 2 .
FERC is not a party to this proceeding. FERC has declared
that its Office of Pipeline Regulation has the authority to issue
a stop work order under Condition 2 . FERC has the fact-finding
ability and the flexibility that the court lacks in this context
to police compliance, to modify existing conditions, or to impose
additional measures to ensure that the intent of the
environmental conditions will be met. M r . Martin’s recourse for
20 his concerns thus lies with FERC in the first instance.
Finally, M r . Martin argues that this court should exercise
its inherent authority to issue preliminary relief in order to
preserve his ability to challenge FERC orders in the D.C.
Circuit. Since the D.C. Circuit has held that a similar
challenge was not moot because of an allegation that an
operational pipeline continued to harm aesthetic interests, see
Moreau v . FERC, 982 F.2d 556, 566 n.4 (D.C. Cir. 1993), M r .
Martin will likely be able to pursue his claims in the D.C.
Circuit, even if construction on his land is completed.
Therefore, in light of M r . Martin’s failure to demonstrate
that this court has jurisdiction in this context to review
Portland Gas’s compliance with the certificate conditions, M r .
Martin has failed to demonstrate a substantial likelihood of
prevailing on the merits. Since this is the sine qua non of the
quadripartite test for granting a preliminary injunction, M r .
Martin’s motion for an alternate TRO is denied. See Weaver v .
Henderson, 984 F.2d 1 1 , 12 (1st Cir. 1993) (citing Lebeau v .
Spirito, 703 F.2d 639, 645 (1st Cir. 1983)).
Conclusion
Mr. Martin has demonstrated that he is not interested in
exploiting his farmland for profit in this litigation. He has
represented that he has not subdivided his land or attempted to
21 change its historical land uses. His preservation motive is
evident in his effort to have his property listed on the National
Register of Historic Places.
This court’s jurisdiction is limited. The primary purpose
of an eminent domain proceeding is to provide just compensation
and damages, as appropriate, to affected landowners. Even the
potential loss of aesthetic or cultural values that M r . Martin
perceives to be incalculable may be compensated. See, e.g.,
United States ex rel. TVA v . Easement in Logan County, 336 F.2d
7 6 , 80 (6th Cir. 1964) (upholding calculation of lost aesthetic
value resulting from erection of power lines on farm property);
cf. generally Annotation, Unsightliness of Powerline or Other
Wire or Related Structure, as Element of Damages in Easement
Condemnation Proceeding, 97 A.L.R.3d 587 (1980).
For the reasons set forth above, M r . Martin’s motion for a
90-day letter (document n o . 9 ) , his motion under Rule 12(h)(3)
(document n o . 2 0 ) , his motion for relief (document n o . 7 ) , and
his motion for an alternate TRO (document n o . 23) are all denied.
SO ORDERED.
James R. Muirhead United States Magistrate Judge Date: November 3 , 1998
cc: Frederick W . Martin, pro se Michael D. Ramsdell, Esq.