Williams Ohio Valley Midstream, LLC v. Phillip Kittle

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 8, 2024
• Docket: 23-2185
• Status: Unpublished

Opinion

USCA4 Appeal: 23-2185 Doc: 31 Filed: 07/08/2024 Pg: 1 of 11

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-2185

WILLIAMS OHIO VALLEY MIDSTREAM, LLC, a foreign company,

Plaintiff – Appellee,

v.

PHILLIP A. KITTLE, West Virginia resident; DEBORAH K. KITTLE, West Virginia resident,

Defendants – Appellants.

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:23-cv-00310-JPB)

Argued: May 8, 2024 Decided: July 8, 2024

Before WYNN and BENJAMIN, Circuit Judges, and KEENAN, Senior Circuit Judge.

Reversed by unpublished opinion. Judge Benjamin wrote the opinion, in which Judge Wynn and Senior Judge Keenan joined.

ARGUED: Joy Melina Diaz Llaguno, HOOK & HOOK PLLC, Waynesburg, Pennsylvania, for Appellants. Mychal Sommer Schulz, BABST, CALLAND, CLEMENTS, ZOMNIR, P.C., Charleston, West Virginia, for Appellee. ON BRIEF: Matthew R. Miller, HOOK & HOOK, PLLC, Waynesburg, Pennsylvania, for Appellants. Robert M. Stonestreet, BABST CALLAND, P.C., Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-2185 Doc: 31 Filed: 07/08/2024 Pg: 2 of 11

DEANDREA GIST BENJAMIN, Circuit Judge:

Williams Ohio Valley Midstream, LLC (“WOVM”) commenced this action against

Phillip and Deborah Kittle (“Kittles”), challenging the Kittles’ denial of access to the

Kittles’ property. Without access, WOVM could not perform mitigation and maintenance

work on its natural gas pipelines situated along easements across the property. WOVM

alleged a mining operation set to take place beneath the Kittles’ property threatened to

damage its pipelines. An agreement governed the scope of the parties’ property rights and

authorized certain pipeline-related activities. WOVM sued the Kittles for breach of

contract and sought a preliminary injunction to enjoin the Kittles’ obstructive conduct. The

district court adopted WOVM’s verified statement of facts to grant a preliminary

injunction, finding it satisfied all four factors in Winter v. Natural Resources Defense

Council, Inc., 555 U.S. 7 (2008). The Kittles appealed the decision. Finding no evidence

in the record to satisfy irreparable harm, we hold the district court abused its discretion in

granting a preliminary injunction. We reverse the grant of preliminary injunction. 1

I.

A.

The Kittles reside on property they own in Marshall County, West Virginia.

WOVM operates as a midstream company in the oil and gas industry where it owns and

1 Consistent with the amended verified complaint, we refer to the “right of way” as a singular right of way. J.A. 194 ¶ 19.

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operates pipelines and facilities that “transport, process, and store natural gas produced by

others.” J.A. 192. It owns a system of pipelines under the Kittles’ property. In 2010, the

Kittles entered a Pipeline Right of Way Agreement (Agreement) with the predecessor-in-

interest to WOVM, Caiman Eastern Midstream, LLC. The granting language conveys:

[t]wo (2) permanent rights of way and easements to locate, lay, operate, maintain, repair, replace, and remove pipelines, with the right to make connections thereto, change the size of, re-lay such pipelines, and/or lay additional pipelines at any time . . . for the transportation of . . . natural gas . . . wherever produced on, over, through, under, and across the lands of [the Kittles], with the right of ingress and egress to and from such pipelines.

J.A. 133.

The “Facilities” section grants “TWO (2) Thirty foot wide (30’) Pipeline Easements

for the construction of four (4) pipelines.” Id. The first easement is for the “installation of

one twelve-inch (12”) pipeline and one four-inch (4”) pipeline,” to be “constructed in the

same ditch and within the same thirty-foot wide permanent easement.” Id. The second

easement is for the “future installation of two (2) additional pipelines . . . to be constructed

in the same ditch and within the same thirty-foot wide permanent easement,” granted

“specifically for the purpose of connecting future well or wells that may be drilled on [the

Kittles’] property (well connect lines).” Id.

The Agreement describes the “right of way” as:

two (2) permanent easements, each being thirty (30) feet in width and centered on the pipelines as installed . . . During temporary periods, [WOVM] shall have the right to use up to twenty (20) additional feet along and adjacent to said right of way in connection with construction, maintenance, repair, removal, replacement, and/or any other right granted [under the Agreement].

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Id. Last, the Kittles have “full . . . use and enjoy[ment]” of the property, “except as may

conflict with the rights granted” to WOVM under the Agreement. J.A. 134.

B.

The following facts are alleged in WOVM’s amended verified complaint. It

received notice a longwall coal mining operation would take place beneath the Kittles’

property starting on October 23, 2023. The operation removes coal deposits and causes

the roof of the mine to collapse. The collapse causes soil movement near the mine surface

as materials fall into the void created from the coal removal. The mining threatened to

cause a leak, rupture, or other physical damage to WOVM’s pipelines beneath the Kittles’

property. As such, WOVM required access to the right of way and easements to begin

mitigation and maintenance work to stabilize the pipelines before the mining operation

arrived.

In September 2023, WOVM entered the Kittles’ property to begin its maintenance

work. It excavated the pipelines located on the first easement and stored the extra soil on

the first and second easements. But before the work was done, the Kittles positioned a

tractor trailer that blocked entry and exit to the easements. The obstruction frustrated

WOVM’s pipeline-related mitigation and maintenance efforts and progress on the project

stalled.

WOVM sued the Kittles and moved for a temporary restraining order. WOVM

brought a claim for breach of contract against the Kittles. It alleged the Kittles breached

the parties’ agreement that granted WOVM access to a right of way and easements across

the property to perform pipeline-related maintenance work. The breach cost WOVM

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thousands of dollars in delay costs. WOVM also brought claims for temporary and

permanent injunctive relief. It sought to enjoin the Kittles from obstructing its access, and

alleged unless it “immediately gain[ed] access to the right of way,” it could not complete

the necessary pipeline-related mitigation and maintenance work before the longwall coal

mining operations arrived. J.A. 202 ¶ 58.

C.

The district court held a hearing on WOVM’s motion on October 17, 2023. Counsel

for WOVM told the court the circumstances underlying its original request for injunctive

relief had changed. WOVM had implemented a creative workaround in response to the

longwall coal mining operation that “alleviated” the “urgent need” to remove the tractor

trailer. J.A. 177–78. It spent nearly $200,000 to excavate pipelines located on the first

easement and stored the extra soil on the first easement.

Despite this undertaking, WOVM still required access to the right of way for

“slightly less urgent” reasons. J.A. 178. It had also temporarily placed loose soil excavated

from the pipelines on the first easement onto the second easement. WOVM needed to

secure the loose soil to prevent it from drifting off the property, and to check environmental

controls it set up along the right of way. Failure to do so could result in a notice of permit

violation from the West Virginia Department of Environmental Protection. Counsel for

WOVM also told the court, “[a] [Department of Environmental Protection] inspector could

show up this afternoon, tomorrow morning, maybe never.” J.A. 186.

The parties debated the language of the Agreement. WOVM argued the Agreement

granted one single right of way divided into two easements such that the Agreement

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authorized its pipeline-mitigation and maintenance work. The Kittles argued the

Agreement granted two separate rights of way tied to two separate easements, each limited

to a specific use. They argued WOVM’s work on the second easement was unauthorized

by the Agreement.

The district court held the Agreement unambiguously created one singular right of

way comprised of two different easements that included the right to maintain and repair

the pipelines, and that this work was necessary due to the coming longwall coal mining

operation. The court told WOVM to file an amended complaint to reflect the changed

nature of its request for injunctive relief along with a proposed order granting preliminary

injunction. WOVM complied with the court’s instructions. The district court adopted

WOVM’s proposed order to grant the motion for preliminary injunction.

The Kittles appealed the decision. We have jurisdiction over an appeal from the

district court’s grant of a preliminary injunction under 28 U.S.C. § 1292(a)(1).

II.

“We review a district court’s [grant] of a preliminary injunction for abuse of

discretion, reviewing factual findings for clear error and legal conclusions de novo.”

Leaders of a Beautiful Struggle v. Baltimore Police Dep’t, 2 F.4th 330, 339 (4th Cir. 2021).

A court abuses its discretion when it “rest[s] its decision on a clearly erroneous finding of

a material fact, or misapprehend[s] the law with respect to underlying issues in litigation.”

Id. (internal quotation marks omitted).

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“A preliminary injunction is an extraordinary remedy that may only be awarded

upon a clear showing that the [moving party] is entitled to such relief.” Mountain Valley

Pipeline, LLC v. W. Pocahontas Props. Ltd. P’ship, 918 F.3d 353, 366 (4th Cir. 2019)

(cleaned up). A party seeking a preliminary injunction must establish: “[1] that he is likely

to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of

preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction

is in the public interest.” Winter, 555 U.S. at 20. Each preliminary injunction factor must

be “satisfied as articulated.” Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 347 (4th

Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010).

III.

The Kittles believe the district court erroneously granted a preliminary injunction

because WOVM failed to establish the four factors required under Winter v. Natural

Resources Defense Council, Inc. After a review of the record, we agree that WOVM has

not satisfied all required Winter factors. Missing from the record is evidence that WOVM

would sustain irreparable injury absent the issuance of a preliminary injunction. The

district court therefore abused its discretion when it granted a preliminary injunction.

A plaintiff seeking preliminary relief must “demonstrate that irreparable injury is

likely in the absence of an injunction.” Roe v. Dep’t of Def., 947 F.3d 207, 229 (4th Cir.

2020) (quoting Winter, 555 U.S. at 22). A plaintiff must make a “clear showing” it will

suffer harm that is “ ‘ neither remote nor speculative, but actual and imminent.’ ”

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Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991) (internal

citation omitted). In addition, harm that is irreparable “cannot fully be rectified by the final

judgment after trial.” Mountain Valley Pipeline, LLC v. 6.56 Acres of Land, Owned by

Sandra Townes Powell, 915 F.3d 197, 216 (4th Cir. 2019) (internal citation omitted).

“Mere injuries, however insubstantial, in terms of money, time and energy necessarily

expended in the absence of [an injunction] are not enough.” Roe, 947 F.3d at 228 (internal

citations omitted). “The possibility that adequate compensatory or other corrective relief

will be available at a later date . . . weighs heavily against a claim of irreparable harm.” Di

Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017) (quoting Sampson v. Murray, 415

U.S. 61, 90 (1974)).

We begin our review of the district court’s grant of a preliminary injunction by

looking to the second Winter factor: irreparable harm. WOVM must make a clear showing

that it will suffer irreparable harm in the absence of preliminary relief. Our analysis begins

and ends here as the record does not contain evidence to satisfy irreparable harm.

The district court held WOVM satisfied irreparable harm, basing this conclusion on

several factual findings. First, WOVM was likely to sustain irreparable harm in the form

of “continued incurred costs without progress on the pipeline-related mitigation and

maintenance work before the longwall coal mining operation reached the Kittles’

property.” J.A. 228 ¶ 7. Second, WOVM would sustain irreparable harm because it would

not be able to mitigate potential damage to its pipelines from soil movement caused by the

mining operation. J.A. 228 ¶ 7. Last, WOVM would sustain irreparable harm if it could

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not seal and secure excavated soil stored on the first easement to prevent it from migrating

off the property, and if it could not maintain its environmental controls to comply with

permits issued by the West Virginia Department of Environmental Protection. Id. The

court explained that WOVM’s failure to satisfy either requirement “may subject [it] to

notices of [permit] violation from the [West Virginia Department of Environmental

Protection].” Id.

The court adopted the facts stated in WOVM’s proposed order granting a

preliminary injunction. The record, however, lacks an evidentiary basis to support a clear

showing of irreparable harm. The district court’s determination of irreparable harm is

erroneous in two ways.

First, the court disregarded circumstances that alleviated WOVM’s immediate need

to access the right of way. WOVM told the court the urgency of its original request—to

perform pipeline-related mitigation and maintenance work before the longwall coal mining

operation arrived—had been alleviated. WOVM paid to excavate pipelines located on the

first easement and temporarily stored the loose soil on the first and second easements.

Contrary to the district court’s finding, WOVM’s immediate need to access the right of

way in response to the mining operation had been resolved by this workaround. The

remaining injury consisted of WOVM’s continued incurred costs from delays. But injury

that may be remedied through monetary damages is insufficient to satisfy irreparable harm

under Winter. Di Biase, 872 F.3d at 230 (quoting Sampson, 415 U.S. at 90).

Second, the court erroneously found WOVM’s assertions related to possible permit

violations established irreparable injury. WOVM required access to the second easement

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for “slightly less urgent” reasons—to secure loose soil to stop it from drifting away, and to

check its environmental controls. J.A. 178. It would sustain irreparable harm if the West

Virginia Department of Environmental Protection issued a notice of permit violation for

not complying with these terms. At the motion hearing, counsel for WOVM essentially

conceded this injury was conjectural, stating that “[a] [Department of Environmental

Protection] inspector could show up this afternoon, tomorrow morning, maybe never.” J.A.

186. WOVM presented no evidence of a permit violation. Thus, its assertions of injury

are not actual and imminent and are too speculative to give rise to irreparable injury. See

Direx Israel, Ltd., 952 F.2d at 812.

The court adopted WOVM’s assertions of irreparable harm that are speculative and

unsupported by evidence. “Issuing a preliminary injunction based only on a possibility of

irreparable harm is inconsistent with our characterization of injunctive relief as an

extraordinary remedy that may only be awarded upon a ‘clear showing’ that the plaintiff is

entitled to relief.” Di Biase, 872 F.3d at 230 (quoting Winter, 555 U.S. at 22). Because

evidence of irreparable harm is absent from the record, we need not analyze any of the

remaining Winter factors to conclude that the district court abused its discretion in granting

a preliminary injunction. 2

2 On appeal, the parties debate whether the Agreement grants one single right of way, or two separate rights of ways tied to two separate easements. To this point, we note the Agreement implements inconsistent language. It both references a single “right of way” and “[t]wo (2) permanent rights of ways and easements.” J.A. 133–34. WOVM concedes as much. Oral Arg. 19:11–19. However, we decline to interpret the Agreement, or decide whether the inconsistent language creates a legal ambiguity. That issue goes to whether WOVM is likely to succeed on the merits of its breach of contract claim under the (Continued) 10 USCA4 Appeal: 23-2185 Doc: 31 Filed: 07/08/2024 Pg: 11 of 11

IV.

Evidence of irreparable harm is absent from the record. Therefore, the district court

abused its discretion when it granted a preliminary injunction, and the order is

REVERSED.

first Winter factor. We need not reach this factor because we hold the record lacks evidence to satisfy the second Winter factor: that WOVM sustained irreparable harm. This absence compels our conclusion that the district court abused its discretion when it granted a preliminary injunction.