East TN Natural Gas v. Sage ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
JOHN F. SAGE; LINDA K. SAGE,
Defendants-Appellants,
 No. 03-1708
and
1.20 ACRES IN WYTHE COUNTY,
VIRGINIA; MARY CASEL,
Commissioner of Revenue; JOHN
DOE, et al.; UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-107-4)
2 EAST TENNESSEE NATURAL GAS v. SAGE
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
MARGARET CLANTON,
Defendant-Appellant,
 No. 03-1709
and
.28 ACRES IN HENRY COUNTY,
VIRGINIA; LUCY CLARK,
Commissioner of Revenue; JOHN
DOE, et al.; UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-114-4)
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
SCOTT A. FONTAINE; LILLIE M.
FONTAINE,
Defendants-Appellants,  No. 03-1710
and
2.09 ACRES IN HENRY COUNTY,
VIRGINIA; LUCY CLARK,
Commissioner of Revenue; JOHN
DOE, et al.; UNKNOWN OWNERS,
Defendants.

EAST TENNESSEE NATURAL GAS v. SAGE 3
Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-120-4)
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
ALVA HOLLAND,
Defendant-Appellant,
 No. 03-1711
and
.54 ACRES IN HENRY COUNTY,
VIRGINIA; JANET M. HOLLAND; LUCY
CLARK, Commissioner of Revenue;
JOHN DOE, et al.; UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-123-4)
4 EAST TENNESSEE NATURAL GAS v. SAGE
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
MAYNARD R. JOYCE,
Defendant-Appellant,
 No. 03-1712
and
2.26 ACRES IN CARROLL COUNTY,
VIRGINIA; JANE A. HARRISON, County
Assessor; JOHN DOE, et al.;
UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-125-4)
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
ERVIN L. FRAZIER, JR.,
Defendant-Appellant,
 No. 03-1713
and
1.02 ACRES IN CARROLL COUNTY,
VIRGINIA; JANE A. HARRISON, County
Assessor; JOHN DOE, et al.;
UNKNOWN OWNERS,
Defendants.

EAST TENNESSEE NATURAL GAS v. SAGE 5
Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-126-4)
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
BARBARA G. VASS; DOSSIE G.V.
HALL, a/k/a Dossie Shockley Vass,
Defendants-Appellants,  No. 03-1714
and
1.59 ACRES IN CARROLL COUNTY,
VIRGINIA; JANE A. HARRISON, County
Assessor; JOHN DOE; UNKNOWN
OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-128-4)
6 EAST TENNESSEE NATURAL GAS v. SAGE
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
LAYTON RUSSELL HANCOCK; JOHN
WENDELL HANCOCK; SONIA LUCILLE
EASTER; UNA FAYE SAUNDERS;
WAYNE DWIGHT HANCOCK; HEIRS OF
ROYAL EARLY HANCOCK,
Defendants-Appellants,
and  No. 03-1715
2.57 ACRES IN CARROLL COUNTY,
VIRGINIA; JOHN DOE, et al.;
UNKNOWN OWNERS; JOSEPHINE H.
POWERS; RUDOLPH HANCOCK; ALENE
SUMNER; JAMES F. HANCOCK;
TALFORD CLAY HANCOCK; THOMAS
KENNETH HANCOCK; AVERETTE EARLY
HANCOCK; JANE A. HARRISON,
County Assessor,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-129-4)
EAST TENNESSEE NATURAL GAS v. SAGE 7
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
H. WADE BAKER; LOLA W. BAKER,
Defendants-Appellants,
 No. 03-1716
and
1.91 ACRES IN CARROLL COUNTY,
VIRGINIA; JOHN DOE, et al.;
UNKNOWN OWNERS; JANE A.
HARRISON, County Assessor,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-132-4)
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
GREGORY L. SEIBERT,
Defendant-Appellant,  No. 03-1717
and
.45 ACRES IN CARROLL COUNTY,
VIRGINIA; JANE A. HARRISON; JOHN
DOE, et al.; UNKNOWN OWNERS,
Defendants.

8 EAST TENNESSEE NATURAL GAS v. SAGE
Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-133-4)
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
ROBIN MARIE SEIBERT; GREGORY L.
SEIBERT,
Defendants-Appellants,  No. 03-1718
and
.61 ACRES IN CARROLL COUNTY,
VIRGINIA; JANE A. HARRISON, County
Assessor; JOHN DOE, et al.;
UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-134-4)
EAST TENNESSEE NATURAL GAS v. SAGE 9
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
HELEN E. MELTON; CHARLOTTE A.
EDWARDS,
Defendants-Appellants,  No. 03-1719
and
JANE A. HARRISON, County Assessor;
JOHN DOE, et al.; UNKNOWN OWNERS;
4.76 ACRES IN CARROLL COUNTY,
VIRGINIA,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-135-4)
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
RALPH D. HOWELL; MABEL FULCHER,
Defendants-Appellants,
 No. 03-1720
and
ROSE C. HOWELL; JOHN DOE, et al.;
C. JERRY LOVE, Commissioner of
Revenue; UNKNOWN OWNERS; 3.18
ACRES IN PATRICK COUNTY, VIRGINIA,
Defendants.

10 EAST TENNESSEE NATURAL GAS v. SAGE
Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-138-4)
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
MELVIN A. THOMAS,
Defendant-Appellant,
 No. 03-1721
and
1.40 ACRES IN PATRICK COUNTY,
VIRGINIA; JOHN DOE, et al.; C. JERRY
LOVE, Commissioner of Revenue;
UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-140-4)
EAST TENNESSEE NATURAL GAS v. SAGE 11
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
JOHN M. LEWIS; CORNELIA A. LEWIS,
Defendants-Appellants,
 No. 03-1722
and
C. JERRY LOVE, Commissioner of
Revenue; JOHN DOE, et al.;
UNKNOWN OWNERS; .37 ACRES IN
PATRICK COUNTY, VIRGINIA,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-142-4)
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
EARL R. POTTER; JOAN A. POTTER,
Defendants-Appellants,
 No. 03-1723
and
C. JERRY LOVE, Commissioner of
Revenue; JOHN DOE, et al.;
UNKNOWN OWNERS; .60 ACRES IN
PATRICK COUNTY, VIRGINIA,
Defendants.

12 EAST TENNESSEE NATURAL GAS v. SAGE
Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-145-4)
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
JERRY S. THOMAS; BETTY B. THOMAS,
Defendants-Appellants,
 No. 03-1724
and
3.04 ACRES IN PATRICK COUNTY,
VIRGINIA; JOHN DOE, et al.;
UNKNOWN OWNERS; C. JERRY LOVE,
Commissioner of Revenue,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-146-4)
EAST TENNESSEE NATURAL GAS v. SAGE 13
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
NANCY U. STANLEY,
Defendant-Appellant,
 No. 03-1725
and
3.62 ACRES IN PATRICK COUNTY,
VIRGINIA; C. JERRY LOVE,
Commissioner of Revenue; JOHN
DOE, et al.; UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-150-4)
14 EAST TENNESSEE NATURAL GAS v. SAGE
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
OTRA MARTIN; EDNA LOU MARTIN
SMART; ELLEN M. FULCHER; HARVEY
GLENN FULCHER,
Defendants-Appellants,  No. 03-1726
and
3.81 ACRES IN PATRICK COUNTY,
VIRGINIA; C. JERRY LOVE,
Commissioner of Revenue; JOHN
DOE, et al.; UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-153-4)
EAST TENNESSEE NATURAL GAS v. SAGE 15
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
ROBERT E. MEADOWS; MARION C.
MEADOWS,
Defendants-Appellants,  No. 03-1727
and
.94 ACRES IN PATRICK COUNTY,
VIRGINIA; C. JERRY LOVE,
Commissioner of Revenue; JOHN
DOE, et al.; UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-155-4)
16 EAST TENNESSEE NATURAL GAS v. SAGE
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
WILLIAM TROY STRICKLAND; SUSAN
M. STRICKLAND,
Defendants-Appellants,  No. 03-1728
and
1.13 ACRES IN PATRICK COUNTY,
VIRGINIA; C. JERRY LOVE,
Commissioner of Revenue; JOHN
DOE, et al.; UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-160-4)
EAST TENNESSEE NATURAL GAS v. SAGE 17
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
JAMES A. KEESEE; JOANNE RICHMOND
KEESEE,
Defendants-Appellants,  No. 03-1729
and
1.58 ACRES IN PATRICK COUNTY,
VIRGINIA; C. JERRY LOVE,
Commissioner of Revenue; JOHN
DOE, et al.; UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-168-4)
18 EAST TENNESSEE NATURAL GAS v. SAGE
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
THOMAS C. WILLIAMS, JR.; JEANNIE
B. WILLIAMS,
Defendants-Appellants,  No. 03-1730
and
3.27 ACRES IN WYTHE COUNTY,
VIRGINIA; MARY CASEL,
Commissioner of Revenue; JOHN
DOE, et al.; UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-185-4)
EAST TENNESSEE NATURAL GAS v. SAGE 19
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
ANISSA J. BRADY, a/k/a Anissa
Holland,
Defendant-Appellant,  No. 03-1731
and
.65 ACRES IN CARROLL COUNTY,
VIRGINIA; JANE A. HARRISON, County
Assessor; JOHN DOE, et al.;
UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-197-4)
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
CHARLES K. WEBB; LENA WEBB,
Defendants-Appellants,
 No. 03-1732
and
.64 ACRES IN CARROLL COUNTY,
VIRGINIA; JANE A. HARRISON, County
Assessor; JOHN DOE, et al.;
UNKNOWN OWNERS,
Defendants.

20 EAST TENNESSEE NATURAL GAS v. SAGE
Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-198-4)
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
CALVIN HUGH WEBB; LINVOL OSCAR
WEBB; WENDELL WAYNE WEBB,
Defendants-Appellants,  No. 03-1733
and
3.38 ACRES IN CARROLL COUNTY,
VIRGINIA; JOHN DOE, et al.; JANE A.
HARRISON, County Assessor;
UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-202-4)
EAST TENNESSEE NATURAL GAS v. SAGE 21
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
ALVA JACKSON HORTON; HEATH
WEBB,
Defendants-Appellants,  No. 03-1734
and
1.60 ACRES IN CARROLL COUNTY,
VIRGINIA; JANE A. HARRISON, County
Assessor; JOHN DOE, et al.;
UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-203-4)
22 EAST TENNESSEE NATURAL GAS v. SAGE
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
GEORGE LEWIS WEBB; EDWARD PAUL
WEBB; ROGER LEE WEBB; JOEL RAY
WEBB,
Defendants-Appellants,  No. 03-1735
and
.30 ACRES IN CARROLL COUNTY,
VIRGINIA; JANE A. HARRISON, County
Assessor; JOHN DOE, et al.;
UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-208-4)
EAST TENNESSEE NATURAL GAS v. SAGE 23
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
DOROTHEA W. BRYANT,
Defendant-Appellant,
 No. 03-1736
and
1.23 ACRES IN CARROLL COUNTY,
VIRGINIA; JANE A. HARRISON, County
Assessor; JOHN DOE, et al.;
UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-211-4)
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
CLYDE HOLLAND; SHIRLEY HOLLAND,
Defendants-Appellants,
 No. 03-1737
and
5.2 ACRES IN HENRY COUNTY,
VIRGINIA; LUCY CLARK,
Commissioner of Revenue; JOHN
DOE, et al.; UNKNOWN OWNERS,
Defendants.

24 EAST TENNESSEE NATURAL GAS v. SAGE
Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-212-4)
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
L. J. RECTOR; CHARIS JEAN RECTOR;
JOHNNY J. RECTOR; JOE RECTOR,
Defendants-Appellants,  No. 03-1738
and
3.98 ACRES IN SMYTH COUNTY,
VIRGINIA; RICHARD WALKER,
Commissioner of Revenue; JOHN
DOE, et al.; UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-216-4)
EAST TENNESSEE NATURAL GAS v. SAGE 25
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
FRED TOLLEY; GUIDA TOLLEY,
Defendants-Appellants,
 No. 03-1739
and
4.0 ACRES IN WYTHE COUNTY,
VIRGINIA; MARY CASEL,
Commissioner of Revenue; JOHN
DOE, et al.; UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-218-4)
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
JAMES FOGELSONG; GLEN STUART
FOGELSONG,
Defendants-Appellants,  No. 03-1740
and
2.64 ACRES IN WYTHE COUNTY,
VIRGINIA; MARY CASEL,
Commissioner of Revenue; JOHN
DOE, et al.; UNKNOWN OWNERS,
Defendants.

26 EAST TENNESSEE NATURAL GAS v. SAGE
Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-221-4)
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
WEAVER ENTERPRISES, INCORPORATED,
Defendant-Appellant,
 No. 03-1741
and
11.42 ACRES IN WYTHE COUNTY,
VIRGINIA; MARY CASEL,
Commissioner of Revenue; JOHN
DOE, et al.; UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-182-4)
EAST TENNESSEE NATURAL GAS v. SAGE 27
EAST TENNESSEE NATURAL GAS 
COMPANY,
Plaintiff-Appellee,
v.
RONNIE LYNN GOFORTH; SUSAN D.
GOFORTH; 3.51 ACRES/WYTHE
COUNTY,  No. 03-1797
Defendants-Appellants,
and
MARY CASEL, Commissioner of
Revenue; JOHN DOE, et al.;
UNKNOWN OWNERS,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-02-215-4)
Argued: September 25, 2003
Decided: March 22, 2004
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by published opinion. Judge Michael wrote the opinion, in
which Judge Niemeyer and Judge Motz joined.
COUNSEL
ARGUED: Joseph Thomas Waldo, WALDO & LYLE, P.C., Nor-
folk, Virginia; William B. Hopkins, Jr., MARTIN, HOPKINS &
28 EAST TENNESSEE NATURAL GAS v. SAGE
LEMON, P.C., Roanoke, Virginia; Gary Michael Bowman, Roanoke,
Virginia, for Appellants. Lela Merrell Hollabaugh, WALLER, LANS-
DEN, DORTCH & DAVIS, Nashville, Tennessee, for Appellee. ON
BRIEF: Joseph L. Lyle, Jr., Jeremy P. Hopkins, WALDO & LYLE,
P.C., Norfolk, Virginia; Allen Wayne Dudley, Jr., FURROW &
DUDLEY, P.C., Rocky Mount, Virginia, for Appellants. Michael S.
Mizell, WALLER, LANSDEN, DORTCH & DAVIS, Nashville, Ten-
nessee, for Appellee.
OPINION
MICHAEL, Circuit Judge:
The Natural Gas Act (NGA or the Act), 15 U.S.C. § 717f(h), gives
a gas company the power to acquire property by eminent domain, but
the Act does not provide for immediate possession, that is, possession
before just compensation is determined and paid in a condemnation
action. The main question in this appeal is whether a gas company
can obtain immediate possession through the equitable remedy of a
preliminary injunction. We hold that it can. We also hold that the dis-
trict court properly granted preliminary injunctive relief to the gas
company in the several cases consolidated in this appeal; we therefore
affirm the injunction orders.
I.
East Tennessee Natural Gas Company (ETNG) is a regional gas
transportation company. Several years ago the company developed
plans for what it calls the Patriot Project, a project to construct an
interstate gas pipeline, twenty-four inches in diameter and about
ninety-four miles long, through portions of Tennessee, Virginia, and
North Carolina. Before a gas company like ETNG can build and oper-
ate a new pipeline, it must obtain a certificate of public convenience
and necessity from the Federal Energy Regulatory Commission
(FERC or the Commission). The procedure for obtaining a certificate
from FERC is set forth in the NGA, 15 U.S.C. § 717 et seq., and its
implementing regulations, 18 C.F.R. § 157.1 et seq. The process
begins with an application from the gas company that includes,
EAST TENNESSEE NATURAL GAS v. SAGE 29
among other information, (1) a description of the proposed pipeline
project, (2) a statement of the facts showing why the project is
required, and (3) the estimated beginning and completion date for the
project. 15 U.S.C. § 717f(d); 18 C.F.R. § 157.6(b). Notice of the
application is filed in the Federal Register, 15 U.S.C. § 157.9, public
comment and protest is allowed, id. § 157.10, and FERC conducts a
public hearing on the application, id. § 157.11. As part of its evalua-
tion, FERC must also investigate the environmental consequences of
the proposed project and issue an environmental impact statement.
See 42 U.S.C. § 4332. At the end of the process FERC issues a certifi-
cate if it finds that the proposed project "is or will be required by the
present or future public convenience and necessity." 15 U.S.C.
§ 717f(e). In its order issuing a certificate, FERC specifies a date for
the completion of construction and the start of service. 18 C.F.R.
§ 157.20(b). The certificate may include any terms and conditions that
FERC deems "required by the public convenience and necessity." Id.
§ 157.20. Once FERC has issued a certificate, the NGA empowers the
certificate holder to exercise "the right of eminent domain" over any
lands needed for the project. 15 U.S.C. § 717f(h).
On July 26, 2001, ETNG filed its application for a certificate of
public convenience and necessity for the Patriot Project. See Prelimi-
nary Determination of Non-Environmental Issues 1, 98 FERC
¶ 61331, 2002 WL 471183 (2002). Notice of the application was pub-
lished in the Federal Register on August 9, 2001. Id. at 4. Thereafter,
approximately 200 interested parties submitted comments or protests,
id. at 4, appendix, and FERC held several public hearings on the
application. FERC released its preliminary determination on March
27, 2002. In this document, which did not cover environmental issues,
the Commission found that the Patriot Project would help satisfy the
growing energy needs in portions of the three-state area of Tennessee,
Virginia, and North Carolina. Specifically, the project would supply
gas to new electric generation plants, meet the needs of local utilities
for additional gas, and bring gas service to portions of southwestern
Virginia for the first time. Id. at 15. The preliminary determination
also noted that "there may be some adverse impacts on landowners
from the construction of the project." Id. After weighing these and
other factors, FERC concluded that, subject to consideration of envi-
ronmental issues, the public benefits of the Patriot Project would out-
weigh any adverse impacts. Id. at 1. The Commission then moved to
30 EAST TENNESSEE NATURAL GAS v. SAGE
the environmental review process. Again, the public and interested
parties were invited to submit comments and to participate in public
meetings. Order Denying Re-hearing, Authorizing Abandonment, and
Issuing Certificate 13-14, 101 FERC ¶ 61188, 2002 WL 31973796
(2002). On September 22, 2003, the Commission issued its final envi-
ronmental impact statement (FEIS). Id. at 14. The FEIS recommended
a number of mitigation measures that ETNG should take to avoid or
minimize environmental damage. Id. at 14-19. In the end, the FEIS
concluded that construction and operation of the Patriot Project would
result in limited adverse environmental impacts. Id. at 30.
FERC’s sixteen-month review of ETNG’s application ended on
November 20, 2002, when the Commission by formal order issued
ETNG a certificate of public convenience and necessity. Id. at 1. The
FERC order confirms that "[i]ssuance of the certificate . . . permits
[ETNG] to acquire land for the pipeline by eminent domain, if it can-
not reach agreement with the owner of land authorized." Id. at 20. The
order requires ETNG to complete construction and make the pipeline
available for service by January 1, 2005. Id. at 31. As the FEIS rec-
ommended, the certificate incorporates sixty-nine conditions that
ETNG has to meet during construction. Id. at 31-44. Among other
things, the conditions require ETNG to: (1) file weekly status reports
with FERC during construction, (2) follow the mitigation measures
described in the environmental impact statement, (3) employ environ-
mental inspectors to monitor compliance with the mitigation mea-
sures, (4) monitor vegetation for at least two growing seasons
following the completion of the project, and (5) limit construction to
daylight hours.
As soon as FERC issued the certificate to ETNG, the company pur-
sued negotiations with the affected landowners to acquire the ease-
ments to construct, operate, and maintain the new pipeline. The line
will cross over 1,300 tracts of land in Tennessee, Virginia, and North
Carolina. Through negotiations with landowners and a limited amount
of condemnation litigation in North Carolina and Tennessee, the com-
pany was able to acquire over ninety percent of the right-of-way. That
left about 130 tracts in Virginia where easements were still needed.
In December 2002 ETNG filed 133 actions in the Western District of
Virginia seeking orders of condemnation for the easements over the
remaining tracts. Within a couple of months of filing the condemna-
EAST TENNESSEE NATURAL GAS v. SAGE 31
tion actions, ETNG was able to settle with the owners of almost fifty
of these tracts, leaving eighty-five or so that were still the subject of
litigation.
At the same time ETNG filed the condemnation actions, it filed
motions for immediate possession of the easements to prevent delays
in construction. The NGA’s eminent domain provision is silent on the
question of immediate possession, so ETNG contended that the dis-
trict court could use its "inherent equitable power" to grant this relief.
J.A. 22 (joint appendix references are to case no. 03-1708(L)). The
landowners filed answers challenging the breadth of ETNG’s right to
condemn, and they opposed the motions for immediate possession.
The district court decided to deal with the litigation in stages, dealing
first with the questions about ETNG’s right to take. Thereafter, if
required, the court would consider the motions for immediate posses-
sion, leaving the issue of just compensation in each case for last.
On May 8, 2003, the district court issued several identical opinions
holding that ETNG could exercise the right of eminent domain to
acquire the necessary easements through the tracts in litigation. In
supplemental opinions filed June 6, 2003, the court explained its deci-
sion to grant ETNG’s motions for immediate possession. The court
acknowledged that there is no provision for immediate possession in
the NGA. Nevertheless, the court held that it could "use its equitable
powers to grant early possession to ETNG in the form of a prelimi-
nary injunction." J.A. 76. The court found that ETNG had established
its right to immediate possession by satisfying the standards required
for a preliminary injunction under Blackwelder Furniture Co. of
Statesville, Inc. v. Selig, 550 F.2d 185 (4th Cir. 1977). Among other
things, the court found that holding up "the project’s completion until
the compensation for the last parcel is determined" would result in an
extended delay. J.A. 78. This delay, the court said, would cause sig-
nificant financial harm to ETNG and its potential customers. On the
other hand, the court found that harm to the landowners would be
slight, especially because they had the "right to draw down the money
ETNG has deposited with the Court based on [the company’s]
appraisal." J.A. 78-79. Finally, the court concluded that "expeditious
completion of the pipeline is in the public interest." J.A. 79.
The landowners, in several cases that we have consolidated, appeal
the district court’s preliminary injunction orders granting immediate
32 EAST TENNESSEE NATURAL GAS v. SAGE
possession. The landowners’ main argument is that ETNG cannot
take possession prior to the determination of just compensation. (The
landowners now concede that ETNG has a legal right to take the
property.) They further argue that even if the district court had the
power to award immediate possession by preliminary injunction, the
court erred in granting injunctions in these cases. Finally, some of the
landowners claim that the district court lacked jurisdiction over their
cases because the complaints did not sufficiently identify the property
to be taken.
II.
A.
The first question is whether the district court can use its equitable
power to order immediate possession in a condemnation case. We
begin our discussion by reviewing the mechanics of how the federal
power of eminent domain is usually exercised. Congressional authori-
zation is required for land to be condemned by the government for
public use. See United States v. N. Am. Transp. Co., 253 U.S. 330,
333-34 (1920); 1A J. Sackman, Nichols on Eminent Domain
§ 3.03[1] (rev. 3d ed.). Congress sometimes exercises the power of
eminent domain directly by enacting a statute that appropriates spe-
cific property. See Kirby Forest Indus., Inc. v. United States, 467 U.S.
1, 5 (1984). Congress’s normal practice, however, is to delegate the
power of eminent domain to government officers who may condemn
property in the name of the United States for public use. And Con-
gress may, as it did in the NGA, grant condemnation power to "pri-
vate corporations . . . execut[ing] works in which the public is
interested." Boom Co. v. Patterson, 98 U.S. 403, 406 (1878).
Although the federal statutes conferring the power of eminent domain
routinely identify the officer who may exercise the power and the pur-
pose for which it may be exercised, the statutes typically do not pre-
scribe the procedural methods or steps for exercising the power. See,
e.g., 10 U.S.C. § 2663(a) ("Secretary of a military department may
. . . acquire by condemnation any interest in land . . . needed for the
site, construction, or operation of fortifications, coast defenses, or
military training camps"); 16 U.S.C. § 404c-11 ("The Secretary of the
Interior is authorized in his discretion to acquire for inclusion within
the Mammoth Cave National Park by . . . condemnation . . . any lands
EAST TENNESSEE NATURAL GAS v. SAGE 33
. . . within the maximum boundaries as authorized by . . . this title.");
see also Kirby, 467 U.S. 1, 3 n.1 (1984). When a condemnation action
becomes necessary, a government official has two statutory methods
available for exercising the power of eminent domain. Under the first
method, called "straight condemnation," the action usually proceeds
to a determination of just compensation and final judgment before the
condemnor takes possession. See 40 U.S.C. § 3113 (formerly codified
at 40 U.S.C. § 257); Kirby, 467 U.S. at 3-4. Under the second method,
often referred to as "quick-take," the government may take possession
of the condemned property at the beginning of the case. See, e.g., 40
U.S.C. § 3114 (formerly codified at 40 U.S.C. § 258a).
In straight condemnation the government official requests the
Attorney General to initiate the condemnation action in district court.
40 U.S.C. § 3113. A special rule, Fed. R. Civ. P. 71A, governs the
procedure in a condemnation action. See Kirby, 467 U.S. at 3-4.
Under Rule 71A the complaint must set forth the authority for the tak-
ing, the use for which the property is being taken, the identity of the
property, and the interest to be acquired. Fed. R. Civ. P. 71A(c)(2).
After the complaint is filed, the action proceeds in due course to the
determination of just compensation for the owner of the land. Id.
§ 71A(h). Rule 71A does not contain procedures for dealing with
issues of pre-judgment possession by the condemning authority.
Under traditional procedures, however, the condemning authority
takes possession of the property after the determination and payment
of just compensation. See Kirby, 467 U.S. at 4; 6 Nichols, supra,
§ 24.10[1]. As the Supreme Court indicated in Kirby, when just com-
pensation is determined first, "[t]he practical effect . . . is to give the
government an option to buy the property at the adjudicated price. If
the government wishes to exercise that option, it tenders payment to
the private owner, whereupon title and right to possession vest in the
United States." Kirby, 467 U.S. at 4 (citation omitted). On the other
hand, "[i]f the government decides not to exercise its option, it can
move for dismissal of the condemnation action." Id. See also Fed. R.
Civ. P. 71(A)(i)(3).
The second method of taking, prescribed mainly in the Declaration
of Taking Act (DTA), provides the government with a more expedi-
tious procedure. 40 U.S.C. § 3114. The DTA’s quick-take provisions
authorize the government to take immediate possession of condemned
34 EAST TENNESSEE NATURAL GAS v. SAGE
property.* When the government proceeds under the DTA, it files a
"declaration of taking" that, among other things, states the authority
for the taking, states the public use for which the land is taken, and
provides an estimate of just compensation. Once the government
deposits the estimated amount with the court, "to the use of the per-
sons entitled to the compensation," title to the condemned property
automatically vests in the United States. Id. § 3114(a), (b); Kirby, 467
U.S. at 4-5. While the DTA gives the government the right of imme-
diate possession, the time and terms of possession are fixed by the
district court. 40 U.S.C. § 3114(d)(1). The precise compensation fig-
ure is determined later. ETNG did not try to use DTA’s quick-take
provisions, presumably because the statute only applies to condemna-
tion proceedings "brought by and in the name of the United States."
Id. § 3114(a).
The Natural Gas Act, like most statutes giving condemnation
authority to government officials or private concerns, contains no pro-
vision for quick-take or immediate possession. The Act simply says
that any holder of a certificate of public convenience and necessity
may acquire property "by the exercise of eminent domain in the dis-
trict court." 15 U.S.C. § 717f(h). The Act further provides that "the
practice and procedure in any action or proceeding for that purpose
. . . shall conform . . . with the practice and procedure in similar action
or proceeding in the courts of the State where the property is situ-
ated." Id. Courts, including the district court here, agree that this state
*The DTA gives any government official with condemnation authority
the right to take immediate possession. A few statutes give this right to
specific officials. See, e.g., 42 U.S.C. § 5196(i)(1) (Director of the Fed-
eral Emergency Management Agency may "procure by condemnation or
otherwise . . . materials and facilities for emergency preparedness, with
the right to take immediate possession thereof"); 33 U.S.C. § 594 (when
Secretary of Army is authorized to take lands necessary for harbor
improvements, he "shall have the right to take immediate possession");
see also 10 U.S.C. § 2663(b) ("In time of war or when war is imminent,
the United States may, immediately upon the filing of a petition for con-
demnation . . . take and use the land to the extent of the interest sought
to be acquired."). These scattered statutes appear to be superfluous to the
extent they confer the right of immediate possession, unless they allow
an even more expeditious process than the DTA. That is not an issue for
today, however.
EAST TENNESSEE NATURAL GAS v. SAGE 35
procedure requirement has been superseded by Rule 71A. See N. Bor-
der Pipeline Co. v. 64.111 Acres of Land, 344 F.3d 693 (7th Cir.
2003); S. Natural Gas Co. v. Land, Cullman County, 197 F.3d 1368,
1374 (11th Cir. 1999); see also Kirby, 467 U.S. at 4 n.2. As we have
said, Rule 71A does not provide procedures for allowing early posses-
sion. The Advisory Committee that drafted Rule 71A was well aware
of the statutes (the DTA was the main one) giving the government the
right of immediate possession. The committee considered, but
decided against, including procedures in Rule 71A for exercising this
right. According to the committee, "the procedure . . . being followed
[to allow immediate possession] seems to be giving no trouble, and
to draft a rule to fit all the statutes on the subject might create confu-
sion." Fed. R. Civ. P. 71A advisory committee’s supplementary
report, 11 F.R.D. 222, 228 (Mar. 1951). Rule 71A thus contains no
language that prohibits a condemnor from pursuing any available pro-
cedures to obtain possession prior to the entry of final judgment.
These procedures could include an application for a preliminary
injunction under Rule 65(a) because the regular rules of civil proce-
dure apply when Rule 71A is silent. See Fed. R. Civ. P. 71A(a).
In any event, if the proceedings in the eighty-five separate cases
here had taken their normal course under Rule 71A, ETNG would not
have been able to enter each tract until just compensation was deter-
mined and paid on that tract. ETNG asserted that determining just
compensation first would cause great delay in construction and in
placing the pipeline in operation. In order to avoid this delay, ETNG
filed its motions for immediate possession, contending that it met the
standards for a preliminary injunction. The statute (the NGA) that
gives it the power to condemn is silent on the issue of immediate pos-
session, and the company did not seek to assert quick-take authority
under the DTA. Thus, the specific question raised before the district
court, and now presented on appeal, is whether a court may use its
equitable powers to grant a preliminary injunction allowing immedi-
ate possession when there is no provision for that relief in the NGA
or Rule 71A.
B.
A federal court has the power to grant equitable relief, see Gordon
v. Washington, 295 U.S. 30, 36 (1935), but this power is circum-
36 EAST TENNESSEE NATURAL GAS v. SAGE
scribed by the venerable principle that "equity follows the law,"
Hedges v. Dixon County, 150 U.S. 182, 192 (1893). Equity, in other
words, may not be used to create new substantive rights. See, e.g.,
Norwest Bank of Worthington v. Ahlers, 485 U.S. 197, 206-07 (1988).
However, when a substantive right exists, an equitable remedy may
be fashioned to give effect to that right if the prescribed legal reme-
dies are inadequate. See Berdie v. Kurtz, 88 F.2d 158, 159 (9th Cir.
1937); Am. Brake Shoe & Foundry Co. v. N.Y. Rys. Co., 293 F. 633,
637-38 (2d. Cir. 1923). The district court followed these principles
when it granted ETNG equitable relief in the form of a preliminary
injunction that allowed the company to take early possession of the
condemned property.
The district court discharged its duty to adjudicate these cases by
first taking up the question of whether ETNG had a substantive right
to condemn the landowners’ property. After considering the briefs of
the parties and hearing oral argument, the court issued orders deter-
mining that "ETNG has established its right to exercise eminent
domain over the [landowners’] property as outlined in the [c]ertificate
[of public convenience and necessity issued by FERC]." J.A. 74.
These orders gave ETNG an interest in the landowners’ property that
could be protected in equity if the conditions for granting equitable
(in this case, injunctive) relief were satisfied. See Seymour v. Freer,
75 U.S. 202, 213-14 (1868)(when a party has an interest in property
"distinct from legal ownership," that interest "constitute[s] an equity
which a court of equity will protect and enforce"). Therefore, once
ETNG’s right to take the easements was determined, it was proper for
the district court to consider ETNG’s motions for equitable relief in
the various cases, specifically, its requests for preliminary injunctions
granting immediate possession. As the discussion in part III, infra,
establishes, the district court carefully considered the requirements for
granting a preliminary injunction. A preliminary injunction is, of
course, "appropriate to grant intermediate relief of the same character
as that which may be granted finally." De Beers Consol. Mines, Ltd.
v. United States, 325 U.S. 212, 220 (1945). See also In re Microsoft
Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003). The district
court’s holding that ETNG had established its right to condemn meant
that it would have been entitled to possession upon the entry of final
judgment. Because the court found that the requirements for a prelim-
inary injunction had been met, the court granted immediate posses-
EAST TENNESSEE NATURAL GAS v. SAGE 37
sion to ETNG as a form of intermediate relief. Again, the district
court followed established principles and procedures in granting equi-
table relief. The landowners argue that general principles of equity are
inapplicable here because equitable relief in the form of immediate
possession is barred in a condemnation case. We disagree.
To begin with, the Constitution does not prevent a condemnor from
taking possession of property before just compensation is determined
and paid. As the Supreme Court said a long time ago, the Constitution
"does not provide or require that compensation be paid in advance of
the occupancy of the land to be taken. But the owner is entitled to rea-
sonable, certain, and adequate provision for obtaining compensation
before his occupancy is disturbed." Cherokee Nation v. S. Kan. Ry.
Co., 135 U.S. 641, 659 (1890). Rule 71A provides the procedure for
determining just compensation, and ETNG has deposited cash with
the court in an amount equal to the appraised value of the interests
condemned. If the deposit is somehow short, ETNG will be able to
make up the difference. In 2002 ENTG’s parent company reported
earnings of $1.17 billion from its natural gas transmission division
that includes ETNG. There is thus adequate assurance that the land-
owners will receive their just compensation. See Wash. Metro. Area
Transit Auth. v. One Parcel of Land, 706 F.2d 1312, 1321 (4th Cir.
1983) (fact that agency could be sued and had substantial assets was
sufficient to assure just compensation).
The landowners argue that Congress does not intend for gas com-
panies to gain immediate possession because it has not granted statu-
tory quick-take power to gas companies as it has to government
officers who condemn property in the name of the United States. This
argument overlooks the preliminary injunction remedy provided in
the Federal Rules of Civil Procedure that were adopted with the tacit
approval of Congress. See 28 U.S.C. §§ 2072, 2074. Two rules are
pertinent, Rule 65(a) and Rule 71A. Rule 65(a), which specifically
allows for preliminary injunctions, was adopted with the original rules
in 1937. Rule 71A, the special rule for condemnation actions, came
along later, in 1951. As we have already mentioned, Rule 71A does
not include any provisions governing the exercise of immediate pos-
session. Rule 71A provides, however, that the regular rules of proce-
dure apply to any subject not covered by the special rule. Fed. R. Civ.
P. 71A(a). Under the rules, then, a gas company with condemnation
38 EAST TENNESSEE NATURAL GAS v. SAGE
power under the NGA may apply under Rule 65(a) for a preliminary
injunction awarding immediate possession. The gas company must, of
course, establish that it is entitled to equitable relief. Congress has
never given any indication that it disapproves of this procedure.
Indeed, because Congress has not acted to restrict the availability of
Rule 65(a)’s equitable (injunctive) remedy in an NGA condemnation,
we conclude that the rule applies. See Mitchell v. Robert De Mario
Jewelry, Inc., 361 U.S. 288, 291 (1960) ("Equitable jurisdiction is not
to be denied or limited in the absence of a clear and valid legislative
command.").
The subtext of the landowners’ argument that only Congress can
grant the right of immediate possession is this: the preliminary injunc-
tion process does not provide the landowner with procedural safe-
guards that are comparable to those provided by Congress in the
DTA. We disagree. Although the procedural safeguards in the prelim-
inary injunction process are not a perfect match with those in the
DTA, a comparison shows that the landowner is adequately protected
when the condemnor obtains immediate possession under either pro-
cedure. In a DTA case the government exercises its right to immedi-
ate possession with minimal judicial oversight. Title and the right to
possession vest in the government immediately upon the filing of a
declaration and the requisite deposit. See 40 U.S.C. § 3114; Kirby,
467 U.S. at 4-5. Although the district court fixes the time and any
terms of the possession, the government takes possession of the con-
demned property as a matter of course, unless the landowner or occu-
pant demonstrates some undue hardship that warrants a delay. See,
e.g., United States v. Certain Land in the Borough of Manhattan, 332
F.2d 679, 680-82 (2d Cir. 1964) (possession delayed when govern-
ment sought to oust tenants on five days’ notice); United States v.
6,576.27 Acres of Land, 77 F. Supp. 244, 246 (D. N.D. 1948) (eviction
delayed when "it would be difficult, if not impossible, for . . . farm
families to move by the date fixed in the order"). In a condemnation
case under the NGA, a gas company that seeks immediate possession
has a much stiffer burden than the government does under the DTA.
Because title in an NGA case does not pass until compensation is
determined and paid, see Danforth v. United States, 308 U.S. 271,
284-85 (1939), the company’s motion for immediate possession trig-
gers a threshold requirement. The district court must determine that
the company has the right to condemn the property in question. See
EAST TENNESSEE NATURAL GAS v. SAGE 39
Guardian Pipeline, L.L.C. v. 950.80 Acres of Land, 210 F. Supp. 2d
299, 301 (N.D. Ill. 2002). Once the right to condemn is established
by court order, it follows that the company will be entitled to posses-
sion when title is transferred at the end of the case. The question then
becomes whether the relief that will be appropriate at the end (that is,
possession) should be granted at an earlier stage. To obtain this inter-
mediate relief, the gas company must satisfy the strict requirements
for a preliminary injunction. For example, the company must demon-
strate that it will suffer irreparable harm without immediate posses-
sion, and the company’s harm must be weighed against any harm to
the landowner. See Safety-Kleen, Inc. v. Wyche, 274 F.3d 846, 859
(4th Cir. 2001). In this case ETNG was awarded possession only after
it engaged in five months of intensive litigation that analyzed and
determined its right to take and its right to equitable relief (an injunc-
tion).
In comparing the protections of the DTA to those in injunction pro-
ceedings, we return briefly to the matter of title and the payment of
just compensation. Again, title passes immediately to the government
under the DTA. There is the possibility, of course, that the govern-
ment, in making its deposit to cover compensation, will underestimate
the value of the land. In that case, the landowner is protected because
the government undertakes to pay the difference between the adjudi-
cated value of the land and the deposit. Kirby, 467 U.S. at 5. In an
NGA condemnation where early possession is granted to a gas com-
pany, the landowner is protected in a different way, that is, by "the
rule that title does not pass until just compensation has been ascer-
tained and paid." Danforth, 308 U.S. at 284-85. Therefore, if the gas
company’s deposit (or bond) is less than the final compensation
awarded, and the company fails to pay the difference within a reason-
able time, "it will become a trespasser, and liable to be proceeded
against as such." Cherokee Nation, 135 U.S. at 660. Likewise, if a
FERC-regulated gas company was somehow permitted to abandon a
pipeline project (and possession) in the midst of a condemnation pro-
ceeding, the company would be liable to the landowner for the time
it occupied the land and for any "damages resulting to the [land] and
to fixtures and improvements, or for the cost of restoration." 4 J.
Sackman, Nichols on Eminent Domain § 12E.01[07] (rev. 3d ed). See
also Fed. R. Civ. P. 71A(i)(3) (district court "shall not dismiss [con-
demnation] action as to any part of the property of which the plaintiff
40 EAST TENNESSEE NATURAL GAS v. SAGE
has taken possession or in which the plaintiff has taken title or a lesser
interest, but shall award just compensation for the possession, title or
lesser interest taken"). For all of these reasons, we conclude that when
a gas company initiating a condemnation action under the NGA seeks
immediate possession by preliminary injunction, there are sufficient
safeguards in place to protect the landowner.
The landowners also argue that because statutes granting the power
of eminent domain must be strictly construed, equity cannot be
invoked to supply the remedy of immediate possession. This argu-
ment is rooted in the principle that "[t]he grant of authority to con-
demn for specific purposes must be construed as limited to the
enumerated purposes." 1A Nichols, supra, § 3.03[3][d]. The property
in this case is being condemned for the strict purpose authorized by
the NGA, to build a pipeline that FERC deems necessary to supply
natural gas. Moreover, our circuit has never interpreted the strict con-
struction principle to mean that equity cannot allow for the possession
of property condemned under the NGA before a case is finally ended.
In Atlantic Seaboard Corp. v. Van Sterkenburg, 318 F.2d 455 (4th
Cir. 1963), a natural gas company sought possession of an easement
for a new pipeline while the landowner appealed his award of just
compensation. The district court authorized possession conditioned on
the company’s deposit of the award into the court’s registry account.
The landowner also appealed the order granting possession, arguing
that Rule 71A did not authorize the district court to provide such
relief. Our court recognized that Rule 71A did not spell out proce-
dures for the grant of early possession. Nevertheless, our court said
that "inherently, the condemnation court possesses the power to
authorize immediate entry by the condemnor upon the condemned
premises." Id. at 460. In upholding the order of early possession, our
court observed that a landowner, protected by a deposit, should not
be allowed "to postpone the condemnor’s enjoyment of the premises,
imposing upon the condemnor great, perhaps irreparable damage, all
without risk of further loss or injury to the owner." Id. We recognize,
of course, that the Atlantic Seaboard case was much further along
than today’s case when possession was authorized. Nevertheless,
Atlantic Seaboard demonstrates that a court may use its equitable
power to authorize early possession.
Finally, the landowners’ argument that equity cannot be invoked
here ignores the fact that there is a substantial public interest — the
EAST TENNESSEE NATURAL GAS v. SAGE 41
need for natural gas supply — at stake in this case. As the Supreme
Court has said, courts of equity may go to greater lengths to give "re-
lief in furtherance of the public interest than they are accustomed to
go when only private interests are involved." Va. Ry. Co. v. Sys.
Fed’n No. 40, 300 U.S. 515, 552 (1937). See also United States v.
Morgan, 307 U.S. 183, 194 (1939); United States ex rel. Rahman v.
Oncology Assocs., P.C., 198 F.3d 489, 497 (4th Cir. 1999). FERC
spent sixteen months evaluating the need for the Patriot Project. Ulti-
mately, it concluded that the project was required by the public con-
venience and necessity. It was therefore appropriate for the district
court to weigh the public benefit of expeditious project construction
in deciding that it could use its equitable power in this case.
District courts in a number of jurisdictions have done exactly what
the district court did here, that is, grant immediate possession in the
form of a preliminary injunction to a gas company that has estab-
lished its right to condemn under the NGA. See Northwest Pipeline
Corp. v. The 20’ by 1,430’ Pipeline Right of Way, 197 F. Supp. 2d
1241, 1245 (E.D. Wash. 2002)("[w]here there is no dispute about the
validity of [the gas company’s] actual right to the easement," denying
authority to grant immediate possession "would produce an absurd
result"); Guardian Pipeline, L.L.C. v. 950.80 Acres of Land, 210
F. Supp. 2d 976, 979 (N.D. Ill. 2002)(immediate possession proper
when condemnation order has been entered and preliminary injunc-
tion standards have been satisfied); N. Border Pipeline Co. v. 64.111
Acres of Land, 125 F. Supp. 2d 299, 301 (N.D. Ill. 2000)(same); see
also N. Border Pipeline Co. v. 127.79 Acres of Land, 520 F. Supp.
170, 173 (D. N.D. 1981) ("the Court believes the circumstances of
this case warrant the exercise of inherent powers"); Williston Basin
Interstate Pipeline Co. v. Easement and Right-of-Way Across .152
Acres of Land, 2003 WL 21524816 (D. N.D. 2003)(same); Tenn. Gas
Pipeline Co. v. New England Power, Inc., 6 F. Supp. 2d 102, 104 (D.
Mass. 1998)(same); USG Pipeline Co. v. 1.74 Acres, 1 F. Supp. 2d
816, 825-26 (E.D. Tenn. 1998)(same); Kern River Gas Transmission
Co. v. Clark County, 757 F. Supp. 1110, 1117 (D. Nev. 1990)(same);
Humphries v. Williams Natural Gas Co., 48 F. Supp. 2d 1276, 1280
(D. Kan. 1999)("[I]t is apparently well settled that the district court
does have the equitable power to grant immediate entry and posses-
sion [under the NGA]."); Rivers Electric Co., Inc. v 4.6 Acres of
Land, 731 F. Supp. 83, 87 (N.D. N.Y. 1990)(granting immediate pos-
42 EAST TENNESSEE NATURAL GAS v. SAGE
session under a statute similar to the NGA). Cf. Commercial Station
Post Office, Inc. v. United States, 48 F.2d 183, 184-85 (8th Cir.
1931)(holding that government officer who exercises statutory
authority to file condemnation action may take immediate possession
of the property even though there is no express provision authorizing
pre-judgment possession).
One circuit case, Northern Border Pipeline Co. v. 86.72 Acres of
Land, 144 F.3d 469 (7th Cir. 1998), has held that a district court
lacked authority to grant a condemnor immediate possession under
the NGA. But that case involved an entirely different set of circum-
stances than those presented here. Specifically, the gas company in
Northern Border did not obtain an order determining that it had the
right to condemn before it sought a preliminary injunction. Its motion
for an injunction was based entirely on the existence of a certificate
of public convenience and necessity. Under those circumstances, the
Seventh Circuit held that the gas company had no right to equitable
relief because the company "did not present an argument grounded in
substantive law establishing a preexisting entitlement to the property."
Id. at 472. Two district court decisions in the Seventh Circuit have
interpreted Northern Border to mean that immediate possession is
improper only when there has been no order confirming the right to
condemn. N. Border Pipeline Co. v. 64.111 Acres of Land, 125
F. Supp. 2d 299, 301 (N.D. Ill. 2000)("in this case, plaintiff does have
a preexisting entitlement to the easements, the judgments of condem-
nation, which make an award of possession appropriate"); Guardian
Pipeline, L.L.C. v. 950.80 Acres of Land, 210 F. Supp. 2d 976, 979
(N.D. Ill. 2002)(same). We agree with the assessment of the two dis-
trict courts. The gas company in Northern Border had simply failed
to seek an order determining that it had the right to condemn. Without
having that right in substantive law determined, the company could
not invoke equity.
In summary, the district court followed established principles of
equity in determining that it had the power to award preliminary
injunctive relief to ETNG in the form of immediate possession. Nei-
ther the Constitution, nor Congress, nor Rule 71A bars this sort of
relief in a condemnation case. In this case, the public interest factor
— the need for natural gas in a region with little or no service —
made it especially appropriate for the district court to consider equita-
EAST TENNESSEE NATURAL GAS v. SAGE 43
ble relief that would allow expeditious construction of the pipeline.
A number of district courts around the country have also determined
that they have the equitable power to grant immediate possession to
a gas company filing a condemnation action under the NGA. We
agree with this position. Accordingly, we hold that once a district
court determines that a gas company has the substantive right to con-
demn property under the NGA, the court may exercise equitable
power to grant the remedy of immediate possession through the issu-
ance of a preliminary injunction.
III.
Because the district court had the authority to grant immediate pos-
session through a preliminary injunction, we must consider the land-
owners’ alternative argument that ETNG does not satisfy the basic
requirements for a preliminary injunction. We review the decision to
grant a preliminary injunction for abuse of discretion. Factual deter-
minations are reviewed for clear error and legal conclusions de novo.
Safety-Kleen, Inc. v. Wyche, 274 F.3d 846, 859 (4th Cir. 2001). In
deciding whether to grant a preliminary injunction, a court should
consider (1) the likelihood of irreparable harm to the plaintiff if the
injunction is denied, (2) the likelihood of harm to the defendant if the
injunction is granted, (3) the likelihood that the plaintiff will succeed
on the merits, and (4) the public interest. Blackwelder Furniture Co.
v. Seilig Mfg. Co., 550 F.2d 189, 193-96 (4th Cir. 1977). The district
court issued preliminary injunction orders that mandated affirmative
relief (immediate possession) to ETNG. We have said that
"[m]andatory preliminary injunctions do not preserve the status quo
and normally should be granted only in those circumstances when the
exigencies of the situation demand such relief." Wetzel v. Edwards,
635 F.2d 283, 286 (4th Cir. 1980). See also In re Microsoft Corp.
Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003). We will now
review the district court’s preliminary injunction decision, starting
with the Blackwelder factors.
1. The likelihood of irreparable harm to ETNG.
The district court found that without a preliminary injunction the
Patriot Project would suffer "undue delay" and that this delay would
cause "significant financial harm both to ETNG and some of its puta-
44 EAST TENNESSEE NATURAL GAS v. SAGE
tive customers." J.A. 78. This finding has ample support in the record.
The court pointed out that separate hearings on compensation would
be required for each of the eighty-five tracts involved. Scheduling and
conducting those hearings, the district court noted, "will obviously
take an extended period of time." J.A. 78. ETNG estimated that if
possession on some tracts was deferred until completion of the hear-
ings, construction could be delayed until the Summer of 2004 or
beyond. Constructing a ninety-four-mile pipeline is a complex project
that can only progress in phases. Certain portions of the project have
to be completed before construction can begin on other portions.
Therefore, as the district court recognized, "any single parcel has the
potential of holding up the entire project." J.A. 78. Continuing, the
court said, "[t]o require ETNG to build up to a parcel of land [it]
do[es] not possess, skip that parcel, and then continue on the other
side would prove wasteful and inefficient." Id. Furthermore, ETNG
is under an order from FERC to complete construction and have the
pipeline in operation by January 1, 2005. It would not be possible to
meet FERC’s deadline without a preliminary injunction.
ETNG is also under contractual obligation to provide natural gas
to several electric generation plants and local gas utilities by certain
dates. Without a preliminary injunction, ETNG would be forced to
breach these contracts. ETNG’s inability to satisfy these commit-
ments would have negative impacts on its customers and the consum-
ers they serve. For example, two electric generation plants will not be
able to operate at full capacity without natural gas from the Patriot
Project. A North Carolina gas utility may not be able to meet its cus-
tomers’ demand for gas if ETNG does not complete the project on
time. ETNG estimates that it would lose in excess of $5 million if
construction delay caused it to breach its contractual obligations to
supply gas. Finally, delay in the construction of the pipeline would
hinder economic development efforts in several Virginia counties.
2. The likelihood of harm to the landowners.
The landowners claim that ETNG’s early possession will disturb
the productive capacity of their land. This is simply a timing argu-
ment because productive capacity would still be disturbed, albeit at
a later time, if just compensation was determined first. In any event,
as the district court observed, the early loss of use argument "is
EAST TENNESSEE NATURAL GAS v. SAGE 45
blunted by [the landowners’] right to draw down the money ETNG
has deposited with the Court based on ETNG’s appraisal," that is, an
independent appraisal obtained by the company. J.A. 78-79. The land-
owners also argue that by awarding ETNG early possession, the dis-
trict court undermined their ability to negotiate a favorable price for
their land. This argument is unconvincing because the Fifth Amend-
ment guarantees the landowners just compensation for their land no
matter when the condemnor takes possession. Finally, the landowners
argue that taking property before determining just compensation con-
stitutes a type of inherent harm that is irreparable, especially when
lands have been held in the same family for many years. We fully
understand that condemnation often forces landowners to part with
land that they would prefer to keep for many reasons, including senti-
mental ones. However, the Supreme Court long ago recognized that
"in view of the liability of all property to condemnation for the com-
mon good, loss to the owner of nontransferable values deriving from
his unique need for property or idiosyncratic attachment to it . . . is
properly treated as part of the burden of common citizenship." Kim-
ball Laundry Co. v. United States, 338 U.S. 1, 5 (1949). In the end,
the district court concluded that the harm to the landowners due to
early possession is "slight at best." J.A. 79. The record supports this
conclusion, and any harm to the landowners is clearly outweighed by
ETNG’s immediate need for the property.
3. The likelihood that ETNG will succeed on the merits.
ETNG has a determination on the merits that it has a right to con-
demn the landowners’ property, and the landowners now concede that
ETNG possesses this right. Success on the merits for ETNG is there-
fore apparent.
4. The public interest.
The district court concluded that "expeditious completion of the
pipeline is in the public interest." J.A. 79. Congress passed the Natu-
ral Gas Act and gave gas companies condemnation power to insure
that consumers would have access to an adequate supply of natural
gas at reasonable prices. Clark v. Gulf Oil Corp., 570 F.2d 1138,
1145-46 (3d Cir. 1977); Fla. Power & Light Co. v. Federal Energy
Regulatory Comm’n, 598 F.2d 370, 379 (5th Cir. 1979); Public Serv.
46 EAST TENNESSEE NATURAL GAS v. SAGE
Comm’n of Ky. v. Federal Energy Regulatory Comm’n, 610 F.2d 439,
442-43 (6th Cir. 1979). As the district court observed, FERC con-
ducted a careful analysis of the Patriot Project and determined that the
project will promote these congressional goals and serve the public
interest. The project serves the public interest because, among other
things, it will bring natural gas to portions of southwest Virginia for
the first time. This will make gas available to consumers, and it will
help in the efforts of local communities to attract much-needed new
business. On a larger scale, the pipeline will make gas available for
electric power generation plants. A delay in construction would post-
pone these benefits.
Because our review must be "more searching when the preliminary
injunctive relief ordered by the district court is mandatory," Microsoft
Antitrust Litig., 333 F.3d at 525, we will consider whether the circum-
stances are sufficiently demanding for the award of mandatory relief.
We conclude that they are. First, ETNG’s right to take the easements
for the Patriot Project is indisputably clear, as the district court deter-
mined. Second, a federal agency, FERC, determined that the project
is necessary to serve the public interest, specifically, the public need
for natural gas in areas that have no gas service or that are underser-
ved. To assure that these needs are met in good time, FERC has
ordered ETNG to complete the project by January 1, 2005. Third,
ETNG could not meet FERC’s deadline without immediate posses-
sion. And without this mandatory relief, ETNG would face other
irreparable harm such as increased construction costs and losses from
its breach of gas supply contracts. Preliminary injunctive relief of a
mandatory nature was therefore appropriate in these cases.
After considering the Blackwelder factors and the propriety of
mandatory relief, we conclude that the district court did not abuse its
discretion in entering the preliminary injunction orders in these cases.
IV.
Some of the landowners argue that the district court lacked juris-
diction over their cases because ETNG’s condemnation complaints
did not sufficiently identify the property to be taken. Rule 71A(c)(2)
requires a condemnation complaint to include "a description of the
property sufficient for its identification." Fed. R. Civ. P. 71A(c)(2).
EAST TENNESSEE NATURAL GAS v. SAGE 47
Each of ETNG’s complaints provides a legal description of the tract
of land through which the pipeline will run and a detailed plat show-
ing the location of the easement. In instances where construction con-
siderations have required a change in location, amended plats have
been filed with the district court and provided to the landowners. All
of this is sufficient to satisfy Rule 71A(c)(2) and any jurisdictional
requirement relating to property descriptions. See S. Natural Gas Co.
v. Land, Cullman County, 197 F.3d 1368, 1375 (11th Cir. 1999);
Guardian Pipeline, L.L.C. v. 529.42 Acres of Land, 210 F. Supp. 2d
971, 975 (N.D. Ill. 2002).
V.
In sum, we hold that once a district court determines that a gas
company has the substantive right to condemn property under the
NGA, the court may use its equitable power to grant the remedy of
immediate possession through the issuance of a preliminary injunc-
tion. Because the district court did not abuse its discretion in granting
preliminary injunctive relief to ETNG in these cases, we affirm the
district court’s orders.
AFFIRMED.