Mountain Valley Pipeline, LLC v. 6.56 Acres of Land ( 2019 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1159
MOUNTAIN VALLEY PIPELINE, LLC,
Plaintiff - Appellee,
v.
6.56 ACRES OF LAND, OWNED BY SANDRA TOWNES POWELL, Montgomery
County Tax Map Parcel No. 015900 and being MVP Parcel No. VA-MO-3370; 1.81
ACRES OF LAND, OWNED BY ROBERT M. JONES AND DONNA THOMAS
JONES, Montgomery County Tax Map Parcel No. 024588 and being MVP Parcel No.
VA-MO-5511; 1.29 ACRES OF LAND, OWNED BY ROBERT M. JONES AND
DONNA THOMAS JONES, Montgomery County Tax Map Parcel No. 024591 and
being MVP Parcel No. VA-MO-5512; 0.52 ACRES OF LAND, OWNED BY EMILIE
M. OWEN AND RICHARD CLARK OWEN, Franklin County Tax Map Parcel No.
0380002204B and being MVP Parcel No. VA-FR-4129 (AR FR-294),
Defendants - Appellants.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Elizabeth Kay Dillon, District Judge. (7:17-cv-00492-EKD)
No. 18-1165
MOUNTAIN VALLEY PIPELINE, LLC,
Plaintiff - Appellee,
v.
TERESA D. ERICKSON, POA for Gerald Wayne Corder (Parcel ID NO. 20-362-20. An
Easement to construct, operate and maintain a 42-inch gas transmission line across
properties in the counties of Braxton, Lewis, Harrison, Webster, and Wetzel, WV;
LORENA B. KRAFFT, POA for Randall N. Corder (Parcel ID NO. 20-362-21. An
Easement to construct, operate and maintain a 42-inch gas transmission line across
properties in the counties of Braxton, Lewis, Harrison, Webster, and Wetzel, WV,
Defendants - Appellants.
Appeal from the United States District Court for the Northern District of West Virginia,
at Clarksburg. Irene M. Keeley, Senior District Judge. (1:17-cv-00211-IMK)
No. 18-1175
MOUNTAIN VALLEY PIPELINE, LLC,
Plaintiff - Appellee,
v.
0.335 ACRES OF LAND, OWNED BY GEORGE LEE JONES, Giles County Tax Map
Parcel No. 47-1-1 and being MVP Parcel No. VA-GI-200.044; 0.65 ACRES OF LAND,
OWNED BY MICHAEL S. HURT AND MARY FRANCES K. HURT, Franklin County
Tax Map Parcel No. 0380002204A and being MVP Parcel No. VA-FR-4130 (AR FR-
294); 1.52 ACRES OF LAND, OWNED BY VERNON V. BEACHAM, SR. AND
VERNON V. BEACHAM, II, Giles County Tax Map Parcel No. 44A-1-34 and being
MVP Parcel No. VA-GI-051; 2.83 ACRES OF LAND, OWNED BY VERNON V.
BEACHAM, SR. AND VERNON V. BEACHAM, II, Giles County Tax Map Parcel No.
44A-1-33 and being MVP Parcel VA-GI-052; 4.88 ACRES OF LAND, OWNED BY
CLARENCE B. GIVENS AND KAROLYN W. GIVENS, Giles County Tax Map Parcel
No. 47-9 and being MVP Parcel No. VA-GI-200.041; 2.01 ACRES OF LAND, OWNED
BY GEORGE LEE JONES, Giles County Tax Map Parcel No. 47-1-2 and being MVP
Parcel No. VA-GI-200.045; 2.09 ACRES OF LAND, OWNED BY STEVEN C.
HODGES AND JUDY R. HODGES, Craig County Tax Map Parcel No. 120-A-10 and
120-A-10A and being MVP Parcel No. VA-CR-200.047; 0.66 ACRES OF LAND,
OWNED BY GORDON WAYNE JONES AND DONNA W. JONES, Craig County Tax
Map Parcel No. 120-A-13 and being MVP Parcel No. VA-CR-200.049; 0.71 ACRES OF
LAND, OWNED BY ROANOKE VALLEY 4-WHEELERS ASSOCIATION,
Montgomery County Tax Map Parcel No. 031198 and being MVP Parcel No. VA-MO-
4264 (AR-MN-276); 1.53 ACRES OF LAND, OWNED BY ROANOKE VALLEY 4-
WHEELERS ASSOCIATION, Montgomery County Tax Map Parcel No. 016068 and
being MVP Parcel No. VA-MO-4265 (AR MN-276); 1.53 ACRES OF LAND, OWNED
2
BY STEPHEN W. BERNARD AND ANNE W. BERNARD, Franklin County Tax Map
Parcel No. 0370001901 and being MVP Parcel No. BVA-FR-13; 5.88 ACRES OF
LAND, OWNED BY WENDELL WRAY FLORA AND MARY MCNEIL FLORA,
Franklin County Tax Map Parcel No. 0380002000 and being MVP Parcel No. VA-FR-
017.21; 3.70 ACRES OF LAND, OWNED BY MICHAEL S. HURT AND MARY
FRANCES K. HURT, Franklin County Tax Map Parcel No. 0380002204 and being MVP
Parcel No. VA-FR-017.25; 1.97 ACRES OF LAND, OWNED BY KEITH M. WILSON
AND MARY K. WILSON, Franklin County Tax Map Parcel No. 0370009906 and being
MVP Parcel No. VA-FR-017.44; 6.50 ACRES OF LAND, MORE OR LESS, OWNED
BY NEW RIVER CONSERVANCY, INC., Located in Giles County, Virginia being a
portion of Giles County Tax Map Parcel No. 29-25B and being MVP Parcel No. VA-GI-
035,
Defendants - Appellants.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Elizabeth Kay Dillon, District Judge. (7:17-cv-00492-EKD)
No. 18-1181
MOUNTAIN VALLEY PIPELINE, LLC,
Plaintiff - Appellee,
v.
0.01 ACRES OF LAND, OWNED BY BENNY L. HUFFMAN, Giles County Tax Map
Parcel No. 46-25 B and being MVP Parcel No. VA-GI-5779; 0.01 ACRES OF LAND,
OWNED BY JEREMY JOSEPH RICE AND MICHELLE RENEE RICE, Roanoke
County Tax Map Parcel No. 111.00-01-58.00-0000 and being MVP Parcel No. VA-RO-
5627; 0.01 ACRES OF LAND, OWNED BY ROY A. STEVENS, Franklin County Tax
Map Parcel No. 0440018800 and being MVP Parcel No. VA-FR-5496; 0.02 ACRES OF
LAND, OWNED BY DANIEL G. MYERS AND DEBORAH L. MYERS, Franklin
County Tax Map Parcel No. 0440019801 and being MVP Parcel No. VA-FR-5502; 0.04
ACRES OF LAND, OWNED BY BRUCE M. WOOD AND JENNIFER M. WOOD,
Franklin County Tax Map Parcel No. 0440200600 and being MVP Parcel No. VA-FR-
5791; 2.75 ACRES OF LAND, OWNED BY HELENA DELANEY TEEKELL,
TRUSTEE OF THE HELENA DELANEY TEEKELL TRUST, Craig County Tax Map
Parcel No. 120-A-12 and being MVP Parcel No. VA-CR-200.048; 2.81 ACRES OF
LAND, OWNED BY ROBERT W. CRAWFORD OR PATRICIA D. CRAWFORD,
3
TRUSTEES UNDER THE CRAWFORD LIVING TRUST, AND ANITA NEAL
HUGHES, Craig County Tax Map Parcel No. 121-A-15 and being MVP Parcel No. VA-
CR-200.053; 2.60 ACRES OF LAND, OWNED BY HELENA DELANEY TEEKELL,
TRUSTEE OF THE HELENA DELANEY TEEKELL TRUST, Craig County Tax Map
Parcel No. 120-A-14A and being MVP Parcel No. VA-CR-5343; 0.15 ACRES OF
LAND, OWNED BY DONALD W. LONG AND EVELYN W. LONG, Montgomery
County Tax Map Parcel No. 021560 and being MVP Parcel No. BVMO-25; 0.07 ACRES
OF LAND, OWNED BY GEORGE A. CRAIGHEAD AND HELEN P. CRAIGHEAD,
Montgomery County Tax Map Parcel No. 016298 and being MVP Parcel No. VA-MO-
011; 1.90 ACRES OF LAND, OWNED BY JOSEPH PATRICK TOMELTY,
Montgomery County Tax Map Parcel No. 013819 and being MVP Parcel No. VA-MO-
060; 0.89 ACRES OF LAND, OWNED BY DONALD W. LONG AND EVELYN W.
LONG, Montgomery County Tax Map Parcel No. 021559 and being MVP Parcel No.
VA-MO-062; 0.392 ACRES OF LAND, OWNED BY TRAVIS SCOTT LANCASTER
AND TRACY LYNN TAYLOR, Montgomery County Tax Map Parcel No. 033280 and
being MVP Parcel No. VA-MO-064 (AR-MN-271); 23.74 ACRES OF LAND, OWNED
BY MARK W. CRONK, ALISON G. CRONK AND THE NATURE CONSERVANCY,
Roanoke County Tax Map Parcel No. 093.00-01-44.00-0000 and being MVP Parcel No.
VA-RO-038; 1.89 ACRES OF LAND, OWNED BY TRUSTEES OF EVANGEL
FOURSQUARE CHURCH, Roanoke County Tax Map Parcel No. 093.00-01-47.00-0000
and being MVP Parcel No. VA-RO-039; 5.38 ACRES OF LAND, OWNED BY LUCY
A. PRICE, Franklin County Tax Map Parcel No. 0240003400 and being MVP Parcel No.
VA-FR-008; 3.11 ACRES OF LAND, OWNED BY RUSSELL E. CALLAWAY AND
HEIDE K. CALLAWAY, Franklin County Tax Map Parcel No. 0240005400 and being
MVP Parcel No. VA-FR-015.02; 5.93 ACRES OF LAND, OWNED BY CHARLES
FREDERICK FLORA AND STEPHANIE M. FLORA, Franklin County Tax Map Parcel
No. 0380002002 and being MVP Parcel No. VA-FR-017.20; 0.07 ACRES OF LAND,
OWNED BY DALE E. ANGLE AND MARY A. ANGLE, TRUSTEES OF THE DALE
E. ANGLE AND MARY A. ANGLE JOINT REVOCABLE TRUST, Franklin County
Tax Map Parcel No. 0440006400 and being MVP Parcel No. VA-FR-077.01; 2.14
ACRES OF LAND, OWNED BY DALE E. ANGLE AND MARY A. ANGLE,
TRUSTEES UNDER THE DALE E. AND MARY A. ANGLE JOINT REVOCABLE
TRUST, Franklin County Tax Map Parcel No. 0440006501 and being MVP Parcel No.
VA-FR-078; 11.86 ACRES OF LAND, OWNED BY DONALD B. BARNHART,
Franklin County Tax Map Parcel No. 0440007300 and being MVP Parcel No. VA-FR-
081; 10.21 ACRES OF LAND, OWNED BY WILLIAM DAVID BOARD, JAMES R.
BOARD, SUSAN BOARD MYERS, NANCY B. FLORA, AND KENNETH CRAIG
BOARD, Franklin County Tax Map Parcel No. 0450006100 and being MVP Parcel No.
VA-FR-128; 0.30 ACRES OF LAND, OWNED BY ROBERT ALAN PEGRAM,
Franklin County Tax Map Parcel No. 0650401600 and being MVP Parcel No. VA-FR-
155.01; 1.85 ACRES OF LAND, OWNED BY OYLER LAND AND LEASING, LLC,
Franklin County Tax Map Parcel No. 0240004000 and being MVP Parcel No. VA-FR-
4126 (AR FR-291); 0.83 ACRES OF LAND, OWNED BY SUSAN BOARD MYERS,
4
WILLIAM DAVID BOARD, KENNETH CRAIG BOARD, AND NANCY BOARD
FLORA, a/k/a William D. Board, Franklin County Tax Map Parcel No. 0450012003 and
being MVP Parcel No. VA-FR-4141 (AR FR-313); 0.56 ACRES OF LAND, OWNED
BY OWNED BY WILLIAM D. BOARD, Franklin County Tax Map Parcel No.
0450012005 and being MVP Parcel No. VA-FR-4277 (AR FR-313); 0.97 ACRES OF
LAND, OWNED BY WILLIAM DAVID BOARD, KENNETH CRAIG BOARD,
SUSAN B. MYERS, NANCY B. FLORA, AND JAMES R. BOARD, Franklin County
Tax Map Parcel No. 0450012001 and being MVP Parcel No. VA-FR-4278 (AR FR-313);
0.12 ACRES OF LAND, OWNED BY ANGELA L. MCGHEE AND FREDRICK C.
MCGHEE, Franklin County Tax Map Parcel No. 0370009905 and being MVP Parcel No.
VA-FR-5411; 0.07 ACRES OF LAND, OWNED BY RUSSELL W. LAWLESS,
Franklin County Tax Map Parcel No. 0370009907 and being MVP Parcel No. VA-FR-
5413; 0.04 ACRES OF LAND, OWNED BY RONALD B. EDWARDS, SR., GLORIA
MARTIN, TERRANCE EDWARDS, LINDA WHITE, RUBY PENN, JANIS E.
WALLER, CRYSTAL DIANE EDWARDS, AND PENNY EDWARDS BLUE, Franklin
County Tax Map Parcel No. 0660009502 and being MVP Parcel No. VA-FR-5434; 0.44
ACRES OF LAND, OWNED BY SHELBY A. LAW, Franklin County Tax Map Parcel
No. 0440200400 and being MVP Parcel No. VA-FR-5492; 3.15 ACRES OF LAND,
OWNED BY ROBERT WAYNE MORGAN AND PATRICIA ANN MORGAN,
Franklin County Tax Map Parcel No. 0440018700 and being MVP Parcel No. VA-FR-
5493; 3.11 ACRES OF LAND, OWNED BY JAMES GLYNWOOD HAYNES, JR.,
Franklin County Tax Map Parcel No. 0440020001 and being MVP Parcel No. VA-FR-
5504; 0.95 ACRES OF LAND, OWNED BY JAMES GLYNWOOD HAYNES, JR.,
Franklin County Tax Map Parcel No. 0440019500 and being MVP Parcel No. VA-FR-
5505; 0.38 ACRES OF LAND, OWNED BY JAMES GLYNWOOD HAYNES, JR.,
Franklin County Tax Map Parcel No. 0440019300 and being MVP Parcel No. VA-FR-
5507,
Defendants - Appellants.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Elizabeth Kay Dillon, District Judge. (7:17-cv-00492-EKD)
No. 18-1187
MOUNTAIN VALLEY PIPELINE, LLC,
Plaintiff - Appellee,
v.
5
0.09 ACRES OF LAND, OWNED BY GARY HOLLOPTER AND ALLISON
HOLLOPTER, Giles County Tax Map Parcel No. 30-4B and being MVP Parcel No. VA-
GI-5310; 0.18 ACRES OF LAND, OWNED BY GEORGIA LOU HAVERTY, Giles
County Tax Map Parcel No 30-4A and being MVP Parcel No. BVGI-10; 6.50 ACRES
OF LAND, OWNED BY SIZEMORE INCORPORATED OF VIRGINIA, f/k/a National
Committee for the New River, Giles County Tax Map Parcel No. 29-25B and being MVP
Parcel No. VA-GI-035; 1.23 ACRES OF LAND, OWNED BY EAGLE'S NEST
MINISTRIES, INC., Giles County Tax Map Parcel No. 29-25 and being MVP Parcel No
VA-GI-035.01; 10.67 ACRES OF LAND, OWNED BY DOE CREEK FARM,
INCORPORATED, Giles County Tax Map Parcel No.30-4 and being MVP Parcel No.
VA-GI-049; 2.19 ACRES OF LAND, OWNED BY STEPHEN D. LEGGE, DAVID
LEGGE, AND PHYLLIS J. LEGGE, Giles County Tax Map Parcel No. 44-3-3A and
being MVP Parcel No. VA-GI-057; 5.25 ACRES OF LAND, OWNED BY MARY
VIRGINIA REYNOLDS, SAMUEL HALE REYNOLDS, AND MARY SUTTON
REYNOLDS, Giles County Tax Map Parcel No. 46-1-3 and being MVP Parcel No. VA-
GI-097.01; 8.60 ACRES OF LAND, OWNED BY DOWDY FARM LLC, Giles County
Tax Map Parcel No. 46-52 and being MVP Parcel No. VA-GI-4250; 0.22 ACRES OF
LAND, OWNED BY DOWDY FARM, LLC, Giles County Tax Map Parcel No. 46-52
A. and being MVP Parcel No. VA-GI-5790; 10.26 ACRES OF LAND, OWNED BY
SAMUEL HALE REYNOLDS AND MARY SUTTON REYNOLDS, Giles County Tax
Map Parcel No. 46-1-2A and being MVP Parcel No. VA-GI-5922; 7.18 ACRES OF
LAND, OWNED BY MICHAEL EDWARD SLAYTON, TRUSTEE OR MARGARET
MCGRAW SLAYTON, TRUSTEE, MARGARET MCGRAW SLAYTON LIVING
TRUST, Montgomery County Tax Map Parcel No. 024590 and being MVP Parcel No.
VA-MO-3371; 0.22 ACRES OF LAND, OWNED BY LENORA W. MONTUORI AND
LENORA MONTUORI AND KRISTINA MONTUORI HILLMAN, TRUSTEES OF
THE ANTONIO MONTUORI FAMILY TRUST, Roanoke County Tax Map Parcel No.
117.00-01-41.00-0000 and being MVP Parcel No. BVRO-12; 0.41 ACRES OF LAND,
OWNED BY JAMES D. SCOTT AND KAREN B. SCOTT, Roanoke County Tax Map
Parcel No. 093.00-01-34.01-0000 and being MVP Parcel No. VA-RO-030 (AR RO-281);
2.17 ACRES OF LAND, OWNED BY JAMES D. SCOTT AND KAREN B. SCOTT,
Roanoke County Tax Map Parcel No. 093.00-01-33.00-0000 and being MVP Parcel No.
VA-RO-042; 0.341 ACRES OF LAND, OWNED JAMES D. SCOTT AND KAREN B.
SCOTT, Roanoke County Tax Map Parcel No. 093.00-01-33.01-0000 and being MVP
Parcel No. VA-RO-043; 0.41 ACRES OF LAND, OWNED BY LENORA W.
MONTUORI, Roanoke County Tax Map Parcel No. 110.00-01-54.00-0000 and being
MVP Parcel No. VA-RO-058; 4.31 ACRES OF LAND, OWNED BY JAMES T.
CHANDLER AND KATHY E. CHANDLER, Roanoke County Tax Map Parcel No.
111.00-01-62.01-0000 and being MVP Parcel No. VA-RO-060; 4.31 ACRES OF LAND,
OWNED BY JAMES T. CHANDLER AND KATHY E. CHANDLER, Roanoke County
Tax Map Parcel No 117.00-01-38.00-0000 and being MVP Parcel No. VA-RO-061; 1.91
ACRES OF LAND, OWNED BY LENORA W. MONTUORI AND LENORA
6
MONTUORI AND KRISTIN MONTUORI HILLMAN, TRUSTEES OF THE
ANTONIO MONTUORI FAMILY TRUST, Roanoke County Tax Map Parcel No.
117.00-01-43.02-0000 and being MVP Parcel No. VA-RO-062; 0.91 ACRES OF LAND,
OWNED BY LENORA W. MONTUORI AND LENORA MONTUORI AND
KRISTINA MONTUORI HILLMAN, TRUSTEES OF THE ANTONIO MONTUORI
FAMILY TRUST, Roanoke County Tax Map Parcel No. 117.00-01-43.00-0000, Being
MVP Parcel No. VA-RO-063; 2.99 ACRES OF LAND, OWNED BY LENORA W.
MONTUORI AND LENORA MONTUORI AND KRISTINA MONTUORI HILLMAN,
TRUSTEES OF THE ANTONIO MONTUORI FAMILY TRUST, Roanoke County Tax
Map Parcel No. 117.00-01-46.00-0000 and Being Parcel No. VA-RO-064; 0.20 ACRES
OF LAND, OWNED BY LENORA W. MONTUORI AND LENORA MONTUORI
AND KRISTINA MONTUORI HILLMAN, TRUSTEES OF THE ANTONIO
MONTUORI FAMILY TRU, Roanoke County Tax Map Parcel No. 117.00-01-43.01-
0000 and being MVP Parcel No. VA-RO-065; 0.19 ACRES OF LAND, OWNED BY
LENORA W. MONTUORI AND LENORA MONTUORI AND KRISTINA
MONTUORI HILLMAN, TRUSTEES OF THE ANTONIO MONTUORI FAMILY
TRUST, Roanoke County Tax Map Parcel No. 117.00-01-42.00-0000 and being MVP
Parcel No. VA-RO-066; 2.43 ACRES OF LAND, OWNED BY LENORA W.
MONTUORI AND LEMORA MONTUORI AND KRISTINA MONTUORI HILLMAN,
TRUSTEES OF THE ANTONIO MONTUORI FAMILY TRUST, Roanoke County Tax
Map Parcel No. 117.00-01-45.00-0000 and being MVP Parcel No. VA-RO-067; 0.50
ACRES OF LAND, OWNED BY LENORA W. MONTUORI AND LENORA
MONTUORI AND KRISTINA MONTUORI HILLMAN, TRUSTEES OF THE
ANTONIO MONTUORI FAMILY TRUST, Roanoke County Tax Map Parcel No.
117.00-01-41.01-0000 and being MVP Parcel No. VA-RO-4124; 0.33 ACRES OF
LAND, OWNED BY LENORA W. MONTUORI AND LENORA MONTUORI AND
KRISTINA MONTUORI HILLMAN, TRUSTEES OF THE ANTONIO MONTUORI
FAMILY TRUST, Roanoke County Tax Map Parcel No. 117.00-01-41.02-0000 and
being MVP Parcel No. VA-RO-4125; 8.21 ACRES OF LAND, OWNED BY
OCCANNEECHI, INC., Franklin County Tax Map Parcel No. 0250004100 and being
MVP Parcel No. VA-FR-017.11; 21.98 ACRES OF LAND, OWNED BY
OCCANNEECHI, INC., Franklin County Tax Map Parcel No. 0380001501 and being
MVP Parcel No. VA-FR-017.15; 8.67 ACRES OF LAND, OWNED BY JAMES D.
SCOTT AND KAREN B. SCOTT, Roanoke County Tax Map Parcel No. 093.00-01-
34.00-0000 and being MVP Parcel No. VA-RO-040,
Defendants - Appellants.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Elizabeth Kay Dillon, District Judge. (7:17-cv-00492-EKD)
7
No. 18-1242
MOUNTAIN VALLEY PIPELINE, LLC,
Plaintiff - Appellee,
v.
0.09 ACRES OF LAND, OWNED BY LARRY BERNARD CUNNINGHAM AND
CAROLYN A. CUNNINGAM, Roanoke County Tax Map Parcel No. 063.00-01-20.03-
0000 and being MVP Parcel No. VA-RO-5781; 0.11 ACRES OF LAND, OWNED BY
JUNE SMITH, RAY SMITH, PATRICIA S. DEVECHA, STEPHEN R. SMITH,
BARRY SCOTT SMITH, DOUGLAS F. SMITH, DAVID L. SMITH, FRED APGAR,
RUTH APGAR GLOCK, DONALD APGAR, GREGORY M. A, a/k/a Raymond Foster
Smith, a/k/a Fred I. Apgar, a/k/a Frederick Apgar, a/k/a Gregory M. Apgar, a/k/a Angela
H. Apgar, Unknown Heirs and Assigns of the Following June Smith, and Ray Smith,
Roanoke Co. Tax Map Parcel No. 063.00-01-25.00-0000 and being MVP Parcel No. VA-
RO-033; 0.14 ACRES OF LAND, OWNED BY UNKNOWN HEIRS OR ASSIGNS OF
ANTHONY B. NOVITZKI AND JOANNE A. LOFARO, Franklin County Tax Map
Parcel No. 0440206600 and being MVP Parcel No. VA-FR-5500; 4.90 ACRES OF
LAND, OWNED BY BRENDA LYNN WILLIAMS, Giles County Tax Map Parcel No.
46-15 and being MVP Parcel No. VA-GI-200.019; 0.19 ACRES OF LAND, OWNED
BY CLETUS WOODROW BOHON AND BEVERLY ANN BOHON, Montgomery
County Tax Map Parcel No. 030271 and being MVP Parcel No. VA-MN-5233 (AR MN-
278.01); 0.39 ACRES OF LAND, OWNED BY JAMES C. LAW AND CAROLYN D.
LAW, Montgomery County Tax Map Parcel No. 032431 And being MVP Parcel No.
VA-MN-5234 (AR MN-278.01); 2.08 ACRES OF LAND, OWNED BY DONALD D.
APGAR AND MILDRED M. APGAR, Montgomery County Tax Map Parcel No.
000843 and being MVP Parcel No. VA-MO-012; 2.69 ACRES OF LAND, OWNED BY
BRIAN DAVID GLOCK AND SUSAN ELIZABETH GLOCK BUCH, Montgomery
County Tax Map Parcel No. 000844 and being MVP Parcel No. VA-MO-013; 2.74
ACRES OF LAND, OWNED BY CLETUS WOODROW BOHON AND BEVERLY
ANN BOHON, Montgomery County Tax Map Parcel No. 017761 and being MVP Parcel
No. VA-MO-022; 2.12 ACRES OF LAND, OWNED BY JAMES CABEL LAW AND
CAROLYN DIANA EANES LAW, Montgomery County Tax Map Parcel No. 018808
and being MVP Parcel No. VA-MO-024; 4.67 ACRES OF LAND, OWNED BY JAMES
CABEL LAW AND CAROLYN DIANA EANES LAW, Montgomery County Tax Map
Parcel No. 011673 and being MVP Parcel No. VA-MO-025; 12.20 ACRES OF LAND,
OWNED BY JUNE SMITH, RAY SMITH, PATRICIA S. DEVECHA, STEPHEN R.
SMITH, BARRY SCOTT SMITH, DOUGLAS F. SMITH, DAVID L. SMITH, FRED
8
APGAR, RUTH APGAR GLOCK, GREGORY M. APGAR, AND ANG, a/k/a Raymond
Foster Smith, a/k/a Fred I. Apgar, a/k/a Frederick I. Apgar, Unknown Heirs or Assigns of
the Following June Smith, and Ray Smith, Montgomery Co. Tax Map Parcel No. 120001
and MVP Parcel No. VA-MO-084; 3.35 ACRES OF LAND, OWNED BY THOMAS W.
TRIPLETT AND BONNIE B. TRIPLETT, Montgomery County Tac Map Parcel No.
024589 and being MVP Parcel No. VA-MO-5514; 2.07 ACRES OF LAND, OWNED
BY PHYLLIS M. HUTTON, Montgomery County Tax Map Parcel No. 009443 and
being MVP Parcel No. VA-MO-5515; 3.01 ACRES OF LAND, OWNED BY PHYLLIS
M. HUTTON, Montgomery County Tax Map Parcel No. 026945 and being MVP Parcel
No. VA-MO-5516; 6.86 ACRES OF LAND, OWNED BY JULIANA BERNHOLZ
AND IRINA BERNHOLZ SIEGRIST, Montgomery County Tax Map Parcel No. 015895
and being MVP Parcel No. VA-MO-5526; 0.38 ACRES OF LAND, OWNED BY
JAMES C. LAW AND CAROLYN D. LAW, Montgomery County Tax Map Parcel No.
002833 and being MVP Parcel No. VA-MO-5626; 4.03 ACRES OF LAND, OWNED
BY MATTHEW D. ROLLIER AND DEANNA D. ROBINSON, Roanoke County Tax
Map Parcel No. 102.00-01-12.00-0000 and Bring MVP Parcel No. BVRO-04; 0.47
ACRES OF LAND, OWNED BY BRUCE M. COFFEY AND MARY E. COFFEY,
Roanoke County Tax Map Parcel No. 102.00-01-13.00-0000 and being MVP Parcel No.
BVRO-05; 13.47 ACRES OF LAND, OWNED BY JOHN COLES TERRY, III,
Roanoke County Tax Map Parcel No. 102.00-01-08.00-0000 and being MVP Parcel No.
VA-RO-045; 8.37 ACRES OF LAND, OWNED BY FRANK H. TERRY, JR., JOHN
COLES TERRY, III, AND ELIZABETH LEE TERRY, a/k/a Elizabeth Lee Reynolds,
Roanoke County Tax Map Parcel No. 102.00-01-02.00-0000 and being MVP Parcel No.
VA-RO-046; 1.40 ACRES OF LAND, OWNED BY MARY ELLEN RIVES, Roanoke
County Tax Map Parcel No. 103.00-02-43.00-0000 and being MVP Parcel No. VA-RO-
051; 1.85 ACRES OF LAND, OWNED BY JACQULINE J. LUCKI, Roanoke County
Tax Map Parcel No. 102.00-01-14.00-0000 and being MVP Parcel No. VA-RO-052; 9.89
ACRES OF LAND, OWNED BY ELIZABETH LEE TERRY, a/k/a Elizabeth Lee
Reynolds, Roanoke County Tax Map Parcel No. 110.00-01-44.00-0000 and being MVP
Parcel No. VA-RO-054; 4.72 ACRES OF LAND, OWNED BY FRED W. VEST,
Roanoke County Tax Map Parcel No. 110.00-01-56.00-0000 and being MVP Parcel No.
VA-RO-056; 2.93 ACRES OF LAND, OWNED BY LOIS KING WALDRON AND
LOIS MABEL WALDRON MARTIN, Roanoke County Tax Map Parcel No. 110.00-01-
50.00-0000 and being MVP Parcel No. VA-RO-057; 2.05 ACRES OF LAND, OWNED
BY HOWARD M. THOMPSON AND CHRISTINE W. THOMPSON, Roanoke County
Tax Map Parcel No. 118.00-01-09.00-0000 and being MVP Parcel No. VA-RO-068; 0.94
ACRES OF LAND, OWNED BY MARTIN G. MORRISON AND PATRICIA A.
BOYD, Roanoke County Tax Map Parcel No. 063.00-01-20.00-0000 and being MVP
Parcel No. VA-RO-4115; 2.20 ACRES OF LAND, OWNED BY HILAH PARKS
TERRY, FRANK H. TERRY, JR., ELIZABETH LEE TERRY, JOHN COLES TERRY
III, GRACE MINOR TERRY, Unknown Heirs or Assigns of Frank H. Terry, Sr.,
Roanoke County Tax Map Parcel No. 103.00-02-01.00-0000 and being MVP Parcel No.
VA-RO-4118 (AR RO-283); 0.28 ACRES OF LAND, OWNED BY JACQULINE J.
9
LUCKI, Roanoke County Tax Map Parcel No. 102.00-01-13.01-0000 and being MVP
Parcel No. VA-RO-50; 0.32 ACRES OF LAND, OWNED BY GRACE MINOR
TERRY, Roanoke County Tax Map Parcel No. 102.00-01-01.02-0000 and being MVP
Parcel No. VA-RO-5149 (AR RO-279.01); 0.34 ACRES OF LAND, OWNED BY
ROBIN B. AUSTIN AND ALLEN R. AUSTIN, Roanoke County Tax Map Parcel No.
110.00-01-45.00-0000 and being MVP Parcel No. VA-RO-5222 (AR RO-285); 0.33
ACRES OF LAND, OWNED BY ELIZABETH LEE TERRY, a/k/a Elizabeth Lee
Reynolds, Roanoke County Tax Map Parcel No. 093.00-01-46.00-0000 and being MVP
Parcel No. VA-RO-5228 (ATWS-1224); 0.31 ACRES OF LAND, OWNED BY
REBECCA JANE DAMERON, Roanoke County Tax Map Parcel No. 111.00-01-61.00-
0000 and being MVP Parcel No. VA-RO-5383; 0.15 ACRES OF LAND, OWNED BY
FRANK W. HALE AND FLOSSIE I. HALE AND ROBERT MATTHEW HAMM AND
AIMEE CHASE HAMM, Roanoke County Tax Map Parcel No. 110.00-01-56.01-0000
and being MVP Parcel No. VA-RO-5748; 0.26 ACRES OF LAND, OWNED BY
LARRY BERNARD CUNNINGHAM AND CAROLYN A. CUNNINGHAM, Roanoke
County Tax Map Parcel No. 063.00-01-21.00-0000 and being MVP Parcel No. VA-RO-
5785; 1.38 ACRES OF LAND, OWNED BY ALVIN E. WRAY, LINDA L. WRAY, L.
BENTON WRAY, JR., AND DIANE S. WRAY, Franklin County Tax Map Parcel No.
250002100 and being MVP Parcel No. VA-FR-017; 11.45 ACRES OF LAND, OWNED
BYL. BENTON WRAY, JR., DIANE S. WRAY, ALVIN E. WRAY, AND LINDA L.
WRAY, Franklin County Tax Map Parcel No. 0250002200 and being MVP Parcel No.
VA-FR-017.02; 2.74 ACRES OF LAND, OWNED BY MARK A. PETTIPIECE AND
TERESA J. PETTIPIECE, Giles County Tax Map Parcel No. 47-1-3 and being MVP
Parcel No. VA-GI-200.046; 0.87 ACRES OF LAND, OWNED BY BOBBY I. JONES
AND RICHARD WAYNE JONES REVOCABLE TRUST, RICHARD WAYNE
JONES, TRUSTEE, Franklin County Tax Map Parcel No. 0430105200 and being MVP
Parcel No. VA-FR-070.01; 1.60 ACRES OF LAND, OWNED BY SANDRA H.
LANCASTER, Franklin County Tax Map Parcel No. 0430105000 and being MVP Parcel
No. VA-FR-073; 3.70 ACRES OF LAND, OWNED BY DAVID J. WERNER, BETTY
B. WERNER, IAN ELLIOTT REILLY, AND CAROLYN ELIZABETH REILLY,
Franklin County Tax Map Parcel No. 0440004300 and being MVP Parcel No. VA-FR-
076.01; 1.72 ACRES OF LAND, OWNED BY GUY W. BUFORD AND MARGARET
S. BUFORD, Franklin County Tax Map Parcel No. 0440004400 and being MVP Parcel
No. VA-FR-077; 0.292 ACRES OF LAND, OWNED BY GAIL DUDLEY SMITHERS
AND GINGER K. SMITHERS, Franklin County Tax Map Parcel No. 0450008100 and
being MVP Parcel No. VA-FR-113; 8.56 ACRES OF LAND, OWNED BY GAIL
DUDLEY SMITHERS AND GINGER K. SMITHERS, Franklin County Tax Map Parcel
No. 0450000902 and being MVP Parcel No. VA-FR-114; 8.60 ACRES OF LAND,
OWNED BY GAIL DUDLEY SMITHERS, Franklin County Tax Map Parcel No.
0450001600 and being MVP Parcel No. VA-FR-117; 3.92 ACRES OF LAND, OWNED
BY GAIL DUDLEY SMITHERS AND GINGER K. SMITHERS, Franklin County Tax
Map Parcel No. 0450006800 and being MVP Parcel No. VA-FR-119; 0.32 ACRES OF
LAND, OWNED BY GAIL DUDLEY SMITHERS, Franklin County Tax Map Parcel
10
No. 0450001500 and being MVP Parcel No. VA-FR-5151 (ATWS-1266); 0.15 ACRES
OF LAND, OWNED BY RUSSELL R. BARKSDALE, JR., Franklin County Tax Map
Parcel No. 0370009904 and being MVP Parcel No. VA-FR-5415; 4.14 ACRES OF
LAND, OWNED BY MARK E. DANIEL AND ANGELA D. DANIEL, Franklin
County Tax Map Parcel No. 0440011600 and being MVP Parcel No. VA-FR-5476; 7.82
ACRES OF LAND, OWNED BY THOMAS O. WHITE, JR., TRUSTEE OF THE
BEVERLY A. MCLAUGHLIN TESTAMENTARY TRUST, Pittsylvania County Tax
Map Parcel No. 1489-86-7542 and being MVP Parcel No. VA-PI-029.05; 1.23 ACRES
OF LAND, OWNED BY JAMES M. GRUBBS, EVELENA GRUBBS ROUSE, AND
ENZY GRUBBS ANDERSON, UNKNOWN HEIRS OR ASSIGNS OF JAMES M.
GRUBB, a/k/a Evelyn Rouse, Pittsylvania County Tax Map Parcel Nos. 2436-05-4452
and 2436-05-2564 and being MVP Parcel No. VA-PI-104; 3.42 ACRES OF LAND,
OWNED BY HENRY COX AND JANET DEGROFF, Montgomery County Tax Map
Parcel No. 032870 and being MVP Parcel No. VA-MO-5520; 3.74 ACRES OF LAND,
OWNED BY JEROME DAVID HENRY AND DORIS MARIE HENRY, Roanoke
County Tax Map Parcel No. 110.00-01-46.00-0000 and being MVP Parcel No. VA-RO-
055,
Defendants - Appellants.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Elizabeth Kay Dillon, District Judge. (7:17-cv-00492-EKD)
No. 18-1300
MOUNTAIN VALLEY PIPELINE, LLC,
Plaintiff - Appellee,
v.
CHERYL L. BOONE, Parcel ID No. 7-7-27.2; KERRY N. BOONE, Parcel ID No. 7-7-
27.2; ORUS ASHBY BERKLEY, Parcel ID No. 7-15A-13, 7-15A-13.1; TAMMY A.
CAPALDO, Parcel ID No. 7-15-125; CARLA D. FOUNTAIN, Parcel ID No. 05-19-36,
05-19-24; DENNIS F. FOUNTAIN, Parcel ID No. 05-19-36, 05-19-24; ROBERT M.
JARRELL, Parcel ID No. 7-11-15; DAVID ALLEN JOHNSON, Parcel ID No. 05-19-9;
EVERETT JOHNSON, JR., Parcel ID No. 05-19-9; WAYNE JOHNSON, Parcel ID No.
05-19-9; MAURY JOHNSON, Parcel ID No. 05-19-9; ELISABETH TOBEY, Parcel ID
No. 11-84-10; RONALD TOBEY, Parcel ID No. 11-84-10; PATRICIA J. WILLIAMS,
Parcel ID No. 05-25-1.13,
11
Defendants - Appellants.
Appeal from the United States District Court for the Southern District of West Virginia,
at Charleston. John T. Copenhaver, Jr., Senior District Judge. (2:17-cv-04214)
Argued: September 25, 2018 Decided: February 5, 2019
Before GREGORY, Chief Judge, and WYNN and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Harris wrote the opinion, in which Chief Judge
Gregory and Judge Wynn joined.
ARGUED: Derek Owen Teaney, APPALACHIAN MOUNTAIN ADVOCATES, INC.,
Lewisburg, West Virginia; Christopher Stephen Johns, JOHNS & COUNSEL PLLC,
Austin, Texas, for Appellants. Wade Wallihan Massie, PENN, STUART & ESKRIDGE,
Abingdon, Virginia; Nicolle Renee Snyder Bagnell, REED SMITH, LLP, Pittsburgh,
Pennsylvania, for Appellee. ON BRIEF: Jeremy Hopkins, CRANFILL SUMNER &
HARTZOG LLP, Raleigh, North Carolina, for Appellants in 18-1159 and 18-1242.
Charles M. Lollar, LOLLAR LAW, PLLC, Norfolk, Virginia, for Appellants in 18-1159,
18-1242, and 18-1300. Isak J. Howell, LAW OFFICE OF ISAK HOWELL, Roanoke,
Virginia, for Appellants in 18-1165, 18-1175, and 18-1300. Kevin DeTurris,
BLANKINGSHIP & KEITH, P.C., Fairfax, Virginia, for Appellants in 18-1181. Stephen
J. Clarke, WALDO & LYLE, P.C., Norfolk, Virginia, for Appellants in 18-1187. Mark
E. Frye, Seth M. Land, PENN, STUART & ESKRIDGE, Abingdon, Virginia; Colin E.
Wrabley, REED SMITH LLP, Pittsburgh, Pennsylvania, for Appellee.
12
PAMELA HARRIS, Circuit Judge:
In October 2017, the Federal Energy Regulatory Commission approved the
application of Mountain Valley Pipeline, LLC, to construct a natural gas pipeline through
West Virginia and Virginia. Building and maintaining that pipeline would require access
to thousands of private properties, under which the pipeline would be buried.
Accordingly, the Commission’s approval permits Mountain Valley to obtain easements
along the pipeline route through eminent domain where it cannot do so through private
agreements.
Mountain Valley successfully negotiated easements allowing access onto the land
of most of the affected landowners. To obtain the rest of the required easements, it
initiated condemnation proceedings. Three district courts granted partial summary
judgment to Mountain Valley, recognizing its right to take the easements. And because
the eminent domain proceedings – including multiple trials to determine the amount of
just compensation for each easement – would take years to complete, the courts also
issued preliminary injunctions granting Mountain Valley immediate possession of the
easements, so that it could begin construction without delay. To ensure that the
landowners would be compensated fully, the district courts required Mountain Valley to
post deposits, which the landowners could draw upon while the proceedings continued.
On appeal, the landowners do not dispute the grant of partial summary judgment
to Mountain Valley, conceding that Mountain Valley has the substantive right to take
easements by eminent domain. Thus, the only question before us is whether Mountain
Valley may gain access to those easements now, or whether it must wait to start
13
construction until the district courts can sort out just compensation. We hold that the
district courts did not abuse their discretion in allowing Mountain Valley immediate
possession, and therefore affirm the injunction orders.
I.
A.
In October 2015, Mountain Valley applied to the Federal Energy Regulatory
Commission (“FERC” or the “Commission”) for authorization to construct a 303.5-mile-
long, 42-inch-diameter pipeline from Wetzel County, West Virginia, to Pittsylvania
County, Virginia. When complete, the pipeline would transport up to two million
dekatherms of natural gas per day, enabling shippers to access markets in the Northeast,
Mid-Atlantic, and Southeast. Close to 300 parties, including residents and environmental
groups, intervened in the Commission’s process, and FERC received more than 2,000
written and oral comments during its review.
On October 13, 2017, the Commission issued a “certificate of public convenience
and necessity” (the “Certificate”) under the Natural Gas Act, 15 U.S.C. § 717f(e). The
Commission found that the proposed pipeline is in the public interest, would meet a
market demand, and is “environmentally acceptable.” J.A. 2853. The Certificate
authorized Mountain Valley to construct and operate the proposed pipeline, contingent on
numerous conditions. Most significant for this appeal, the Certificate requires that the
pipeline be complete and available for service within three years – that is, by October
2020.
14
Under the Natural Gas Act, legal challenges to a Commission certificate and its
underlying public-interest determination may proceed only through specified routes. A
party wishing to contest a certificate first must apply for rehearing before the
Commission. 15 U.S.C. § 717r(a). After that, review may be had in the United States
Court of Appeals for the District of Columbia or another federal circuit court with
jurisdiction. Id. § 717r(b). Here, though numerous parties have challenged the
Certificate, their efforts thus far have been unsuccessful. In November 2017, various
intervenors applied to the Commission for rehearing and a stay of the Certificate, which
ultimately was denied. While that request was pending, at least three petitions for review
and for stay pending review were filed with the D.C. Circuit, which denied the stay
requests. 1 Appalachian Voices v. Fed. Energy Reg. Comm’n, No. 17-1271, 2018 U.S.
App. LEXIS 2924 (D.C. Cir. Feb. 2, 2018). Importantly, the Certificate remains effective
while these legal challenges proceed. See 15 U.S.C. § 717r(c) (neither the filing of an
application for rehearing nor commencement of judicial proceedings stays a FERC
order).
1
The Commission denied the request for rehearing and to stay the Certificate in
June 2018, several months after the issuance of the district court orders challenged in this
appeal. Mountain Valley Pipeline, LLC, Equitrans, L.P., 163 FERC ¶ 61,197 (June 15,
2018). This prompted the filing of at least five new petitions for review of the Certificate
and for stay pending review in the Court of Appeals for the District of Columbia. The
D.C. Circuit denied those additional stay requests, as well, and those cases are ongoing.
See Appalachian Voices v. Fed. Energy Reg. Comm’n, No. 17-1271, 2018 WL 4600685
(D.C. Cir. Aug. 30, 2018).
15
By late November 2017, within weeks of obtaining the Certificate, Mountain
Valley had entered into three master construction services agreements to lay the pipeline.
Mountain Valley sought to commence construction by February 2018 with completion
anticipated for December 2018, well before the Commission’s deadline of October 2020.
Because tree-clearing in areas with protected bats must be completed during the winter
season (between mid-November and March), even a brief delay would have postponed
the project’s start date until November 2018. However, Mountain Valley had developed
a schedule to proceed in the event of that contingency, under which it still expected to
meet the Commission’s in-service deadline.
Mountain Valley acquired rights-of-way to portions of approximately 85 percent
of the properties along the approved pipeline route in anticipation of construction. These
include both permanent easements along the pipeline route, allowing its pipeline to lie
underneath the land, and temporary easements for construction. However, Mountain
Valley was unable to reach agreement with the hundreds of landowners who are now
parties to this litigation (the “Landowners” 2).
B.
Under the Natural Gas Act, Mountain Valley’s certificate entitles it to exercise the
power of eminent domain to obtain any rights-of-way it cannot otherwise acquire, as
necessary to construct, operate, or maintain the planned pipeline. See 15 U.S.C. §
2
This opinion typically uses the term “Landowners” to refer to all of the
landowners in this consolidated appeal. When used in the context of a particular district
court case, however, it refers only to the defendant landowners in that proceeding.
16
717f(h). In other words, where Mountain Valley is unable to negotiate an easement with
a landowner along the pipeline route, it may obtain a condemnation order granting an
easement for a fair price set by the court.
Between receiving its Certificate in October 2017 and early December of that
year, Mountain Valley commenced proceedings in three different district courts to
condemn a 50-foot-wide path along the pipeline route in each jurisdiction. Within days
of commencing each proceeding, Mountain Valley moved for partial summary judgment
on its substantive right to take the easements by eminent domain. In the same motions,
the company sought preliminary injunctions granting immediate access and possession
during the pendency of the proceedings, in order to prevent construction delays.
Each of the district courts granted Mountain Valley’s motion in full. 3 As to partial
summary judgment, the district courts each held that Mountain Valley was entitled, as a
matter of law, to acquire the necessary easements along the pipeline route by eminent
3
Of the three district court opinions, one is published and two are unpublished.
The opinion of the Northern District of West Virginia is published at Mountain Valley
Pipeline, LLC v. Simmons, 307 F. Supp. 3d 506 (N.D.W. Va. 2018). The unpublished
opinion of the Western District of Virginia can be located at Mountain Valley Pipeline,
LLC v. Easements to Construct, Operate, & Maintain a Nat. Gas Pipeline, No. 7:17-cv-
00492, 2018 WL 648376 (W.D. Va. Jan. 31, 2018). The unpublished opinion of the
Southern District of West Virginia can be located at Mountain Valley Pipeline, LLC v. An
Easement to Construct, Operate & Maintain a 42-Inch Gas Transmission Line, No. 2:17-
cv-04214, 2018 WL 1004745 (S.D.W. Va. Feb. 21, 2018). For ease of reference, we will
refer to these opinions as the “N.D.W. Va. Opinion,” the “W.D. Va. Opinion,” and the
“S.D.W. Va. Opinion.” Citations to the N.D.W. Va. Opinion refer to its published
version, and citations to the other two opinions refer to the Joint Appendix filed by the
parties on appeal.
17
domain. Under 15 U.S.C. § 717f(h), the courts explained, the holder of a duly issued
Commission certificate has the right to condemn property if it is necessary for pipeline
construction and operation and cannot be acquired by private agreement. And that is so,
they continued, regardless of pending legal challenges to that certificate or related
litigation; only FERC itself or the appropriate court of appeals may stay enforcement of a
Commission certificate while other legal proceedings are resolved. Because there was no
factual dispute as to satisfaction of the necessary conditions, the courts concluded,
Mountain Valley was entitled to exercise eminent domain and condemn the specified
portions of the Landowners’ properties.
But that eminent domain process, one district court estimated, could take more
than three years to complete – bringing it outside FERC’s in-service deadline of October
2020 – as the courts conducted proceedings to determine the amount of just
compensation for each of the hundreds of easements in question. Accordingly, the courts
turned to Mountain Valley’s motions for preliminary injunctions, which sought
immediate access while those proceedings were ongoing. Applying the four-pronged test
for a preliminary injunction set out in Winter v. Natural Resources Defense Council, Inc.,
555 U.S. 7, 20 (2008), which requires the movant to establish “that he is likely to succeed
on the merits, that he is likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that an injunction is in the public
interest,” each district court granted Mountain Valley’s request for immediate possession
of the easements.
18
The first element of the Winter test – likelihood of success on the merits – was
easily satisfied, as the courts “ha[d] already determined on the merits that Mountain
Valley has the right to condemn the landowners’ property interests.” S.D.W. Va.
Opinion, at J.A. 2715. On the second element – irreparable harm – the district courts
held that Mountain Valley would suffer various forms of irreparable injury if it were
required to delay construction until after completion of the eminent domain proceedings.
Most important, without a preliminary injunction, Mountain Valley would be unable to
meet the Commission’s October 2020 in-service deadline, which could come and go
before the courts had finally determined due compensation for the hundreds of easements
at issue.
In response, the Landowners proposed that any injunctive relief be delayed until
November 2018, when bat-conservation regulations again would permit seasonal tree-
clearing and, according to its own contingency schedule, Mountain Valley could
commence construction and still expect to meet the Commission’s deadline. But that
delay itself, the district courts found, would impose substantial economic losses on
Mountain Valley, in the form of lost revenues, carrying costs, and contractual fees that
Mountain Valley would not be able to recover “in this or any other litigation.” N.D.W.
Va. Opinion, 307 F. Supp. 3d at 526. The district courts carefully considered Mountain
Valley’s evidence on this issue, questioning whether Mountain Valley’s losses might be
mitigated. All concluded, however, that on the facts presented, Mountain Valley had
satisfied its burden of establishing irreparable harm.
19
The district courts further held that Mountain Valley’s losses would exceed any
harms a preliminary injunction might cause the Landowners, and that the balance of the
equities – the third Winter factor – therefore favored preliminary relief. The key finding
here, as one court explained it, was that virtually all harms identified by the Landowners
would be inflicted as a result of the exercise of eminent domain itself, and not because of
the preliminary injunction: Completion of the pipeline “will have the same impact on
[Landowners’] property whether [Mountain Valley] is granted immediate access or
commences construction only after [L]andowners have received just compensation.”
N.D.W. Va. Opinion, 307 F. Supp. 3d at 530.
On the fourth element – the public interest – the district courts relied heavily on
the Certificate itself, which was predicated on the Commission’s finding that construction
of the pipeline is in the public interest. The Landowners disagreed with that assessment,
citing the dissenting opinion of one of the FERC commissioners and arguing that pipeline
construction in fact would have negative effects on the environment and areas of
historical and cultural importance. As the district courts explained, however, challenges
to a FERC certificate must follow the prescribed statutory route, and condemnation
proceedings may not be used to mount a collateral attack. “The Court will not second-
guess FERC’s determination that [Mountain Valley’s] project will benefit the public need
for natural gas as the [Landowners] request; FERC possesses the expertise necessary to
make that determination.” Id. at 531.
Accordingly, the district courts all found that Mountain Valley satisfied the Winter
preliminary injunction standard and should be granted immediate possession. At the
20
same time, the courts recognized that the Landowners were entitled to a “reasonable,
certain, and adequate provision” for obtaining just compensation at the end of the
condemnation proceedings. See, e.g., W.D. Va. Opinion, at J.A. 1432 (quoting Cherokee
Nation v. S. Kan. Ry. Co., 135 U.S. 641, 659 (1890)). The courts thus required that
Mountain Valley make a deposit in an amount several times the estimated value of each
easement. 4 During the pendency of the proceedings, each Landowner would be entitled
to draw on that fund, up to the estimated value of the easement across its property. The
district courts also required Mountain Valley to post a surety bond in an amount double
each easement’s estimated value, conditioned on its payment of just compensation at the
conclusion of proceedings.
II.
The Landowners have not appealed the entry of partial summary judgment against
them, nor the merits determination on which it rests: that under 15 U.S.C. § 717f(h),
Mountain Valley currently has the right to exercise eminent domain and take easements
on their property to build and operate the FERC-approved pipeline. But they do dispute
the appropriateness of preliminary relief, and timely appealed the issuance of the three
4
Appraisal values ranged from $3,001 for many of the easements to six figures for
some. The $3,001 estimate tracks the jurisdictional provision of the National Gas Act,
limiting federal jurisdiction to those cases in which “the amount claimed by the owner of
the property to be condemned exceeds $3,000.” 15 U.S.C. § 717f(h).
21
preliminary injunctions awarding Mountain Valley immediate possession of the
easements while just compensation is determined.
We “review the decision to grant or deny a preliminary injunction for an abuse of
discretion.” Safety-Kleen, Inc. v. Wyche, 274 F.3d 846, 859 (4th Cir. 2001). A clear
error in factual findings or a mistake of law is grounds for reversal. WV Ass’n of Club
Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir. 2009). But
abuse of discretion is a deferential standard, and so long as “the district court’s account of
the evidence is plausible in light of the record viewed in its entirety, [we] may not
reverse,” even if we are “convinced that . . . [we] would have weighed the evidence
differently.” Walton v. Johnson, 440 F.3d 160, 173 (4th Cir. 2006) (en banc) (quoting
Anderson v. Bessemer City, 470 U.S. 564, 573–74 (1985)).
The Landowners advance two principal arguments against the preliminary
injunctions. First, they argue that federal courts lack authority to grant immediate
possession – that is, possession prior to the determination and payment of just
compensation – and that the injunctions therefore are legally infirm. And in the
alternative, they argue that the district courts improperly applied the Winter factors and
abused their discretion in awarding preliminary relief here. For the reasons given below,
we disagree on both counts.
A.
We begin with the Landowners’ threshold argument: that district courts may not
order immediate possession of condemned property under 15 U.S.C. § 717f(h). Instead,
the Landowners contend, the district courts were authorized to grant Mountain Valley
22
access to the easements in question only after eminent domain proceedings were
completed, with just compensation for each individual easement calculated and paid.
We note at the outset that this is a statutory argument, not a constitutional one.
The Landowners concede, as they must, that the Constitution does not prohibit
condemnations in which possession comes before compensation. The Supreme Court
settled that question nearly 130 years ago in Cherokee Nation, holding that the
Constitution “does not provide or require that compensation shall be actually paid in
advance of the occupancy of the land to be taken.” 135 U.S. at 659. So long as the
owner is assured through “reasonable, certain, and adequate” means that he ultimately
will be compensated fairly, constitutional requirements are met. Id. The district courts in
this case carefully followed Cherokee Nation, insisting on “adequate protections to [the
Landowners] to ensure that they will receive just compensation,” W.D. Va. Opinion, at
J.A. 1432, and the Landowners do not dispute that the required deposits and bonds satisfy
this standard.
Instead, the Landowners argue that there was no statutory authority for what they
call “take-first, pay-later” condemnations. Under the Natural Gas Act, they insist, the
district courts were permitted to grant possession only after the determination and
payment of just compensation. This is so, they contend, because the Act does not
expressly allow for immediate possession, and thus implicitly forecloses the courts from
granting that possession through the equitable remedy of a preliminary injunction.
But as the Landowners recognize, our court has rejected precisely this argument
before, holding in East Tennessee Natural Gas Co. v. Sage, 361 F.3d 808 (4th Cir. 2004)
23
that a federal court indeed may grant a gas company immediate possession of private
property along an approved pipeline route, with payment of just compensation to follow.
In Sage, as in this case, a gas company filed condemnation proceedings to access
numerous properties along the route of a Commission-approved pipeline. 361 F.3d at
819–20. The district court first concluded that the gas company had a substantive right to
exercise eminent domain over the easements sought. Id. at 820, 823. It then invoked its
traditional equitable authority to grant a preliminary injunction allowing immediate
possession, in order to avoid construction delays. Id. at 820. The landowners appealed to
this court, arguing that the district court lacked “equitable power to order immediate
possession in a condemnation case,” given the absence of any express authorization in the
Natural Gas Act. Id. at 820.
We disagreed. What the landowners’ argument “overlook[ed],” we explained,
was “the preliminary injunction remedy provided in the Federal Rules of Civil Procedure
that were adopted with the tacit approval of Congress.” Id. at 824. Once a gas company
had established its substantive right to eminent domain under the National Gas Act, we
concluded, it was entitled to apply under Rule 65(a) for a preliminary injunction, subject
to the normal rules governing the availability of equitable relief. Id. And contrary to the
landowners’ argument, we found ample “safeguards in place to protect the landowner.”
Id. at 826. The district court’s requirement that the gas company deposit with the court
an amount equal to the appraised value of the easements satisfied the Cherokee Nation
standard. Id. at 824. And if the deposit turned out to be less than the final compensation
awarded, we noted, the landowners would remain protected: When immediate
24
possession is granted through a preliminary injunction, title itself does not pass until
compensation is ascertained and paid, so the landowners could proceed with a trespass
action if the company did not promptly make up the difference. Id. at 825–26 (citing
Cherokee Nation, 135 U.S. at 660).
This case is on all fours with Sage. As in Sage, there already has been a finding
that the gas company has a substantive right to condemn the easements in question, here
in the form of partial summary judgment rulings that are unchallenged on appeal. And
the district courts adequately safeguarded the Landowners’ interests with a deposit
provision that is similar to but more protective than the one we approved in Sage, in that
it requires Mountain Valley to deposit with the court an amount that is several times
larger than the estimated value of the condemned easements 5 – making it exceedingly
unlikely that resort to the trespass actions envisioned in Sage ever could be required.
The Landowners do not dispute that Sage, by its terms, governs this case.
Instead, they argue that Sage was wrongly decided, and to give the court an opportunity
to correct what they see as an important misstep, they moved for an initial hearing of this
appeal en banc. 6 Our court denied that motion. Order, Mountain Valley Pipeline, LLC v.
5
Two of the district courts required each deposit to be three times the respective
easement’s appraisal value, while the third district court required the deposit to be four
times the appraisal value.
6
Among other contentions, the Landowners argue that Sage created a circuit split
with Northern Border Pipeline Co. v. 86.72 Acres, 144 F.3d 469 (7th Cir. 1998), which
held that the district court lacked authority to issue a preliminary injunction ordering
landowners to grant the pipeline company immediate possession of land. However, as
we expressly recognized in Sage, the pipeline company in Northern Border had not yet
(Continued)
25
6.56 Acres of Land, No. 18-1159 (4th Cir. May 25, 2018). Accordingly, we remain
bound to follow Sage. See United States v. Collins, 415 F.3d 304, 311 (4th Cir.
2005) (“A decision of a panel of this court becomes the law of the circuit and is binding
on other panels unless it is overruled by a subsequent en banc opinion of this court or a
superseding contrary decision of the Supreme Court.” (internal quotation marks
omitted)). And as we have explained, Sage squarely forecloses the Landowners’
argument that the district courts lacked the authority to grant immediate possession in a
Natural Gas Act condemnation.
B.
The only remaining question for this panel is whether the district courts abused
their discretion in issuing preliminary injunctions under the Winter standard. On this
question, too, Sage is highly instructive. In Sage, after holding that district courts may
grant immediate possession to a gas company with a valid FERC certificate, we went on
to consider whether the gas company could satisfy the standard conditions for
obtained a district court order finding that it was entitled to the land; accordingly, it had
no equitable right to seek a preliminary injunction granting immediate possession. Sage,
361 F.3d at 828; see also Transwestern Pipeline Co., LLC v. 17.19 Acres of Prop., 550
F.3d 770, 777 (9th Cir. 2008) (distinguishing Sage from Northern Border on this basis).
In this case, however, unlike Northern Border, Mountain Valley has obtained such orders
of condemnation.
26
preliminary relief. 361 F.3d at 828–30. 7 It could, we concluded, and we affirmed the
district court’s preliminary injunction as within its discretion. Id. at 830.
Success on the merits was not only likely but guaranteed, we held, given the
district court’s determination – uncontested on appeal – that the gas company had the
right to condemn the landowners’ property. Id. at 829–30. We sustained as amply
supported by the record the district court’s finding that the gas company would suffer
irreparable harm in the absence of preliminary relief, both because it would be forced to
breach contracts it already had entered into and absorb the financial consequences, and
because the “extended period of time” necessary to hold multiple compensation hearings
would make it impossible for the company to meet its FERC deadline. Id. at 828–29.
The landowners, by contrast, had identified no cognizable harm flowing from preliminary
relief rather than condemnation itself; any interference with the “productive capacity of
their land” would be the same even if compensation was paid and determined before
access was granted. Id. at 829. Finally, FERC’s issuance of a certificate was enough to
establish that the pipeline project would serve the public interest, and a “delay in
construction would postpone” the benefits identified by FERC. Id. at 830.
7
At the time Sage was decided, we analyzed preliminary injunctions under the
balance-of-hardship approach set out in Blackwelder Furniture Co. of Statesville, Inc. v.
Selig Mfg. Co., 550 F.2d 189, 195 (4th Cir. 1977). We “recalibrated” that approach after
Winter, which requires a party seeking preliminary relief to satisfy all four prongs of the
preliminary-injunction standard, and does not employ a sliding scale. See Pashby v.
Delia, 709 F.3d 307, 320 (4th Cir. 2013); Winter, 555 U.S. at 20. But because Sage
separately analyzed each of the four Winter prongs, it remains directly on point.
27
Since Sage was decided in 2004, many courts, both within and outside this circuit,
have issued preliminary injunctions granting immediate possession to gas companies
under closely analogous circumstances. See, e.g., S.D.W. Va. Opinion, at J.A. 2713–14
(collecting district court cases); Columbia Gas Transmission, LLC v. 1.01 Acres, 768
F.3d 300, 314–16 (3d Cir. 2014); All. Pipeline L.P. v. 4.360 Acres of Land, 746 F.3d 362,
368–69 (8th Cir. 2014); cf. Transwestern Pipeline Co. v. 17.19 Acres of Prop., 550 F.3d
770, 775–78 (9th Cir. 2008) (holding that immediate possession is appropriate once the
court has determined that the gas company has a right to condemn).
It is with Sage and this body of authority in mind that we review the district
courts’ preliminary injunctions for abuse of discretion, applying Winter’s four-pronged
test. For the reasons given below, we find no abuse of discretion and affirm the entry of
preliminary relief.
1.
The first Winter prong – likelihood of success on the merits – is uncontested, and
for good reason. Mountain Valley has done more than establish a likelihood of success
on the merits; it already has succeeded on the merits. The district courts granted partial
summary judgment to Mountain Valley on its claim that it is entitled to exercise the
power of eminent domain over the Landowners’ property, notwithstanding the pendency
of legal challenges to the Certificate, and the Landowners have not challenged those
rulings on appeal. There is no question, then, that Mountain Valley may take easements
28
across the properties at issue, making this the rare preliminary-injunction case in which
success on the merits is guaranteed. 8
2.
We also find no clear error or abuse of discretion in the district courts’ findings
that Mountain Valley would incur irreparable harm absent preliminary injunctions, in
satisfaction of Winter’s second element. To establish irreparable harm, the movant must
make a “clear showing” that it will suffer harm that is “neither remote nor speculative,
but actual and imminent.” Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802,
812 (4th Cir. 1991) (internal quotation marks omitted). Additionally, the harm must be
irreparable, meaning that it “cannot be fully rectified by the final judgment after trial.”
Stuller, Inc. v. Steak N Shake Enters., 695 F.3d 676, 680 (7th Cir. 2012) (internal
quotation marks omitted). The district courts properly applied that standard here, and we
have no ground for disturbing their conclusions.
First and most important, it is undisputed that without preliminary relief, Mountain
Valley almost certainly would be unable to meet FERC’s October 2020 in-service
deadline. As the court explained in Sage, construction of a pipeline is a lengthy and
complex process: “Certain portions of the project have to be completed before
8
This unusual posture also addresses the Landowners’ argument that mandatory
preliminary injunctions – those that alter rather than preserve the status quo – are
disfavored. See Taylor v. Freeman, 34 F.3d 266, 270 n.2 (4th Cir. 1994). Whatever the
general force of that observation, where “the applicants’ right to relief [is] indisputably
clear,” as here, mandatory injunctive relief remains available. See Communist Party of
Ind. v. Whitcomb, 409 U.S. 1235, 1235 (1972).
29
construction can begin on other portions,” and “any single parcel has the potential of
holding up the entire project.” 361 F.3d at 829. The district courts found that this case is
no exception, describing the eleven distinct segments of pipeline construction that must
be sequenced around a limited window during which federal regulations allow for
necessary tree-clearing. See N.D.W. Va. Opinion, 307 F. Supp. 3d at 527. But at the
same time, determining just compensation for the multiple tracts of land affected by a
pipeline is itself a lengthy and complex process, see Sage, 361 F.3d at 828–29, which in
this case could extend for three years or more, taking it past the Commission’s deadline
of October 2020. The combined effect is that without a preliminary injunction, Mountain
Valley likely would lose the right to construct the pipeline altogether – an outcome that
qualifies as an irreparable injury under Sage. See id. at 829.
In response to that straightforward case for preliminary relief, the Landowners
urged the district courts to adopt a more “narrow[] analy[sis],” focused on whether
Mountain Valley “needs access to their properties now or whether it still can meet
FERC’s deadline if granted access later.” N.D.W. Va. Opinion, 307 F. Supp. 3d at 528.
Specifically, the Landowners argued that entry of any preliminary injunction should be
delayed for approximately nine months, until November 2018 – when the tree-clearing
window would reopen, and Mountain Valley’s own contingency schedule showed that
the company could begin construction and still expect to finish before the FERC deadline
of October 2020.
The Landowners’ argument assumes that the need to narrowly tailor preliminary
relief, see PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 128 (4th Cir. 2011),
30
means that preliminary injunctions should issue only at the last minute, and places a great
deal of confidence in Mountain Valley’s ability to complete the work on an expedited
schedule. Even so, that leads us directly to the second form of irreparable injury found
by the district courts: the significant and unrecoverable financial losses that Mountain
Valley would sustain if access were delayed until November 2018, rather than granted
immediately.
To establish that injury, Mountain Valley presented evidence of three types of
monetary harm: lost revenues from the delay in pipeline service, estimated at $40 to $50
million per month; charges and penalties for the breach of construction contracts, totaling
$200 million; and carrying costs to prolong the project, such as storage and personnel
expenses, for an additional $40 to $45 million. The district courts closely scrutinized
those alleged losses, noting testimony suggesting that “some of the claimed damage
amounts might be lower,” W.D. Va. Opinion, at J.A. 1423, or be “capable of mitigation,”
N.D.W. Va. Opinion, 307 F. Supp. 3d at 525. But even assuming a “lower amount of loss
than estimated by [Mountain Valley],” id. at 528, the courts concluded that there still
would be enough to show irreparable harm under Sage, which credited as irreparable
injury not only the prospect of missing the FERC deadline but also “increased
construction costs and losses” from the breach of service contracts, id. at 526–27 (quoting
Sage, 361 F.3d at 830).
On appeal, the Landowners raise two principal challenges to the district courts’
findings of irreparable injury. Most significantly, they insist that the district courts erred
at the threshold in considering Mountain Valley’s economic losses at all. According to
31
the Landowners, prospective financial losses can never qualify as “irreparable injury,” at
least where they do not “threaten the party’s very existence.” Br. of Appellants at 16.
All three district courts rejected that argument as inconsistent with our case law, and we
agree.
It is true that when anticipated economic losses will be recoverable at the end of
litigation, then those losses generally will not qualify as irreparable for purposes of
preliminary relief. See Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017) (citing
Sampson v. Murray, 415 U.S. 61, 90 (1974)). That makes perfect sense: By definition, a
temporary loss is not irreparable. Only when a temporary delay in recovery somehow
translates to permanent injury – threatening a party’s very existence by, for instance,
driving it out of business before litigation concludes – could it qualify as irreparable. See
Fed. Leasing, Inc. v. Underwriters at Lloyd’s, 650 F.2d 495, 500 (4th Cir. 1981). But
otherwise, financial losses that can be recovered by a prevailing party at the close of
litigation ordinarily will not justify preliminary relief. See Hughes Network Sys. v.
Interdigital Comms. Corp., 17 F.3d 691, 694 (4th Cir. 1994).
This case is different, because here, Mountain Valley’s economic losses would not
be recoverable at the end of litigation. “No party contests that, if [Mountain Valley]
suffers financial losses as the result of its inability to access the condemned easements, it
will not be able to recover those losses in this or any other litigation.” N.D.W. Va.
Opinion, 307 F. Supp. 3d at 526. As the district courts recognized, that is enough to take
this case out of the ordinary presumption against treating economic losses as irreparable
injury. See id. at 525 (“[W]hile it is beyond dispute that economic losses generally do not
32
constitute irreparable harm, this general rule rests on the assumption that economic losses
are recoverable.” (internal quotation marks omitted)). In the unusual circumstances
presented here, in which monetary damages will be unavailable to remedy financial
losses when litigation ends, there is no bar to treating those losses as irreparable injury
justifying preliminary relief. See Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d
1234, 1250 (10th Cir. 2001) (“[I]rreparable harm is often suffered when . . . the district
court cannot remedy the injury following a final determination on the merits.” (internal
alterations and quotation marks omitted)); cf. Fed. Leasing, 650 F.2d at 500 (finding
irreparable harm when plaintiff’s injury was not “otherwise compensable in damages”).
Like the district courts, we think all of this is clear enough from our general case
law on irreparable injury and preliminary injunctions. But if there were any doubt, it
would be resolved by Sage – which, as the district courts also recognized, expressly treats
prospective economic injuries flowing from a delay in pipeline construction as a form of
irreparable injury. Indeed, many of the of types of financial injury identified by
Mountain Valley in this case – including losses flowing from delays in pipeline service
and contractual breach – are precisely the same as those we credited in Sage as grounds
for preliminary relief. See 361 F.3d at 828–29. And, as noted above, Sage is not alone
on this point; subsequent cases have followed Sage, relying on similar, unrecoverable
financial harms to gas companies to find irreparable injury that justifies immediate access
to condemned properties. See, e.g., All. Pipeline L.P. v. 4.500 Acres of Land, 911 F.
Supp. 2d 805, 814–15 (D.N.D. 2012) (finding irreparable harm based in part on carrying
costs associated with delay in construction); Transcon. Gas Pipe Line Co. v. Permanent
33
Easement for 0.03 Acres, No. 4:17-cv-00565, 2017 WL 3485752, at *3 (M.D. Pa. Aug.
15, 2017) (finding irreparable harm because gas company would “suffer substantial costs
and loss of profits if it cannot begin the project as soon as possible”); see generally
Columbia Gas Transmission LLC v. 0.85 Acres, No. 1:14-cv-02288, 2014 WL 4471541,
at *6 (D. Md. Sept. 8, 2014) (“Many courts [in similar cases] have held that undue delay
[and] financial burden . . . satisfy the irreparable harm requirement.”).
The Landowners’ second challenge to the district courts’ findings of irreparable
injury fares no better. According to the Landowners, Mountain Valley’s prospective
financial losses flow entirely from the company’s voluntary decision to enter into early
construction and service contracts, geared toward starting pipeline service well in
advance of the FERC deadline. Harms resulting from breaches of those contracts, the
Landowners argue, are thus “self-inflicted,” and cannot be the basis for a preliminary
injunction. Like the district courts, we disagree.
We do not doubt that some forms of “self-inflicted” harm may be discounted or
ignored altogether in the preliminary-injunction analysis. See Di Biase, 872 F.3d at 235
(preliminary injunction not warranted where the “moving parties have not shown that
they availed themselves of opportunities to avoid the injuries of which they now
complain”); Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 725 F.3d
940, 947 (9th Cir. 2013) (“[T]raditional equitable considerations such as . . . unclean
hands may militate against issuing an injunction that otherwise meets Winter’s
requirements.”). But as the district courts here explained, when a gas company is
governed by FERC’s approval process and in-service deadline, early contractual
34
obligations are not “self-inflicted” in the relevant sense. See N.D.W. Va. Opinion, 307 F.
Supp. 3d at 528 (recognizing that “a FERC-governed, natural-gas company’s self-
inflicted contracts and deadlines are not driven solely by its desire to place the pipeline
into service as quickly as possible” (internal quotation marks omitted)). Rather, lining up
service contracts years in advance is “encourage[d], if not require[d]” by a FERC
approval process that treats such contracts as evidence of market demand. See S.D.W.
Va. Opinion, at J.A. 2714. And as Mountain Valley’s witness testified, once a FERC
certificate issues, meeting FERC’s three-year in-service deadline requires that the gas
company have contractors at the ready and proceed expeditiously with construction. See
W.D. Va. Opinion, at J.A. 1427. Under those circumstances, the district courts
concluded, Mountain Valley’s decision to set its schedule as it did, and contract
accordingly, was “entirely reasonable.” N.D.W. Va. Opinion, 307 F. Supp. 3d at 528.
And in light of that judgment, the district courts did not err by including harms associated
with those contracts in their irreparable injury analyses.
3.
Under Winter’s third prong, the district courts were required to weigh the equities,
considering the harms the Landowners would suffer if preliminary injunctions issued –
that is, if Mountain Valley were permitted to access the condemned land prior to
determination and payment of just compensation. The district courts held that the
balance of the equities favored Mountain Valley, principally because the Landowners’
harms would be the same whether access was granted prior to or only after just
compensation was paid. We find no error in the courts’ reasoning.
35
Before the district courts, the Landowners presented affidavits and testimony
about injuries to their property – tree-felling, harms to water sources, and the like – that
would be sustained if Mountain Valley were granted access. As the district courts
explained, however, those injuries arise not from the grant of preliminary relief – the
“take-first, pay-later” condemnations to which the Landowners object – but from
construction of the pipeline itself. Whether the Landowners are compensated before or
after Mountain Valley takes the easements to which it is legally entitled, the harm to their
property will be identical. See N.D.W. Va. Opinion, 307 F. Supp. 3d at 530 (“At bottom,
it is the [Natural Gas Act] and the FERC Certificate that are responsible for the
[Landowners’] injuries, and delaying access until just compensation is paid will do
nothing to alleviate those burdens.” (citing Sage, 361 F.3d at 829)). And either way, the
Landowners will be entitled to the same just compensation for the takings. See S.D.W.
Va. Opinion, at J.A. 2720 (“[J]ust compensation is guaranteed by the Fifth Amendment
whether property condemned under the [Natural Gas Act] is taken immediately or after a
trial.” (citing Sage, 361 F.3d at 829)).
It is true, as the Landowners contend, that because the process of determining just
compensation will be a lengthy one, the grant of preliminary relief means that their
property will be disturbed sooner rather than later. But as we held in Sage, that is
“simply a timing argument,” not an independent injury traceable to the “taking [of]
property before determining just compensation.” 361 F.3d at 829 (emphasis added).
Indeed, as Sage explains, any harm that otherwise might be experienced because of a gap
in time between possession and compensation is addressed by the right of landowners to
36
draw upon court-ordered deposits during the pendency of condemnation proceedings.
Id.; see also S.D.W. Va. Opinion, at J.A. 2720 (any injury related to early loss of use is
“blunted by the landowners’ right to draw down the money that Mountain Valley has
indicated it is willing to deposit as assurance for the taking” (internal alterations and
quotation marks omitted)). In any event, while a small group of Landowners testified
that immediate as opposed to delayed possession would cause them special injury, we
cannot say that the district courts abused their discretion in finding that the balance of the
equities nevertheless favored Mountain Valley. One Landowner, for instance, operates
property that serves as a wedding venue and pick-your-own-apples orchard, and testified
that he would suffer greater harm as a result of construction in the spring and summer
than if possession were delayed until November 2018. And, to give a second example,
another Landowner alleged special disturbances to farm animals and timber values that
would result from immediate possession of her land. The district courts concluded,
however, that the potential harms to Mountain Valley from delay outweighed the harms
to the “very few landowners” who had identified a potential injury arising from
immediate possession, W.D. Va. Opinion, at J.A. 1431, and we think that judgment was
well within their discretion.
We note that, compared to the Western District of Virginia, the other two district
courts did not address as directly the potential that immediate rather than postponed
possession might be especially harmful to certain Landowners. In particular, the
Southern District of West Virginia seems to have misapprehended our holding in Sage as
requiring a finding in favor of a pipeline in the context of [Natural Gas Act]
37
condemnation actions. S.D.W. Va. Opinion, at J.A. 2720 (“In Sage, the Fourth Circuit
conclusively spoke on this issue in the context of [Natural Gas Act] condemnation
actions.”). Given the Supreme Court’s instruction in Winter that a preliminary injunction
may “never [be] awarded as of right,” the district courts were required to consider the
particular harms presented by the Landowners in these cases in weighing the balance of
the equities and were not constrained by our precedent to find in favor of Mountain
Valley on this point. See 555 U.S. at 24. To the extent that Sage could be read
otherwise, we take this opportunity to clarify that while the balance of equities may often
tip in favor of the pipeline company in the context of Natural Gas Act condemnations,
such an outcome is by no means guaranteed or automatic. Thus, a district court must
consider evidence of harm to the particular landowners in a given condemnation action
when determining whether the pipeline has met the third preliminary injunction
requirement. After thoroughly reviewing the particular evidence presented by the
Landowners in the Northern District of West Virginia and Southern District of West
Virginia, we are confident that there was no evidence presented of harm to the
Landowners resulting from the injunction, as opposed to the pipeline itself, that would
outweigh the harm that Mountain Valley would likely suffer absent an injunction.
Finally, the Landowners point to the possibility that ongoing legal challenges to
the Certificate will bear fruit – in which case, they argue, the grant of preliminary relief
will have caused them injury by allowing access that later would prove unjustified. The
district courts declined to credit this argument, and properly so. As they had explained
already in granting partial summary judgment to Mountain Valley on its substantive right
38
to exercise eminent domain, only two entities – FERC and a court of appeals with
jurisdiction under 15 U.S.C. § 717r(b) – may stay the enforcement of a FERC certificate
pending resolution of legal challenges. “District courts in [Natural Gas Act]
condemnation proceedings,” by contrast, “do not have authority to consider other legal
challenges to the FERC order, [or] . . . the ability to stay condemnation proceedings to
wait until other legal challenges are resolved.” W.D. Va. Opinion, at J.A. 1415–16. The
Landowners have not challenged that holding on appeal, and it forecloses their argument
here: Any harms that might arise from the pendency of litigation around the Certificate
are “not harms that would preclude the grant of immediate possession” to Mountain
Valley in a condemnation proceeding. Id. at 1429.
4.
Finally, on the fourth Winter element, the district courts reasonably determined
that the preliminary injunctions were in the public interest, as they would allow for
expeditious construction of a FERC-approved pipeline. As we explained in Sage, the
issuance of a FERC certificate signifies that the Commission – the agency charged with
administering the Natural Gas Act – has determined that pipeline construction will
advance the congressional purposes behind that Act and “serve the public interest,”
making available to consumers an adequate supply of natural gas at reasonable prices.
361 F.3d at 830. It follows, we reasoned, that granting a gas company immediate access
to necessary easements during the pendency of condemnation proceedings likewise
would advance the public interest, because a “delay in construction would postpone these
benefits.” Id.
39
The district courts did not abuse their discretion in applying Sage to the facts of
these cases. Mountain Valley’s certificate rests on an agency finding that the proposed
pipeline will benefit the public by meeting a market need for natural gas, and will do so
in a way that is environmentally acceptable. The Landowners disagree with FERC’s
assessment, and – relying on the opinion of a dissenting FERC commissioner – argued
before the district courts that “the public interest in this case does not support allowing
the construction of the pipeline, due to the environmental hazards or the other possible
effects on historical areas or artifacts as a result of the construction.” W.D. Va. Opinion,
at J.A. 1431. But as the district courts explained, that is a challenge to the Certificate
itself that must be raised before the Commission and then, if necessary, the appropriate
court of appeals, not by way of collateral attack in a condemnation proceeding: “[A]s the
Certificate Order itself makes clear, FERC has considered and rejected the very
arguments against the [pipeline] raised in the briefing and in court. Those argument[s]
are not properly before the court. They are indirect and collateral attacks on the order
itself.” Id.; accord N.D.W. Va. Opinion, 307 F. Supp. 3d at 531 (“The Court will not
second-guess FERC’s determination that [the] project will benefit the public need for
natural gas as the [Landowners] request.”); S.D.W. Va. Opinion, at J.A. 2721 (“FERC
conducted a careful analysis of the [project] and determined that the project will promote
[the Natural Gas Act’s] goals and serve the public interest.” (quoting Sage, 361 F.3d at
830)).
That is not to say, of course, that a FERC certificate necessarily will be dispositive
of the public interest inquiry under Winter. Apart from setting an in-service deadline, a
40
FERC certificate does not address timing, and so cannot establish by itself that immediate
possession, as opposed to pipeline construction generally, is in the public interest. But
echoing our reasoning in Sage, the district courts here concluded that because delaying
construction would delay – or, if Mountain Valley were unable to meet its FERC
deadline, frustrate entirely – the public benefits identified by the Commission, the public
interest factor favored preliminary relief. See N.D.W. Va. Opinion, 307 F. Supp. 3d at
531 (“There can be no dispute that delaying [Mountain Valley’s] completion of the
project will delay the introduction of the benefits identified by FERC.”); W.D. Va.
Opinion, at J.A. 1432 (“Timely completion of the [p]roject, FERC has expressed, is in the
public interest.” (emphasis added)). And while there may be cases in which there are
public-interest arguments against immediate possession that were not considered by the
Commission in reviewing the public benefit of the pipeline project writ large, this is not
one of them. As the Landowners’ own brief makes clear, the argument they advanced in
the district courts and advance now on appeal – that “the public interest favors protection
of their constitutional rights, the environment, and historical resources,” Br. of Appellants
at 46 – is addressed to the pipeline project generally rather than to immediate possession
specifically, raising the same issues that were considered and rejected by FERC when it
issued the Certificate. 9
9
We note that the Southern District of West Virginia did not recognize the
distinction between the public interest in pipeline construction generally and in
immediate access specifically. See Winter, 555 U.S. at 20 (“A plaintiff seeking a
preliminary injunction must establish . . . that an injunction is in the public interest.”)
(emphasis added). The district court did, however, incorporate our reasoning under the
(Continued)
41
III.
For the foregoing reasons, we find that the district courts did not abuse their
discretion in granting preliminary injunctive relief to Mountain Valley. Accordingly, we
affirm the district courts’ orders.
AFFIRMED
public-interest prong in Sage, which does address that issue and finished with the
common-sense observation that a construction delay would postpone the benefits relied
on by FERC in issuing its certificate. See S.D.W. Va. Opinion, at J.A. 2721 (citing Sage,
361 F.3d at 830). It also cited the first two district court opinions approvingly, and
recognized that it was faced with “virtually identical circumstances.” Id. at 2713. Under
these circumstances, the absence of additional analysis of the public-interest prong does
not amount to an abuse of discretion.
42