IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ROVER PIPELINE LLC, v. Plaintiff, 1.23 ACRES OF LAND, MORE OR LESS, PERMANENT EASEMENT (PIPELINE RIGHT-OF-WAY SERVITUDE), AND 3.74 ACRES OF LAND, MORE OR LESS, TEMPORARY WORK SPACE, IN LENAWEE COUNTY, MICHIGAN, Office of the Lenawee County Drain Commissioner Tract No. MI-LE , AND UNKNOWN OWNERS, et al., Case No. 2:17-cv Hon. Mark A. Goldsmith Mag. Judge Mona K. Majzoub FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER GRANTING MOTION TO CONFIRM CONDEMNATION AUTHORITY AND AWARDING IMMEDIATE POSSESSION Defendants. / John M. DeVries (P12732) Douglas A. Donnell (P33187) William A. Horn (P33855) Nikole L. Canute (P68713) Mika Meyers PLC Counsel for Plaintiff 900 Monroe Avenue, NW Grand Rapids, MI (616) jdevries@mikameyers.com ddonnell@mikameyers.com whorn@mikameyers.com ncanute@mikameyers.com Thomas A. Zabel Zabel Freeman Co-Counsel for Plaintiff 1135 Heights Boulevard Houston, TX (713) tzabel@zflawfirm.com

2 !"#$%&'%#()*+%,-.%,/,00012&030*4( ():#(:#$000;<0!02=0))0000;<0>10$?+? Adam C. Smith Consumers Energy Company Attorney for Defendant Consumers Energy Company One Energy Plaza EP Jackson, MI (517) Eric V. Luoma Consumers Energy Company Attorney for Defendant Consumers Energy Company One Energy Plaza EP Jackson, MI (517) Brian J. Renaud Jonathan H. Schwartz Foster Swift Collins & Smith P.C. Attorneys for Defendant Michigan Paving and Materials Co Northwestern Highway, Suite 230 Southfield, MI (248) Zachary R. Murray (P73565) Barkan & Robon, Ltd. Attorney for Various Defendants 1701 Woodlands Drive, Ste. 100 Maumee, OH (419) Michael P. Herzoff Stuart A. Best Weltman, Weinberg & Reis Co., LPA Attorneys for Multiple Defendants 2155 Butterfield Drive Suite 200-S Troy, MI (248) (248) Lisa M. Bruno-Herline AT&T Michigan Attorney for Defendant Michigan Bell Telephone Co. 444 Michigan Avenue Suite 1750 Detroit, MI (313)

3 !"#$%&'%#()*+%,-.%,/,00012&030*4( ():#(:#$000;<0)02=0))0000;<0>10$?*( Leland Prince Attorney for Defendants DTE Electric Co., Citizens Gas Fuel Co., and The Bank of New York Mellon Trust Company, N.A. (as successor to BNY Midwest Trust Company) One Energy Plaza 688 WCB Detroit, MI (313) Bill Schuette Attorney General Adam J. Dittenber (P72238) Assistant Attorney General Transportation Division Attorneys for Michigan Department of Transportation 425 W. Ottawa Street, 4th Floor Lansing, MI (517) Matthew T. Jane (P58396) Monaghan, P.C. Attorneys for Defendant The Earl F. and June T. Doletzky Revocable Trust dated November 6, 1996, Julie Knight as Surviving Trustee 33 Bloomfield Hills Pkwy., Ste. 260 Bloomfield Hills, MI (248) Paul E. Burns Bradford L. Maynes Law Office of Paul E. Burns Counsel for Defendant Board of County Road Commissioners for the County of Livingston 133 W. Grand River Ave. Brighton, MI (810) Jerome P. Pesick Jason C. Long Steinhardt Pesick & Cohen, P.C. Attorneys for Various Defendants 380 N. Old Woodward Avenue, Suite 120 Birmingham, MI (248) James R. Peterson (P43102) Miller Johnson Attorneys for Savoy Energy LP 45 Ottawa Avenue SW, Suite 1100 Grand Rapids, MI (616)

4 !"#$%&'%#()*+%,-.%,/,00012&030*4( ():#(:#$000;<0402=0))0000;<0>10$?*# Joseph J. Shannon (P38041) Bridge M. Hathaway (P76409) Maria L. Martinez (P78790) Bodman PLC Attorneys for Intervening Defendant RSG Development, LLC 6th Floor at Ford Field 1901 St. Antoine Street Detroit, MI (313) Jason R. Abel (P70408) Honigman Miller Schwartz and Cohn LLP Attorneys for Leonard M. Middleton and Terri S. Middleton Revocable Trust Under Agreement Dated April 20, 2009, Leonard M. Middleton and Terri S. Middleton, Trustees, Tract No. MI-WA First National Building 660 Woodward Avenue Detroit, MI (313) Douglas J. Fryer (P51765) Stephen R. Estey (P53262) Dykema Gossett PLLC Attorneys for Wolverine Pipe Line Company Woodward Avenue, Suite 300 Bloomfield Hills, (248) Steven A. Roach Miller, Canfield, Paddock and Stone, PLC Attorneys for Defendant Comerica Bank 150 West Jefferson, Suite 2500 Detroit, MI (313) Christopher E. McNeely (P45664) McNeely Law Group, P.C. Attorney for First Federal Bank of the Midwest 1700 W. Hamlin Rd., Ste. 100 Rochester Hills, MI (248) James R. Wierenga (P48946) David & Wierenga, P.C. Attorneys for Bruinsma Dairy Farms 99 Monroe Avenue, NW, Suite 1210 Grand Rapids, MI (616)

5 !"#$%&'%#()*+%,-.%,/,00012&030*4( ():#(:#$000;<0+02=0))0000;<0>10$?*! William J. McHenry (P38458) Law Office of William J. McHenry, PLLC Attorney for Michael Simcheck and Elaine Simcheck Northwestern Hwy., Suite 250 Farmington Hills, MI (248) Jason C. Long (P59244) Steinhardt Pesick & Cohen Attorneys for Albert Ruhlig 380 N. Old Woodward Ave., Ste. 120 Birmingham, MI (248) M. Kathleen Markman (P44739) Assistant Attorney General Attorney for Michigan State Housing Development Authority Michigan Department of Attorney General State Operations Division P.O. Box Lansing, MI (517) Allen J. Philbrick (P18865) Conlin, McKenney & Philbrick, P.C. Attorneys for Defendant Washtenaw County Board of Road Commissioners 350 S. Main Street, Suite 400 Ann Arbor, MI (734) / FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER GRANTING MOTION TO CONFIRM CONDEMNATION AUTHORITY AND AWARDING IMMEDIATE POSSESSION Rover Pipeline LLC ( Rover ) is a natural gas company that constructs, owns, operates, and maintains pipelines to transport natural gas in interstate commerce. Rover was formed as a Delaware limited liability company with its principal place 5

6 !"#$%&'%#()*+%,-.%,/,00012&030*4( ():#(:#$000;<0*02=0))0000;<0>10$?*) of business in Dallas, Texas. The company is registered to do business, and is engaged in business, in Ohio, West Virginia, Pennsylvania, and Michigan. Rover seeks to construct a 713-mile natural gas pipeline connecting shale supply areas in West Virginia, Pennsylvania, and Ohio with existing pipelines and storage facilities in Michigan and Ohio The pipeline, estimated at $4.2 billion in total costs, is projected to have a system capacity of 3.25 billion cubic feet of natural gas per day. Rover contends that its pipeline will ensure the ongoing development of America s critical energy infrastructure in two ways: (1) supporting overall development of domestic natural gas resources; and (2) enhancing the reliability of the interstate natural gas pipeline grid in a geographic region that serves as a critical juncture between sources of natural gas production and market demand. The purported economic benefits of the pipeline are significant. For example, Rover expects to pay more than $124 million to landowners, $620 million to 40 permanent and up to 14,225 temporary employees, and $147 million in property taxes during the pipeline s first year. Rover has filed its Motion for Order Confirming Condemnation Authority and Awarding Immediate Possession of the Easements Sought (the Motion ). After conducting two hearings on the motion on February 23, 2017, and March 9, 2017, and after reviewing the numerous briefs and papers filed by the parties and considering such Motion and evidence offered in support thereof and in opposition 6

7 !"#$%&'%#()*+%,-.%,/,00012&030*4( ():#(:#$000;<0$02=0))0000;<0>10$?*4 thereto, this Court is of the opinion that the Motion should be granted, as set forth herein. The easements for which confirmation of condemnation authority under the Natural Gas Act ( NGA ), 15 U.S.C. 717 et seq., and immediate possession are sought (the Easements ) are identified in Rover s Verified Complaint as amended. The tracts of land and landowners and other parties in interest of the tracts to be burdened by the Easements are identified on Exhibit A to the Verified Complaint as amended. Since the filing of the Verified Complaint, a number of Defendants have settled with Rover. A list of tracts subject to this Order, together with the docket entry numbers for the Notices of Commencement for each such tract as of March 9, 2017, is attached to this Order as Exhibit 1. A. Rover Has a Substantive Right to Condemn the Properties at Issue Under 15 U.S.C. 717f(h) In order to determine whether Rover is entitled to an order granting it immediate possession of the property interests sought, the Court must first determine that Rover has a substantive right to condemn the properties at issue. East Tennessee Natural Gas Co., v. Sage, 361 F.3d 808, 825 (4th Cir.), cert. denied, 543 U.S. 978 (2004); Tex. E. Transmission, LP v. 3.2 Acres, 2015 U.S. Dist. LEXIS 3252, at *17 (S.D. Ohio). The only material findings necessary to confirm Rover s substantive right to condemn the Easements under the Natural Gas Act, 15 U.S.C. 717f(h) are: (1) Rover holds a Federal Energy Regulatory Commission ( FERC ) Certificate 7

8 authorizing the Rover Pipeline Project, (2) the FERC has determined that the Easements are necessary for the Rover Project, and (3) Rover has been unable to acquire the Easements by contract, and the amount claimed by the owner or owners of a tract to be burdened by one or more of the Easements exceeds $3,000. The evidence presented with the Motion conclusively establishes each of these three elements. A natural gas pipeline company obtains power of eminent domain upon issuance of a Certificate of Public Convenience and Necessity ( Certificate ) by the FERC and only when the company is unable to acquire by contract the necessary rights-of-way or is unable to agree with the owner of the property to the compensation. 15 U.S.C. 717f(h). In this matter, FERC issued the Certificate to Rover on February 2, Through the Certificate, FERC declared Rover s construction and operation of the Rover Project, including its route through Defendants properties, as necessary and convenient for the public use under the Natural Gas Act. Once the gas pipeline company has obtained a FERC Certificate, it may file a complaint for eminent domain of the relevant property in the [federal] district court... in which such property may be located. 15 U.S.C. 717f(h). Federal Rule of Civil Procedure 71.1 governs such condemnation actions. Aggrieved parties may not collaterally attack the validity and conditions of the FERC Certificate during 8

9 !"#$%&'%#()*+%,-.%,/,00012&030*4( ():#(:#$000;<0=02>0))0000;<0?10$=** a condemnation action in district court. Id. Rather, [r]eview of the validity of the certificate is the exclusive province of the appropriate court of appeals. Id. (citing Williams Natural Gas Co. v. Oklahoma City, 890 F.2d 255, 262 (10th Cir. 1989)). The Court is satisfied that, for the tracts at issue in this case, Rover has been unable to acquire by contract or to agree with the owner of the property to the compensation. Rover presented evidence that it obtained independent appraisals and made multiple offers to Defendants, all of which exceeded the appraised value of the Easement interests to be acquired. The Court is also satisfied that the amount in controversy for each tract exceeds $3,000. See Vedral Affidavit 9. Accordingly, the Court finds that Rover is the holder of a Certificate of Public Convenience and Necessity issued by FERC, that FERC has determined that the Defendants properties are needed for the Rover Project, that Rover has been unable to acquire the Defendants properties by agreement, and that Rover has satisfied all the requirements of the Natural Gas Act, 15 U.S.C. 717f(h), to be vested with the power of eminent domain. The Court further finds that the interests that Rover seeks to condemn are consistent with the authority granted it by the Certificate and within the scope of such authority. Although not styled as a summary judgment motion, Rover s request for confirmation of its condemnation authority is the functional equivalent of such a motion. Rover presented substantial evidence in support of its position and no 9

10 !"#$%&'%#()*+%,-.%,/,00012&030*4( ():#(:#$000;<0#(02=0))0000;<0>10$?*$ contrary evidence was offered raising any issue of fact regarding that position. Therefore, the Court confirms Rover s right to condemnation of the Easements identified, described and depicted in the Verified Complaint as amended. B. Motion For Injunctive Relief Having confirmed Rover s substantive right to condemn the Easements sought, the Court now turns to Rover s request for immediate possession. In considering a request for preliminary injunctive relief, the Court must weigh four factors: (1) the likelihood that Rover will prevail on the merits; (2) whether there is a substantial threat that irreparable harm will result if the injunction is not granted; (3) balancing the harm that would result to Rover if the injunction is denied against the harm to the Defendants if the injunction is granted; and (4) determining whether the injunction will disserve the public interest. Federal district courts throughout the country have held that if the standard for preliminary injunctive relief is satisfied in favor of granting the relief, a pipeline company with the authority of eminent domain under the Natural Gas Act prior to the trial on compensation, should be granted immediate access to property to be condemned to begin construction of a pipeline. See, e.g., Sage, 361 F.3d at ; Columbia Gas Trans., LLC, v Acres, 768 F.3d 300, (3d Cir. 2014); Alliance Pipeline, LP, 746 F.3d 362, (8th Cir. 2014); Columbia Gas Trans., LLC, v Acres, No et al, 2015 WL , at *3-5 (D.N.J. Jan. 28, 10

11 2015); Texas E. Trans., LP, v. 3.2 Acres, No. 2:14-CV-2650, 2015 WL , at *4 7 (S.D. Ohio Jan. 12, 2015); Columbia Gas Trans., LLC, v Acres, No. 1:15-CV- 0360, 2015 WL , at *3 6 (M.D. Pa. March 31, 2015); Gulf Crossing Pipeline Co. v Acres, No , 2008 WL at *3 (W.D. La. June 18, 2008); Maritimes & Ne. Pipeline, LLC, v Acres, 537 F. Supp. 2d 223, (D. Me. 2008); Rockies Exp. Pipeline, LLC, v Acres, No. 2:08- CV-554, 2008 WL , at *2 4 (S.D. Ohio Oct. 7, 2008); Williston Basin Interstate Pipeline Co. v. Easement & Right-of-Way Across.152 Acres, No. A , 2003 WL , at *1 (D.N.D. June 3, 2003); NW. Pipeline Corp. v. 20 by 1,430 Pipeline Right of Way, 197 F. Supp. 2d 1241, 1246 (E.D. Wash. 2002); Guardian Pipeline, LLC, v Acres, 210 F. Supp. 2d 976, (N.D. Ill. 2002); Vector Pipeline, LP, v Acres, 157 F. Supp. 2d 949, 951 (N.D. Ill. 2001); Humphries v. Williams Natural Gas Co., 48 F. Supp. 2d 1276, 1280 (D. Kan. 1999); Tenn. Gas Pipeline Co. v. New England Power, 6 F. Supp. 2d 102, 104 (D. Mass. 1998); USG Pipeline Co. v Acres, 1 F. Supp. 2d 816, (E.D. Tenn. 1998); N. Border Pipeline Co. v Acres, 520 F. Supp. 170, (D.N.D. 1981). The factual context for Rover s Motion is its contention that time is of the essence for placing the pipeline in service. Rover has entered into long-term shipping agreements with several anchor suppliers confirming their intent to 11

12 !"#$%&'%#()*+%,-.%,/,00012&030*4( ():#(:#$000;<0#!02=0))0000;<0>10$?*? transport substantial amounts of natural gas through the pipeline. These agreements account for roughly 95% of the pipeline capacity and formed a prerequisite to FERC approval. Rover presented evidence that it must meet a self-imposed 2017 in-service date to satisfy these anchor suppliers, or else the company may be in breach of those shipping agreements or lose out on goodwill within the industry. To meet its in-service target date, Rover has entered into construction contracts with highly qualified and highly sought-after pipeline construction specialists. Rover contends that the construction is sequenced in such a manner that disruption to any stage of the construction could throw off the entire project. In other words, construction... is accomplished in linear segments, with a number of different crews performing different functions as part of the overall spread. Mahmoud Aff. 12. Under this sequencing, [e]ach crew follows the one ahead of its from one end of the construction spread to the other. Id. Disruption or delay to one crew invariably leads to disruption and delay to other downstream crews. Id. at 15, 16, 18, 21. One of the first stages of construction involves fell[ing] all trees along the pipeline route. Id. at 16. Due to the FERC-imposed tree-felling window of October 1st to March 31st, Rover has only a few weeks to perfect condemnation of the subject easements, stage its crews and equipment, and complete the necessary felling of trees. Id. at 13. Rover alleges that if the company is not granted immediate access to the land, it will be unable to complete the necessary tree felling 12

13 !"#$%&'%#()*+%,-.%,/,00012&030*4( ():#(:#$000;<0#)02=0))0000;<0>10$?$( by March 31, 2017, on all forested easements and will be unable to recommence tree felling until October 1, Id. at Likelihood of Success on the Merits Because the Court finds that Rover is entitled to exercise the right of eminent domain under the Natural Gas Act, this finding establishes, without more, a strong likelihood of success on the merits. See Columbia Gas Transmission, LLC v Acres, More or Less in Penn Twp., York Cty., Pa., 768 F.3d 300, (3d Cir. 2014) (plaintiff s right of eminent domain under the Natural Gas Act demonstrates compliance with first factor). As noted above, its request for an order confirming its right to condemn is akin to a motion for summary judgment, which request has now been granted. Because Rover has met the requirements for an order of condemnation, it has demonstrated its likelihood of success on the merits with respect to its right of possession of the properties. 2. Irreparable Harm A finding of irreparable harm exists when there is a substantial threat of material injury which cannot be adequately compensated through monetary damages. Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6 th Cir. 1992). Absent immediate possession of the property rights it seeks, Rover will suffer irreparable harm because: (1) delay to the start of construction will add significant additional cost that Rover would not be able to recover from the Defendants in any proceeding; 13

14 !"#$%&'%#()*+%,-.%,/,00012&030*4( ():#(:#$000;<0#402=0))0000;<0>10$?$# (2) delay will jeopardize Rover s compliance with binding contracts with gas shippers, thus causing substantial monetary losses. 1 The Rover Project s construction requires the careful coordination of multiple tree clearing, survey and construction teams simultaneously performing various stages of work on a rolling basis throughout the length of the 711 mile pipeline along twelve different construction spreads. Before beginning actual construction on the Project, Rover must clear trees along the pipeline route. The inability to access certain parcels of land for tree clearing and construction activities would require Rover to skip construction on that parcel and return months later, resulting in further cost and delay. Rover has quantified the extra expense of each such skip at between $814,000 and $1,774,000. Mahmoud Aff. 22. See Sage, 361 F.3d at 829 ( [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. ) (internal quotation marks and citation omitted). Furthermore, the inability to timely begin tree clearing and construction will result in significant monetary penalties under Rover s tree-clearing and construction contracts. Rover has quantified the cost of having its contractor crew stand-by while waiting for easement access at between $800,000 and $1,374,000 per day. 1 Given that Rover makes a strong case for irreparable harm based on unrecoverable additional costs attributable to delay, the Court need not address the alleged loss of business reputation, which Rover has also argued in support of its motion. 14

15 !"#$%&'%#()*+%,-.%,/,00012&030*4( ():#(:#$000;<0#+02=0))0000;<0>10$?$! Mahmoud Aff. 22. These extra costs cannot be recovered from Defendants and courts have found such unrecoverable costs sufficient to constitute irreparable harm. See, e.g., Gulf Crossing Pipeline Co. LLC v Acres of Land, No , 2008 WL , at *6 (W.D. La. June 18, 2008) (finding escalating construction delay penalties to constitute irreparable harm); Southeast Supply Header, LLC, 2008 WL , at *3 ( Additionally, the costs to SESH, its customers and the public will be significantly increased because of skip-around costs if immediate possession is not granted. These increased costs are against public policy, and would be unrecoverable. Emphasis added.). To reduce impact on wildlife, the Final Environmental Impact Statement ( FEIS ) and the Certificate require Rover to conduct all tree-clearing activities between October 1, 2016 and March 31, FEIS 5-7. If Rover is not granted immediate access to the property at issue, it will be unable to complete the necessary tree clearing by March 31, If that were to occur, Rover will not be able to recommence clearing until October 1, 2017, which would significantly delay the commencement and completion of the Rover Project construction. Moreover, delayed access to the properties along the pipeline route will cause delay to its contractors and subcontractors. Given the competitive pipeline construction market, with multiple pipelines being built simultaneously, construction delays will create a serious risk that Rover s contractor s work force will move to other jobs, and also a 15

16 !"#$%&'%#()*+%,-.%,/,00012&030*4( ():#(:#$000;<0#*02=0))0000;<0>10$?$) heightened risk that the contractor s leased equipment will not be available when needed. Damages that Rover will suffer by delaying construction are difficult to estimate with any degree of reasonable certainty, but even if such reasonable estimates were possible, Rover would still be unable to recover such losses from Defendants in this condemnation action. Accordingly, the Court finds Rover will likely suffer irreparable harm if it is not granted immediate access to the properties described in the Motion for Immediate Possession. 3. Balancing of Harm to Rover without an Injunction vs. Harm to Defendants with an Injunction. Potential harm to Defendants balanced against the harm to Rover is the third factor to be analyzed. The harm to be analyzed is not the harm of possession, since that is a given, but, rather, the harm of immediate possession. (Emphasis added). Tenn. Gas Pipeline Co. v Acre Acres, Civil Action No (JLL), 2010 U.S. Dist. LEXIS , at *5 (D.N.J. Sep. 28, 2010). Any harm to Defendants inflicted by the construction of the pipeline will be the same regardless of when Rover is granted possession. Defendants have not persuaded the Court that any special or particular harm will result from immediate possession of the properties rather than from possession at a later date. 2 2 Notably, at the March 9 hearing, only one party appeared and argued any objection to the motion. That objection was raised by the Washtenaw County Road 16

17 !"#$%&'%#()*+%,-.%,/,00012&030*4( ():#(:#$000;<0#$02=0))0000;<0>10$?$4 The Court finds that granting Rover immediate possession of Defendants properties would not cause substantial harm to Defendants because: (1) Defendants will receive just compensation for the property interests taken; (2) contrary to harming the public, it is in the public interest to ensure the Rover Project is completed without delay; and (3) before being granted immediate possession, Rover will make an appropriate deposit and post an appropriate bond to the Court to ensure protection of Defendants interests. See Sage, 361 F.3d at 830 (rejecting the argument that possession before just compensation constitutes an inherent irreparable harm to the defendant); Gulf Crossing Pipeline Co. LLC v Acres, 2008 WL , at *5 (E.D. Tex. 2008) (finding that the potential harm to the pipeline company and the public outweighs any harm to the defendant landowners and citing several cases). The value of just compensation is not materially affected one way or another by Rover beginning the Project prior to the determination of compensation. Upon entry of the instant Order granting Rover s request for preliminary injunction and Rover s compliance with the Court s requirements for security deposit, the Commission, which did not object to possession per se, but rather sought an order requiring Rover to hire a contractor to remove trees or other obstructions so as to create sufficient sight distance between pipeline-related work activity on or near county roads and on-coming traffic. Rover did not object to paying for that work, but claimed the Certificate did not authorize Rover to perform the work itself or to directly hire a contractor to do it. The Court resolved the objection by ordering Rover to pay for the contractor that the Commission would engage for the work. 17

18 Defendants shall have the right to withdraw those funds subject to the terms of the Court s Order, without waiving any right to argue at trial that just compensation should be higher. Absent any convincing evidence as to how Defendants or the public will be substantially harmed by immediate possession, as opposed to later possession, the Court finds that this factor weighs in favor of granting relief. 4. Public Interests Affected Granting Rover immediate possession of the Easements serves the public interest in three ways. First, the Congress passed the NGA and gave the gas companies the power to condemn to ensure that consumers would have access to an adequate supply of natural gas at reasonable prices. See Columbia Gas Transmission, LLC v. 76 Acres More or Less, 2014 WL at *16 (D. Md. June 27, 2014). FERC s issuance of the Certificate is evidence that the Rover Project promotes the goals of the Congress, and it is not for this Court to contradict FERC s determination in that regard. Because the Rover Project promotes public interests, it is also in the public interest to complete it without delay. Second, the Court finds that the grant of injunctive relief to permit Rover to begin construction of the Project prior to the determination of just compensation furthers the public interest in that timely completion of the Project is in the best interests of natural gas consumers, as it will increase diversity of supply, enhance 18

19 !"#$%&'%#()*+%,-.%,/,00012&030*4( ():#(:#$000;<0#=02>0))0000;<0?10$=$* the ability of markets along the system to better manage price volatility, and provide additional security and reliability of service of the Rover system. Last, evidence indicates that construction of the Project will benefit local economies by creating approximately thirty to forty (30-40) permanent positions and over fourteen thousand (14,000) temporary construction jobs in Ohio, Michigan, Pennsylvania, and West Virginia, adding value to Michigan s gross domestic product, and increasing the total economic output to various Michigan counties. This factor, therefore, weighs in favor of granting relief. In total, FERC has found that the proposed Rover Project is in the public interest; this Court finds that Rover is likely to succeed on the merits and Defendants are not harmed by the granting of injunctive relief unless Rover is ultimately unable to compensate them fully, a possibility this Court finds unlikely given its confidence that the security deposit it demands of Rover will be sufficient to compensate Defendants for their land. Nor is there harm to the public or other third parties by the grant of injunctive relief. Requiring Rover to derail its entire construction schedule would cause irreparable harm to Rover, the various entities it has contracted to build the pipeline, its customers, and the public in general who have an interest in the pipeline being completed at the lowest cost and as soon as possible. In sum, Rover s probability of success on the merits, the irreparable harm it would suffer absent injunctive relief, and the public interest in timely completion of 19

20 !"#$%&'%#()*+%,-.%,/,00012&030*4( ():#(:#$000;<0!(02=0))0000;<0>10$?$$ the Rover Project outweigh any potential harm to Defendants or the public. Accordingly, Rover s request for a preliminary injunction is well taken and is hereby granted. IT IS, THEREFORE, ORDERED: 1. Pursuant to the Natural Gas Act, as the holder of a valid Certificate of Public Convenience and Necessity issued by FERC, Rover has the substantive right to condemn the Easements needed for the Rover Project. 2. Rover is awarded injunctive relief permitting it, upon posting the deposit and bond described below, the immediate right of entry and access to the Easements to survey, construct, lay, maintain, inspect, erect, alter, operate, protect, repair, replace with same or lesser size pipe, remove and, or abandon in place one pipeline in the fifty feet (50 ) wide permanent pipeline easements identified, described and depicted on Exhibit A to the Verified Complaint as amended, for the parcels of land listed separately in Exhibit 1 attached to this Order and to exercise all of those rights and all other rights with respect to each of the described and identified parcels in the Verified Complaint as amended, provided that Rover, in exercising such rights, shall comply with all terms specified in its Verified Complaint as amended. 3. Rover s rights with regard to the Easements are as set forth in and limited by the terms of the Verified Complaint as amended. 20

21 4. Pursuant to Federal Rules of Civil Procedure 65(c), 67, and 71.1(j)(1), the right to immediate possession of the Easements is contingent upon Rover first doing the following: (a) With respect to those tracts described on Exhibit 1 for which Rover is still seeking an easement from the landowners thereof, Rover shall deposit with the Clerk of Court the aggregate amount of the last appraised value for all such tracts, as set forth in the attached Exhibit 1. (b) With respect to those tracts for which Rover has obtained an easement from the landowner, has executed a settlement with the landowner to acquire an easement, or has placed a settlement with the landowner on the record with the Court, and there remain one or more interest holders in such tracts who have not settled (i.e. they remain parties in this lawsuit), Rover shall deposit with the Clerk of Court the sum of $3,500 for each such tract, as set forth in Exhibit 1. (c) With respect to the Washtenaw County Road Commission, Rover shall deposit with the Clerk of Court an amount equal to $3,500 per road crossing, as set forth in Exhibit 1. (d) The sum total the deposits required by the preceding paragraphs (a)-(c), as stated in Exhibit 1, shall be $716,050. (e) In addition to the cash deposits with the Clerk of Court described in the preceding subparagraphs (a) (d), Rover shall deposit with the Clerk of Court an 21

22 !"#$%&'%#()*+%,-.%,/,00012&030*4( ():#(:#$000;<0!!02=0))0000;<0>10$?$? additional amount equal to 30% of the total amounts set forth in subparagraphs (a) (d), totaling $214,815. This sum will serve as additional and sufficient security to protect the interests of the landowners and other parties in interest in the event any just compensation awarded for one or more of the Easements exceeds the deposited funds for such property or properties. (f) With respect to the following parties, pursuant to the agreement reached among these parties and Rover, Rover shall post a surety bond in the amount of $1,574,850 and shall file evidence of such bond with the Court, which such surety bond shall be the only bond available to these parties, who have waived any right to access the deposits described in preceding subparagraphs (a)-(e):! Jill A. Croghan;! Michael J. Croghan;! Michael P. Croghan;! Cynthia Kemner a/k/a Cynthia J. Kemner;! Barry Kenyon;! L&B Schaible, L.L.C.;! Jean D. Little, Trustee of the Jean D. Little Trust u/a/d July 27, 2016;! Beverly M. Little or Successors;! Matthew D. Little or Successors;! Barbara G. Schaible, Trustee of the Barbara G. Schaible Living Trust, 22

23 u/a/d 1/5/99;! Luther J. Schaible, Trustee of the Barbara G. Schaible Living Trust, u/a/d 1/5/99;! Sallie J. Schiel;! Sue J. Schiel;! Karen Louise Zimmer; and! William C. Zimmer. The above cash deposit and bond amounts shall not be construed as any indication of the floor or ceiling of the ultimate amount of just compensation to which any landowner or interested party is entitled, given that the eventual compensation award by this Court, a jury, or a compensation commission may be lower, higher, or the same as this amount. Rover shall remain obligated to pay any and all final compensation damages awarded in excess of the deposited amount and the bond described in subparagraphs (a)-(f) above shall be conditioned on the fact that Rover shall pay any and all final compensation damages awarded in excess of the deposited amount, and if such payments are made, then the bond shall be null and void upon full payment having been made. Likewise, once full payment has been made by Rover for those tracts and to those parties for which a cash deposit has been made, Rover shall be entitled to return of the deposited amounts that have not been used to pay just compensation to such parties. 23

24 Pursuant to Federal Rule of Civil Procedure 71.1(j)(2), the deposit of any funds for an identified Defendant s property shall constitute Rover s agreement that the landowner(s) and, or parties in interest may immediately access all or any portion of the deposited funds for those properties upon which the Defendant holds an interest (as stated in Exhibit A to the Verified Complaint, as amended), with the understanding that such withdrawal is at the Defendant s peril and that, if the ultimate compensation award is less than the amount withdrawn, the Defendant will be liable for the return of the excess with appropriate interest. If multiple Defendants claim an interest in any of the lands burdened by the Easements, each Defendant claiming an interest can withdraw its proportionate share of the funds identified for that Easement and attributable to its claimed interest. If there is a dispute as to any Defendant s entitlement to funds identified for a specific Easement, the Court will, upon motion and order, determine each Defendant s entitlement to said funds. Rover may immediately, upon making the deposit and posting the bond required in this Order, access the Easements and begin pre-construction and construction-related activities all in accordance with the terms of the Verified Complaint as amended for the purpose of constructing the Rover Project at the locations approved and certificated by FERC and consistent with the Certificate, FERC regulations and FERC construction requirements. 5. Rover shall remit the above-recited amount to the Clerk of the United 24

25 States District Court for the Eastern District of Michigan for deposit into the Registry of this Court. Such deposit with the Clerk of Court may be made by delivery of a certified check or by wire transfer, at Rover s option, subject to any rules or requirements of the Clerk s Office, Local Rule 67.1, Federal Rule of Civil Procedure 67, or other provision of law. The Clerk shall deposit the amount received into the Registry of this Court and then, as soon as the business of his office allows, the Clerk shall deposit these funds into the interest-bearing Court Registry Investment System (C.R.I.S.) administered by the Administrative Office of the United States Courts as Custodian, pursuant to Federal Rule of Civil Procedure 67, and any fees authorized by the Judicial Conference of the United States may be deducted. 6. Upon the entry of this Order, each Defendant shall be entitled to draw from the funds deposited by Rover with the Clerk of Court his/her/its ownership share of the amount of estimated just compensation deposited by Rover for the Easement which burdens lands in which such Defendant owns or claims an interest as set forth in the attached Exhibit 1, and provided that each such Defendant must satisfy all conditions of this Order and any other Court order. Furthermore, Defendants shall be entitled to interest calculated pursuant to 28 U.S.C from and after the date of entry of this Order on the difference between the principal amount deposited with the Court by Rover and the amount of just compensation determined by the Court, if such determination of just compensation to be paid 25

26 exceeds the amount deposited by Rover. 7. The parties shall confer and propose to the Court an appropriate litigation schedule and method to resolve the compensation issues as follows. Rover shall circulate by March 24, 2017 a proposed schedule for future proceedings to (i) all counsel who have appeared for parties who remain in this case and (ii) unrepresented parties who have been served with the initial notice of this action and who remain this case. It shall convene an in-person or phone conference with all such persons not later April 7, It shall submit to the Court by April 21, 2017 a joint memorandum of all parties regarding the future course of proceedings, setting forth all issue on which there is agreement and the issues on which the parties disagree. The Court will thereafter convene a conference to finalize a schedule of proceedings. SO ORDERED. Dated: March 10, 2017 Detroit, Michigan s/mark A. Goldsmith MARK A. GOLDSMITH United States District Judge 26

27 Exhibit 1 Tract No. Notice of Commencement Docket No. Bond Amount MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE & MI-LE MK-MLV-03-b 12!"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%& MI-LE !"#$%%&& 27

28 MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE & MI-LE MLV 37!"#$%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& MI-LE !'"#(%%&& MI-LE !"#$%%&& MI-LE !"#$%%&& 28

29 MI-LE !"#$%%&& MI-LE !'#(%%&& MI-LE !'#(%%&& MI-LE !'#(%%&& MI-LE !)%#%%%&& MI-LI !)%#*%%&& MI-LI !'#(%%&& MI-LI !$"#%%%&& MI-LI !+#"%%&& MI-LI !'#(%%&& MI-LI !'#(%%&& MI-LI !'#(%%&& MI-LI !'#(%%&& MI-LI , Corrected by 184!'#(%%&& MI-LI !'#(%%&& MI-LI !'#(%%&& MI-LI !'#(%%&& MI-WA !'#(%%&& 29

30 MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !'(#)%%&& MI-WA !"#$%%&& MI-WA !*+#'%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& 30

31 MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !'(#)$%&& MI-WA !"#$%%&& MI-WA !*#+%%&& MI-WA !"#$%%&& MI-WA !)#+%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !$#*%%&& MI-WA !'+#'%%&& MI-WA !'"+#'%%&& 31

32 MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA &!"#$%%& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA &!"#$%%& MI-WA !"#$%%&& MI-WA &!"#$%%& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA &!"#$%%& MI-WA !"#$%%&& 32

33 !"#$%&'%#()*+%,-.%,/,00012&030*4( ():#(:#$000;<0))02=0))0000;<0>10$??( MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& MI-WA !"#$%%&& Aggregate Cash Bond Amount:!!! "#$%&'('!! 30% of Total: ")$*&+$(!! Grand Total: ",-'&+%(!! 33