13‐696
Millennium Pipeline Co., L.L.C. v. Certain Permanent and Temporary Easements
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 16th day of January, two thousand fourteen.
PRESENT:
RALPH K. WINTER,
RICHARD C. WESLEY,
PETER W. HALL,
Circuit Judges.
_____________________________________
Millennium Pipeline Company, L.L.C,
Plaintiff‐Appellee,
v. 13‐696
Certain Permanent and Temporary Easements
in (No Number) Thayer Road, S.B.L. No.
63.00‐1‐24.1, Town of Erin, County of
Chemung, New York,
Defendant,
Unknown Owners,
Defendants,
Nathaniel Hendricks,
Defendant‐Appellant.
_____________________________________
FOR PLAINTIFF‐APPELLEE: Mark D. Lansing, Hiscock & Barclay,
LLP, Albany, NY.
FOR DEFENDANT‐APPELLANT: Nathaniel Hendricks, pro se, Brooklyn,
NY.
Appeal from the judgment of the United States District Court for the Western
District of New York (Larimer, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
In this condemnation action brought pursuant to the Natural Gas Act, 15 U.S.C. §
717, et seq., Defendant‐Appellant Nathaniel Hendricks, pro se, appeals from the district
court’s judgment and orders granting Millennium Pipeline Company, L.L.C. a
permanent easement in Hendricks’s property to run a natural gas pipeline and
awarding Hendricks $8,258 as just compensation. We assume the parties’ familiarity
with the case.1
1
We review orders granting summary judgment de novo. See Gonzalez v. City of
Schenectady, 728 F.3d 149, 154 (2d Cir. 2013). “Summary judgment is appropriate if
there is no genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law.” Id. In determining whether there are genuine disputes of
material fact, we are “‘required to resolve all ambiguities and draw all permissible
factual inferences in favor of the party against whom summary judgment is sought.’”
Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (quoting Stern v. Trs. of Columbia Univ.
2
Millennium is the holder of a Certificate of Public Convenience and
Necessity issued by the Federal Energy Regulatory Commission (“FERC”) in 2002 and
amended by a December 2006 FERC order. The certificate authorized Millennium to
construct and operate a 182‐mile natural gas pipeline running through southwestern
New York. The company brought this action pursuant to 15 U.S.C. § 717f(h), seeking an
order granting it temporary and permanent easements in Hendricks’s real property
located in Chemung County, New York that would allow it to construct and operate the
pipeline. On appeal, Hendricks challenges the district court’s determination that
Millennium was entitled to the easements and its finding as to the amount of just
compensation due. With respect to Millennium’s entitlement to the easements,
Hendricks argues that the company violated the FERC certificate by altering the
authorized pipeline route, which resulted in the pipeline crossing his property. Certain
“alignment sheets,” or surveys, Millennium filed with the Commission showed that the
then‐proposed pipeline would run slightly to the north of Hendricks’s property on
neighboring land. As constructed, however, the pipeline crossed two corners of
Hendricks’s property, requiring Millennium to seek the disputed easements.
in City of N.Y., 131 F.3d 305, 312 (2d Cir. 1997)). To defeat a summary judgment motion,
however, “the non‐moving party must come forward with specific facts showing that
there is a genuine issue of material fact for trial.” Shannon v. N.Y. City Transit Auth., 332
F.3d 95, 99 (2d Cir. 2003). “Conclusory allegations, conjecture, and speculation are
insufficient to create a genuine issue of fact.” Id. (citation, quotation marks, and ellipses
omitted).
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Millennium did not violate its certificate. Millennium submitted evidence
suggesting that the pipeline route had not changed, but rather that the extent of
Hendrick’s property had been in dispute. Later drawings with the correct property lines
showed the pipeline in the same place, but running across what was now shown to be
Hendricks’ land. Hendricks presented no specific facts contradicting this evidence,
offering only his unsupported assertions that the pipeline route must have been altered.
Such speculation is insufficient to defeat summary judgment. See Shannon v. N.Y. City
Transit Auth., 332 F.3d 95, 99 (2d Cir. 2003).
Hendricks also contends that, prior to commencing the action, Millennium failed
to negotiate in good faith a price for the easements sought. The district court correctly
noted that courts are split as to whether a company must show that it negotiated in
good faith before obtaining property by eminent domain under § 717f(h). Compare
Transwestern Pipeline Co., LLC v. 17.19 Acres, 550 F.3d 770, 776 (9th Cir. 2008) (good faith
required), with Maritimes & Northeastern Pipeline, L.L.C. v. Decoulos, 146 F. App’x 495, 498
(1st Cir. 2005) (declining to impose a good faith requirement). We need not address
whether § 717f(h) requires good faith negotiation because, even if it did, that standard
was met here: Millennium made several offers to purchase the easement and its final
offer was well above any market value supported by the record.
Although Hendricks argues that Millennium failed to provide him with licenced
surveys of the pipeline on his property, Millennium submitted evidence that it could
4
not prepare such surveys because Hendricks would not allow its surveyors access to his
property. Accordingly, we conclude that the district court properly determined that
Millennium was entitled to the sought‐after easements.
Turning to the issue of just compensation, Hendricks argues that the district
court improperly disregarded his evidence that the highest and best use of his property
was as a pipeline corridor. The only “evidence” he offered in support of this position,
however, were several scholarly works suggesting that real estate appraisers should
take into account such factors when valuing a property. Significantly, he did not offer a
competing appraisal of the property using the methods described in his proffered
articles, nor did he even personally assign a dollar amount to the purported increase in
value if the property were used as a pipeline corridor. In addition, although Hendricks
offered evidence that he had agreed with another gas company to sell pipeline
easements over a different property he owned for $28,400, that evidence does not create
a genuine dispute of fact concerning the valuation of Hendricks’s property at issue in
this case because he gave no indication that the properties were comparable.
Finally, during its construction of its pipeline, Millennium removed from
Hendricks’s property several portions of an abandoned pipeline that had once been
used for petroleum. Hendricks argues that the removal of this pipeline may have
caused environmental damage to his property that was not accounted for in the district
court’s just compensation award. Millennium, however, proffered evidence that there
5
were no visible signs of contamination upon removal of the pipes. While Hendricks
posits that there may have been contamination that was not discernable by a visual
inspection, he came forward with no specific facts or evidence, such as soil tests or
expert evaluations, suggesting that this was the case. Accordingly, the district court did
not err when it declined to factor environmental damage into its just compensation
award.
We have considered all of Hendricks’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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