Waldock v. Rover Pipeline, L.L.C.

[Cite as Waldock v. Rover Pipeline, L.L.C., 2020-Ohio-3307.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY

Thomas Waldock, Trustee of the Trust Court of Appeals No. WD-19-048
Agreement of Thomas A. Waldock, et al.
Trial Court No. 2017-CV-0256
Appellants

v.

Rover Pipeline, LLC, et al. DECISION AND JUDGMENT

Appellees Decided: June 12, 2020

*****

Zachary J. Murry, for appellants.

Gregory D. Brunton, Daniel J. Hyzak, Bruce A. Moore and
Thomas Zabel, for appellee Rover Pipeline, LLC.

Sheila A. McKeon and Richard C. O. Rezie, for appellee Precision
Pipeline Construction Company.

*****

MAYLE, J.

{¶ 1} Plaintiffs-appellants in this matter are Thomas Waldock, Trustee of the Trust

Agreement of Thomas A. Waldock; Kenneth Stearns and Jane M. Stearns, Trustees of the

Stearns Family Trust; Valeria V. Nye; Patty J. Stearns, Successor Trustee of the Jack L.
Stearns Declaration of Trust; Michael J. Stearns, Trustee, under the Trust Agreement of

Michael J. Stearns; and Barbara Ann Turley (“appellants”). They appeal the June 5, 2019

judgment of the Wood County Court of Common Pleas, granting summary judgment in

favor of defendants-appellees, Rover Pipeline, LLC (“Rover”) and Precision Pipeline

Construction Company (“Precision”), and denying their cross-motion for partial summary

judgment. For the following reasons, we affirm the trial court judgment.

I. Background

{¶ 2} Appellants own approximately 3,300 acres of farmland in Wood County,

Ohio. Rover is constructing an interstate natural gas pipeline that stretches from

Pennsylvania and West Virginia, across the northern half of Ohio, and into Michigan,

requiring access over appellants’ property. Precision is one of its contractors.

{¶ 3} On February 6, 2017, after obtaining a certificate of public convenience and

necessity from the Federal Energy Regulatory Commission (“FERC”) (“the FERC

certificate”)—as is required to construct an interstate natural gas pipeline—Rover

initiated condemnation proceedings under the Natural Gas Act (“NGA”), 15 U.S.C.

§ 717, et seq. in the U.S. District Court for the Northern District of Ohio against

numerous property owners, including appellants. Rover Pipeline, LLC v. Rohrs, et al.,

N.D.Ohio No. 3:17-cv-00225-JGC. It sought 60-foot wide permanent pipeline

easements, temporary workspace easements, surface site easements, and permanent and

temporary road access easements across appellants’ properties. On March 8, 2017, Rover

reached an agreement with appellants whereby they granted Rover immediate possession

2.
of 60-foot wide non-exclusive permanent easements across their properties and 100-foot

wide temporary construction easements on some of the land. The issue of the

compensation to be paid to appellants was reserved.

{¶ 4} Upon reaching this agreement with appellants, Rover began construction.1

In the first two months of construction, the area received substantial rainfall. The rain

caused storm and groundwater build-up in Rover’s easement and dig sites. According to

appellants, in addition to this naturally-occurring water, Rover’s directional boring

operations also caused the build-up of water and various chemicals.

{¶ 5} Appellants maintain that when confronted with this excess water, Rover

could have waited for the ground to dry, or it could have dewatered the easement area by

pumping water into trucks and hauling it away. Instead, they claim, Rover chose to

dewater the easement areas by pumping water and other liquid out of the easements and

onto appellants’ properties, causing significant flooding and contaminating the land.

Appellants contend that in doing so, Rover placed hoses and other equipment on land

outside the easements, and in one instance, even pumped water, sediment, and other

debris directly into one of the landowner’s field tile drainage system.

{¶ 6} On May 5, 2017, appellants sued Rover and Precision in the Wood County

Court of Common Pleas, alleging eight causes of action: (1) trespass; (2) nuisance;

(3) negligence and hazardous waste; (4) tortious interference with business;

1
Both Rover and Precision are parties to this action. They filed separate briefs, but their
positions are consistent. For ease of discussion, we refer to them collectively as “Rover.”

3.
(5) declaratory judgment; (6) injunction; (7) abuse of power and authority and bad faith;

and (8) punitive damages. Appellants claimed that Rover’s dewatering activities washed

out valuable field crops that had already been planted and prevented further farming

operations until the ground is dry enough, rendering it unlikely that the property would be

farmable in 2017. They also claimed that horizontal drilling lubricants and other

materials have contaminated their land.

{¶ 7} Rover filed a notice of removal in the U.S. District Court for the

Northern District of Ohio. Waldock v. Rover Pipeline LLC, N.D.Ohio No. 3:17CV959,

2017 WL 3224573, *1 (July 31, 2017). It argued that the district court had federal-

question jurisdiction over appellants’ claims because they arose under the NGA.

Appellants responded that their claims arose under state law and that Rover was merely

asserting a federal defense, which is not grounds for removal. The federal court agreed

with appellants. Applying the well-pleaded complaint rule, it held that appellants’

claims—as framed in their complaint—did not arise under federal law and there was no

federal question jurisdiction. It remanded the matter to state court. The case was

reinstated to the docket of the Wood County Court of Common Pleas on August 10,

2017.

{¶ 8} On December 26, 2018, Rover moved for judgment on the pleadings or,

alternatively, summary judgment. It argued that appellants’ claims are expressly

preempted by the plain language of Rover’s FERC certificate and the NGA; Rover had an

express federal privilege to dewater its pipeline trench onto appellants’ property;

4.
appellants’ damages claims are already being litigated in federal court; and appellants’

lawsuit is, in fact, one for inverse condemnation, which may be alleged only in a

mandamus action.

{¶ 9} Appellants opposed Rover’s motion. They argued that their claims arose

from Rover’s misconduct off the right-of-way, thus their claims are not preempted; they

maintained that their claims are distinct from the issues pending in federal court; and they

denied that their claims are for inverse condemnation. They also sought summary

judgment on their claims for trespass, nuisance, negligence, and tortious interference with

business.

{¶ 10} The trial court granted summary judgment in favor of Rover and denied

appellants’ cross-motion. It concluded that there was a conflict between appellants’ state

law claims and Rover’s privilege under the FERC certificate and other related

documents, thus appellants’ claims were preempted by the NGA. The court further

concluded that Rover abided by the terms of those documents, which authorized it to

dewater trenches “either on or off the construction right of way.” It acknowledged that

appellants may be entitled to compensation for damage to their land and crops, but it held

that any claim for such damages must be presented “at the federal level.”

{¶ 11} Appellants appealed and assign the following errors for our review:

1. The Trial Court committed reversible error by entering summary

judgment in favor of the Defendants-Appellees.

5.
 2. The Trial Court committed reversible error by denying Plaintiffs’

Cross-Motion for Partial Summary Judgment where the undisputed facts of

the case show that Defendants-Appellees trespassed upon Plaintiffs-

Appellants’ land.

II. Legal Standard

{¶ 12} Appellate review of a summary judgment is de novo, Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same

standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129,

572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is

demonstrated:

(1) that there is no genuine issue as to any material fact; (2) that the moving

party is entitled to judgment as a matter of law; and (3) that reasonable

minds can come to but one conclusion, and that conclusion is adverse to the

party against whom the motion for summary judgment is made, who is

entitled to have the evidence construed most strongly in his favor.

Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 46

(1978), Civ.R. 56(C).

{¶ 13} When seeking summary judgment, a party must specifically delineate the

basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526

N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate

the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293,

6.
662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is

made, an adverse party may not rest on mere allegations or denials in the pleadings, but

must respond with specific facts showing that there is a genuine issue of material fact.

Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A

“material” fact is one which would affect the outcome of the suit under the applicable

substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733

N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App.3d 817, 826,

675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S.Ct. 2505, 91 L.Ed.2d 201 (1986).

III. Law and Analysis

{¶ 14} Appellants claim error in the trial court’s decision granting summary

judgment in favor of Rover and denying their cross-motion for partial summary

judgment. Before addressing the parties’ legal arguments, we briefly explain the

procedures set forth under the NGA for obtaining approval to construct a natural gas

pipeline, and we summarize the details pertinent to Rover’s efforts to obtain the FERC

certificate at issue here.

A. An entity proposing to build a pipeline must obtain a FERC certificate.

{¶ 15} Congress created FERC in 1977. Grdn. Pipeline, L.L.C. v. 529.42 Acres of

Land, 210 F.Supp.2d 971, 973 (N.D.Ill.2002), citing 42 U.S.C. 7171(a). Among other

things, FERC is tasked with determining the public necessity for the development of

natural gas pipelines. Id., citing 42 U.S.C. 7172(a)(1)(D). “An entity proposing to

7.
construct such a pipeline must obtain a certificate of public convenience and necessity

from FERC (FERC Certificate).” Id., citing 15 U.S.C. 717f(c).

{¶ 16} The NGA specifies the procedure for obtaining a FERC certificate.

15 U.S.C. 717 et seq. The process begins with an application from the gas company

(1) describing the proposed pipeline project, (2) explaining why the project is required,

and (3) estimating the beginning date and completion date for the project. E. Tennessee

Nat. Gas Co. v. Sage, 361 F.3d 808, 818 (4th Cir.2004), citing 15 U.S.C. 717f(d);

18 C.F.R. 157.6(b). Notice of the application is filed in the Federal Register, a period of

public comment and protest is allowed, and FERC conducts public hearings on the

application. Id., citing 18 C.F.R. 157.9-11. In evaluating an application, FERC must

investigate “the environmental consequences of the proposed project and issue an

environmental impact statement.” Id., citing 42 U.S.C. 4332.

{¶ 17} If after completing this process FERC finds that the proposed project “is or

will be required by the present or future public convenience and necessity,” it will issue

the certificate. Id., citing 15 U.S.C. 717f(e). “The certificate may include any terms and

conditions that FERC deems ‘required by the public convenience and necessity.’” Id.,

citing 18 C.F.R. 157.20. A person or entity seeking review of the FERC order may do so

“by way of petition to the court of appeals where the proposed pipeline is located or the

holder of the FERC Certificate has its principal place of business or to the Court of

Appeals for the District of Columbia.” Grdn. Pipeline, L.L.C. at 973, citing 15 U.S.C.

717r.

8.
 {¶ 18} Once FERC has issued a certificate, the certificate holder is empowered to

exercise “the right of eminent domain” over any lands needed for the project. 15 U.S.C.

717f(h). The condemnation rules are provided in Fed.R.Civ.P. 71.1.

B. Rover obtained a FERC certificate and a Final
Environmental Impact Statement (“FEIS”) was issued.

{¶ 19} On June 26, 2014, Rover filed a request with FERC to initiate the agency’s

pre-filing process for the pipeline. On June 27, 2014, FERC granted the request and

assigned a pre-filing docket number to place information relating to the project into the

public record. FERC and other cooperating agencies began environmental reviews of the

project.

{¶ 20} On November 14, 2014, FERC issued a notice of intent to prepare an

environmental impact statement (“EIS”) and request for comment, which it published in

the Federal Register on November 18, 2014, and mailed to more than 15,600 interested

parties. The dates and locations for ten public meetings were announced, and a comment

deadline was set for December 18, 2014.

{¶ 21} Rover filed its application for a FERC certificate on February 23, 2015. Its

application was published in the Federal Register on March 16, 2015. FERC issued a

draft EIS on February 19, 2016, which it published in the Federal Register, mailed to its

environmental mailing list, and filed with the Environmental Protection Agency. Public

hearings were held and a comment period was established, ending on April 11, 2016.

9.
FERC received over 2,000 comments from landowners and other citizens, agencies, and

organizations who expressed a variety of environmental concerns.

{¶ 22} FERC evaluated these concerns, along with Rover’s proposed impact

avoidance, minimization, and mitigation measures. FERC acknowledged that approval

of the project would have some “adverse and significant environmental impacts,” but it

concluded that “these impacts would be reduced to acceptable levels with the

implementation of Rover’s * * * proposed mitigation and the additional measures

recommended by staff in the final EIS,” which it issued in July of 2016. Among the

concerns recognized in the FEIS was the potential effect on soil and agricultural land, the

potential for leaks of hazardous materials, the potential for reduced crop yields and

productivity, and effects on drainage patterns and systems. Certain provisions in the

FEIS, along with Rover’s Agricultural Impact Mitigation Plan (“AIMP”) and Project

Specific Upland Erosion Control, Revegetation and Maintenance Plan (“UEC Plan”),

were designed to address these concerns.

C. The FEIS, AIMP, and UEC Plan anticipate the need
for dewatering and potential damage to farmland.

{¶ 23} Among other things, the FEIS, AIMP, and UEC Plan explicitly anticipate

that excess water may accumulate in the pipeline trenches and that Rover may need to

dewater the trenches, potentially damaging crops and farmland off the right-of-way.

These documents provide dewatering procedures intended to avoid or mitigate such

damage. The FEIS provides at 2-25:

10.
 When trench dewatering is needed, water would be discharged off

the right-of-way into a well-vegetated upland area and/or into an approved

filter.

This is reiterated at 4-65:

When feasible, water from the trench would be dewatered to a well-

vegetated upland location. All dewatering activities would be done using

energy-dissipation/filtration devices in a manner that would not cause

erosion or silt-laden waters to enter nearby sensitive features (e.g.,

waterbodies). The applicants would also monitor dewatering activities to

ensure deposition of sand, silt, and/or sediment into sensitive features is not

occurring. If deposition does occur, the applicants would stop dewatering

activities and make adjustments to prevent recurrence. Dewatering

structures would be removed as soon as practicable following dewatering

activities.

And again at 4-90:

During construction, the open trench may accumulate water, either

from the seepage of groundwater or from precipitation. Where necessary,

Rover would dewater the trench in a manner that would not result in silt-

laden water entering waterbodies or wetlands and would not cause erosion,

as described in Rover’s procedures. This process would prevent heavily

silt-laden water from flowing into any adjacent waterbodies or wetlands.

11.
 {¶ 24} The AIMP also addresses the potential that dewatering will be necessary.

Appendix G-3, section 19(A), entitled Pumping of Water from Open Trenches, provides:

In the event it becomes necessary to pump water from open trenches,

Rover will pump the water in a manner that will avoid damaging adjacent

agricultural land, crops, and/or pasture. Such damages include, but are not

limited to, inundation of crops for more than 24 hours, deposition of

sediment in ditches and other water courses, and the deposition of subsoil

sediment and gravel in fields and pastures.

Finally, the UEC Plan recognizes the potential need to dewater. It provides at section

IV(A)(1):

Project-related ground disturbance shall be limited to the

construction right-of-way, extra work space areas, pipe storage yards,

borrow and disposal areas, access roads, and other areas approved in the

FERC’s Orders. Any project-related ground disturbing activities outside

these areas will require prior Director approval. This requirement does not

apply to activities needed to comply with the Plan and Procedures (i.e.,

slope breakers, energy-dissipating devices, dewatering structures, drain tile

system repairs) or mild field realignments and workspace shifts per

landowner needs and requirements that do not affect other landowners or

sensitive environmental resource areas. All construction or restoration

activities outside of authorized areas are subject to all applicable survey and

12.
 permit requirements, and landowner easement agreements. (Emphasis

added.)

{¶ 25} While these documents identify dewatering procedures intended to avoid or

minimize damage to surrounding land and crops, there is an express acknowledgment

within these provisions that damage may nonetheless occur. The FEIS and AIMP make

clear that Rover must compensate landowners for damages to their land and crops,

whether such damage occurs on or off the right-of-way. The FEIS provides at 4-51:

Rover would compensate landowners for damages caused on or off

the right-of-way by construction activities. Rover would mitigate for

impacts on agricultural lands by use of the following measures: * * *

landowner compensation for lost production and/or crop damages * * *.

It also provides at 4-176:

Pumping of water from the trenches would be done in a manner to

minimize or avoid damaging adjacent agricultural lands and crops. If

damages cannot be avoided, the landowner would be compensated.

Landowners would be compensated for any construction-related

damages caused by Rover on or off the construction work area. * * * If

crops were damaged during this time, the landowner would be compensated

for the damaged crops.

13.
 {¶ 26} The AIMP provides similarly. It states at Appendix G3-13, section 13(A):

Rover will compensate Landowners for construction-related

damages caused by Rover that occur on or off of the established pipeline

right-of-way.

This is reiterated at Appendix G3-15, section 19(B):

If it is impossible to avoid water-related damages as described in

item 19.A, above, Rover will compensate the Landowners for the damages

or will correct the damages so as to restore the land, crops, pasture, water

courses, etc. to their pre-construction condition.

D. State laws may be impliedly preempted by federal statutes or regulations.

{¶ 27} The trial court held that appellants’ state-law claims are preempted because

they conflict with Rover’s “federal privilege under the FERC Certificate, FEIS, and

associated documents.” It reasoned that “to allow [appellants’] state law claims to go

forward would be to place state law above federal privilege.”

{¶ 28} The Supremacy Clause of the U.S. Constitution “grants Congress the

power to preempt state laws.” Talik v. Fed. Marine Terminals, Inc., 117 Ohio St.3d 496,

2008-Ohio-937, 885 N.E.2d 204, ¶ 20. It provides that “the Laws of the United States

* * * shall be the supreme Law of the Land; * * * any Thing in the Constitution or Laws

of any State to the Contrary notwithstanding.” Article VI, cl. 2, U.S. Constitution.

{¶ 29} Preemption can occur in one of three ways: (1) express preemption,

(2) preemption of the field, and (3) preemption due to conflict. Talik at ¶ 21. “Express

14.
preemption occurs when Congress declares outright that an enactment preempts state

law.” Id. Field preemption occurs when Congress enacts a scheme of federal regulations

that is “so pervasive as to make reasonable the inference that Congress left no room for

the States to supplement it, or where an Act of Congress touch[es] a field in which the

federal interest is so dominant that the federal system will be assumed to preclude

enforcement of state laws on the same subject.” (Internal quotations and citations

omitted.) Id. Finally, conflict preemption occurs “when the state law actually conflicts

with federal law.” Id. at ¶ 23. Preemption due to conflict exists when it is impossible to

comply with both state and federal requirements or where state law poses an obstacle to

accomplishing congressional objectives. Id.

E. Appellants claim that no conflict exists here.

{¶ 30} Appellants argue that their claims are not preempted because Rover failed

to comply with the terms of the FERC certificate and the FEIS. They maintain that these

documents required Rover to obtain a variance before expanding its workspace beyond

the designated easement, and it failed to do so. In support of their claim that Rover was

required to obtain a variance, appellants point to Environmental Condition number five in

the FERC certificate:

Each applicant shall file detailed alignment maps/sheets and aerial

photographs at s scale not smaller than 1:6,000 identifying all route

realignments or facility relocations, and staging areas, contractor yards,

new access roads, and other areas that would be used or disturbed and have

15.
 not been previously identified in filings with the Secretary. Approval for

each of these areas must be explicitly requested. * * * Each area must be

approved in writing by the Director of OEP before construction in or near

that area. (Certificate at 112.)

They also point to the following provisions of the FEIS, which they claim require a

variance for acquiring additional workspace:

Extra Workspace

In addition to the various construction right-of-way configurations

described in section 2.2.1.2, Rover has requested a wider right-of-way in

several locations due to the presence of constraints mentioned above and

for other site-specific, construction-related reasons. Appendix E identifies

where Rover has requested extra workspace for staging areas and resource

crossings, and includes workspace dimensions, the acreage of impact,

associated land use, and Rover’s justification for their use. * * *

Additional extra workspaces beyond those currently identified could

be required during construction of the Projects. Prior to construction, the

applicants would be required to file a complete and updated list of all extra

work areas (including contractor yards) for review and approval (see Post-

Approval Variance Process in section 2.5.4).

(FEIS at 2-18).

16.
 Post-Approval Variance Process

The pipeline alignment work areas identified in the EIS should be

sufficient for construction and operation (including maintenance) of the

Projects. However, minor route alignments and other workspace

refinements sometimes continue past the Project planning phase and into

the construction phase. These changes could involve minor route

alignments, shifting or adding new extra workspaces or staging areas,

adding additional access roads, or modifications to construction methods.

We have developed a procedure for assessing impacts on those areas that

have not been evaluated in this draft EIS and for approving or denying their

use following any Certificate issuance. In general, biological and cultural

resource surveys were conducted using a survey corridor larger than that

necessary to construct the facilities. Where survey approvals were denied,

Rover would complete the required surveys following a Certificate

issuance. If the applicants request to shift an existing workspace or require

a new extra workspace subsequent to issuance of a Certificate, these areas

would typically be within the previously surveyed area. Such requests

would be reviewed using a variance process.

A variance request for route realignments or extra workspace

locations, along with a copy of the survey results, would be documented

and submitted to either the onsite compliance monitors or to the FERC in

17.
 the form of a “variance request” in compliance with recommended

condition number 5 in section 5.2 of this EIS. Minor variance requests,

such as new workspace within the previously surveyed corridor that would

not require tree clearing or impacts on sensitive resources, would be

reviewed by the compliance monitor and could be approved in the field if

deemed necessary and acceptable. For larger or more complex variance

requests, the FERC would take the lead on reviewing and making a final

determination on the request. Typically, no further resource agency

consultation would be required if the requested change is within previously

surveyed areas and no sensitive environmental resources are affected.

The procedures used for assessing impacts on work areas outside the

survey corridor and for approving their use are similar to those described

above, expect that additional surveys, analyses, and resource agency

consultations would be performed to assess the extent of any impacts on

biological, cultural, and other sensitive resources and to identify any

avoidance or minimization measures necessary. All variance requests for

the Projects and their approval status would be documented according to

the FERC’s compliance monitoring program as described above. Any

variance activity by any of the applicants (whether submitted through the

third-party compliance monitoring program or directly to the FERC) and

18.
 subsequent FERC action would be available on the FERC’s e-library

webpage * * *.

After the applicants complete any additional surveys, landowner

consultation, analyses, and/or resource agency consultations, the new work

area and supporting documentation (including a statement of the landowner

approval) would be submitted to the FERC in the form of a formal variance

request, which would be evaluated in the manner described above for

approval or denial.

(FEIS at 2-38).

{¶ 31} Appellants maintain that the trial court judgment was “premised upon the

erroneous conclusion that Rover adhered to its agreements with FERC,” when, in fact, it

did not. They insist that only the areas that were appropriated were subject to the FERC

certificate—areas outside the FERC certificate are outside FERC’s purview because

Rover did not first seek a variance to acquire that additional property. They argue that

the FERC certificate and the FEIS “have no connection to Rover’s conduct off its right-

of-way,” therefore, “there can be no conflict between Ohio and federal law.”

{¶ 32} Appellants also argue that the flooding here was not a necessary, natural,

and proximate result of Rover’s take; rather Rover made the affirmative decision to pump

water onto appellants’ property instead of hauling it away or pumping it into the county’s

drainage system. They claim that the conduct here was a product of Rover’s desire to

remove the water as cheaply and expeditiously as possible, “even if that meant trampling

19.
on [appellants’] property rights.” They maintain that there is nothing in the NGA that

gives Rover the right to trespass off the right-of-way, and there is no conflict between the

FERC certificate and their state law claims that would make it impossible to have

constructed its pipeline exclusively within the easements it obtained.

{¶ 33} Finally, appellants argue that the statements in the FERC certificate and

FEIS indicating that Rover must compensate them for damages caused by dewatering are

“mere acknowledgements of Rover’s existing obligations under state law.” They claim

that this lawsuit is “the exact means by which [to] seek to have Rover compensate them

for its tortious conduct * * *.”

{¶ 34} Rover responds that it was not required to obtain a variance before

dewatering because the FERC certificate “clearly, expressly and repeatedly” confirms its

right to dewater its pipeline trench off the easement area and onto adjacent properties and

crops. It maintains that appellants cite nothing to suggest that a variance was required

under the circumstances here and that it would be illogical to expect it to obtain

variances—a prolonged procedure—to address changing weather conditions. Rover

insists that even if it was required to obtain a variance, thereby failing to comply with its

duties under the NGA, this would still be an issue within the sole and exclusive

jurisdiction of the federal courts.

{¶ 35} Rover also argues that there is an irreconcilable conflict between its

federal right to dewater its trenches and state laws addressing such claims as trespass

20.
and nuisance. It points out that the main case cited by appellants holding otherwise—

Humphries v. Williams Natural Gas Co., 48 F.Supp.2d 1276 (D.Kan.1999)—did so

because the alleged torts occurred before the gas company obtained a FERC certificate.2

It argues that Humphries makes clear that once a FERC certificate is obtained, any

subsequent damage claim falls under federal jurisdiction.

F. The trial court properly dismissed appellants’ complaint.

{¶ 36} The trial court held that appellants’ state law claims were preempted

because Rover “abided by the terms of the FERC Certificate, FEIS, and other

documents.” It found that the UEC Plan permitted Rover to “conduct certain ground

disturbing activities outside of the right-of-way if they comply with the Plan and

Procedures,” without having to negotiate an agreement with appellants or seek a variance,

2
In Humphries, 48 F.Supp.2d 1276, 1277-83, WNG, a natural gas company, began
building a natural gas pipeline on Humphries’ property. It had not attempted to negotiate
an agreement with Humphries, nor had it exercised its power of eminent domain to
condemn the property. Humphries sued under state law for trespass, unlawful taking, and
damage to the property adjacent to the property taken by WNG to build the pipeline. The
district court considered whether the NGA preempted some or all of Humphries’ state-
law claims.

The court reviewed the procedures set forth under the NGA to acquire property
necessary to construct natural gas pipelines. It explained that if WNG had followed these
procedures, Humphries’ state law claims for trespass and unlawful taking would have
been preempted by federal law. It found, however, that WNG did not scrupulously abide
by these procedures; rather it simply entered Humphries’ property and began
construction, and only later did it attempt to reach an agreement with Humphries or seek
court approval. The court, therefore, held that Humphries’ state-law trespass claims were
not preempted as to trespasses that were committed prior to condemnation.

21.
and it observed that dewatering was among the activities permitted. The court

determined that because Rover’s actions were “governed by the FERC certificate and

associated documentation,” allowing appellants’ complaint to go forward would “place

state law above federal privilege.” It dismissed appellants’ claims “on the basis of

preemption.”

{¶ 37} We agree with the trial court’s ultimate conclusion—that appellants’

complaint must be dismissed. But our reasoning differs from that employed by the trial

court. “A judgment by the trial court which is correct, but for a different reason, will be

affirmed on appeal as there is no prejudice to the appellant.” State ex rel. Sommers v.

Perkins Local Schools Bd. of Education, 2017-Ohio-7991, 98 N.E.3d 1117, ¶ 5 (6th

Dist.), quoting Bonner v. Bonner, 3d Dist. Union No. 14-05-26, 2005-Ohio-6173, ¶ 18.

{¶ 38} Federal courts have routinely recognized that “[i]t is beyond dispute that

the FERC has exclusive jurisdiction over the conditions of a FERC certificate * * *.”

Am. Energy Corp. v. Rockies Exp. Pipeline LLC, S.D.Ohio No. 2:09-CV-284,

2009 WL 2148197, *3 (July 14, 2009) (citing numerous cases in support of this

proposition). They also recognize that in addition to setting conditions for issuing a

certificate, FERC is also charged with policing compliance with the certificates it issues.

The court in Portland Nat. Gas Transm. Sys. v. 4.83 Acres of Land, 26 F.Supp.2d 332,

339 (D.N.H.1998) explained:

The relevant statute and regulations place the power to police

compliance squarely upon FERC. FERC’s authority for imposing such

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 conditions is provided in 15 U.S.C. § 717f(e): “The Commission shall have

the power to attach to the issuance of the certificate and to the exercise of

the rights granted thereunder such reasonable terms and conditions as the

public convenience and necessity may require.” Section 717m authorizes

FERC to investigate violations of provisions of FERC’s orders, see 15

U.S.C. § 717m(a), and FERC regulations specify procedures for such

investigations, see 18 C.F.R. §§ 1b.1—.20. In accordance with 18 C.F.R.

§ 1b.8, any person may request that FERC institute an investigation. FERC

can bring an action in district court to enforce its orders. See 15 U.S.C.

§ 717s(a).

{¶ 39} Accordingly, “when a landowner contends that the certificate holder is not

in compliance with the certificate, ‘that challenge must be made to FERC, not the

court.’” Millennium Pipeline Co. v. Certain Permanent & Temporary Easements, 777

F.Supp.2d 475, 480-81 (W.D.N.Y.2011), quoting Guardian Pipeline, E.D.Wi. Nos.

08-C-0028, 08-C-54, 08-C-29, 08-C-30, 2008 WL 1751358, *16 n. 6 (Apr. 11, 2008).

See also In re Transcontinental Gas Pipeline Co., LLC, N.D.Ga. No. 1:16-CV-02991-

ELR, 2017 WL 2622323, *2 (Mar. 30, 2017) (explaining that landowner’s allegation that

certificate holder was not in compliance with FERC certificate must be made to FERC);

Gas Transm. Northwest, LLC v. 15.83 Acres of Permanent Easement More or Less,

located in Morrow Cty., 126 F.Supp.3d 1192, 1198 (D.Or.2015) (explaining that FERC is

23.
charged with evaluating a certificate holder’s compliance with the terms of a certificate);

UGI Sunbury LLC v. A Permanent Easement for 0.5032 Acres, M.D.Pa. No.

3:16-CV-00801, 2016 WL 3254991, *6 (June 14, 2016) (noting that a landowner’s claim

that a certificate holder is not in compliance with the certificate must be made to FERC—

not the court).

{¶ 40} Appellants maintain that they have never challenged Rover’s authority to

take easements, Rover’s right to utilize the easements in a manner consistent with the

FERC certificate, or any aspect of the certificate itself. They insist that their claims are

limited to tortious conduct that occurred outside the easement areas, therefore, their

claims are not preempted.

{¶ 41} But appellants’ ability to prove their claims—and Rover’s ability to defend

against them—revolves entirely around whether Rover complied with the conditions of

the FERC certificate and related documents. For instance, to prevail on their claim for

trespass, appellants must show that Rover “without authority or privilege, physically

invade[d] or unlawfully enter[ed]” appellants’ property, causing damages. (Emphasis

added and citations omitted.) Vineyard Fellowship v. Anderson, 2015-Ohio-5083, 53

N.E.3d 910, ¶ 38 (10th Dist.). To prevail on their claim for nuisance, they must show

that Rover wrongfully invaded appellants’ legal right or interest. Szuch v. FirstEnergy

Nuclear Operating Co., 2016-Ohio-620, 60 N.E.3d 494, ¶ 50 (6th Dist.), quoting Taylor

v. Cincinnati, 143 Ohio St. 426, 432, 55 N.E.2d 724 (1944). If Rover’s conduct was

24.
permitted under the terms of the FERC certificate, it cannot be deemed “without authority

or privilege” or “wrongful.”

{¶ 42} The trial court found that Rover did comply with the conditions set forth in

these documents. The basis for this conclusion is unclear given that Rover offered no

affidavits or other Civ.R. 56(C) materials demonstrating compliance with the specific

requirements of the FEIS, AIMP, or UEC Plan (e.g., whether it was “feasible” to dewater

“to a well-vegetated upland location”; whether “dewatering activities [were] done using

energy-dissipation/filtration devices”; whether Rover “monitor[ed] dewatering activities

to ensure deposition of sand, silt, and/or sediment into sensitive features [was] not

occurring”; whether Rover “stop[ped] dewatering activities and [made] adjustments” if

deposition occurred; whether “[d]ewatering structures [were] removed as soon as

practicable following dewatering activities”; etc.).

{¶ 43} It is clear that Rover’s compliance or non-compliance with the FERC

certificate and related documents is the central issue in this case. And because FERC is

charged with evaluating a certificate holder’s compliance with the terms of a certificate,

FERC—not the court—must resolve this issue. Appellants may be entitled to damages if,

and only if, FERC determines that Rover violated the FERC certificate and related

documents by taking the actions that appellants allege in the complaint. Moreover, it

would be up to FERC to determine whether and how appellants are to be “compensated”

for such damages, as provided in the FERC documents.

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 {¶ 44} Accordingly, we conclude that appellants’ complaint was properly

dismissed, and we find their first assignment of error not well-taken. In light of this

conclusion, we also find no error in the trial court’s denial of their cross-motion for

partial summary judgment. We, therefore, find appellants’ second assignment of error

not well-taken.

IV. Conclusion

{¶ 45} FERC is charged with setting the conditions for issuing certificates of

public convenience and necessity and policing compliance with those conditions. We,

therefore, find that the trial court properly dismissed appellants’ state law claims because

they necessarily require resolution of whether Rover complied with the conditions of the

FERC certificate issued here. We, therefore, find appellants’ two assignments of error

not well-taken and affirm the June 5, 2019 judgment of the Wood County Court of

Common Pleas. Appellants are ordered to pay the costs of this appeal under App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

26.
 Waldock v. Rover Pipeline, LLC
C.A. No. WD-19-048

Thomas J. Osowik, J. _______________________________
JUDGE
Christine E. Mayle, J.
CONCUR. _______________________________
JUDGE

Gene A. Zmuda, P.J. _______________________________
CONCURS AND WRITES JUDGE
SEPARATELY.

ZMUDA, P.J., concurring,

{¶ 46} I agree with the majority’s conclusion that appellants’ complaint was

properly dismissed based upon principles of federal preemption. However, I would find

that appellants’ claims are preempted not because of a conflict between state and federal

law, but rather, because federal law preempts the field as to the claims contained in

appellants’ complaint.

{¶ 47} As noted by the majority, Rover’s business involves the construction of an

interstate natural gas pipeline, and therefore the condemnation proceedings initiated by

Rover were brought under the Natural Gas Act (NGA), 15 U.S.C. § 717, et seq. The

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Supreme Court of the United States, commenting on the preemptive effect of the NGA,

has stated that the NGA is a “comprehensive scheme of federal regulation of ‘all

wholesales of natural gas in interstate commerce.’” Northern Natural Gas Co. v. State

Corporation Comm’n of Kansas, 372 U.S. 84, 91, 83 S.Ct. 646, 9 L.Ed.2d 601 (1963),

quoting Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 682, 74 S.Ct. 794, 98 L.Ed.

1035 (1954). “The NGA confers upon FERC exclusive jurisdiction over the

transportation and sale of natural gas in interstate commerce for resale.” Schneidewind v.

ANR Pipeline Co., 485 U.S. 293, 300-01, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988), citing

Northern Natural Gas Co. at 89. Later in its decision in Schneidewind, the Supreme

Court indicated that it is “now well settled: Congress occupied the field of matters

relating to wholesale sales and transportation of natural gas in interstate commerce.” Id.

at 305.

{¶ 48} Upon its application of Schneidewind to a case pertaining to Michigan’s

authority to regulate the interstate transportation of natural gas, the Sixth Circuit Court of

Appeals found that “in establishing a comprehensive regulatory network, Congress

intended to occupy a field which the states could not reach.” Michigan Consol. Gas Co.

v. Panhandle Eastern Pipe Line Co., 887 F.2d 1295, 1301 (6th Cir.1989). Additionally,

in Northern Natural Gas Co. v. Iowa Utilities Bd., 377 F.3d 817 (8th Cir.2004), the

Eighth Circuit found that the NGA occupies the field regarding the construction and

maintenance of natural gas pipelines, stating:

28.
 The NGA specifically provides that the FERC will oversee the construction

and maintenance of natural gas pipelines through the issuance of

certificates of public convenience and necessity. See 15 U.S.C. § 717f(c).

The FERC has authority to regulate the construction, extension, operation,

and acquisition of natural gas facilities, see id. § 717f(c)(1)(A), and does so

through its extensive and detailed regulations concerning applications for

certificates. See generally 18 C.F.R. Part 157, Subpart A.

Id. at 821.

{¶ 49} Based upon the foregoing federal authority on the issue raised in the

present case, I conclude that the state law claims raised by appellants in their complaint

are within a field of regulation that is occupied by federal law under the NGA. As such, I

conclude that appellants’ claims are preempted, and were thus properly dismissed by the

trial court. Because the majority reaches the same conclusion (albeit based upon conflict

preemption rather than field preemption), I concur.

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

29.