ORDER
W. KEITH WATKINS, Chief District Judge.
Before the court is the Motion to Confirm Condemnation of Easements and for Preliminary Injunction and Permanent Injunction Authorizing Immediate Entry filed by Plaintiff Transcontinental Gas Pipe Line Co., LLC ("Transco"). (Doc. #3.) Transco has filed a brief in support of its motion (Doc. #4), and Chilton County, Alabama—the owner of the land that Transco seeks to condemn—has filed a response to the motion, but declined to "submit any factual, statutory, or other legal authority in opposition" (Doc. #13 at 4). Transco's motion is due to be granted to the extent that Transco has shown that it is entitled to a preliminary injunction.
Transco invokes the court's subject-matter jurisdiction under 28 U.S.C. § 1331 because this action arises under the Natural Gas Act, 15 U.S.C. § 717 et seq., a federal statute. The Act's jurisdictional provision, § 717f(h), empowers federal courts to hear eminent domain actions where the owner of the property claims the amount owed for condemning the property exceeds $3,000. In its answer, Chilton County admitted that the land to be condemned exceeds this threshold value. (Doc. #10 ¶ 4; see Doc. #1 ¶ 4.) The court therefore has subject-matter jurisdiction over this matter.
Section 717f(h) sets forth three prerequisites for the exercise of eminent domain by a natural-gas company like Transco. See § 717a(6) (defining "natural-gas company"). Such a company can only use the federal power of eminent domain to acquire property when (1) the company is the holder of a Federal Energy Regulatory Commission ("FERC" or the "Commission") Certificate authorizing a project, (2) FERC has determined that the property is necessary for the project, and (3) the company is unable to acquire the property by contract. § 717f(h).
Transco meets all three § 717f(h) requirements. First, Transco holds a valid FERC Certificate. (Doc. #1-2.) Second, FERC has given its blessing to "the route of the [pipeline] Project, the size of the pipeline, [and] the size and location of the easements required including this particular parcel." (Doc. #4 at 12 (emphasis added); see also Doc. #1-2 (analyzing at great length the need for and impacts of the pipeline project).) And third, Transco and Chilton County have been unable to contract for the creation of the easement that Transco now seeks to condemn. (Docs. #4 at 12, 13 at 2-3.) Therefore, because Transco has established that all three requirements are met, its motion for condemnation is due to be granted.
Transco also seeks a preliminary injunction allowing it an immediate right of entry onto the condemned land, such that it can begin construction in time to meet its in-service date.1 A party is entitled to a preliminary injunction where it establishes "(1) a substantial likelihood of success on the merits; (2) that it will suffer irreparable injury unless the injunction is issued; (3) that the threatened injury outweighs possible harm that the injunction may cause the opposing party; and (4) that the injunction would not disserve the public interest." GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng'rs, 788 F.3d 1318, 1322 (11th Cir. 2015) (citing Burk v. Augusta-Richmond Cty., 365 F.3d 1247, 1262-63 (11th Cir. 2004)). "[A] preliminary injunction is an extraordinary and drastic remedy that should not be granted unless the movant clearly carries its burden of persuasion on each of these prerequisites." Id. (quoting Suntrust Bank v. Houghton Mifflin Co., 252 F.3d 1165, 1166 (11th Cir. 2001)). Transco has carried its burden on all four preliminary-injunction prerequisites, and therefore its motion is due to be granted.
First, Transco has established a substantial likelihood of success on the merits. The company holds a valid FERC Certificate, which confers the right to condemn the property at issue. (See Doc. #1-1.) Second, because of the highly coordinated and sequential nature of pipeline construction, even a slight delay would irreparably harm Transco by jeopardizing its ability to meet the in-service date. (Doc. #4-1 ¶ 12 ("Construction of a highly regulated natural gas pipeline is a process that goes significantly beyond simply digging a trench and laying the pipe.").) Third, granting an immediate right of entry would not compromise Chilton County's property rights, and Transco stands to incur up to $150,000 in costs for even a one-day delay (Doc. #4-1 ¶ 15); the threatened injury to Transco outweighs the potential harm from granting the injunction. And fourth, a preliminary injunction would be in the public interest. In the FERC Certificate, the Commission found "that the public convenience and necessity requires approval of Transco's . . . [pipeline] proposals." (Doc. #1-2 at 29.) Transco also urges that an unnecessary delay would impede public access to energy deliveries. (Doc. #4 at 15-17.) Transco therefore meets all four prerequisites for a preliminary injunction, and its motion for the injunction is due to be granted.
Because immediate possession is appropriate, Transco will be required to post a security bond as to the property at issue. Fed. R. Civ. P. 65(c) (conditioning the grant of a preliminary injunction on the posting of a security bond). Transco contends that $7,930.00 represents "just compensation for the value of the entire easement and right-of-way identified in Exhibit `A' [attached to its complaint]." (Doc. #1 ¶ 15; see also Doc. #7 (proffering a compensation fund of $7,930.00.) In prior condemnation cases, the court has conditioned immediate entry on the posting of a bond in the amount of three times the appraised value of the easements. See Sabal Trail Transmission, LLC v. 7.72 Acres, Case No. 3:16-CV-173-WKW, slip op. at 15 (M.D. Ala. June 20, 2016). Therefore, Transco will be required to post a security bond in the amount of $23,790.00 before it can enter the property it seeks to condemn. Finally, because this security bond meets the deposit requirement of Federal Rule of Civil Procedure 71.1(j), Transco's Motion to Establish Fund for Compensation to Be Paid To Landowner and Procedures for Payment of Funds by Clerk (Doc. #7) will be denied as moot.
Accordingly, it is ORDERED as follows:
1. Insofar as Transco's motion seeks confirmation of the condemnation of the property described in Exhibit A to Transco's complaint (Doc. #1-1), the motion (Doc. #3) is GRANTED;
2. Insofar as Transco's motion seeks a preliminary injunction authorizing immediate entry onto the condemned property, the motion (Doc. #3) is GRANTED;
3. Insofar as Transco's motion seeks a permanent injunction authorizing entry onto the condemned property, the motion (Doc. #3) is DENIED without prejudice;
4. Transco shall deposit in the registry of the court $23,790.00. Upon the posting of a proper security bond with the Clerk of this Court, Transco shall have immediate access to the easement as described in Exhibit A to its complaint (Doc. #1-1) for the purpose of conducting pre-installation activities and constructing the pipeline in accordance with the terms of the FERC Certificate;
5. The Clerk of the Court is DIRECTED to place any funds, if and when received, in an appropriate interest-bearing account; and
6. Transco's motion to establish a compensation fund (Doc. #7) is DENIED as moot.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on December 1, 2013, the fee to file an appeal is $505.00
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28 U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a final judgment entered by a magistrate judge, but only if the parties consented to the magistrate's jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327-28 (11th Cir. 2001).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are permitted from the following types of orders:
i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions; However, interlocutory appeals from orders denying temporary restraining orders are not permitted. McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);
ii. Orders appointing receivers or refusing to wind up receiverships; and
iii. Orders determining the rights and liabilities of parties in admiralty cases.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the order or judgment appealed from is entered. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend or reopen the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time to file an appeal may be reopened if the district court finds, upon motion, that the following conditions are satisfied: the moving party did not receive notice of the entry of the judgment or order within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice, whichever is earlier; and no party would be prejudiced by the reopening.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
