Professional Documents
Culture Documents
Petition For Writ of Certiorari, Orus Ashby Berkley v. FERC, No. - (Oct. 24, 2018)
Petition For Writ of Certiorari, Orus Ashby Berkley v. FERC, No. - (Oct. 24, 2018)
QUESTIONS PRESENTED
I. Is a delegation of Congressional power an “agency
order” or “agency action” such that a party wishing
to challenge that delegation must file that challenge
with the agency under the administrative review
scheme of 15 U.S.C. § 717r, or is the proper forum
for constitutional challenges the district court?
II. Is an administrative agency’s test for determining
“public use” for purposes of eminent domain an
“agency order” such that a party wishing to
challenge that test as unconstitutional must file
that challenge with the agency and adhere to its
administrative review scheme, or is the proper
forum for constitutional challenges the district
court?
ii
LIST OF PARTIES
Petitioners are landowners, Orus Ashby Berkley,
James T. Chandler, Kathy E. Chandler, Constantine
Theodore Chlepas, Patti Lee Chlepas, Roger D.
Crabtree, Rebecca H. Crabtree, George Lee Jones,
Robert Wayne Morgan, Patricia Ann Morgan, Margaret
McGraw Slayton Living Trust, and Thomas Triplett,
Bonnie B. Triplett, and were the appellants in the court
below. The Federal Energy Regulatory Commission
(“FERC”), Neil Chatterjee, in his official capacity as
Acting Chairman of FERC, and Mountain Valley
Pipeline, LLC (“MVP”) are respondents and were the
appellees. Dawn Cisek, Martin Cisek, Edith Echols,
and Estial Echols were plaintiffs at the District Court
and withdrew their appeals at the Fourth Circuit.
CORPORATE DISCLOSURE
This Petition is not filed on behalf of a corporation.
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i
LIST OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . ii
CORPORATE DISCLOSURE . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . x
PETITION FOR A WRIT OF CERTIORARI . . . . . . 1
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . 1
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 4
REASONS FOR ALLOWANCE OF THE WRIT . . 11
I. REVIEW IS WARRANTED UNDER
SUPREME COURT RULE 10(c) BECAUSE
THE FOURTH CIRCUIT DECISION IS IN
CONFLICT WITH RELEVANT SUPREME
COURT PRECEDENT HISTORICALLY
UPHOLDING DISTRICT COURT
JURISDICTION OVER THE
CONSTITUTIONALITY OF
CONGRESSIONAL ACTS AS A
SAFEGUARD OF THE SEPARATION OF
POWERS DOCTRINE AND INDIVIDUAL
LIBERTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
iv
TABLE OF AUTHORITIES
CASES
A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935) . . . . . . . . . . . . . . . . . . . 20, 35
Amazon Petroleum Corp. v. Railroad Com. of Texas,
5 F. Supp. 639 (E.D. Tex 1934) . . . . . . . . . . . . . 21
Ass’n of Am. R.R. v. Dep’t. of Transp.,
865 F. Supp. 2d 22 (D.C. Dist. 2012) . . . . . . . . . 19
Ass’n of Am. R.R. v. United States DOT,
721 F.3d 666 (D.C. Cir. 2013) . . . . . . . . . . . . . . 25
Bennett v. SEC,
844 F.3d 174 (4th Cir. 2016) . . . . . . . . . . . passim
Berman v. Parker,
348 U.S. 26 (1954) . . . . . . . . . . . . . . . . . . . . 6, 7, 8
Boerschig v. Trans-Pecos Pipeline, LLC,
872 F.3d 701 (5th Cir. 2017) . . . . . . . . . . . . . . . 26
Carter v. Carter Coal Co.,
298 U.S. 238 (1936) . . . . . . . . . . . . . . . . . . . 15, 20
Dep’t of Transp. v. Ass’n of Am. Railroads,
135 S.Ct. 1225 (2015) . . . . . . . . . . . . . . . . . passim
Free Enter. Fund v. Pub. Co. Accounting Oversight
Bd.,
561 U.S. 477 (2010) . . . . . . . . . . . . . . . . . . . . . . 32
General Elec. Co. v. New York State Dept. of Labor,
936 F.2d 1448 (2d Cir. 1991) . . . . . . . . . . . . . . . 26
Hawaii Housing Authority v. Midkiff,
467 U.S. 229 (1984) . . . . . . . . . . . . . . . . . . . . . 6, 7
xi
OTHER AUTHORITIES
The Federalist No. 47 (J. Madison) . . . . . . . . . 14, 17
Alexander Volokh, The New Private-Regulation
Skepticism: Due Process, Non-Delegation, and
Antitrust Challenges, 37 HARV. J.L. & PUB.
POL’Y 931 (2014) . . . . . . . . . . . . . . . . . . . . . . . . 26
1
1
See Dep’t of Transp. v. Ass’n of Am. Railroads, 135 S.Ct. 1225,
1237 (2015)(Alito, J., concurring)(“When it comes to private
entities, however, there is not even a fig leaf of
constitutional justification. Private entities are not vested with
“legislative Powers.” Art. I, §1. Nor are they vested with the
“executive Power,” Art. II, §1, cl. 1, which belongs to the
President.”)(emphasis added). Cf. Appendix (hereinafter “App.”) at
216. (Defendant MVP stating in its Memorandum of Law in
support of its Motion To Dismiss: “Congress has not delegated the
power of eminent domain to FERC. Rather, the NGA delegated
the power of eminent domain to natural gas
companies.”)(emphasis added).
4
2
See Dep’t of Transp., 135 S.Ct. at 1245 (Thomas, J.,
concurring)(“And experiments in legislative supremacy in the
States had confirmed the idea that even the legislature must be
made subject to the law.”).
3
See App. 86 (Count One), App. 87 (Count Two), and App. 88
(Count Three).
4
Petitioners are Orus Ashby Berkley, James T. Chandler, Kathy
E. Chandler, Constantine Theodore Chlepas, Patti Lee Chlepas,
Roger D. Crabtree, Rebecca H. Crabtree, George Lee Jones, Robert
Wayne Morgan, Patricia Ann Morgan, Margaret McGraw Slayton
Living Trust, and Thomas Triplett, Bonnie B. Triplett. After the
Fourth Circuit appeal was filed, Dawn Cisek, Martin Cisek, Edith
Echols, and Estial Echols, who were also plaintiffs at the District
Court, withdrew their discrete appeals.
5
5
Petitioners initially presented four counts (Counts One, Two,
Three, and Four) in their Complaint but later dismissed Count
Four of the Complaint prior to filing an appeal with the Fourth
Circuit. As such, only jurisdiction over Counts One, Two, and
Three is before this Court.
6
See App. 87 (Count Two); see also App. 165-172, 175-190
(Plaintiffs’ Memorandum of Law); see also Dep’t of Transp., 135
S.Ct. at 1246 (2015)(Thomas, J., concurring)(noting that although
the “intelligible principle” test is widely used and followed by this
Court in delegation challenges, J.W. Hampton, Jr., & Co. v. United
States, 276 U.S. 394 (1928) could instead be read to adhere to the
“factual determination” rationale from Marshall Field & Co. v.
Clark, 143 U.S. 649 (1892), which is a stricter standard on federal
delegation than the one imposed by the “intelligible principle”
standard).
6
7
See App. 88 (Count Three); see also App. 172-190 (Plaintiff’s’
Memorandum of Law).
8
See App. 86 (Count One); see also App. 147-165 (Plaintiffs’
Memorandum of Law).
7
9
See App. 156 (“A trickle-down benefit does not suffice, nor does
the potential of some future public use suffice. See Mt. Valley
Pipeline, LLC v. McCurdy, 793 S.E.2d 850, 861-62 (W.Va. 2016).
While Kelo permits eminent domain to be invoked for economic
development, it does not allow just any economic development.
Rather, it permits eminent domain only if there is an economic
development for that particular community. The facts of Kelo and
related case law plainly demonstrate this scope.”).
8
10
App. 38; see also App. 7 (Fourth Circuit Opinion)(“Ultimately, we
agree with the district court that Congress . . . intended for such
claims to come to federal court through the administrative review
scheme established by the Natural Gas Act.”)(emphasis added).
9
11
App. 40.
10
12
Petitioners explained this requirement—that is, that one must
have an “injury-in-fact” in order to have standing to bring a
constitutional challenge—at length in their Reply Brief to the
Fourth Circuit included here in the Appendix. See App. 313-317.
11
13
Congress could, of course, in theory attempt to do so but such a
law would be “checked” [i.e. reviewed] by the Judiciary and
rendered unconstitutional.
12
14
App. 257 (emphasis added) (Transcript of Oral Argument
reporting admission by FERC Solicitor General, Robert H.
Solomon, that FERC cannot sit in judgment on the
constitutionality of any federal statute.).
15
App. 252 (emphasis added).
13
16
See, e.g., Dep’t of Transp., 135 S.Ct. at 1237 (Alito, J.,
concurring)(“Our Constitution, by careful design, prescribes a
process for making law, and within that process there are many
accountability checkpoints. It would dash the whole scheme if
Congress could give its power away to an entity that is not
constrained by those checkpoints.”).
15
17
Carter v. Carter Coal Co., 298 U.S. 238 (1936)(holding that the
Bituminous Coal Conservation Act was an overly broad delegation
of power to a private entity, and explaining that constitutional
supremacy requires the Judiciary to invalidate conflicting
Congressional acts:
The supremacy of the Constitution as law is thus declared
without qualification. That supremacy is absolute; the
supremacy of a statute enacted by Congress is not absolute
but conditioned upon its being made in pursuance of the
Constitution. And a judicial tribunal, clothed by that
instrument with complete judicial power, and, therefore,
by the very nature of the power, required to ascertain and
apply the law to the facts in every case or proceeding
properly brought for adjudication, must apply the supreme
law and reject the inferior statute whenever the two
conflict.
Id. at 296-97.).
16
18
App. 218 (emphasis added)(internal quotations and citations
omitted).
19
See App. 87-88 (Counts Two and Three); see also App. 165-190
(Plaintiffs’ Memorandum of Law).
17
20
See Dep’t of Transp., 135 S.Ct. at 1237 (Alito, J.,
concurring)(“When it comes to private entities, however, there is
not even a fig leaf of constitutional justification. Private entities
are not vested with “legislative Powers.” Art. I, §1. Nor are they
vested with the “executive Power,” Art. II, §1, cl. 1, which belongs
to the President.”).
18
21
See also Carter v. Carter Coal, 298 U.S. 238 (1936)(holding that
the Bituminous Coal Conservation Act of 1935 was an
unconstitutional delegation of legislative power to a private
entity)(originating in and reversing the District Court in R. C.
Tway Coal Co. v. Glenn, 12 F. Supp. 570 (W.D. Ky 1935)); A.L.A.
Schechter Poultry Corp. v. United States, 295 U.S. 495
(1935)(originating from an appeal of the judgment in the District
Court of the United States for the Eastern District of New York
where appellants were convicted of illegal trade practices in the
21
23
App. 7.
24
The question of which court has jurisdiction-whether it be the
District Court or the Court of Appeals—is addressed separately
below in PART III. The present section addresses only the Circuit
Split between the Fourth Circuit’s [misplaced] belief that the
District Court does not have jurisdiction over delegation challenges
and the other Circuits’ belief that it does have jurisdiction over
such federal questions.
25
Recall that even FERC—the agency in question—twice already
conceded this point, admitting (as cited in Part I above) that it
does not have jurisdiction to sit in judgment over constitutional
challenges. App. 257 and 252.
23
26
App. 8-9 (“Thus, the statute indicated that Congress did not
want cases brought by private parties, like the plaintiff in Bennett,
to be heard by district courts. These considerations lead to the
same conclusion in this case.”)(emphasis added). (“[T]he Natural
Gas Act establishes an extensive review framework, including
review before FERC and eventually by a court of appeals.” App. 9.)
Recall, again, that FERC twice conceded it had no such review
power.
24
27
App. 8-9 (Fourth Circuit Opinion discussing Congress’s “intent”
and analogizing it to the decision in Bennett v. SEC, 844 F.3d 174
(4th Cir. 2016) where Congress also “did not want” cases brought
by private parties “to be heard by district courts.”).
25
28
See also General Elec. Co. v. New York State Dept. of Labor, 936
F.2d 1448 (2d Cir. 1991) (noting that the private non-delegation
doctrine remains good law).
27
29
See, e.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.,
561 U.S. 477 (2010)(holding that 15 U.S.C. § 78y did not strip the
district court of jurisdiction over the claims and that the dual
for-cause limitations on the removal of Board members
contravened the Constitution’s separation of powers).
33
30
App. 9 (emphasis added).
31
See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S.
495, 553 (1935).
32
App. 9.
36
33
App. 11.
34
App. 16. Cf. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457
(2001)(reasoning that an agency cannot cure “an
37
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
APPENDIX
TABLE OF CONTENTS
Appendix A Opinion and Judgment in the United
States Court of Appeals for the Fourth
Circuit
(July 25, 2018) . . . . . . . . . . . . . . . App. 1
Appendix B Final Order and Final Judgment in
the United States District Court for
the Western District of Virginia
Roanoke Division
(January 9, 2018) . . . . . . . . . . . . App. 20
Appendix C Memorandum Opinion in the United
States District Court for the Western
District of Virginia Roanoke Division
(December 11, 2017) . . . . . . . . . App. 23
Appendix D Constitution and Statutes
U.S. Const. art. I, §1 . . . . . . . . . App. 43
U.S. Const. art. II, §1, cl. 1 . . . . App. 43
U.S. Const. art. III, §1 . . . . . . . . App. 44
U.S. Const. amend. V . . . . . . . . . App. 44
15 U.S.C. § 717f(h) . . . . . . . . . . . App. 45
15 U.S.C. § 717r . . . . . . . . . . . . . App. 46
Appendix E Verified Complaint in the United
States District Court for the Western
District of Virginia Roanoke Division
(July 27, 2017) . . . . . . . . . . . . . . App. 51
Exhibit 1: Statement of Policy
(September 15, 1999) . . . . . . App. 92
ii
APPENDIX A
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1042
[Filed July 25, 2018]
___________________________________
ORUS ASHBY BERKLEY; )
JAMES T. CHANDLER; )
KATHY E. CHANDLER; )
CONSTANTINE THEODORE )
CHLEPAS; PATTI LEE )
CHLEPAS; ROGER D. )
CRABTREE; REBECCA H. )
CRABTREE; GEORGE LEE )
JONES; ROBERT WAYNE )
MORGAN; PATRICIA ANN )
MORGAN; MARGARET )
MCGRAW SLAYTON LIVING )
TRUST; THOMAS TRIPLETT; )
BONNIE B. TRIPLETT, )
)
Plaintiffs - Appellants, )
)
and )
)
DAWN E. CISEK; MARTIN )
CISEK; EDITH FERN ECHOLS; )
App. 2
1
Plaintiffs are Orus Ashby Berkley, James T. Chandler, Kathy E.
Chandler, Constantine Theodore Chlepas, Patti Lee Chlepas,
Roger D. Crabtree, Rebecca H. Crabtree, George Lee Jones, Robert
Wayne Morgan, Patricia Ann Morgan, Margaret McGraw Slayton
Living Trust, Thomas Triplett, Bonnie B. Triplett, Dawn E. Cisek,
Martin Cisek, Edith Fern Echols, and Estial E. Echols, Jr. After
this appeal was filed, Dawn Cisek, Martin Cisek, Edith Echols,
and Estial Echols withdrew their discrete appeals. Accordingly, we
have updated the caption of this case to reflect their status as
Plaintiffs and not as Plaintiff-Appellants.
App. 4
2
However, there are limits to appellate jurisdiction. For instance,
“[n]o objection to the order of the Commission shall be considered
by the court [of appeals] unless such objection shall have been
urged before the Commission in the application for rehearing
unless there is reasonable ground for failure so to do.” 15 U.S.C.
§ 717r(b). Additionally, “[t]he filing of an application for rehearing
. . . shall not, unless specifically ordered by the Commission,
operate as a stay of the Commission’s order.” Id. § 717r(c).
App. 6
3
In a letter filed pursuant to Fed. R. App. P. 28(j), FERC informed
this Court of further developments regarding the pending request
for rehearing before the Commission in this case. Specifically, on
June 15, 2018, FERC took final action on the matter and upheld its
issuance of the Certificate to Mountain Valley Pipeline. In the time
since FERC’s final order, no party has requested that we take any
steps in light of this development. Furthermore, although we have
an obligation to raise mootness issues sua sponte, see Friedman’s,
Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002), we do not believe
issuance of that final order moots the case at bar, because there
are still potential benefits to the Plaintiffs to being able to pursue
their original action in district court. See Smith v. Ashcroft, 295
F.3d 425, 428 (4th Cir. 2002) (finding a case is not moot when the
petitioner is still “unmistakably affected by the legal implications
of our decision”).
App. 7
II.
We review the district court’s dismissal of a
complaint for lack of subject-matter jurisdiction de
novo. Nat’l Taxpayers Union v. U.S. Soc. Sec. Admin.,
376 F.3d 239, 241 (4th Cir. 2004). Ultimately, we agree
with the district court that Congress implicitly divested
the district court of jurisdiction to hear claims of the
kind brought by Plaintiffs and instead intended for
such claims to come to federal court through the
administrative review scheme established by the
Natural Gas Act. As a result, the district court
correctly determined that it did not have jurisdiction to
review the matter.
Over the past thirty years, the Supreme Court has
issued a trio of cases addressing when Congress
intends to divest district courts of jurisdiction over
claims that should instead proceed exclusively through
administrative review regimes. See Elgin v. Dep’t of the
Treasury, 567 U.S. 1 (2012); Free Enter. Fund v. Pub.
Co. Accounting Oversight Bd., 561 U.S. 477 (2010);
Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994).
This Court recently synthesized these three cases in
Bennett v. SEC, 844 F.3d 174 (4th Cir. 2016).
In Bennett, the plaintiff, who owned an investment
firm that was the subject of an investigation by the
Securities and Exchange Commission (“SEC”), filed
suit in district court claiming that the SEC
unconstitutionally used administrative law judges as
part of its enforcement proceedings. See id. at 177–78.
In analyzing whether the district court had jurisdiction
to hear that claim, this Court distilled the relevant
Supreme Court precedent into “a two-step inquiry.” Id.
at 181.
App. 8
4
According to Plaintiffs—and undisputed by FERC—FERC
regularly issues statements within 30 days of petitions for
rehearing being filed that state, “[i]n order to afford additional
time for consideration of the matters raised or to be raised,
rehearing of the Commission’s order is hereby granted for the
limited purpose of further consideration, and timely-filed
rehearing requests will not be deemed denied by operation of law.
Rehearing requests of the above-cited order filed in this proceeding
will be addressed in a future order.” Appellants’ Br. at 20 n.7.
App. 12
5
We vacate the portion of the district court’s opinion discussing an
alternative ground for its holding—that the Plaintiffs’ challenges
“inher[e]” in a Commission order and are thus subject to the
exclusive review provisions of the Natural Gas Act. J.A. 535–40.
And because we uphold the district court’s conclusion based upon
its application of Thunder Basin, Bennett, and related cases, we
decline to address that other line of reasoning in greater detail.
App. 18
APPENDIX B
APPENDIX C
1
MVP admits that the only other count against it, Count Four, is
not subject to dismissal on jurisdictional grounds, but urges that
it should be dismissed pursuant to Federal Rule of Civil Procedure
12(b)(6) because it fails to state a claim.
App. 25
2
With regard to both “delegation” arguments, MVP asserts that
the claims are based on an incorrect premise and that there is no
sub-delegation. Specifically, it argues that, although Congress
delegated regulatory authority over natural gas and natural gas
companies to FERC in the NGA, the NGA itself delegates the
power of eminent domain directly to natural gas companies. (MVP
Mem. Supp. Mot. to Dismiss 15–16, Dkt. No. 11.) MVP cites to
many cases holding that the delegation of eminent domain power
to gas companies in the NGA does not violate the United States
Constitution. (Id. at 16.) The court does not address these
arguments because it lacks jurisdiction over the claims based on
them.
3
Although it is not clear from the complaint, plaintiffs’ briefing
makes plain—and their counsel confirmed at the hearing—that
App. 27
4
Because the judicial review provisions of the Federal Power Act
and the NGA are “in all material respects substantially identical,”
courts routinely cite “interchangeably decisions interpreting the
pertinent sections of the two statutes.” Ark. La. Gas Co. v. Hall,
453 U.S. 571, 577 n.7 (1981).
App. 31
5
Plaintiffs’ assertion that this court’s dismissal for lack of
jurisdiction would deprive them of an opportunity for judicial
review over their constitutional claims in an Article III court is
incorrect. Their claims can be reviewed by a federal court of
appeals. See § 717r(b).
App. 33
6
Lovelace is Attachment 1 to the FERC defendants’ motion to
dismiss for lack of subject matter jurisdiction. (Dkt. No. 20.)
App. 34
7
Califano is not on point. There, the Supreme Court held that the
Social Security Act did not authorize judicial review of a final
agency decision refusing to reopen a claim for social security
benefits. 430 U.S. 99. Plaintiff seizes on language from the opinion,
though, explaining that district court judicial review of such
decisions is available where a plaintiff raises a constitutional
challenge because “[c]onstitutional questions obviously are
unsuited to resolution in administrative hearing procedures and,
therefore, access to the courts is essential to the decision of such
questions.” Id. at 109. But in Califano, the statutory scheme was
different than here. There, not allowing constitutional challenges
to be heard by a district court would result in no judicial review at
all, by any court, beyond a sixty-day time limit. Here, by contrast,
there is “delayed” judicial review in designated courts. Thus, the
Thunder Basin framework is the appropriate analysis to apply
here. See Bennett, 844 F.3d at 178.
App. 37
APPENDIX D
APPENDIX E
and )
)
THOMAS AND BONNIE B. )
TRIPLETT, )
)
Plaintiffs, )
)
v. )
)
MOUNTAIN VALLEY PIPELINE, LLC )
Serve: )
(Registered Agent) )
CT Corporation System )
4701 Cox Road, Suite 285 )
Glen Allen, VA 23060, )
)
FEDERAL ENERGY REGULATORY )
COMMISSION )
Serve: )
888 First Street, N.E. )
Washington, D.C. 20426 )
)
and )
)
CHERYL A. LAFLEUR, )
in her official capacity as Acting )
Chairman of the Federal )
Energy Regulatory Commission, )
Serve: )
888 First Street, N.E. )
Washington, D.C. 20426 )
)
Defendants. )
______________________________________ )
App. 53
VERIFIED COMPLAINT
The Plaintiffs, by counsel, state their Complaint
against Defendants, the Federal Energy Regulatory
Commission and Acting Chairman Cheryl A. LaFleur
in her official capacity (collectively “FERC” or the
“Commission”), and Mountain Valley Pipeline, LLC
(“MVP”) as follows:
PRELIMINARY STATEMENT OF THE CASE
1. The case before the Court, in its simplest form,
is a constitutional challenge to the eminent domain
provisions of the Natural Gas Act, 15 U.S.C. § 717f(h),
and the resulting unconstitutional acts of FERC and
ultimately MVP. In 1947, Congress delegated the
power of eminent domain to FERC (at that time, the
agency was known as the Federal Power Commission)
to condemn properties for the construction and
operation of interstate gas pipelines. Congress,
however, failed to set forth any set standard, known as
an intelligible principle, rendering its delegation of
power overly broad and unconstitutional. Without
boundaries from Congress, FERC has run wild in the
years since, and has unconstitutionally sub-delegated
the power of eminent domain to private parties seeking
private profits. MVP is one such company seeking
FERC’s permission to proceed. Worse yet, FERC has
published its Statement of Policy regarding its
decision-making process for granting the power of
eminent domain, and each of the tests falls well short
of the Constitution and the Supreme Court’s
interpretation of the Takings Clause in Kelo v. City of
New London, 545 U.S. 469 (2005).
App. 54
1
See Norman Bay’s Separate Statement in Order Granting
Abandonment and Issuing Certificates, FERC Docket Nos. CP15-
115-000, CP15-115-001 (February 3, 2017).
2
Id.
App. 60
3
Id.
App. 61
4
The Federal Power Commission was the predecessor to the
Federal Energy Regulatory Commission.
App. 63
5
Paul W. Parfomak, Interstate Natural Gas Pipelines: Process and
Timing of FERC Permit Application Review, Congressional
Research Service, January 16, 2015, at p. 5.
6
Id. at p. 6.
7
Natural Gas Infrastructure Implications of Increased Demand
from Electric Power Sector, U.S. Departmenet of Energy, Feb.
2015, p.9.
App. 65
8
Id. at p. 3.
9
Cathy Kunkel and Tom Sanzillo, Risks Associated with Natural
Gas Pipeline Expansion in Appalachia, Proposed Atlantic Coast
and Mountain Valley Pipelines Need Greater Scrutiny, Institute for
Energy Economics and Financial Analysis, p. 11 (April 2016); see
also Are the Atlantic Coast Pipeline and the Mountain Valley
Pipeline Necessary? An examination of the need for additional
pipeline capacity into Virginia and Carolinas, Synapse Energy
Economics, Inc. (September 12, 2016).
10
Are the Atlantic Coast Pipeline and the Mountain Valley Pipeline
Necessary? An examination of the need for additional pipeline
capacity into Virginia and Carolinas, Synapse Energy Economics,
Inc., p. 1 (September 12, 2016).
App. 66
11
See U.S. Energy Information Administration, Annual Energy
Outlook 2017, p. 66; EIA: LNG exports expected to drive growth in
U.S. natural gas trade, World Oil, February 24, 2017.
12
Annual Energy Outlook 2017, at p. 66.
13
Id.
App. 67
14
Certificate Application at 2, available at https://www.mountain
valleypipeline.info/~/media/sites/mvp/files/Certificate-Application-
VOL-I.pdf (last accessed July 26, 2017).
App. 73
15
See http://www.roanoke.com/business/news/mountain-valley-
secures-new-pipeline-partner-and-customer-in-con/
article_419a2c13-3105-5960-b446-cf5b82dfc2cb.html; DEIS at 1-10,
available at https://www.mountainvalleypipeline.info/
~/media/Sites/MVP/Files/MVP%20EEP%20DEIS%20Sections%2
01-5.ashx?la=en (last accessed July 26, 2017).
App. 79
VERIFICATION
Pursuant to 28 U.S.C. § 1746, I declare, under penalty
of perjury, that the foregoing factual allegations are
true and correct to the best of my knowledge,
information and belief.
Kathy E. Chandler
/s/Kathy E. Chandler
Plaintiff
7/26/2017
Date
App. 92
Exhibit 1
UNITED STATES OF AMERICA88 FERC ¶ 61,227
FEDERAL ENERGY REGULATORY COMMISSION
Before Commissioners: James J. Hoecker,
Chairman;
Vicky A. Bailey, William L.
Massey, Linda Breathitt,
and Curt Hébert, Jr.
Docket No. PL99-3-000
Certification of New Interstate
Natural Gas Pipeline Facilities
STATEMENT OF POLICY
(Issued September 15, 1999)
In the Notice of Proposed Rulemaking (NOPR) in
Docket No. RM98-10-0001 and the Notice of Inquiry
(NOI) in Docket No. RM98-12-000,2 the Commission
has been exploring issues related to the current policies
on certification and pricing of new construction projects
in view of the changes that have taken place in the
natural gas industry in recent years.
In addition, on June 7, 1999, the Commission held
a public conference in Docket No. PL99-2-000 on the
1
Notice of Proposed Rulemaking, Regulation of Short-term
Natural Gas Transportation Services, 63 Fed. Reg. 42982, 84
FERC ¶ 61,087 (1998).
2
Notice of Inquiry, Regulation of Interstate Natural Gas
Transportation Services, 63 Fed. Reg. 42974, 84 FERC ¶ 61,087
(July 29, 1998).
App. 93
3
This policy statement does not apply to construction authorized
under 18 CFR Part 157, Subparts E and F.
App. 94
4
Citing FPC v. Transcontinental Gas Pipeline Corp., 365 U.S. 1,
23 (1961) and Scenic Hudson Preservation Conference v. FERC,
354 F.2d. 608, 620 (2nd Cir. 1965)
App. 105
5
15 USC 717.
6
15 USC 717h.
App. 115
7
18 CFR Part 157, Subpart E.
8
See, e.g., Transcontinental Gas Pipe Line Corp., 82 FERC
¶ 61,084 at 61,316 (1998).
App. 116
9
15 USC 717f(h).
10
See Pricing Policy for New and Existing Facilities Constructed
by Interstate Natural Gas Pipelines, 71 FERC ¶ 61,241 (1995).
App. 117
11
This policy does not apply to construction authorized under 18
CFR Part 157, Subparts E and F.
App. 121
12
Projects designed to improve existing service for existing
customers, by replacing existing capacity, improving reliability or
providing flexibility, are for the benefit of existing customers.
Increasing the rates of the existing customers to pay for these
improvements is not a subsidy. Under current policy these kinds
of projects are permitted to be rolled in and are not covered by the
presumption of the current pricing policy. Great Lakes Gas
Transmission Limited Partnership, 80 FERC ¶ 61,105 (1997)
(Pricing policy statement not applicable to facilities constructed
solely for flexibility and system reliability).
App. 123
13
“Memphis clause” refers to an agreement that the pipeline may
change the rate during the term of the contract by making rate
filings under NGA section 4.
App. 127
14
42 USC § 4321 et seq.
App. 130
15
El Paso Natural Gas Company, 72 FERC ¶ 61,083 (1995);
Natural Gas Pipeline Company of America, 73 FERC ¶ 61,050
(1995).
App. 137
V. Conclusion
At a time when the Commission is urged to
authorize new pipeline capacity to meet an anticipated
increase in the demand for natural gas, the
Commission is also urged to act with caution to avoid
unnecessary rights-of-way and the potential for
overbuilding with the consequent effects on existing
pipelines and their captive customers. This policy
statement is intended to provide more certainty as to
how the Commission will analyze certificate
applications to balance these concerns. By encouraging
applicants to devote more effort in advance of filing to
minimize the adverse effects of a project, the policy
gives them the ability to expedite the decisional process
by working out contentious issues in advance. Thus,
this policy will provide more guidance about the
Commission’s analytical process and provide
participants in certificate proceedings with a
framework for shaping the record that is needed by the
Commission to expedite its decisional process.
Finally, this new policy will not be applied
retroactively. A major purpose of the policy statement
is to provide certainty about the decisionmaking
process and the impacts that would result from
approval of the project. This includes providing
participants in a certificate proceeding certainty as to
economic impacts that will result from the certificate.
It is important for the participants to know the
economic consequences that can result before
construction begins. After the economic decisions have
been made it is difficult to undo those choices.
Therefore, the new policy will not be applied
App. 138
David P. Boergers,
Secretary.
App. 139
________________________
Linda K. Breathitt
Commissioner
________________________
Curt L. Hébert
Commissioner
App. 140
____________________________
Vicky A. Bailey
Commissioner
App. 143
APPENDIX F
and )
)
THOMAS AND BONNIE B. )
TRIPLETT, )
)
Plaintiffs, )
)
v. )
)
MOUNTAIN VALLEY PIPELINE, LLC )
Serve: )
(Registered Agent) )
CT Corporation System )
4701 Cox Road, Suite 285 )
Glen Allen, VA 23060, )
)
FEDERAL ENERGY REGULATORY )
COMMISSION )
Serve: )
888 First Street, N.E. )
Washington, D.C. 20426 )
)
and )
)
CHERYL A. LAFLEUR, )
in her official capacity as Acting )
Chairman of the Federal )
Energy Regulatory Commission, )
Serve: )
888 First Street, N.E. )
Washington, D.C. 20426 )
)
Defendants. )
______________________________________ )
App. 145
1
As noted in the Plaintiffs’ Verified Complaint, FERC’s
predecessor was known as the Federal Power Commission.
App. 148
2
Statement of Policy, United States of America 88 FERC ¶ 61, 227,
Federal Energy Regulatory Commission, 27.
App. 149
3
Id. at 28.
4
Id. at 25 (emphasis added).
5
Id. at 26.
App. 150
6
Id. at 25.
7
Id.
App. 151
8
Id. at 26 (emphasis added).
9
Id. at 25.
App. 152
10
Id. at 26 (emphasis added).
11
Id.
App. 154
12
See, e.g., Hairston v. Danville & W. R. Co., 208 U.S. 598, 606
(1908) (“[I]t is beyond the legislative power to take, against his
will, the property of one and give it to another for what the court
deems private uses, even though full compensation for the taking
be required.”); see also Dice v. Sherman, 107 Va. 424, 427 (1907)
(“‘The private benefit too clearly dominates the public interest to
find constitutional authority for the exercise of the power of
eminent domain, and is the equivalent of taking private property
for a private use, against the will of the owner, which cannot be
done in any case’”) (quoting Fallsburg v.Alexander, 101 Va. 98, 109
(1903).)
13
The Takings Clause of the Fifth Amendment was made
applicable to the states by the Fourteenth Amendment. Kelo v.
City of New London, 545 U.S. 469 (2005); Chicago, B. & Q. R. Co.
v. Chicago, 166 U.S. 226 (1897).
App. 155
14
See, e.g., Kelo v. City of New London, 545 U.S. 469
(2005)(explaining the historical interpretation of “public use” as
“use by the public”).
App. 156
15
See, e.g., Kelo, 545 U.S. at 479-80.
App. 157
16
Mountain Valley Pipeline, Economic Benefits, Available at:
https://www.mountainvalleypipeline.info/economic-benefits,
(Accessed July 22, 2017, 3:31 P.M.).
App. 163
17
Franklin County Benefits Summary (Oct. 2, 2015) Available at:
https://www.mountainvalleypipeline.info/economic-benefits,
(Accessed July 22, 2017, 3:31 P.M.).
18
Id.
App. 164
19
Id.
20
Id.
App. 165
Either When:
OR
21
State ex rel. Railroad & Warehouse Commission v. Chicago, M.
& St. P. R. Co., 38 Minn. 281, 299 (1888) (“The principle is
repeatedly recognized by all courts that the legislature may
authorize others to do things which it might properly, but cannot
conveniently or advantageously, do itself.”).
App. 174
22
Id.
App. 176
23
Id. at 301.
App. 177
24
See, e.g., Clinton v. City of New York, 524 U.S. 417, 485 (1998)
(“The resulting standards are broad. But this Court has upheld
standards that are equally broad, or broader. See, e.g., National
Broadcasting Co. v. United States, 319 U.S. 190, 225-226, 63 S. Ct.
997, 87 L. Ed. 1344 (1943) (upholding delegation to Federal
Communications Commission to regulate broadcast licensing as
“public interest, convenience, or necessity” require) (internal
quotations omitted)).
App. 179
25
Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 221-22
(1989) (“From its earliest days to the present, Congress, when
enacting tax legislation, has varied the degree of specificity and the
consequent degree of discretionary authority delegated to the
Executive in such enactments. See, e. g., Act of Mar. 3, 1791, ch.
15, § 43, 1 Stat. 209 (in the case of fines assessed for nonpayment
of liquor taxes, “the secretary of the treasury of the United States
[has] . . . power to mitigate or remit such penalty or forfeiture . . .
upon such terms and conditions as shall appear to him
reasonable”) (First Congress); Act of July 6, 1797, ch. 11, § 2, 1
Stat. 528 (in lieu of collecting stamp duty enacted by Congress, the
Secretary of the Treasury may “agree to an annual composition for
the amount of such stamp duty, with any of the said banks, of one
per centum on the amount of the annual dividend made by such
banks”) (Fifth Congress). See generally Field v. Clark, 143 U.S.
649, 683-689 (1892) (longstanding practice of Congress delegating
authority to the President under the Taxing Clause “is entitled to
great weight”)).
App. 184
26
American Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946)
(“The judicial approval accorded these ‘broad’ standards for
administrative action is a reflection of the necessities of modern
legislation dealing with complex economic and social problems. See
Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398 (1940).
The legislative process would frequently bog down if Congress
were constitutionally required to appraise beforehand the myriad
situations to which it wishes a particular policy to be applied and
to formulate specific rules for each situation.”) (explaining
situations in which it is necessary for Congress to delegate power,
notably, however within prescribed boundaries).
App. 185
2. Irreparable Harm
Second, the Plaintiffs are likely to suffer irreparable
harm without preliminary relief. As an initial matter,
in cases regarding an unconstitutional exercise of
power related to private property rights, the harm
suffered is irreparable and cannot be remedied through
any money damages. The Supreme Court and the
Fourth Circuit have recognized the sanctity of
constitutional rights and have held, for example, that
“[t]he loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes
irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373
(1976) (plurality opinion); Rothamel v. Fluvanna
County, 810 F. Supp. 2d 771, 787 (W.D.Va. 2011).
Likewise, simple interference with the right of
exclusive use and possession of real property
constitutes irreparable harm, a right that, while
important, pales in comparison to suffering an
unconstitutional taking of property. See Marfork Coal
Co. v. Smith, 2010 U.S. Dist. LEXIS 17451, *18-*23
(S.D.W.Va. 2010). The same must also be true for the
permanent deprivation of a property right through the
unlawful exercise of the power of eminent domain.
Indeed, the right to private property is recognized as a
fundamental right in both Virginia and West Virginia.
Article I, section 1 of the Virginia Constitution provides
the following:
That all men are by nature equally free and
independent and have certain inherent rights, of
which, when they enter into a state of society,
they cannot, by any compact, deprive or divest
their posterity; namely, the enjoyment of life and
liberty, with the means of acquiring and
App. 192
B. Requested Relief
The Plaintiffs are entitled to a Preliminary
Injunction because they prevail on each of the Winter
factors – (1) likely to succeed on the merits; (2) likely to
suffer irreparable harm in the absence of preliminary
relief; (3) that the balance of equities tips in Plaintiffs’
favor; and (4) that an injunction is in the public
interest.
The Plaintiffs request the following relief:
1. A preliminary injunction prohibiting FERC from
granting MVP the power of eminent domain
under 15 U.S.C. § 717f(h) via issuance of a
Certificate of Convenience and Public Necessity.
2. A preliminary injunction prohibiting MVP from
claiming or exercising any power of eminent
domain under 15 U.S.C. § 717f(h), whether to
enter any landowner’s property without consent
to conduct any activities at all.
C. Bond
The Plaintiffs move the Court to forego the
requirement that it post a bond, for several reasons.
The potential harm to the Defendants to preserve the
status quo is minimal. MVP cannot begin construction
until FERC approves its application for a Certificate
and FERC has until at least September 21, 2017, to
issue a Certificate. Neither MVP nor FERC will incur
any harm by being required not to act in an unlawful
manner pending resolution of these important
constitutional claims.
App. 197
By: /s/
Of Counsel
***
[Certificate of Service Omitted in the
Printing of this Appendix]
App. 199
APPENDIX G
***
[Table of Contents and Table of Citations Omitted in
the Printing of this Appendix]
App. 201
[email protected]
[email protected]
By /s/ Wade W. Massie
Wade W. Massie
***
[Certificate of Service Omitted in the
Printing of this Appendix]
App. 222
APPENDIX H
1
Theodore Roosevelt, Third Annual Message To The Senate and
House of Representatives (December 7, 1903).
App. 226
2
See Wacker v. Comm’r., T.C. Memo 1980-324, 53-54 (1980)
(holding that survey expenses incurred for determining boundaries
and perfecting title are capital expenses):
While petitioners assert the possibility of a loss of land
through adverse possession or fines, they have failed to
prove that the survey expenses were incurred for any
reason other than to establish definite boundaries for
whatever benefit might result therefrom during
subsequent years. The cost of defending or perfecting a
property’s title is a capital expenditure and is not
deductible under section 162 or section 212. See section
1.263(a)-2(c), Income Tax Regs. The evidence in the record
fails to establish that the survey expenditures were
recurring in nature and resulted in a benefit generally
realized and exhausted within one year. In our view, the
survey costs were incurred to perfect the property’s title
and therefore constitute a capital expenditure within the
meaning of section 263. Id.
App. 244
3
Journal of Supreme Court History, 2017 VOL. 42, No. 2, 171.
App. 248
***
[Certificate of Service Omitted in the
Printing of this Appendix]
App. 250
APPENDIX I
***
App. 251
Exhibit 1
to Response of Defendant Mountain Valley Pipeline,
LLC to Order Dated October 17, 2017
Order Issuing Certificates and Granting
Abandonment Authority dated October 13, 2017
App. 252
***
[p.28]
Docket Nos. CP16-10-000 and CP16-13-000
for the project for purposes of section 7(c) of the NGA86
and that the project served a public purpose sufficient
to satisfy the Takings Clause.87 We have done the same
here. The proposed projects in this proceeding, are
designed to primarily serve natural gas demand in the
Northeast, Mid-Atlantic, and Southeast regions.
Through the transportation of natural gas from the
projects, the public at large will benefit from increased
reliability of natural gas supplies. Furthermore,
upstream natural gas producers will benefit from the
project by being able to access additional markets for
their product. Therefore, we conclude that the proposed
project is required by the public convenience and
necessity.
63. Notwithstanding the fact that we addressed a
takings argument raised in Transco and here, such a
question is beyond our jurisdiction: only the courts can
determine whether Congress’ action in passing section
7(h) of the NGA conflicts with the Constitution. We
note, however, that courts have found eminent domain
authority in section 7(h) of the NGA to be
constitutional.88
86
Id. PP 20-33.
87
Id. PP 66-67.
88
See Thatcher, 180 F.2d at 647. In addition, the eminent domain
authority in many federal statutes mirror the authority in section
App. 253
e. Conclusion
64. We find that the benefits that the MVP Project
will provide to the market outweigh any adverse effects
on existing shippers, other pipelines and their captive
customers, and landowners or surrounding
communities. Consistent with the criteria discussed in
the Certificate Policy Statement and NGA section 7(e),
and subject to the environmental discussion below, we
find that the public convenience and necessity requires
approval of Mountain Valley’s proposal, as conditioned
in this order.
***
7(h) of the NGA. For instance, section 21 of the Federal Power Act
(FPA), 16 U.S.C. § 814 (2012), provides that when a licensee
cannot acquire by contract lands or property necessary to
construct, maintain, or operate a licensed hydropower project, it
may acquire the same by the exercise of the right of eminent
domain in a U.S. District Court or a state court. The U.S. Supreme
Court has not questioned the constitutionality of section 21 of the
FP A. See FPC v. Tuscarora Indian Nation, 362 U.S. 99, 123-24
(1960). Similarly, Congress included the same eminent domain
authority for permit holders for electric transmission facilities
when it enacted the Energy Policy Act of 2005. 16 U.S.C.
§ 824p(e)(1) (2012).
App. 254
APPENDIX J
APPEARANCES:
For the Plaintiffs:
JUSTIN MICHAEL LUGAR
Gentry Locke Rakes & Moore
P.O. Box 40013
Roanoke, VA 24022-0013
540-983-9324
[email protected]
MIA YUGO
Gentry Locke Rakes & Moore
P.O. Box 40013
Roanoke, VA 24022-0013
540-983-9300
[email protected]
COURT REPORTER:
JoRita B. Meyer, RMR, CRR, OCR
210 Franklin Road, S.W., Room 540
Roanoke, Virginia 24011
540.857.5100, Ext. 5311
For the Defendant
Mountain Valley Pipeline, LLC:
WADE W. MASSIE
Penn Stuart & Eskridge
P.O. Box 2288
Abingdon, VA 24212-2288
276-623-4409
[email protected]
App. 256
APPENDIX K
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RECORD NO. 18-1042
[Filed January 31, 2018]
________________________________
ORUS ASHBY BERKLEY, et al., )
)
Plaintiffs - Appellants, )
)
v. )
)
MOUNTAIN VALLEY PIPELINE, )
LLC, et al., )
)
Defendants - Appellees. )
________________________________ )
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE
WESTERN DISTRICT OF VIRGINIA
AT ROANOKE
_________________
OPENING BRIEF OF APPELLANT
_________________
Justin M. Lugar
Cynthia M. Kinser
Monica T. Monday
GENTRY LOCKE
App. 260
Bonnie Triplett
who are the appellants, makes the following disclosure:
(appellant/appellee/petitioner/respondent/amicus/
intervenor)
***
[Table of Contents and Table of Authorities Omitted
in the Printing of this Appendix]
App. 264
INTRODUCTION
This case is about meaningful judicial review, or the
lack thereof. The Landowners in this case were before
the district court and are now before this Court because
they have nowhere else to go. These Landowners
cannot have their day in court because an independent
agency of the executive branch, the Federal Energy
Regulatory Commission (“FERC”), has barred the doors
to the courthouse. By virtue of an amendment to the
Natural Gas Act (“NGA”), 15 U.S.C. § 717 et seq., FERC
wields the awesome power of eminent domain and, by
operation of law, conveys that power to private natural
gas companies when it approves a pipeline project. But
the Landowners here, and other property owners
affected by proposed interstate natural gas pipelines,
have no forum in which to meaningfully challenge the
NGA’s eminent domain provisions if jurisdiction does
not lie in the district court.
First and foremost, FERC provides no review for
challenges to its grant of eminent domain to natural
gas companies under the NGA. FERC disclaims any
jurisdiction to decide a challenge to the NGA’s eminent
domain provisions, and goes so far as to publicly
proclaim that it lacks power to deny a natural gas
company the power of eminent domain if it approves a
project. Under the NGA, once a project is approved by
FERC through issuance of a Certificate of Public
Convenience and Necessity (“Certificate”), the power of
eminent domain automatically conveys to the natural
gas company.
Though FERC itself openly states that it is not an
Article III court and will not pass on the
constitutionality of the NGA or its eminent domain
App. 265
1
In addition to requiring temporary easements for construction,
the Landowners here, and other affected property owners, will be
affected by both temporary and permanent access roads.
App. 269
2
The original agency tasked with regulating the sale and transport
of natural gas in interstate commerce was the Federal Power
Commission. In 1977, Congress passed the Department of Energy
Organization Act, and the Federal Power Commission was
essentially renamed as FERC. See 42 U.S.C. § 7134 (2018).
App. 270
3
Mountain Valley Pipeline, LLC v. Easements to Construct,
Operate, and Maintain a Natural Gas Pipeline Over Tracts of Land
in Giles County, Craig County, Montgomery County, Roanoke
App. 271
Union v. U.S. Soc. Sec. Admin., 376 F.3d 239, 241 (4th
Cir. 2004)).
I. U N D E R THE THUNDER BASIN
FRAMEWORK, CONGRESS NEVER
INTENDED TO DIVEST THE DISTRICT
COURT OF SUBJECT MATTER
JURISDICTION OF THE LANDOWNERS’
CLAIMS
A. The Thunder Basin Framework
The Supreme Court has recognized two ways in
which Congress may divest a federal district court of
federal-question jurisdiction under 28 U.S.C. § 1331.
First, Congress may expressly divest the district court
of original jurisdiction. Bennett, 844 F.3d at 178 (citing
Shalala v. Ill. Council on Long Term Care, Inc., 529
U.S. 1, 5 (2000)).4 Second, Congress may divest a
4
Though the district court appears to have made some finding that
the NGA expressly divests the district court of jurisdiction, there
can be no doubt that the NGA does no such thing. To expressly
divest a federal district court of jurisdiction over certain claims,
Congress must “plainly bar[] § 1331 review … irrespective of
whether the individual challenges the agency’s denial on
evidentiary, rule-related, statutory, constitutional, or other legal
grounds.” Shalala, 529 U.S. at 10. In Shalala, the statute was
explicit: “no action against the United States, the Secretary, or any
officer or employee thereof shall be brought under section 1331 or
1346 of title 28 to recover on any claim arising under this
subchapter.” Shalala, 529 U.S. at 10 (quoting section 405(h) of the
Social Security Act). Unlike the express divestment of district
court jurisdiction under section 1331 at issue in Shalala, the NGA
provides no such language. Accordingly, to the extent the district
court found an express divestment under the NGA, it committed
error.
App. 276
5
The first step in the Thunder Basin framework will be analyzed
more fully below.
App. 280
6
These orders are commonly referred to as “tolling orders” by
practitioners in this area of the law.
App. 282
7
FERC’s purported “decision” provides in part: “In order to afford
additional time for consideration of the matters raised or to be
raised, rehearing of the Commission’s order is hereby granted for
the limited purpose of further consideration, and timely-filed
rehearing requests will not be deemed denied by operation of law.
Rehearing requests of the above-cited order filed in this proceeding
will be addressed in a future order. As provided in 18 C.F.R.
§ 385.713(d), no answers to the rehearing requests will be
entertained.” Id.
8
At the time of filing, FERC has granted MVP the right to proceed
with certain construction of access roads and site preparation for
compressor stations in West Virginia.
App. 283
9
Though the district court did not analyze Town of Dedham in the
context of Thunder Basin, it appears that the district court cites
Town of Dedham in relation to the “wholly collateral” element of
the Thunder Basin framework.
App. 306
10
The Third Circuit did not consider an appeal on the merits;
rather, the Adorers moved the Third Circuit to enter an injunction
pending appeal. The Third Circuit denied the motion “[f]or
essentially the reasons given by the District Court in dismissing
Appellants’ claims for lack of jurisdiction….” 2017 U.S. App.
LEXIS 25215, at *2.
App. 307
***
[Certificate of Compliance and Certificate of Service
Omitted in the Printing of this Appendix]
App. 311
APPENDIX L
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RECORD NO. 18-1042
[Filed March 6, 2018]
________________________________
ORUS ASHBY BERKLEY, et al., )
)
Plaintiffs - Appellants, )
)
v. )
)
MOUNTAIN VALLEY PIPELINE, )
LLC, et al., )
)
Defendants - Appellees. )
________________________________ )
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE
WESTERN DISTRICT OF VIRGINIA
AT ROANOKE
_________________
JOINT REPLY BRIEF OF APPELLANTS
_________________
Justin M. Lugar
Cynthia M. Kinser
Monica T. Monday
GENTRY LOCKE
App. 312
***
[Table of Contents and Table of Authorities Omitted
in the Printing of this Appendix]
App. 313
ARGUMENT
Defendants MVP and FERC adopt the district
court’s reasoning that the Landowners’ standing
arguments defeat their ability to raise a constitutional
challenge.1 In other words, because the Landowners
have standing, the district court concluded that they
cannot assert a “facial” challenge. According to MVP’s
and FERC’s reading of the district court’s opinion, such
a challenge is concerned with an “abstract”
constitutional violation but because the Landowners
have asserted that they have standing, i.e., they have
demonstrated an injury-in-fact that is concrete and
particularized to them and their particular parcels of
land, they cannot then simultaneously claim to be
concerned with an abstract or facial constitutional
issue. And since they are not concerned solely with an
abstract facial issue but, rather, with a particularized
injury-in-fact to their own properties, they clearly are
not able to raise a facial challenge and thus the Court
has no subject matter jurisdiction. This reasoning is
1
See Brief of Appellee Mountain Valley Pipeline, Doc. 34 at 12 of
42 (“As the district court stated in its memorandum opinion,
‘plaintiffs’ own complaint—and their standing arguments—make
clear that they are concerned not with some abstract constitutional
violation, but with the fact that their land will be affected by
MVP’s proposed pipeline”) (citing Joint Appendix (“JA”) 539); see
also Brief for Defendants-Appellees FERC, Doc. 33-1 at 16-17 of 35
(“As the district court correctly recognized, Landowners’ Complaint
and arguments demonstrate that they are challenging Mountain
Valley’s ability to exercise eminent domain authority under a
FERC issued certificate order. That is, Landowners are not just
concerned with an abstract constitutional violation, but with the
impact of the FERC-authorized Mountain Valley pipeline on their
land.”).
App. 314
2
Brief of Appellee Mountain Valley Pipeline, Doc. 34 at 12 of 42.
3
Plaintiffs’ Memorandum of Law, Doc. 5 at 18-35 of 42, explaining
restrictions on Congressional delegations of power and citing
App. 317
delegation case law including but not limited to: J.W. Hampton. Jr.
& Co. v. United States, 276 U.S. 394 (1928); Clinton v. City of NYC,
524 U.S. 417 (1998); United States v. Chicago. M.. St. P. gt P.R.
Co., 282 U.S. 311, 324 (1931); National Broadcasting Co. v. United
States, 319 U.S. 190 (1943); A.L.A. Schechter Poultry Corp. v.
United States 295 U.S. 495 (1935); Panama Refining Co. v. Ryan,
293 U.S. 388 (1935).
4
See Brief for Defendants-Appellees FERC Doc. 33-1 at 13 of 35
(“While observing that it is for the courts to determine the
constitutionality of the Natural Gas Act’s eminent domain
provisions . . . ). Note that the Landowners did not assert that
Defendant FERC did not follow its own procedures but, rather,
App. 318