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Tennessee Gas Pipeline Company, L.L.C. v. 1

United States District Court, D. New Jersey

May 4, 2015

TENNESSEE GAS PIPELINE COMPANY, L.L.C., a limited liability company of the State of Delaware, Plaintiff,
v.
1, 693 Acres of land in the Township of Mahwah, CAROL WEHRAN GREENE, RICHARD C. GREENE, and LINDSEY GREENE BARRETT, fee owners; MICHAEL BRIZZOLARA, fee owner; THE Yaw Paw CAMP ASSOCIATION OF RIDGEWOOD, N.J., a nonprofit corporation of the State of New Jersey, fee owner; NORTHERN NEW JERSEY COUNCIL, BOY SCOUTS OF AMERICA, INC., a nonprofit corporation of the State of New Jersey; THE STATE OF NEW JERSEY, by the COMMISSIONS of the DEPARTMENT OF ENVRIORNMENTAL PROTECTION, fee owner, and as holder of a Green Acres restriction on County of Bergen-owned properties; THE STATE OF NEW JERSEY by the SECRETARY OF THE DEPARTMENT OF AGRICULTRE (State Agriculture Committee); THE COUNTY OF BERGEN, a political subdivision of the State of New Jersey, see owner and as holder, by the BERGEN COUNTY AGRICULTURE DEVELOPMENT BOARD, an interest in the Greene Property, Defendants, and THE Yaw Paw CAMP FOUNDATION OF RIDGEWOOD-GLEN ROCK, INC., a nonprofit corporation of the State of New Jersey, Third-Party Plaintiff,
v.
RANDY RAMUNDO AND LORI RAMUNDO, fee owners Third-Party Defendants, and THE COUNTY OF BERGEN, a political subdivision of the State of New Jersey, Third-Party Plaintiff,
v.
RANDY RAMUNDO AND LORI RAMUNDO, fee owners; SPECTRA ENERGY PARTNERS, L.P.; and ALGONQUIN GAS TRANSMISSION COMPANY, Third-Party Defendants, and MICHAEL BRIZZOLARA AND DAWN BRIZZOLARA, his wife, Third-Party Plaintiffs,
v.
SPECTRA ENERGY PARTNERS, L.P.; and ALGONQUIN GAS TRANSMISSION COMPANY, Third-Party Defendants.

OPINION

WILLIAM J. MARTINI, District Judge.

This matter comes before the Court on multiple motions. First is a motion for summary judgment from Plaintiff Tennessee Gas Company, L.L.C ("Tennessee Gas"). In its motion, Tennessee Gas argues that it has the right to travel Bear Swamp Road, a threemile stretch of improved macadam located in Mahwah, New Jersey. Specifically, Tennessee Gas contends that Bear Swamp Road is a "quasi-public" by-road that is open to public use. A number of other parties to this action have filed cross-motions for summary judgment that similarly argue for by-road status. In addition to opposing the aforementioned motions, Defendants Michael and Dawn Brizzolara have filed a crossmotion seeking to vacate a preliminary injunction this Court entered in January of 2013.

For the reasons set forth below, Tennessee Gas' motion, along with the crossmotions of the other parties who argue that Bear Swamp Road is a by-road, are GRANTED. Because this result obviates the need for the preliminary injunction this Court ordered in January of 2013, the Brizzolaras' cross-motion is also GRANTED.

I. BACKGROUND

At bottom, this case is about who has the right to use Bear Swamp Road, a threemile stretch of improved macadam that connects with U.S. Route 202 (also known as Ramapo Valley Road) at its most southeastern point. This background section will first describe the nature of the action and the various motions before the Court. It will then provide a rundown of the parties and their relationship to Bear Swamp Road. Finally, it will provide a more detailed description of the Road itself. Unless otherwise noted, the following facts are undisputed.

A. The Instant Action and Motions for Summary Judgment

In May 2012, Tennessee Gas received a Certificate of Public Convenience and Necessity (hereinafter, "the Certificate") from the Federal Energy Regulation Commission ("FERC") authorizing it to construct its Northeast Upgrade Project (hereinafter, "the Project"). The Project - which Tennessee Gas expected to complete by November 1, 2013 - requires the use of Bear Swamp Road. The Road crosses through properties owned by the following parties: Carol Greene, Richard Greene, and Lindsey Greene Barrett ("the Greenes"); Michael and Dawn Brizzolara ("the Brizzolaras"); Randy and Lori Ramundo ("the Ramundos"); The Yaw-Paw Camp Foundation of Ridgewood-Glen Rock ("Yaw Paw"); the County of Bergen ("Bergen" or "the County"); and the State of New Jersey by the Commissions of the Department of Environmental Protection and by the Secretary of the Department of Agriculture ("the State").

Shortly after receiving the Certificate from the FERC, Tennessee Gas filed this action in federal court. Tennessee Gas' Complaint consists of two counts. First, pursuant to Section 717f(h) of the Natural Gas Act, Tennessee Gas seeks to establish its temporary access rights to use the Road for the purposes of carrying out the Project. Second, Tennessee Gas seeks a declaratory judgment that it possesses permanent rights to use the Road.[1] See ECF No. 78.

Along with filing its Complaint, Tennessee Gas moved for a preliminary injunction that would allow it to take immediate possession of temporary access easements along Bear Swamp Road. On January 22, 2013, this Court issued an order granting Tennessee Gas' motion, thus acknowledging Tennessee Gas' eminent domain power under the Natural Gas Act. ECF Nos. 40, 41. While Tennessee Gas notes that it has successfully placed the Project in-service, it stresses that it still must complete "construction activities and restoration work associated with the Project." (Tennessee Gas Reply Brief at 35).

Tennessee Gas has filed the instant motion for summary judgment arguing that it has the permanent right to travel Board Swamp Road. In support of its motion, Tennessee Gas contends that Bear Swamp Road is a "quasi-public by-road" open to public use. In the alternative, Tennessee Gas argues that it possesses common law rights to use the Road. Yaw Paw, along with another gas company, Algonquin Gas Transmission ("Algonquin"), have filed cross-motions for summary judgment that assert their rights to use the Road. In support of their motions, Yaw Paw and Algonquin rely on similar arguments made by Tennessee Gas. Bergen County has also filed a cross-motion for summary judgment arguing that the Road is a by-road, but it disputes any party's claim to prescriptive easement rights.

In opposition, the Brizzolaras, Greenes, Ramundos, and the State of New Jersey contend that Bear Swamp Road is not a by-road; instead, they argue, it is a private road not subject to public use. The Greenes and Brizzolaras further contend that none of the moving parties possess a prescriptive easement over the Road.[2] The Brizzolaras, have also filed a cross-motion asking the Court to vacate its January 22, 2013 injunction order on the grounds that Tennessee Gas has completed the Project and therefore no longer requires its temporary access easements.

B. The Parties and Their Use of Bear Swamp Road

1. Tennessee Gas

Tennessee Gas is a natural gas company within the meaning of the Natural Gas Act, 15 U.S.C. § 717 et seq., operating under the authority of the FERC. The company owns and operates a natural gas transmission system that spans a vast geographic region. (Tennessee Gas Statement of Material Facts at ¶ 1).

In the mid-1950's Tennessee Gas installed its "300 Line, " which intersects with Bear Swamp Road at the Road's northern most point. (Tennessee Gas Statement of Material Facts at ¶ 3). In 1955, Tennessee Gas obtained an easement that allowed it to access the north point of Bear Swamp Road, including the portion of the Road that intersects with the 300 Line. (Tennessee Gas Statement of Material Facts at ¶ 26). However, Tennessee Gas does not possess recorded rights to utilize Bear Swamp Road in its entirety. (Tennessee Gas MSJ at ¶ 5). Specifically, Tennessee Gas does not possess recorded rights to use the southeastern portion of the road that eventually intersects with Route 202. ( Id. )

As the 300 Line runs south from its intersection with Bear Swamp Road, it meets two pipelines that Algonquin installed between 1955 and 1963. (Tennessee Gas Mt. for Summary Judgment, Ex. B; Tennessee Gas Statement of Material Facts at ¶¶ 27, 42, 43). The Mahwah Meter Station is located on a parcel of land owned by Algonquin and sits where Algonquin and Tennessee's pipelines intersect. Tennessee Gas uses the Meter Station "to perform federally mandated maintenance and operation procedures, as well as to conduct federal mandated safety inspections..." (Tennessee Gas Statement of Material Facts at 3, 28).

Tennessee Gas personnel travel the entirety of Bear Swamp Road to perform readings at the Meter Station on a periodic basis, typically four times a month. (Tennessee Gas Statement of Material Facts at ¶ 30). In addition to those periodic visits, Tennessee Gas personnel travel Bear Swamp Road to perform other procedures as the need arises. (Tennessee Gas Statement of Material Facts at ¶¶ 31-35). Tennessee Gas has used Bear Swamp Road for this purpose without interruption since the 1950s. (Tennessee Gas Statement of Material Facts at ¶ 34). Tennessee Gas has also assisted with road maintenance by providing resources for, among other things, snow removal and bridge repair. (Tennessee Gas Statement of Material Facts at 36). A Tennessee Gas employee has declared that in his thirty-three years of traveling Bear Swamp, he has never been required to ask permission to use the Road. (L. Michalak Decl. at ¶ 12).

2. Algonquin

Third-Party Defendant Algonquin is a Delaware company with its principal office located in Houston, Texas. (Algonquin Statement of Material Facts at ¶ 1). Algonquin is wholly owned by Spectra Energy Partners, LP, who is also named as a Third-Party Defendant in this case. (Algonquin Statement of Material Facts at ¶ 1). Like Tennessee Gas, Algonquin is a natural gas company as that term is defined by the Natural Gas Act. (Algonquin Statement of Material Facts at ¶ 2). Algonquin owns the Meter Station and the parcel of land where the Meter Station is located. (Algonquin Statement of Material Facts at ¶¶ 5-6).

Algonquin has obtained easements to use the northern portion of Bear Swamp Road, or what Algonquin refers to as "Upper Bear Swamp Road."[3] (Algonquin Statement of Material Facts at ¶ 39). Like Tennessee Gas, Algonquin does not possess any recorded rights over the entirety of "Lower Bear Swamp Road, " the portion of the road that crosses properties owned by the County of Bergen, the Ramundos, the Brizzolaras, and the Greenes.

Algonquin also relies on Bear Swamp Road to reach the Mawah Meter Station and inspect its pipeline facilities. (Algonquin Statement of Material Facts at ¶ 44). Algonquin inspects its pipeline on a routine basis at intervals not to exceed three weeks, but at least twenty-six times each year. (Algonquin Statement of Material Facts at ¶ 49). Moreover, Algonquin makes monthly inspections at the Meter Station to ensure compliance with Pipeline Safety Act regulations. (Algonquin Statement of Material Facts at ¶ 53). Similar to Tennessee Gas, Algonquin has contributed to repairs made to the Road. Algonquin has coordinated such maintenance with other entities that rely on the Road, including the Boy Scout Camp and the County of Bergen. (Algonquin Statement of Material Facts at ¶ 54).

3. Yaw Paw and the Boy Scouts[4]

Bear Swamp Road also runs through a parcel of property owned by Defendant Yaw Paw. (Yaw Paw Statement of Material Facts at ¶ 1). Yaw Paw leases the property to Defendant Northern New Jersey Council, Boy Scouts of America ("the Boy Scouts"), for the operation and maintenance of a Boy Scout Camp. (Yaw Paw Statement of Material Facts at ¶ 2). Bear Swamp Road has provided Yaw Paw with the primary means of access its property. (Yaw Paw Statement of Material Facts at ¶ 3). Yaw Paw claims that it has never been prohibited from using Bear Swamp Road to access its property. (Yaw Paw Statement of Material Facts at ¶ 3). In fact, within the last three years, Richard Greene has provided the Boy Scouts with a written agreement allowing the Scouts to use the portion of Bear Swamp Road that traverses his property. (R. Greene Dep. at 177:5-10).

Yaw Paw has leased its land to the Boy Scouts since the 1920s. (Yaw Paw Statement of Material Facts at ¶ 11). Ever since then, both Yaw Paw and the Boy Scouts have utilized Bear Swamp Road to access the campsite. (Yaw Paw Statement of Material Facts at ¶ 12). The campsite's caretaker uses Bear Swamp Road on a daily basis to access the property. (Yaw Paw Statement of Material Facts at ¶ 12). The Boy Scouts use the Road to access the campsite on weekends, and during the summer they use the Road on a daily basis in order to transport campers and staff to six-week summer camp programs. (Yaw Paw Statement of Material Facts at ¶ 12). Richard Greene has testified that he has witnessed "countless" boy scouts, parents, and service personnel use Bear Swamp Road to reach the scout camp. ...


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