United States District Court, D. Montana, Billings Division
ORDER GRANTING SUMMARY JUDGMENT ON RIGHT TO TAKE AND
FOR IMMEDIATE POSSESSION
Susan P. Waters, United States Judge.
consideration by the Court of the following:
Condemnation Complaint (Doc. #3), as amended by the First
Amended Complaint (Doc. #2);
Statement of Stipulated Facts (Doc. #21);
Energy's Summary Judgment Motion for Order of Taking and
Immediate Possession (Doc. #40);
Statement of Undisputed Facts in Support of Motion for
Summary Judgment Order of Taking and Immediate Possession
Affidavit of Tom Stortz (Doc. #43);
Affidavit of Jeff Rust (Doc. #44);
Energy's Brief in Support of Motion for Summary Judgment
Order of Taking and Immediate Possession (Doc. #45);
Order of June 21, 2016 (Doc. #47);
Order of December 8, 2016 (Doc. #60); and 10. The record in
this matter, THE COURT HEREBY ORDERS AS
is a natural gas company within the meaning of the Natural
Gas Act, 15 U.S.C. § 717a(6), and is engaged in
gathering, storing, and transporting natural gas in
interstate commerce. Statement of Stipulated Facts, ¶ 1
(Doc. #21). WBI operates under the jurisdiction of the
Federal Energy Regulatory Commission ("FERC").
Affidavit of Jeff Rust at\2 (Doc. #44).
or its predecessor, Montana-Dakota Utilities Company, has
been in the pipeline business in the states of Montana, North
Dakota, South Dakota, and Wyoming for more than seventy-five
years. Currently, WBI Energy operates approximately 3, 800
miles of transmission and gathering pipelines. Affidavit of
Jeff Rust at ¶3 (Doc. #44).
February 13, 1985, FERC issued to Williston Basin Interstate
Pipeline Company (n/k/a WBI Energy Transmission, Inc.) a
Certificate of Public Convenience and Necessity (the
"Certificate") authorizing it to acquire and
operate the interstate pipeline facilities previously owned
and operated by Montana-Dakota Utilities Co.
("MDU"), as well as to provide the certificated
service previously provided by MDU. This included a
Certificate of Public Convenience and Necessity authorizing
routine activities (a "blanket certificate") issued
November 24, 1982. The blanket certificate authorized MDU to
perform the activities specified in Subpart F of Part 157 of
the Commission's Regulations, as amended from time to
time, including the construction, acquisition, and operation
of facilities for the transportation and storage of natural
gas. Affidavit of Jeff Rust at ¶ 4 (Doc. #44).
July 1, 2012, Williston Basin Interstate Pipeline Company
amended its Articles of Incorporation to change its name to
WBI Energy Transmission, Inc. Affidavit of Jeff Rust at
¶ 5 (Doc. #44).
is the owner and operator of a 12-inch diameter interstate
natural gas pipeline (the "Pipeline"), a portion of
which crosses the Crow Indian Reservation. Statement of
Stipulated Facts, ¶ 2 (Doc. #21).
Construction of the Pipeline was completed in 1950. The
Pipeline has been in its present location and continuously
operating since its construction. Affidavit of Tom Stortz
at ¶ 2 (Doc. #43). The Certificate issued by FERC
covers the Pipeline. Affidavit of Jeff Rust at
¶ 6 (Doc. #44).
portion of the Pipeline crossing the Crow Indian Reservation
was subject to a right-of-way grant issued by the Bureau of
Indian Affairs (the "Right-of-Way"). Affidavit
of Tom Stortz at ¶ 3 (Doc. #43). On April
6, 2009, WBI filed an application for renewal of the
Right-of-Way with the Bureau of Indian Affairs. Affidavit
of Tom Stortz at ¶ 3 (Doc. #43).
Arvilla Plainbull ("Mrs. Plainbull") is a
beneficial Indian owner of an undivided portion of allotments
1901 and 2009, and all of allotments 2037-A, 2036-A, and
1085-B (the "Subject Property"). Mrs.
Plainbull's ownership interest, whether in whole or in
part, was obtained as an heir, devisee and successor to the
original allottees under the General Allotment Act of 1887.
The United States holds Mrs. Plainbull's interest in
trust as an individual Indian allottee. Statement of
Stipulated Facts, ¶ 3 (Doc. #21).
Crow Tribe of Indians is the beneficial owner of an undivided
portion of allotments 1901 and 2009. The United States holds
the Crow Tribe's interest in trust for the benefit of the