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WBI Energy Transmission, Inc. v. Easement and Right-of-Way Across

United States District Court, D. Montana, Billings Division

February 7, 2017

WBI ENERGY TRANSMISSION, INC., Plaintiff,
v.
Easement and Right-of-Way Across: Township 2 South, Range 29 East Section 34: E1/2SE14, E1/2W1/2SE1/4 Section 35: N1/2SW1/4, NW1/4 Township 5 South, Range 26 East Section 10: SW1/4SW1/4 Section 15 W1/2NW1/4 Section 21: N1/2SE1/4, SE1/4SE1/4 Township 7 South, Range 25 East Section 9: NW1/4SE1/4 Township 6 South, Range 26 East Section 6: S1/2SE1/4 Section 7: All Section 8: W1/2W1/2NW1/4 in Big Horn and Yellowstone County, Montana, Consisting of Approximately 12.55 Acres, ARVILLA PLAINBULL aka ARVILLA TOWNSEND, UNITED STATES OF AMERICA, and UNKNOWN OWNERS, Defendants.

          ORDER GRANTING SUMMARY JUDGMENT ON RIGHT TO TAKE AND FOR IMMEDIATE POSSESSION

          Hon. Susan P. Waters, United States Judge.

         Upon consideration by the Court of the following:

         1. Condemnation Complaint (Doc. #3), as amended by the First Amended Complaint (Doc. #2);

         2. Statement of Stipulated Facts (Doc. #21);

         3. WBI Energy's Summary Judgment Motion for Order of Taking and Immediate Possession (Doc. #40);

         4. Statement of Undisputed Facts in Support of Motion for Summary Judgment Order of Taking and Immediate Possession (Doc. #41);

         5. Affidavit of Tom Stortz (Doc. #43);

         6. Affidavit of Jeff Rust (Doc. #44);

         7. WBI Energy's Brief in Support of Motion for Summary Judgment Order of Taking and Immediate Possession (Doc. #45);

         8. Order of June 21, 2016 (Doc. #47);

         9. Order of December 8, 2016 (Doc. #60); and 10. The record in this matter, THE COURT HEREBY ORDERS AS FOLLOWS:

         STATEMENT OF FACTS

         1. WBI 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).

         2. WBI, 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).

         3. On 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).

         4. On 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).

         5. WBI 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 at6 (Doc. #44).

         6. That 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 at3 (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).

         7. 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).

         8. The 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 ...


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