Court rules against gas pipeline company - East Valley Tribune: East Valley Local News

Court rules against gas pipeline company

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Posted: Saturday, December 27, 2008 5:23 pm | Updated: 11:06 pm, Fri Oct 7, 2011.

The owner of a single piece of property is standing in the way of a new natural gas pipeline to serve central Arizona.

And a federal appeals court won't force the issue - at least not yet.

Without dissent, the 9th U.S. Circuit Court of Appeals has rejected efforts by Transwestern Pipeline to get immediate possession of properties in the path it seeks for its 260-mile pipe.

The judges said the company may eventually be allowed to condemn the property. But they concluded that the private company cannot take immediate possession until it gets a court order.

That requires a hearing where the landowners have a chance to challenge both the company's need for the property as well as whether Transwestern is meeting its requirements to negotiate in good faith on the price.

The court ruling is the latest setback for Transwestern, which has faced opposition in its bid to complete the $700 million project that is designed to connect central Arizona with the company's main pipeline that carries gas from New Mexico across northern Arizona.

Transwestern spokesman Jerry Herenden said the 280-mile spur eventually will carry 500 million cubic feet of natural gas to the Valley each day.

The main customers will be Arizona Public Service and Salt River Project, which want the gas for their power plants to help deal with future growth. Herenden said that amount of natural gas would be enough for between 3 million and 4 million homes.

Transwestern had a particular problem with a segment going through Buckeye. Part of that was resolved earlier this year when the city withdrew its objections to the proposed route, which goes through or near several planned subdivisions north of Interstate 10, in exchange for some concessions. These range from gas detectors to burying the pipeline deeper. But that still left a number of landowners unhappy - and unwilling to sell the necessary easement to Transwestern.

According to court records, the company did reach agreement with 897 affected landowners. It then filed a condemnation action earlier this year in federal court in Phoenix against the owners of the remaining 129 parcels. All but one have since settled.

Federal law does allow natural gas companies to use the power of eminent domain for projects benefiting the public.

Attorneys for Transwestern asked U.S. District Court Judge John Sedwick to give it immediate possession of the properties in question, arguing that its certificate from the Federal Energy Regulatory Commission to construct the pipeline guaranteed it was entitled to the land and, therefore, would ultimately be successful in the condemnation suit. Beyond that, the company said any delay in getting the property would mean there was no way to complete the project by the Nov. 15 deadline imposed by FERC.

Sedwick rejected the request, saying he did not have the authority. That resulted in the appeal. Appellate Judge Cynthia Hall, writing for the 9th Circuit, said that conclusion is correct. She said Congress has authorized only a few exceptions to the requirement to go through regular condemnation proceedings.

Herenden said the company will not comment on the lawsuit. But he said the pipeline is about 90 percent complete and Transwestern still expects to complete the line sometime this coming spring, despite the litigation.

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