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Northwest Pipeline LLC v. Swanson

United States District Court, W.D. Washington, Tacoma

October 29, 2014

NORTHWEST PIPELINE LLC, Plaintiff,
v.
ERIC D. SWANSON, et al., Defendants.

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on Plaintiff Northwest Pipeline LLC's ("Northwest")[1] motion for summary judgment (Dkt. 14) and Defendants Eric Swanson and Kristina Swanson's ("Swansons") cross-motion for summary judgment (Dkt. 26). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby denies Northwest's motion and grants in part and denies in part the Swansons' cross-motion for the reasons stated herein.

I. PROCEDURAL HISTORY

On November 4, 2013, Northwest filed suit against the Swansons. Dkt. 1. Northwest alleges that it possesses an easement through a parcel of land owned by the Swansons in Cowlitz County, Washington ("Property"). Id. Northwest seeks declaratory and injunctive relief to clarify its easement rights. Id. at 6-8. In the alternative, Northwest seeks to condemn an easement under 15 U.S.C. § 717f(h). Id. at 9.

On July 17, 2014, Northwest moved for summary judgment. Dkt. 14. On August 4, 2014, the Swansons responded. Dkt. 18. On August 8, 2014, Northwest replied. Dkt. 23.

On August 28, 2014, the Swansons filed a cross-motion for summary judgment. Dkt. 26. On September 15, 2014, Northwest responded. Dkt. 31. On September 19, 2014, the Swansons replied. Dkt. 33.

II. FACTUAL BACKGROUND

A. Parties

Northwest is a federally regulated company that operates, maintains, and constructs natural gas pipelines. Dkt. 15, Declaration of Jean Brady ("Brady Dec.") ¶ 4. Northwest operates its pipelines pursuant to a blanket certificate of public convenience and necessity, issued by the Federal Energy Regulatory Commission ("FERC"). Dkt. 16, Declaration of Jessica A. Skelton ("Skelton Dec."), Ex. A. Northwest owns and operates two pipelines that run through the Property. Brady Dec. ¶ 6.

The Swansons currently own the Property. Skelton Dec., Ex. I.

B. T&M Permit

In 1956, the Northwestern Improvement Company ("Improvement Company")- the then-owner of the Property-issued a publicly recorded T&M Permit ("Permit") to Northwest. Skelton Dec., Ex. B.

The Permit granted Northwest the right to "construct, install, maintain, operate, repair, renew and remove a welded steel pipe line for transportation of natural gas in, over and across the [Property]." Id. at 2. The Permit also granted Northwest the "right to enter the [Property] for the purpose of exercising its rights" under the Permit. Id. at 4.

In consideration for these rights, Northwest agreed to pay "annual rental, " which was initially set at $25 per year. Id. at 2-3. The Permit provides that

failure to pay any such annual rental shall not automatically terminate or work a forfeiture of this permit unless [Northwest] shall fail to pay any such annual rental within thirty (30) days following written demand made on [Northwest] by the Improvement Company.

Id. at 3.

The Permit also includes a provision concerning the conveyance of an easement. Id. at 7. That provision provides as follows:

11. The Improvement Company covenants and agrees that if it shall sell or dispose of the [Property], or any portion thereof, that it will, prior to such sale or alienation, make, execute, deliver and place of records a permanent easement in favor of [Northwest] conveying, without additional cost to [Northwest], the right in perpetuity to construct, install, maintain, operate, repair, renew and remove the pipe line herein described.

Id.

If Northwest failed to comply with the terms of the Permit, the Improvement Company had the right to terminate the Permit ninety days after giving written notice. Id. at 6.

C. Supplemental Agreement

In 1971, the Improvement Company's successor by merger, Burlington Northern Inc. ("Burlington Northern"), entered into a publicly recorded Supplemental Agreement with Northwest. Skelton Dec., Ex. C.

The Supplemental Agreement amended and added to the terms of the Permit. Id. First, the Supplemental Agreement granted Northwest the right "to construct, install, operate, repair, renew and remove" a second pipeline on the Property. Id. at 2. Additionally, the Supplemental Agreement maintained the Permit's annual rent requirement, which increased to $175 per year. Id. at 3.

The Supplemental Agreement also amended the Permit's provision regarding the conveyance of an easement. Id. at 4. The ...


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