ROCKIES EXPRESS PIPELINE LLC v. 131.495 ACRES et al, No. 1:2008cv00751 - Document 853 (S.D. Ind. 2011)
Court Description: ORDER granting 837 Motion for Condemnation Order. The court hereby adopts the Recommendation, finds that the just compensation to be paid by REX as a result of the condemnation of the Right-of-Way Servitudes across the Hopkins Property is the amount set forth in the Recommendation, and orders the following (see Order). Signed by Judge Richard L. Young on 5/11/2011. (PG)
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ROCKIES EXPRESS PIPELINE LLC v. 131.495 ACRES et al Doc. 853 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION ROCKIES EXPRESS PIPELINE, LLC, ) ) Plaintiff, ) ) vs. ) ) 123.62 ACRES, et al., ) ) Defendants. ) 1:08-cv-751-RLY-DML CONDEMNATION ORDER (Hopkins Tract/IN-MN-025.000) This matter is before the court for consideration of Rockies Express Pipeline, LLC’s (“REX”) Sixth Amendment to the Verified Complaint for Condemnation of Pipeline Right-of-Way Servitudes as to property owned by Defendants Arvin M. and Mary L. Hopkins (“Owners”) and more particularly described as follows: 130.03 Acres, more or less, described as part of the SW 1/4 and part of the SE. 1/4 of Section 1 – Township 1 3N – Range 2E, 2nd P.M., Morgan County, Indiana as described in that certain Deed record March 11, 2004, in the records of the Morgan County, Indiana at Instrument Number 200403516. (“Hopkins’ Property”). The court previously ordered, on October 1, 2008, that REX had the right to 1 Dockets.Justia.com condemn the Right-of-Way Servitudes (as defined below) across the Hopkins’ Property. See Entry Granting Plaintiff’s Motion for an Order Confirming Condemnation Authority (Docket # 527). On July 27, 2010, this court ordered a compensation hearing before a Commission appointed by this court to determine the just compensation to be paid by REX as a result of the condemnation of the Right-of-Way Servitudes across the Hopkins’ Property. See Entry Setting Hearing to Determine Just Compensation (Hopkins Parcels Only) (Docket # 782). On August 26 and 27, 2010, the appointed Commission held a compensation hearing to determine the amount of just compensation to be paid by REX as a result of the condemnation of the Right-of-Way Servitudes across the Hopkins’ Property. Then, on October 25, 2010, the Commission issued the Commissioners’ Findings of Fact and Conclusions of Law and Recommendation (Hopkins Tract / IN-MN025.000) [“Recommendation”] (Docket # 831), determining the amount of just compensation that should be paid by REX as a result of the condemnation of the Rightof-Way Servitudes across the Hopkins’ Property. The court hereby adopts the Recommendation, finds that the just compensation to be paid by REX as a result of the condemnation of the Right-of-Way Servitudes across the Hopkins’ Property is the amount set forth in the Recommendation, and orders the following: IT IS ORDERED that REX, a Delaware limited liability company whose address is 500 Dallas, Suite 1000, Houston, Texas 77002-8022, and its successors and assigns, are hereby granted permanent and temporary easements at the locations and dimensions, as 2 shown more particularly on the diagram attached hereto in Exhibit A, for the construction and operation of one 42” diameter natural gas pipeline and related facilities (collectively, the “Pipleline Facilities”) across the Hopkins’ Property as follows: (1) a fifty (50) foot wide permanent easement, twenty-five (25) feet on each side of the center line of the pipeline servitude; (2) a seventy-five (75) foot wide temporary easement, which will be used by REX for the purposes of temporary working space during the initial construction and installation of the pipeline and during the Right-of-Way restoration, but which temporary Right-of-Way shall terminate upon completion of the initial construction and restoration of the area; (3) an additional undefined temporary easement, which will be used by REX solely for the purpose of dewatering the fifty (50) foot wide permanent Right-of-Way Servitude which will be used by REX for the purposes of temporary working space during the initial construction and installation of the pipeline and during the Right-ofWay restoration, but which temporary Right-of-Way shall terminate upon completion of the initial construction and restoration of the area; (4) all rights of ingress, egress, and reasonable access necessary to protect, repair, upkeep and maintain REX EAST and the Right-of-Way and all related above and below ground appurtances; (collectively, the “Right-of-Way Servitudes”). Said location and dimensions of the above-referenced permanent and temporary easements are set forth on Exhibit A, attached hereto and made a part hereof, as approved 3 by the Federal Energy Regulatory Commission. IT IS FURTHER ORDERED that the Owners, including their heirs, successors, and assigns, individually and jointly, are precluded from constructing any buildings or structures, from spreading overburden (filling/topsoil) from surface mining or mineral extraction activities, from impounding any water, or from planting any trees or shrubs upon the permanent easement area, or from any other activities that would interfere with or endanger any of the Pipeline Facilities or use thereof by REX. IT IS FURTHER ORDERED that the Owners, including their heirs, successors, and assigns, individually and jointly, are precluded from conducting any surface mining or mineral extraction activities or removing soil or minerals, including without limitation sand and gravel, on or beneath the surface of the permanent easement and (a) within 90 feet east of the eastern boundary of the permanent easement (total area of approximately 4.32 acres), and (b) within 90 feet west of the western boundary of the permanent easement (total area of approximately 4.13 acres). IT IS FURTHER ORDERED that REX shall construct, within 180 days of the entry of this Order, a crossing on the surface of the permanent easement to the specifications set forth on the Heavy Equipment Crossing Detail, attached hereto as Exhibit B and made a part hereof, unless unfavorable weather prohibits such construction, in which case, REX will proceed to construct the crossing at the earliest, reasonable opportunity. 4 IT IS FURTHER ORDERED that no repetitive, operational vehicle movement is allowed over the permanent easement area, except on the heavy equipment crossing and in accordance with the operational restrictions set forth on the Heavy Equipment Crossing Detail attached hereto as Exhibit B. IT IS FURTHER ORDERED that all Right-of-Way Servitudes across the Hopkins’ Property include without limitation the right to conduct any activities authorized by the Federal Energy Regulatory Commission, the United States Department of Transportation, and any other Federal or State agency with jurisdiction over the Pipeline Facilities. IT IS FURTHER ORDERED that this Condemnation Order is binding upon: (a) Defendants, Arvin M. and Mary L. Hopkins, as well as any of their heirs, successors or assigns, individually, or jointly; (b) Defendant, Federal Deposit Insurance Corporation, as well as any of its successors or assigns, which claims an interest in the Hopkins’ Property; and c) Defendant, Eric Richards, d/b/a Indy Family Farms, who conducted farming activities on the Hopkins’ Property. IT IS FURTHER ORDERED that REX shall deposit with the court, within 30 days of the entry of this Order, funds in the amount specified in the Recommendation with such being made and handled pursuant to and in accordance with Fed. R. Civ. Proc. 71.1(j). IT IS FURTHER ORDERED that this Condemnation Order shall be recorded in 5 the Office of the Recorder of Morgan County, Indiana, where the Hopkins’ Property is located, including Exhibit A and Exhibit B. SO ORDERED this 11th day of May 2011. __________________________________ RICHARD L. YOUNG, CHIEF JUDGE RICHARD L. YOUNG, CHIEF JUDGE United States District Court United States District Court Southern District of Indiana Southern District of Indiana Electronic Copies to: Bruce D. Brattain BRATTAIN & MINNIX batmi5@aol.com Abigail B. Cella ICE MILLER LLP abby.cella@icemiller.com Ronald Grant DeWaard VARNUM RIDDERING SCHMIDT & HOWLETT rgdewaard@varnumlaw.com Mario Garcia BRATTAIN & MINNIX mgarcia@brattainminnix.com Joseph M. Hendel HACKMAN HULETT & CRACRAFT LLP jhendel@hhclaw.com 6 Andrea L. Hermer BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP ahermer@beneschlaw.com Robert Srader Hulett HACKMAN HULETT & CRACRAFT LLP rhulett@hhclaw.com Philip B. McKiernan HACKMAN HULETT & CRACRAFT, LLP pmckiernan@hhclaw.com H. Wayne Phears McGuireWoods LLP wphears@mcguirewoods.com Anthony Seaton Ridolfo Jr. HACKMAN HULETT & CRACRAFT LLP aridolfo@hhclaw.com Jessica Erin Routley AZO SERVICES INC. JRoutley@azoservices.com Philip David Sever SEVER STOREY LLP Phil@severstorey.com Scott Roger Sikkenga VARNUM RIDDERING SCHMIDT & HOWLETT LLP srsikkenga@varnumlaw.com Tonny D. Storey SEVER STOREY LLP tonny@severstorey.com Daniel Steven Tomson MERCER BELANGER dtomson@indylegal.com 7 Mark R. Waterfill BENESCH, FRIEDLANDER, COPLAN, & ARONOFF, LLP mwaterfill@beneschlaw.com Zeff A. Weiss ICE MILLER LLP weiss@icemiller.com Ronald L. Wilson BADELL & WILSON bwlaw@bwlawoffice.com 8 Case 1:08-cv-00751-RLY-DML Document 837-2 Filed 11/15/10 Page 1 of 7 PageID #: 8117 Case 1:08-cv-00751-RLY-DML Document 837-2 Filed 11/15/10 Page 2 of 7 PageID #: 8118 Case 1:08-cv-00751-RLY-DML Document 837-2 Filed 11/15/10 Page 3 of 7 PageID #: 8119 Case 1:08-cv-00751-RLY-DML Document 837-2 Filed 11/15/10 Page 4 of 7 PageID #: 8120 Case 1:08-cv-00751-RLY-DML Document 837-2 Filed 11/15/10 Page 5 of 7 PageID #: 8121 Case 1:08-cv-00751-RLY-DML Document 837-2 Filed 11/15/10 Page 6 of 7 PageID #: 8122 Case 1:08-cv-00751-RLY-DML Document 837-2 Filed 11/15/10 Page 7 of 7 PageID #: 8123 Case 1:08-cv-00751-RLY-DML Document 837-3 Exhibit B Filed 11/15/10 Page 1 of 1 PageID #: 8124
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