argument on this important matter of first impression in this circuit it is an honor to appear in your court it is an honor to represent the twenty two land owners with property stretching across northwest georgia from co to county it's also an honor to be selected from among a team of highly experienced lawyers to be presenting the argument on behalf of the group the landowners that we represent have witnessed the construction of a natural gas pipeline across their yards their farms and forest all pursuant to and and injunctive easement created by the district court under federal rule civil procedure sixty five in all without payment of a single dime in compensation and without giving the landowners any opportunity to present evidence or to contest the claims made by transco in its initial pleadings let me start again as i did last time with a practical question before we get into the nuts and bolts of your argument i'm understanding is the pipeline has now been installed that it's they are and my question to you is if we did reverse the preliminary injunction what remedy are you going to have other than the compensation you would have otherwise for the taking of the property  t are we still going to someday be in a hearing where compensation is going to be decided are you saying they better rip the pipe out what is your position you are where we are asking the court to reverse the district court and to prevent any further use transco of our clients property until such time as they have properly acquired rights there to under the in ga and paid for them the pipeline is largely installed but there's really are you going to ask them to rip it out should you when you know your honor that would certainly be impractical but there there are two distinct takings in this case and which had arise from two different sources we haven't gotten to the second one yet that will be done one day under the n g a that's when title transfers under  that the district court erred in creating a substandard property right that doesn't exist under georgia law now a plea if we if you want him we stopped right now and said we don't think the preliminary injunction should have been granted stop installing the m you're saying we would go back for what purpose to the district we would go back to the district court to enjoin any further use of the facilities that have been permanently installed on our client's properties  none of the of the cases that have been brought against landowners pursuant to the in ga i'm not aware of any of them reaching conclusion i e a transfer of title based upon comp compensation being determined and paid that has not occurred so the to the issue is still live in luton we're in our clients are still living through it transco still has the right to come and go across their properties right into the heart of the comp complexity of this and all the rules and statutes and don't get me wrong i think any of us would be highly incensed when we're on some land and all of a sudden the federal government or one of their folks comes there and says hey it's mine here's my tractor nobody would be happy with that and under state law it sounds like you'd be pretty well protected but you have to they have to pay you first the problem i think for you is that we go through the statute and the statute then funnels us to rule seventy one point won seventy one point one says you have to have a deposit with the court but then we have our own natural gas decision which says that that rule controls and then when you go to the law that probably really is go control on the payment you get to the general injunction statute which just requires a surety so it's circular but it's problematic if you could walk me through those statutes in a way that gets you money first then i'd like to hear your your argument  able to be repaired however just because that right is there doesn't make it appropriate to use it in the context of eminent domain the imminent domain statutes are strictly construed where congress acts  allow a private actor to use as the sovereign power of it domain they may only use it in accordance with the rules that congress has set up about how when and where it may be used and by whom it may be used  court and nothing can be added to that congressional authority by a court we contend that using federal rule sixty five in this context in the context of imminent domain is essentially a judicially created  landowners from the property and imprison them that would be wrong it would court would have equitable power certainly to do these things but they're wrong for a different reason same with using rule sixty five in the context of imminent domain particularly where if you consider from the landowners perspective jurors are also has order does nothing to spell out how long it's going to last how many people can come what type of equipment they can use how many hours of a day can they work can they work all night it makes no provisions for religious holidays can they work on christmas we don't have a basis for answering any of these questions are landowners have because it's an equitable right  it is not a property right that is defined and has a body of law surrounding it under georgia law like an easement for example this is not an easement not a permit easement that's the what you get at the end of the process is it a temporary  no ma'am it is because you can install permit equipment exercising a permit easement is it a license no you can't cut trees remove them from the property sell them and keep the money in the property until they have paid for and would that include waiting for the entire compensation proceeding to play out certainly that is what we would we would yes we would have had under the declaration of taking act which the united states is required she is a united states the sovereign is required to make a deposit the prince go on the other hand in circumstances this case is not we contend that violates the federal and state law and should be overturned by this court i see my time is just about over we wanted to reserve a moment to  good morning may please the court and claim ask you what else in the bird for transcontinental gas pipeline at apple a judge card stud conway i want to address one of the questions you asked mr evans is what's the status of the pipeline the pipeline is installed and in service we have a letter dated july twenty sixth two thousand and sixteen of this summer sort of finding confirming that we install the pop on it compliance with the certification  issued in that we are authorized to begin service and we have done that so i just want to clear clarify that in response to your inquiries earlier the remedy is provided for the appellants and that is they get compensated through the proceedings that it's all that's left and we're trying to we're trying to do that judge judge ross below as an october twenty sixth that is conference what we're trying to move toward getting paid but there are some landowners who did not appeal who were down there ross is trying to make an effort to pursue to make sure that all this obviously subject to what's pending on appeal moves forward so that they are getting paid that is the remedy there's a procedure for that there's a there's a proceeding and there are rules that apply to mr federal government's gas company and i'm here will the file resolution resolve your entry onto the property and all these other issues that are so annoying to the land owners absolutely because they'll get paid for taking whether it happened at the beginning of this year where you are going to keep coming on the land i guess you will to service your pipeline that's right it once we get particularly once we get title to the easement which is what is granted at the end of the proceeding then we will have easement and that will provide us rights of access that an easement provides it just so happens it's obtained through condemnation and so as necessary to come service repair replace to make the pipeline function we will have easement rights to access the property and that they will get compensated for it in the proceeding just like in any condemnation action they have the right to compensation and they will get that compensation some of the chief settled with already have they already been paid or everybody's waiting on the compensation or we're waiting because we since we have a consolidated action where these cases all fitted by the pipeline need to move forward we are having a status conference on in october to address a collective procedure for moving toward a through we have to go through some discovery and other matters and then have that either a determination by commission or a trial proceeding ultimately and so which gets back i guess to what the plaintiffs called  plaintiffs the cull the defendants but the landowners their original concern was and the deed may be done in the gas is flowing but their original concern was why so quickly i mean why did an injunction have to be granted what was wrong with that pipeline company like any other person you want to take somebody whose land you go through the process and you go through the compensation hearing and their argument is there really was no reason for the judge to grant this injunction you could have gone for a normal process and since this could repeat itself in the future depending on how we write the opinion could you please answer to me why there was such a rush what i understand you ha made up the deadline you could have made up a new deadline so could you explain to me what the emergency was actually first i do want to note that they have not raised this issue in the appeal i will address it but they have not appealed the general application of the rule sixty  injunction in the way that it occurred in the way the courts have across the country have done that they have not raised that issue with respect to the sense of urgency that they're numerous first of all that's on with that they didn't impose that on you e c jested that deadline that is not my understanding your honor my understanding i remember talking with judge ross about this in the truck court is that that's the application of a more general regulation that f has they set a timeframe and i think it's two years my understanding is that is not something that we offered or requested understanding is that instead it was set by their existing regulation that's applied as a matter of course or that for  applied it particularly to this project so we had that two year time frame we also had contracts with oglethorpe power and a g l which had been in service state of may first two thousand and seventeen and where one hundred fifteen miles of pipeline to build to get this in the service it's a certain significant undertaking with contractors who have contracts with them and it's a linear process for building i thought you'd tell us contractors georgia power you it's a lot of landowners and i don't you know how courts are out now we get this done in two years we need three years there's some sense they might have gone elsewhere or not i don't have that sense they the day the may first two thousand and seventeen date was set based on when they needed they dish and resource the additional infrastructure for the resource and so that's when the that was sent the contract and that's the date that we had to proceed toward and that the process of building a pipeline is obviously a linear process where you've got different phases in trades to have to work and in sequence and then if you hit a property that you don't have access to everything has to stop and you run into work stoppages which cost hundreds of thousands of dollars a day as mr mathis testified in his affidavit to as well as if you have a work around for a work around we're talking one hundred hundreds of thousands of dollars per work around because the quitman has to be moved around the property and then proceed as it can on the properties we do have access to so not having complete access to linear access to the pipeline to build this in sequence would cost us significant significant amounts of money and we're all doing this in an effort to meet these these deadlines that were that were determined by need or about regulation and we don't have an avenue to recover those expenses we can't the landowners for those expenses we can't sue anybody there's no remedy at law no access to money damages for us to remain a to prepare ourselves for those losses and this is all in the context of the landowners having a process by which they are insured to be paid just an adequate compensation for this enabling us to meet our deadlines to avoid irreparable harm to meet a public need as term and first thing first reviewed this for over a year and there were even pre application processes where we involve the public and made a determination that this pipeline was required by the public and being in the sest as the standard they made a determination that the public needed this resource and so there's a process in place for them to get paid we had to get going with the pipeline construction we had to have full linear access to be able to construct the pipeline and as a result as numerous courts facing this issue have found that a rule sixty five for siege or for granite collimator junction to give us access prior to getting title is that's what we would get at the end of that the proceeding we don't get titled until we pay them is a proper remedy for us to avoid irreparable harm and meet our obligations now it's important that if we don't get title then we do not have a permanent right to keep that pipeline on the property our ability to operate construct the pipeline is beholden to judge ross's injunction order if that were to be dissolved or if that were to to not exist then we would be trespassers we have an incentive we have to get to their compensation is we have to get title to the easement rights in order to keep that pipeline on their properties into the future and the applicable rule here in terms of what had to be done in connection with the pl injunction terms of payment or bond is governed by a rule sixty five c which requires the provision of security and it's up to the discretion of the trial court as to even whether security has to be provided but certainly the type in the amount and the there is no application of rule seventy one point one j one because that which is what requires a deposit and which is the platform for all of their state law arguments that a deposit has to be paid first because that provision says that a deposit is rick is required where it is required deposit the natural gas act does not require deposit that dec the declaration of takings act which i think is twenty eight u s c thirty one fourteen does require deposit if you were the federal government acting on and it doesn't require the natural gas that does not require us to follow the state laws of procedures and so the natural gas this court determined that that heart of seventy seven one seven f h no longer applies now they had a plot literally but our court right over that line right now because yeah because subsequent to that language seventy seven one seven f h the seventy one point one a which is now seventy one point congress was an acting individualize acts to say we want to national park where we are and acting a law that says you can go condemned the property need for that national park whatever it might be a army base whatever fort individualize legislation which provided their own procedures or they would say follow the state procedures because there wasn't a uniform procedure in place that all changed in one nine hundred fifty one when seventy one point one or seventy one a was was operative was approved and became long and so no longer does that  waived that but also that case that with the narrow issue and they said this explicitly the narrow issue of the method of determining the measure of compensation and it it was very explicit that that was the narrow issue in front of it because the measure of compensation doesn't impact the federal government's in the main power of the exercise it is just how much has to be pay and the law according court in the in the coal versus united states it's not a one us three sixty seven this case which is appears to be one of the first cases if not the first case looking at the federal government's authority to enact it own legislation to condemn properties as opposed to resorting to the state laws in this is an eight hundred seventy five says made it clear the distinction between the two sovereignties and that state law cannot diminish the united states exercise of eminent domain this is a quote from the case on page three seventy four if the united states has power it must be complete in itself that can neither be enlarged nor diminished by a state nor can any state prescribe the manner in which it must be exercised the consent of a state can never be a condition proceed it to its enjoyment and the whole case talks about the ability of the state or the united states and its exercise in a domain being beholden to to the state laws and whether it has to apply to state laws in order to affect its exercise of imminent domain and it doesn't a fifth amendment of the united states constitution applies and in the fifth amendment does not require any payment before the taking the case which we cited in the williams county case which we cite in our priest make that explicitly clear all that has to be provided is a proceed here then make certain that they are going to get paid and that is what they have we are trying to get their act to where we started against the gas is running they are asking the pipes to be pulled out i'm sure your argument is we don't stop the gas from running now until they  to get them pay and another right and nobody nobody has settled with you on an amount yet that everybody's got to get away here and now the property owners you haven't written a check to anybody we've written a check to a lot of property owners we have acquired taken and severance damages to the land route that remains under the in ga but that does nothing to compensate the taking that we're suffering at the moment the taking which precedes the transfer of title under the n is the one that we're experiencing now in courts throughout the country have treated the that time period and how it's compensated differently some courts which have required prepayment allow the prepayment to be the compensation for for the advance date of the other right so other courts have not some courts allow interest on the amount that was not paid and should have been and once compensation is finally determined if you measure that there was initial deposit and it turns out that the landowner was entitled to additional compensation they'll interest back to the date that the compensation here and you will be seeking all those th will be seeking compensation for the taking but there is no procedure under a federal law it's not part of this pre judgement taking is not compensated as part of an in ga he dug up no permanent infrastructure we recognize that but they don't they should be allowed to use our property until it paid for it so yes we would ask that they ask me to cut off until they have acquired validly rights to our property  couple of other points irreparable injury counsel had a hard time answering these both questions they record does not contain the answer those questions because we didn't have a hearing it laying aside all of the of the legal issues about this procedure to this point there is it is absolutely unfair for such far reaching rights to have been taken from our client without them having an opportunity to testify to cross witnesses to put up evidence you can't expect a landowner to be able to show that his harm by granting the injunction is going to outweigh transcode alleged harm with their in service date which by the way they missed was made everything was go the power to use a declaration of taking method but they didn't and so what we're dealing with instead is a judicially created rudie special interest for pipeline companies under the n c a a it nobody knows how to compensate it nobody knows what it is as i said before it's not a property right that exists under georgia law so it's not easy to figure out you'll find in the record method david from gary burns or he says that the heel pints of a master appraiser  last point  state law requires prepayment there's nothing that is inconsistent with the state requirement under our constitution georgia that in federal law all the n c a a doesn't have a procedure for people for a deposit has to be an inconsistency and yes the georgia power versus sanders case is relevant to property rights in georgia certainly in the compensation area as well as in between continuing by taliban as recently as  june of this year in the middle district of florida in the sable trail cases judge walker issued opinion they were lied heavily in georgia power versus sanders for it