the honorable of the united states port of appeals for the fourth circuit oh yea oh yeah oh yeah all persons having any manner or form of business before the honorable united  that morning mr chief judge may please the court counsel my name is derek seaney and i'm here today arguing on behalf of the appellant landowners in these consolidated appeals i'm joined today by my co counsel chris johns who will be arguing that allowing early possession through injunction in a condemnation action under the natural gas act exceeds the eminent domain power granted under that statute and as unconstitutional i will be focusing on the district court's legal errors in their application of the rules of equity to the mandatory injunctions that issue the landowners respectfully request that this court vacate those injunctions the standard of review of the questions presented in these appeals is do novo although injunctions are nominally vacated for abuse of discretion a district court must exercise it discretion within the a political rules of equity and abuses its discretion when it misapplies the preliminary injunction standards accordingly this court reviews the district court's application of equitable rules the novo and we have assigned error to the district courts application of those rules to their recognition of economic losses irreparable harm their failure to narrowly tailored the injunctions to the facts and circumstances of the case to their allowance of self inflicted injury and harm to satisfy the irreparable harm requirement and the reliance don't understand how you get around this age you know in terms of whether this court has already we understand that sage is the binding authority on the fourth circuit mr johns will be addressing the reasons why that opinion was incorrect we bound by the decision in sage which is certainly then i suppose what the appellate landowners would like is to persuade one of you all or perhaps more that the reasoning of sage is is unfounded and that  there is reason for the entire court to revisit it just makes two of us this true now but what i would like to address that even if stage is binding on this court the district court still committed reversible error in their the injunctions issue and the reasons for that well first there is another overlying layer that i think is important for the court to recognize when it reviews these that the court's application of its exacting standard of review of must be even more searching in these appeals because of the mandatory nature of the injunctions that issue rather than preserving the status quo while the litigation proceeds these injunctions mandated that the landowners allow mountain valley pipeline to timber their forests and trenched merits i mean you're not arguing that there isn't a right to take away aside from the sage argument we're not challenging the ruling on the motion for summary judgment nor are we saying that the district court was incorrect on the first injunction factor which is likelihood of success on the merits so i mean i get that it's a mandatory injunction but you're not challenging the part where some this thing is going to happen the only question is whether it's going to happen before there's payment before the condemnation proceedings finish and the people are paid right it's going to happen one way or another what we would take issue with that your honor and why and here's why this case is different than sage when you look at sage and that's why i really just i am trying to get a handle on what exactly you're challenging you're not contesting that this will happen there will be an intrusion onto the land correct no and here's why we think that it is not fair to assume that this pipeline is going to happen and here's in contrast to sage this pipelines first certificate is subject to appeal in the d c circuit there are numerous regulatory approvals is saying you might be able to play out the clock but there's no you don't have  legal entitlement it as a practical matter maybe you'll be able to play up the clock if there's no problem an area injunction but there is no legal entitlement your clients don't have a legal entitlement to stop so stop the pipeline from taking them away right you're not rather than at the time of what you're i would not characterize it as trying to play out the clock i think that there is substantial uncertainty as to whether mountain valley pipeline is going to be able to run the gauntlet of retaining all of the federal authorities  and state regulatory approvals that it's received a condemnation proceeding tomorrow let's just say hypothetically it only takes one day instead of three years they could finish it tomorrow your client gets paid tomorrow they come on the land tomorrow all of that is absolutely fine if that were the case of the eminent it withstanding the fact that maybe they'll never be able to get the permits right now as to if if the case were finished tomorrow i suppose that would be the case ok so what i'm asking you is what is the harm that  from the gap in time between when the land occurs and when the figment occurs well i think lee i would think you would be arguing look in an eminent domain proceeding of course there's the harm if they take the land before they pay you they take your house and you have nowhere to go and they haven't given you any money to buy a new house but there is no kind of harm like that you're right because all the money is in the account and if there's any if there's any inconvenience before the actual payment is made they can draw on that money well  i think that assumes that the only harm from early possession would be monetary or or would be recoverable and in the just compensation there are other types of harms that these landowners will experience from this early possession and i think you know  hypothetical that the eminent domain proceeding concluded tomorrow sure but that's not the reality of it the reality of it is in parallel with this just compensation proceeding occurring there are multiple appeals some of them before this court of the regulatory authority p to regulatory approvals that m v p has to build its pipeline for example one of those was the permission from the united states forest service to construct a pipeline through the jefferson national forest and this court has vacated that permission as a result of or the mountain valley pipeline has now been ordered by ferk to stop work on a twenty five mile segment of a pipeline that includes properties that are owned by appellants in this case for example the new river conservancy is one of those landowners it owns a conservation easement on approximately two hundred acres and of land that it abuts the jefferson national forest the pipeline cannot go onto their property and do any construction now new river conservancy president testified at trial about the nature of the harm from the timing here new river conservancy doesn't own that property for any put on its conservation easement for any peculiarity interests its interests are purely to preserve the ecological environmental resources there and there is a value in the timing the destruction of those resources the timing of the tempering of those forests the timing of the destruction of those streams in that every season that those resources remain available for the wildlife they serve the mission of the new river conservancy and that sort of harm is not going to be compensable by the just compensation at the end of the day and so by discounting the harms there is there is a question of the timing of the harms here that was not present in sage because in stage there was no argument that the pipeline was a i mean attaches as soon as you get for certificate notwithstanding the fact that all kinds of things might happen after that and prevent the pipeline from being built but you're saying you're not challenging the right of summary judgment is fine  notwithstanding the fact that there are ongoing legal proceedings well it is true that we have not assigned error to the summary judgment but but you have to understand that this this this early possession order was issued under rule sixty five it is a preliminary injunction and sage even says that you have to satisfy the elements of the injunction in order to get this early possession you must meet those injunction standards and our argument is well if that's the case then m v p needs to be held district proof of irreparable harm and we don't believe that it is shown that in these cases it's harmed primarily that it argued was that it was going to experience economic losses from a delay in early possession but it emitted a trial that the losses that it predicted were not likely to come about the other important thing to remember about the schedule that they were trying to adhere to was this schedule that they were trying to adhere to was it was their preferred schedule their schedule targeted an in service date of late two thousand and eighteen that schedule was not mandated by any federal agency under the first certificate they had until october thirteenth two thousand and twenty to put their pipeline in service they had additional time there was no rush feel they could meet the line without preliminary and they admitted so they admitted that they could they could comply with that deadline if they had early possession as late as november two thousand and eighteen or and but but that would require  injunction that would give them access to november two thousand and eighteen and this brings us to our argument that they failed that the courts failed to tailor their injunctions to the facts and circumstances of this case and in this way this case is like this court's opinion  directs is a real versus breakthrough industries and that was a case involving two competing medical technologies developers one of them accuse the other of developing its product through the theft of trade secrets and they asked the district court to enjoin the sale of its competitors project in the world marketplace and in the u s marketplace will in response the defendant said we can't sell our product anywhere right now we don't have we can't get it through customs to sell it worldwide we can't sell it in the u s market because we don't yet have f acknowledged ok that they did not show immediate harm in that case the telling court reversed the district court because the irreparable harm that was shown was not immediate and they acknowledged that at some point in the course of the litigation those they may get the customs approval they may get the f d a approval they may there may come a need for a preliminary injunction at some point in the proceedings that need was not in february of two thousand and eighteen in these cases that need if it would arise at all wouldn't rise until at least november two thousand and eighteen so in this case there's kind of a false dilemma of thinking do they need early position right now in february two thousand and eighteen or must they wait till the end of trial that's there's a middle ground and i think we submit that this court's cases in the supreme court case law suggests that the injunction must be tailored to the facts of the case and in this case they could've constructed the pipeline with access later than february two thousand and eighteen that's the motion they presented we need access by february two thousand eighteen that's the evidence that we responded to and we respectfully submit that we demonstrated that they weren't going to need access that early that they could they could build the pipeline with a later injunction the proper course would have been for the district courts to either deny the injunction for failure to show immediate irreparable harm or to issue an injunction that was tailored to the facts of this case it didn't do so now on remand or perhaps the if they had if the district courts had denied they should have issued a denial without prejudice to allow the pipeline company to come and show at a later time all right now we know what the date is that we're going to show irreparable harm give us early possession by that date here's our proof of irreparable harm that's not what happened the district court relied on this this false or there are some chance that the i did that in fact infuse it had to do with whether or not the plaintiff was going to survive or cease to exist we submit that for economic losses under the cases of this court and those of the d c circuit and economic losses can only be irreparable injury in the event that they threaten the existence of the business here in b p admitted that it would survive to construct its pipeline even if it didn't have immediate access by february two thousand and eighteen  restricted to tree felling in order to protect those bats and we're not maintaining that those bats wouldn't be harmed by tree felling outside that window what we're saying is that when m v p submitted a sworn declaration that it had to cut all the trees by march thirty first twenty eighteen that was not the whole story because that window would reopen in november two thousand and eighteen and they could cut the trees at that time so they didn't need to complete it by march thirty first to twenty eighteen they could begin the tree felling and in november two thousand and eighteen and still comply with their first certificate m v p s witness admitted that and there were schedules that in b p designed that would comply with the endangered species regulations would comply with the deadline in the first certificate and would comply with their shipping contract if they began construction the tree fell and window reopened in november twenty eight thousand pounds i haven't checked but i assume when i go back i will see that this argument a preliminary injunction should issue in november two thousand and eighteen that's an argument that you made to the district that helps when we're when we're trying to convince the court to take the case and also did you already see you seek an initial we did and that was denied that was denied and depending on what this court does i would guess that we've asked for for on bach review at that point so we absolutely want to persuade members of the court that there are constitutional issues statutory issues that they could consider like to talk about that a second reason why we don't thinks what sage has the force that it had before is it was decided the entire opinion was written about the four sage the four factors but it was analyzed under blackwelder which is before the supreme court's decision in winter and this course decision in the truth about obama and the entire analysis was was done under a completely different standard we always hope that there's an opportunity for the judges to uphold the constitution we think that's what  what is required in this case to uphold the constitution is to vacate these injunctions because they set violate both separation of powers and exceed the court's authority under the rules and able to act and i'd like to if i could address both of those points right now unless your honor has another follow up question on that only congress has the power to decide the method manner and mode of condemnation and congress under kerby for supreme court explained that congress is blessed only three methods one is direct take a direct condemnation when congress looks at a particular piece of land and says there's an imminent threat to that land and it passes a special law allowing a quick taken allows for payment later second is a quick take where it actually passes an explicit statute in the declaration takings act would be an example allows the federal government to do quick take and otherwise as kirby forrest it says when congress hasn't used those extraordinary remedies of allowing giving special authorization for taking before payment then the ordinary rule straight condemnation applies where we wait until the end of the just compensation trial payments made and at that point the taker has an option only an option so then buy the property at that judicially determined price and that's the power the extraordinary powers of quick take and direct akins only congress can do that but the judicia has created a fourth option which is for the pipeline companies and it's only pipeline companies by the way we're not aware of a single other industry that gets this kind of special treatment they run to the district courts and say we've got a f years right and you know it's really troubling because until congress has spoken silence is negation in the context of women domain in case after case from the supreme court and car max city of cincinnati versus vester western union green versus bittle national railroad the supreme court has repeatedly said that the powers conferred on condom doors under eminent domain statutes are narrowly construed so that they're there read in favor of the landowners and that they do not confer sovereign powers that are explicitly listed or necessarily implied in the statute and that would include these quick takes the right outcome is for a court for the court and whether this panel is able to do so or whether it's the court the right result is for the court to look at that constitutional problem and avoid the constitutional problem of the constitutional avoidance cannon and say we're going to interpret in ga as not allowing quick takes there's another problem more pay for sed and take later and that's why the seventh circuit in northern border invalidated a rule sixty five in judge injunction saying that both under the rules of equity and under the rules enabling act courts are not allowed to invent substan rights and they said the condom more might have the power to take but it doesn't have the power to take right now and the last two words right now were put an emphasis in the tal so sage in contrast says that timing doesn't matter you can take first and pay later and it in it says that timing is not substantive but as a property law professor that hurts my heart i hope that our last students understand that the timing of possession what the statute gives you and so in this case what the court what the what the condom or has received is an option that's what kirby force says and so if i've got an option to buy your house it's some future point say december i can't run to a court and say well i'd really like the current owners out by october first i'm going to eventually be able to take that i want them out right now i want possession immediately a court would never do that our court should never do that and  and you better believe that losing possession is important to these landowners it substantive to them and it makes a difference to them many of these many of these property owners are farmers they're small business owners i guarantee that when it comes to the eminent domain p s going to argue that last farm profits loss business profits are unrecoverable under the eminent domain statutes and therefore losing possession now versus losing it in one year or two years or three years from now you better believe that substantive is that i feel that i'm not reaming my question i am genuinely confused about that is that the question whether there's a substantive harm from now versus three years from now i thought the question would be is he property i think your question is or do what you ought to be asked well i want to make sure i understand it well then i think that i think there are three harms that flow from this we've talked about the first harm which is i totally understand that there are lots of different harms i'm asking what's the relevant are when we're considering whether a preliminary injunction should issue isn't the harm we're looking for the harm that flows from the part where it is preliminary right so you know stuff the only question is whether the the injunction allowing access exercise of eminent domain comes prior to the payment or coincident with the payments so i'm looking for a harm that addresses that yes your honor and so the first time we've already talked about i constitutional in nature separation of powers if the power doesn't exist and that understood but you're saying under the preliminary injunction standard what harm to the landowners is able to be considered i think i feel like there would be an obvious harm on the face of this were it not for the fact that this money is sitting harm here that's that's that's not accurate your honor and i'll explain why so when the money that they're in b p deposited with the district court is for the eventual payment of just compensation and what i'm saying is that the loss of property now versus in two or three years of care are certain there are certain type i that money cannot be drawn on no it's not that it can't be drawn on it's that it's paying for a different harm so it's paying for the ultimate award of just compensation but within the realm of just compensation there are certain non compensable harms that condemnation does not allow the landowner reader to recover and i think i've run out of time may answer your question though for condom morris frequently off for you cannot recover lost profits you can't recover farm income you can't recover the loss of of the fact that you've got cows that have got calves that are going out there some of those things are not you're going to lose a season do with the preliminary injunction question it seems like that's a very good argument to make on the merits we're never going to be compensated for this so therefore you should not allow the power of eminent right and so and so that is what your are you it what part of what  is that we don't we're never going to get those we're never going to get potentially i don't want to concede that we're never going to try to get lost profits but we may may never get farm income when may never get lost profits that's never going to be compensated in the imminent domain process one of those is that under the natural gas act certificate orders are effective when issued aggrieved parties can file a petition for rehearing with for  review in the d c circuit or another appropriate court but pinning that review and pinning a decision the certificates are effective you know the landowners here have filed motions to stay the certificates with for and also with the d c circuit on two separate occasions and all of those motions have been denied so that it allows the media  n not the certificate but it does generate an immediate right to seek to condemn necessary property for the project so that right is a medi effective upon issuance of the certificate but it flows directly from the natural gas act as opposed to a delegation from the first title passed before just one station title does not pass before just compensation but as this court recognized in sage possession can be given under the standard of rule sixty five so position is given but not don't remains with the land so i don't remains with the land owner until just compensation is paid in an order is entered transferring title but the right to enforce on and he considered it record and normally you don't cases we say no so why is this case well i would just start just a little bit ahead of that by saying the judge judges here found that there was non economic ever ever bow harm as a polemic very matter and that hasn't been addressed but the judges found that this case obviously involves hundreds of tracks and there is no practical way as has been mentioned earlier that just compensation is going to be decided determined and decided both before the time  certificate is up so it's going to take time to reach just compensation meanwhile there is a deadline under the first certificate to complete construction and if you can't even the construction and all just compensation is is determined then you have the same issue that was present in say and that was characterized as a non economic harm but to your point about economic harm we certainly did show that as well in several categories and the argument has been made at least in the briefs i haven't heard it said directly this morning i don't think but it's made in the briefs that economic harm is only recoverable under two conditions they say on brief that the losses must be economic losses must be unrecoverable which these would be unrecoverable there's no there's no claim for these against anybody against  second requirement that has been alleged is that the losses must threaten the existence of the of the company and other words unrecoverable and threaten existence that seems to be the argument on the brief his case doesn't say that i mean the hughes case uses the word or it says injunctive relief is appropriate where the moving parties this right i read hughes and all these other cases and it sounds like we're basically saying and it makes common sense if you can recover damages at the end of the proceeding then it's not irreparable harm obviously it's going to be repaired at the end of the proceeding if you can't recover the damages it may be wait until you get it backwards if i think you want my so far my right i think so ok sometimes even if you can recover the damages at the end of the proceeding there might be irreparable harm is going to drive you out of business if you wait until the proceeding is over will ruin your business will call that irreparable even though you could recover it hypothetically at the end and have that all we're saying i think that's correct and i think that's where this line of cases comes in if you're going to be out of business anyway even though you can recover right at the end of the case that may be grounds for a preliminary injunction i want to make sure he's getting this right because i actually have trouble again i would also invite the court's attention to the handsome brook farm case in which the court said injunctive relief may be awarded when monetary damages are unavailable and the multichannel cable case where the court said and judge of relief may be awarded when monetary damages are difficult to ascertain or inadequate sage itself which is the obviously the preeminent authority on this issue it contains no requirement that the monetary damages threaten the existence of the company its it to condemnation that's one of the things that in a in a republican form of government a constitutional government is one of those monarchy things that are framers assad to keep did it's like pardoning someone right our arms to condemnation condemnation is the death penalty in terms of property right we talk about life liberty and property that's the highest form punch right it's the death penalty because i'm going to take from you what you own because i'm the monarch that's the way worse the sovereign sovereign power correct certainly it is a taking and therefore for in the wisdom of congress they didn't give you a quick take instead you have to come to court and right so that we have to look at the full consequences in the circumstances of the case and in this case we're talking about damage to property or taking property that may have an impact on environmental questions all of those things so it's not just a matter of if eventually this is going to happen the question is whether or not the nation and the protection of his properties and property owner's property and all those things are factors in those things are still moving parts correct fergus challenged it in the d c circuit correct well i think each court has a different role and i think the role of the district court in this case was to enforce the shooting if it yeah but no but you said they had their job was to enforce it however their job was to authority has to enforce the certificates including the right to adjudicate condemnation cases and i would just say i take your point about property owners having to surrender property that they obviously believe is extremely important to them but remember also that all citizens and all nations take their property subject to some rights that it may be needed for the public well absolutely but that's why the the the thing about it the process of the procedures the part of the rights in terms of the fifth amendment protection is not just eventually it's going to happen that's a process which normally you have to go through and you have compensation and you get possession you get title but here we talk about something extraordinary and his counsel say it is sort of in pipeline sort of with the courts of sort of carved out or perhaps shoehorn  thinking that this is special and as you said before our job is to enforce it but the job is question shit you have it now before it plays out the procedure and timing is important property council absolutely right timing is everything is next to location location location and timing timing timing so why is that not a part of the procedure you have to tell the court convincingly when you ought to be able to abort that p take it now and then you wait at the inn to get something in that normally i agree because what your point was everybody has to be subs the condemnation you're right but everyone else gets a chance to come in the court have the procedure play out and it happens at the same you're saying we're going to disconnect the procedure where we normally with compensation with title and do it beforehand and you answer with well you're going to it's going to happen anyway so you may as well just enjoy it no the constitution says more than men and perhaps age is not only preeminent maybe that maybe it's wrong maybe is wrong is not preeminent oh well you made a lot of a lot of points or let me just make one and respond will go ahead on the procedural part recall that in this case it's not just having a certificate and taking the property it's following a case getting service bringing the case getting the motion filed and the motion that has been filed and granted and is uncontested is a motion for partial summary judgment on our right to do this and it's a right to do it now it's not a right to do it and five years from now it's a right to proceed now we have a right to condemn now and so the judges that considered that all granted that and there's been no contest of that here and i would say it was done with full procedural protections it was done with notice it was done for with an opportunity for discovery there were depositions there was written discovery there was a full evidentiary hearing in all three cases three separate hearings at which each party was allowed to present whatever evidence they wanted on this issue of  plenary junction so in a condemnation case that the issues are really pretty narrow i mean there's a right to condemn and then the only other question is just compensation so to protect the judge harris's point to protect on the just compensation each of these judges required evidence on what the potential damages are to the landowners and they gave requirements for multiple deposits that is money actually paid into court three times or four times the amount and a bond on top of that for two additional time so that these payments are fully and adequately secured there is no way anyone will be paid for possession or the taking of their property under the system on of the framework that's been generated and it was done simply through the process of rule sixty five equity as you as you alluded to upon a showing that there would be these damages irreparable harm by not doing that and by weighing that all the judges had in their opinions of that irreparable harm against the landowners reparable harm that you mention which the district judges ask each landowner to explain tell me now what the difference is in the harms to you now versus the harm to you if the injunction is given at a later time no true that all of the things you talked about is that we're going to give them all of these things and make sure they're covered and everything is there but yet the calculus for you is that you have to show irreparable  certain it in it so therefore that's that's counterintuitive in it because you're saying we could we can solve this by giving them all these things in advance and in whole in those like but you get the calculus is whether or not you have proven in terms of your time in what you allege is essential and every time the goalpost gets a little for it well we could do it there we could do it there i mean it's the burden is on you because it's not that you come into court and say they're cover they're covered they could be covered and you still in terms of well i didn't mean to suggest that the security decided to referable that's what you seem to be you're given a litany of all those things we've covered in and i think that's exactly what the district courts have done to covered what the problem you've got to go set aside at that but it's not because that's the beauty of it was this is when you go around was the normal there's something always in the constitution protections that wait a minute in the history of this nation w these landlord owns but every citizen when we say wait a minute you want to take the heavy handed hand but to be right you better be right on is not just a matter of what difference does it make inevitably is going to happen the question is can you do it now and that's the question and that's the focus of the law and the analysis in a scene like that's been a question in the district court is the what date is it what rights and what things are important for constitutional protections in the fifth amendment going well i think the judges went through the correct analysis i think they followed exactly this court's opinion and say i think they followed exactly the winner factors they tried to do it carefully they did it after an evidence year hearing they wrote detailed opinions citing their findings each of these judges found her reparable harm  p based on the testimony that was given that's a finding and under this court's precedents that finding of a reparable harm is reviewed for clear era irreparable harm because women are arises from dealing with the balance of hardships which is a third factor totally different from the wrecked ripple on but let me ask you on this record you make a big deal out of this senior vice president testimony as to who gets up and says that well there's going to be huge delay penalties two hundred thousand dollars if we don't do it but didn't you write the contract i mean how do you write a contract and then once you strongly are you going to allow judge hill and seem to rely on it quite a bit at least of three judges who looked at it but how strongly do you relying on that as a basis for your irreparable injury because when you look at it in his purest form it is self inflicted you wrote that you didn't read it is damages that now i've got to pay these damages that i say i would do i'd read a well i would disagree that that we created this situation i think we are following a situation that the courts looked at and determined to be reasonable i'm only saying you created because right entre well certainly we wrote the contracts into contracts like that under the circumstances of getting a fork certificate but still needing to proceed to district court to seek possession and the judges looked at that carefully and they found that it was reasonable to enter into contracts like that that's judged along the bendix fourteen twenty seven judge keeley two zero one eight and judge keeley made an express finding in and expressed finding that m v p decision to set such a schedule was entirely reasonable under the circumstances so i offer that is as a finding of the district judge thank you for and we are just one of the parties to those contracts and in fact there was your honor i don't believe that it applied in the circumstances here where there were there where there would be a delay in access and so what mr cooper testified was that because there was a high demand for the construction crews at the time that they entered into the contracts that they had to negotiate those contracts and put in clauses that would provide for payment to the construction crews in the event that there were delays or ultimate cancellation of the project because of the delays do you know the answer to my question why three years on these certificates because it does seem like we're ending up with a rule because of this three year thing and as you argue that disregards given the three year thing this is kind of you have to structure the contracts so we end up with a rule with where what is supposed to be the exception a mandatory preliminary injunction does seem as though it's going to end up being granted in every case and this is it just seems like the tail is wagging the dog a little bit how come we have to kind of the law of equity to accommodate for and its three year certificate well i think that those timelines are put in because of the nature of what the first certificate looks at the first certificate looks at whether there is a public need for the project and if there is a public need for the project as was found in this case that the public received the transfer the gas that's transported by the pipeline then presumably there is a time limit to getting that republic cumberland years people would come in year nine and say this is ridiculous you found nine years ago there was a public need but it's no longer wanted and the other thing your honor is that many of the analyses that are  absolutely they could have put it quick take in to the and they didn't but that doesn't mean that they abrogated the court's right or the court's jurisdiction to rule sixty five to it might not be appropriate to have a statutory requirement of one the project would be done in every single instance there are many for certificate id natural gas pipeline projects that have different time limits on them but i also think that congress didn't do anything to abrogate the rule sixty five which allows the court to act in equity as it did here even if there isn't a quick take provision i mean they they likewise could have said under the natural gas act that or under rule seventy one point one that rule sixty five doesn't apply and that wasn't done as the cordons sage found that rule and  procedure is still available to the courts and i think that the stage analysis has been the law of this circuit for over a little over fourteen years and it's been followed by dozens of district courts the third circuit the eighth circuit and the ninth circuit and in fact there is no new new beasties or new arguments raised by the landowners that were not raised to the state court there's also no split amongst the circuits there was raised in the briefs and also argument the northern border case and in northern border the court required a substantive right  and stage address that specifically address that northern border case then found that the right was confirmed by summary judgment that's what happened here the courts all three district courts looked first to whether m b p was entitled to summary judgment on the merits of this case on whether or not it had the right to condemn and found that it was and it was only after that that it looked at the four preliminary injunction standards after that substantive right was confirmed and even the seven circuit cases post northern between blackwelder and the real truth of obama in the subsequent cases is that and winter is that the court said you have to look at all four factors and this was undoubtedly done by these three district courts and actually was done sage did not plot apply any sliding scale but as mr massey explained and b p presented evidence on each of the four winter factors and the courts all three of the district courts made numerous findings none of which can be shown to be clearly erroneous based on all four factors we had three separate hearings with many hours of testimony and evidence in one in each of the district courts and this was after written discovery and depositions were taken in the case the course independently analyzed each of the factors and that analysis was regulus that resulted in over one hundred fifty pages of analysis and opinion and the and  briefs the landowners argue that the first was some sort of golden ticket that they were but in fact these were highly contested hearings with multiple witnesses and hours of cross examination and the submission of additional evidence lifted on in terms of the golden ticket theory is it your position that the district court could have the public interest act or that could the district court have come out differently on public interest my understanding is that the argument was at least as to public interest the district courts felt themselves bound by the issuance of the for except if it was that correct they certainly relied on the first certificate the most in that context and that makes sense because a very thorough analysis was done by for they had that information behind them and the landowners could not contest are doing and around the certificate at this hearing they did allow evidence and so evidence could have been prevented presented on that issue but i think given the the analysis and the very thorough review done by the firk finding the public need that that is the factor where the first certificate was most useful to the court in making me and out if you don't think it was sort of legally dispositive you could you could argue to the district court this pipeline is not in the public interest without sort of doing it and wrong around the procedures and you can only challenge that i think that it would be difficult for for the landowner to come up with a challenge that wasn't wit to it that isn't in an issue that was not already addressed by the first and thus be making a collateral attack but it's important to also remember that the landowners and these landowners in this case did present evidence to the fur in their analysis so that same information was available to the firk when it did its analysis and i think that the argument that the forgives the golden ticket ignores the procedural posture of this case there are only two things that get decided in a condemnation the under that natural gas act the authority for the taking and the just compensation and we were already through the merits portion we had summary judgment and they don't contest summary judgment and b p was granted the authority for the taking in this case and it's a very rare preliminary injunction that occurs at this juncture where the merits have been decided significant well i think you look at the public necessity of what is occurring and in this case what's occurring is the building of a pipeline for the transportation of gas for the public so i think that it is related but i think to your point your i agree with that your honor but there are a lot of the same information is relevant because the project as a whole is in the public interest but what do you think judge brinn point in that is that that public interest is not touched on the saturday is the necessity the overall first was look at it because we need natural gas right now is the question is whether or not it would compromise getting this complete completed but if you if you sell it well no there are no windows you can do this and then the public interest is a lot narrower and ferg has been looked at that it is no evidence that the district court's ever looked at that narrow framework of public interest i think there is evidence i think that where they show me where where the record as is indicated they look at the narrow question of whether or not they have met that in the context of other where they show it but this absolutely cannot be built if we don't get it done right now the landowners presented evidence and were rigorous in their cross examination regarding the schedule here and whether it needed to be march or it could be november all of that evidence was before all three of the district courts they looked not only is it now or it just company after just compensation which i think would be the accurate analysis under sage under any circumstances but in this business in all three district courts the evidence was presented that there may be an opportunity to complete the project if it began in november and in all three district court they weighed that evidence and they determined that an injunction should issue now based on looking at that evidence and the landowners have presented in time for the project to be completed whether it be march or november  thank you thank you has hit the nail on the head here on on the first certificate saying that it's in the public convenience a necessity but they gave them until october two thousand and twenty to complete it and that's the finding of public and convenience and necessity is it in the public interest that they get it done sooner well then that should be open to consideration of all the public interest factors this judge winds noted this is a much broader consideration but below in v p invited the court to make this error by saying you can't consider any public interest except fork firkins determined it and any public interest argument that the landowners may make is a collateral attack on the certificate and it's back to the november thing because yes man the disregards did find you're not going to be able to complete the pipeline in less we issue a preliminary injunction there is no way to finish this pipeline within the for that line without a preliminary injunction so it does seem that under the public interest rubric it's in the public interest to have a pipeline it cannot be completed without a luminary injunction fine but this gets you back to your argument that it ought to have been delete the injunction should have issued at the last possible minute that would allow completion of the project that's right that the harm that they presented was not immediate that the harm would not be fall down the risk of missing the f deadline would not befall them until some later time this is my i mean i think this is a really important question and i guess the way i see it this records were kind of thinking about it is look there's going to have to be a preliminary injunction whatever harm i come from this sort of abstract idea that you're giving up access to your property or the process is completed before title changes they get to take first pay later all of that that that that has to happen to finish the  pipeline and of course the supreme court has said that can happen under cherokee nation so long as it's clear you can in fact take first pay later so long as it's clear that there will be payment in the end and the district courts are very careful to make sure they have the right as the right security ok so this is going to happen not just of the pipeline is going to happen but there's going to be a preliminary injunction and at that point i'm weighing the equities and what if we do the preliminary injunction at the last possible minute that's going to be a big financial hit for this company and i  where's the sort of clear error in the way they weigh those equities again given for a minute just hypothetically or not only is there going to be a pipeline or is there going to be eminent domain exercised but it is in fact going to happen before the payment so whether it happens a couple of months before the payment or more months before the payment they're weighing the equities and they're not seeing the overriding need to make the company suffer these financial consequence while the legal error came by putting on that scale when the balance of the equities the economic harm because as a matter of law that economic harm is not irreparable there is no holding of this case this court pardon me that economic harm becomes irreparable simply because it's unrecoverable just so i totally don't argue with you about that but i just want to make sure i understand if that cannot just assume hypothetically economic harm if it recovered at the end of the proceedings could count as an irreparable harm then what the district courts did here would be going to be the exercise of eminent to me that's conceded you're not appealing summary judgment there is also going to be a preliminary injunction because without it this pipeline can't be built so the only question is exactly which month should this preliminary injunction be issue and i'm reading the district courts is saying well once we're down to there i'm kind of looking at the equities and i'm seeing a very big financial hit on one side and nothing on the other side is there anything wrong with that analysis other than and i totally take your point maybe they shouldn't be looking at economic arms at all i think the the the flaw in that analysis would be that they treated the harm to the landowners is completely discounted i don't agree with mr massey's representation that the land owners were allowed to present any evidence that they wanted judge copenhagen specifically required each law firm to choose a single witness to present harm we were severely restricted he believed that presenting evidence of harm from the landowners would be a collateral attack on the first certificate and so to that extent you know the landowners hands were tied behind their backs as far as trying to put something on the scale in their favor but coming back to the to the recoverability of economics of non economic harm i'm sorry of economic harm and whether that makes it irreparable loss the district court for the district of columbia encounters this all the time right because they encounter administrative challenges under the a p a where regulated m c c entity says this regulation is going to cost me a pile of money please enjoy its implementation until we resolve the merits the district courts have recognized that would render these these injunctions automatic because even one dollar against a sovereign immune to fend an unrecoverable and so they said that can't be the rule there must be more to an recoverability and that's where the layer of substantial damage threatening the existence of the party comes into play even if the d c circuit cases control here given that they deal with this sort of unique sovereign immunity problem isn't the standard in d c it has to be a significant financial mislead the board on which level three get it's significant right because i did look at the d c circuit i believe the wisconsin gas case get set threatening the existence of the business on the question of whether they were not an economic engine i see that i've gone over  time thank you very much on the question of whether there were non economics injuries shown i don't think as a matter of law that's correct the non economic injury they cite are harms from skip around where they have to skip a property and go somewhere else that is shown in the record to only be a cost to the company and not a there's no challenge to their schedule their contractors are allowed to charge the more but they're not allowed to ask for more time the other non economic car may suggest is harmed a reputation and we brief this matter that hard to reputation goodwill those are just different species of economic harm under a different name so with that