Rover's Condemnation Efforts

Since our report last week, significant changes have occurred in Rover Pipeline's condemnation litigation, including one major development that just occurred in Ohio. Substantial progress has occurred in several courts, with the vast majority of outstanding easements being settled. But it is not yet clear whether all remaining condemnation litigation will be completed in time for Rover to access the land necessary to cut trees by March 31. 

Courtroom Condemnation Update

Ohio -  Earlier this week, the parties held a closed door mediation related to the two consolidated cases pending in the U.S. District Courts for the Northern District of Ohio. During a courtroom hearing that just concluded, all remaining parcels have been settled.

In the Southern District, few developments have taken place during the past week that are reflected in court filings. As noted in our last update, Rover needed to serve notice on 12 landowners by March 7, which they appear to have done. Settlement negotiations are ongoing, and for those parcels that do not settle, a hearing will be held on March 14.  

Pennsylvania -  Also today, the U.S. District Court for the Western District of Pennsylvania ruled on a new motion from Rover, requesting an expedited hearing for the court to award immediate possession of the requested easements. In response, the court granted Rover "access and possession of the rights condemned pursuant to the certificate of public convenience and necessity and as depicted in the exhibits to the [Rover's] Verified Complaint, beginning on March 13, 2017, or earlier if agreed to by any of the defendants."  

West Virginia -  Both West Virginia judges issued orders granting "immediate access and possession" with regard to the easements that Rover had requested in West Virginia. In each case, the court affirmed Rover's right to condemnation of the requested easements, and appeared convinced of the need for a quick resolution of the cases, primarily given the time constraints of the tree window.

Michigan -  A hearing was held today, March 9, for which we are awaiting a court-issued document to determine whether the court will grant Rover immediate possession of the requested easements. Unlike any of the other Rover condemnation cases, the court allowed the parties to put on witnesses and other evidence or argument related to numerous issues. 

Use of Mechanized Equipment

From earnings calls to analyst questions, the use of tree felling, cutting, clearing and removal is oftentimes (understandably) used loosely. And, briefly without getting into the nuances, here is why. The FERC Certificate Order, Final Environmental Impact Statement, and U.S. Fish and Wildlife explain that "Rover shall adhere to the FWS tree clearing window and shall restrict tree clearing activities" and they make no mention of felling or removal. But Rover explains in court documents and during earnings calls that it "must adhere to the USFWS  tree-felling windows." Put simply, Rover must cut down the trees -- not remove them -- before the window closes. 

At this point, Rover is authorized to conduct non-mechanized clearing (i.e., cut trees by hand with chain saws). To proceed with mechanized clearing, which is faster and allows for greater control of tree felling and increased worker and public safety, Rover needs a pre-construction notification (PCN), which is a U.S. Army Corps of Engineers requirement. We have no record of Rover receiving this PCN. Why? Perhaps Rover was holding out hope that the Army Corps' recent revisions to the Nationwide Permits for work being conducted under Section 404 of the Clean Water Act, which becomes effective on March 19, would remove the need for them to submit a PCN. But that didn't happen. As such, Rover has contracted with some several thousand lumberjacks to get the job done.