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Columbia Gas Transmission, LLC v. Haas

United States District Court, D. Maryland

September 14, 2018

COLUMBIA GAS TRANSMISSION, LLC, Plaintiff,
v.
JANET MALIN HAAS and MELVIN LEROY HAAS, Defendants.

          MEMORANDUM OPINION

          THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE.

         Plaintiff Columbia Gas Transmission, LLC ("Columbia Gas") has brought this breach of contract action against Defendants Janet Malin Haas and Melvin Leroy Haas to enforce an easement traversing Defendants' residential property. Columbia Gas asserts that a maple tree planted near an underground gas pipeline owned by Columbia Gas must be removed under the terms of the easement. Defendants oppose the removal of the tree and have also filed a Counterclaim in which they assert that if the tree is removed, Defendants should be compensated for its loss. Pending before the Court is Columbia Gas's Motion for Summary Judgment and Motion to Dismiss Counterclaim, or in the Alternative, Motion for Summary Judgment as to the Counterclaim ("Motion for Summary Judgment"). ECF No. 56. Also pending is the Defendants' Motion for Leave to Supplement the Record. ECF No. 65. The Court held a hearing on these Motions on September 6, 2018. For the following reasons, Defendants' Motion is GRANTED, and Columbia Gas's Motion for Summary Judgment is DENIED.

         BACKGROUND

         Janet and Melvin Leroy Haas bought their home in Brinklow, Maryland ("the Property") in 1975. They understood at the time of purchase that the Property was subject to an easement originally created in 1955 in favor of the Atlantic Seaboard Corporation. The easement granted Atlantic Seaboard and its successors "the right to lay, maintain, operate and remove a pipe line for the transportation of gas, and appurtenances necessary to operate said pipe line over and through" the Property. Easement at 1, Pl.'s Mot. Summ. J. Ex. 2, ECF No. 56-3. The easement further provided that "the gas line to be laid under this grant shall be constructed and maintained below cultivation, so that Grantors may fully use and enjoy the premises, subject to the rights of the Grantee to maintain and operate said lines." Id. Atlantic Seaboard also "agree[d] to pay for any damages that may arise from the maintenance, operation and removal of said lines." Id. Pursuant to the easement, a 26-inch, underground, high pressure natural gas pipeline was installed through the Property in 1955 and is now maintained and operated by Columbia Gas, Atlantic Seaboard's successor-in-interest.

         The Haas residence was constructed on the Property in the early 1970s, with the corner of the home approximately 25 feet from the buried pipeline. Mr. Haas enjoys gardening as a hobby, and in the 40 years that he has lived on the Property, he has devoted countless hours to maintaining and improving the landscaping, spending thousands of dollars in the process. In 1976, he planted a Burgundy Lace Japanese maple tree ("the Maple Tree") approximately two feet from the center of the pipeline. Haas did not ask permission from Columbia Gas or its predecessor before he planted the Maple Tree. The Maple Tree is still alive today and serves as a foundational specimen in the front-yard landscaping.

         Although Columbia Gas routinely performed inspections of the pipeline, it was not until approximately September 22, 2016 that anyone, whether from Columbia Gas or its predecessor, told Mr. Haas that the Maple Tree would need to be removed pursuant to the terms of the easement. Mr. Haas objected to the tree's removal. Columbia Gas has thus filed this lawsuit to enforce its rights under the easement, seeking declaratory and injunctive relief. Defendants have filed a counterclaim, seeking monetary damages should the tree be removed.

         The parties are now before the Court on summary judgment. In addition to disagreeing on the proper interpretation of the easement, the parties dispute whether the Maple Tree interferes with the operation or maintenance of the pipeline. On the latter issue, Columbia Gas has submitted (1) the expert report, declaration, and deposition transcript of Andrew Kvasnicka, a pipeline engineer; (2) the declaration of Antonio Redd, a Senior Land Agent with a bachelor's degree in industrial engineering; and (3) the declaration and deposition transcript of Francis Stone, a transmission mechanic whose duties include locating pipelines and determining their depths. All of these individuals are Columbia Gas employees.

         Combined, these submissions reflect five primary concerns. First, Columbia Gas contends that the Maple Tree's canopy limits the utility of aerial patrols, Columbia Gas's preferred-but not only-method of conducting surface inspections to identify leaks, construction activity, and other safety risks. Kvasnicka, Columbia Gas's pipeline engineer, stated in his deposition that aerial surveillance consists of both visual inspection of the ground and the use of instruments that recognize the presence of gas, should there be a gas leak. Kvasnicka further asserted that aerial patrols are more accurate than other forms of surveillance, such as walking the length of the pipeline. According to Kvasnicka, who never actually visited the Property, the Maple Tree obstructs both visual inspection from the air and the instruments used by the aerial patrols. Kvasnicka admitted, however, that Columbia Gas still performs walking inspections in areas where aerial surveillance is unavailable and acknowledged that Columbia uses foot patrols as part of its survey activities. Moreover, Columbia Gas's October 3, 2016 "Facility Patrol and Leakage Inspection Plan" provides that "walking" is one approved patrol method. Facility Patrol and Leakage Inspection Plan at 4, Defs.' Opp'n Mot. Summ. J. Ex. 5, ECF No. 57-6.

         Second, Columbia Gas argues that the Maple Tree's roots may damage the pipeline's coating and cathodic protection, which if left unrepaired could cause pipeline corrosion. Cathodic protection consists of a protective coating on the outside of the pipeline and a low-level electric current that flows to the pipeline wherever there is a break in the coating. According to Kvasnicka, by damaging the pipeline's coating and disrupting the electric current, tree roots can harm a pipe's cathodic protection, leaving the pipe vulnerable to corrosion. Columbia Gas therefore takes the position, as stated in its internal "Minimum Guidelines for Construction Near Pipeline Facilities," dated July 2015, that "[s]hrubs greater than 5 feet tall and trees ... are prohibited" from the right-of-way covered by pipeline easements. Min. Guidelines at 1, Mot. Summ. J. Ex. 8, ECF No. 56-9.

         Central to this concern is the distance between the Maple Tree's roots and the pipeline. Stone determined that the pipe is approximately 4.5 feet below ground in the area immediately around the Maple Tree by using an instrument he called a "pipe locator." Stone Dep. at 19-21, 24, Pl.'s Reply Ex. 4, ECF No. 58-4. Using a separate tool called a "T-bar," a long, pointed metal rod with a handle across the top so as to make a "T" shape, Stone determined that the pipe was four feet below ground at a location 8-10 feet away from the Maple Tree. Stone Decl. ¶ 7, Pl.'s Reply Ex. 2, ECF No. 58-2. Stone measured that elsewhere on the Property, the pipeline was at a depth of three feet, which is a standard depth for this type of pipeline.

         In contrast, Defendants argue that the pipeline is at least five feet below the tree because when the house was built and when the tree was planted, a significant amount of fill dirt was added to the area, increasing its elevation relative to the rest of the yard. Moreover, Defendants offered an assessment by arborist Diane Knighton, who used ground radar to locate the Maple Tree's roots. Based on the radar and her own experience with trees of this variety, Knighton determined that most of the tree roots, which spread out across a 16-foot radius from the tree, are 15-23 inches below the ground, and that none extend further than 27 inches below the surface. Nowhere in the record does Columbia Gas provide an expert opinion on how close tree roots must be to the pipeline in order to damage it.

         Defendants have also submitted excerpts from the deposition of William Rew, III, a Columbia Gas corrosion technician. In that role, Rew performs annual tests on Columbia Gas's pipelines to ensure that the cathodic protection is working so as to prevent corrosion or rusting of the pipeline. He testified that he has never had adverse readings on the length of pipeline near the Property that would indicate that the cathodic protection is failing.

         Third, Columbia Gas argues that the presence of the Maple Tree would cause delays should the pipeline need to be reached quickly for repairs, especially if the roots are wrapped around the pipeline. In his expert report, Kvasnicka, without having visited the Property, claims that due to its size and proximity to the pipeline and the assumption that tree roots could be wrapped around the pipeline, the Maple Tree could delay reaching the pipeline by "several days" should emergency repairs be necessary. Kvasnicka Rep. at 6, Pl.'s Mot. Summ. J. Ex. 6, ECF No. 56-7. In contrast, Defendants have submitted a letter from J. Kelly Lewis, the General Manager of Ruppert Nurseries, Inc., a company that specializes in moving large trees. Having inspected the Maple Tree, Lewis asserts that the Maple Tree could be removed, roots and all, within two hours.

         Fourth, Columbia Gas argues that the Maple Tree's presence interferes with its ability to prevent third-party damage to the pipeline. Kvasnicka asserts that the Maple Tree must be removed to better delineate the pipeline's right-of-way, so as to deter unauthorized excavation of the area by third parties that could damage the pipeline. In response, Defendants have affirmed that they would never allow a third party to perform excavation work on the Property without first contacting Columbia Gas and would be willing to post signs to alert the public to the presence of the pipeline.

         Fifth, a December 2013 test called a "Smart PIG Inspection," which involves sending an instrument known as a PIG through the length of the pipe to collect data such as readings of the pipeline's thickness, revealed that an unused "tap" of unknown length was located at the 12 o'clock position on the pipeline at the same GPS coordinates as the Maple Tree. Kvasnicka Dep. at 40-42, Pl.'s Reply Ex. 3, ECF No. 58-3. A tap is a smaller pipe extending off of the main pipeline. Such taps were installed in the 1950s to allow natural gas to be distributed to properties along the pipeline's length. According to Kvasnicka, Columbia Gas's practice is to excavate and examine such taps to ensure that they were properly abandoned. Such abandoned taps are routinely sealed at their endpoint, not where they join the pipe, which means that the tap itself is filled with gas. The tap, like the rest of the pipeline, contains a coating that can be damaged by tree roots. For the past 40 years, no problems associated with the tap have been identified.

         As for the location of the tap, Kvasnicka asserts that the tap is directly below the Maple Tree, because he was provided with GPS coordinates for the Maple Tree and those coordinates line up with the GPS coordinates provided by the PIG for the location of the tap. Accordingly, Kvasnicka asserts that the Maple Tree must be removed in order to expose and inspect the tap as required by Columbia Gas's maintenance protocol. Stone, who was tasked with locating the tap, has stated that he found it at a depth of 27 inches using the T-bar. Although he did not state exactly how far away from the tree he was when he made this measurement, he did not use the T-bar anywhere within an 8-10 radius of the tree. The ground radar scans by Knighton also reveal an object at a distance of eight feet from the Maple Tree at a depth of ...


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