In preparing to install the pipeline, PGT sought the requisite Certificate of Public Convenience and Necessity from the Federal Energy Regulatory Commission (FERC). Before it would issue the certificate, FERC required PGT to conduct an archeological survey and prepare an initial evaluation of resources to meet the requirements of the National Historic Preservation Act (NHPA). Id.
The current owners of the ranch denied PGT access to the property, and PGT had to obtain a court order to enable its archeological team to conduct an initial survey. Once that survey was complete, the owners denied access for additional studies. PGT alleged that the right-of-way agreement afforded it the right to conduct activities on adjacent lands "reasonably necessary" to the installation of the pipeline. PGT also argued it had a right to enter the land "by virtue of the privilege to access private lands which flows from the duty imposed by federal law." Id.
In response to these arguments, ranch owners asserted that the necessity to access the property for archeological study could not have been contemplated at the time the agreement was signed with the original owners in 1960, since the agreement predated passage of NHPA by six years. The current owners further alleged that private property owners are not subject to NHPA.
The court granted summary judgment in favor of PGT, concluding that the right-of-way agreement authorized PGT to install the pipeline and use adjacent property as was reasonably necessary in connection with the installation. The court determined that compliance with NHPA and other Federal laws was required: "There can be no dispute but that the requirements of the National Historic Preservation Act and other federal laws applicable to the installation of the pipeline must be met." Id at 248. Therefore, the court ruled that PGT was entitled to access the private property.
The Ninth Circuit affirmed the district court ruling, finding that PGT's duty to comply with Federal requirements were contemplated by the right-of-way agreement. 9 F.3d at 1396.
|Go to Table of Contents||Go to Top|