Portland Natural Gas v . Martin, et al CV-98-436-JM 11/03/98 P

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Portland Natural Gas Transmission System

v. Civil N o . 98-436-JM

4.83 Acres of Land, et a l .

O R D E R

Before me in this condemnation action under the Natural Gas

Act, 15 U.S.C. § 717f(h), are the following motions filed by

defendant Frederick W . Martin: a motion for a 90-day letter

(document n o . 9 ) ; a motion for relief (document n o . 7 ) , a motion

to dismiss under Fed. R. Civ. P. 12(h)(3) (document n o . 2 0 ) ; and

a motion for a preliminary injunction, entitled “Motion for

Alternate Temporary Restraining Order” (document n o . 2 3 ) . For

the following reasons, all four motions are denied. Background

The following facts are undisputed. M r . Martin owns the

strip of land at issue, approximately 4.83 acres, which is part

of a larger parcel of cleared and wooded farm land. Plaintiff

(“Portland Gas”) is a Maine partnership that holds certificates

of public convenience and necessity, issued by the Federal Energy

Regulatory Commission (“FERC”) in 1997. Portland Gas instituted this eminent domain action by

depositing money with the court and filing a verified complaint

in condemnation against the property. Portland Gas seeks to

obtain temporary easements for the purpose of constructing a

natural gas pipeline, and to obtain a permanent easement for the

purpose of operation and maintenance of the pipeline and related

facilities.

On July 2 1 , 1998, Portland Gas obtained an Order (document

n o . 4 ) granting its ex parte motion for immediate entry and

possession. A request for reconsideration of that Order was

denied on September 1 7 , 1998 (document n o . 1 0 ) . M r . Martin

thereafter filed his first motion for a temporary restraining

order (“TRO”) and for other preliminary injunctive relief, which

was denied in an Order (document n o . 19) issued on September 2 4 ,

1998.

After the motion for a TRO was denied, Portland Gas actually

took possession of the easements by bringing heavy equipment onto

Mr. Martin’s land, cutting down trees, excavating soil, burying a

pipe, and bulldozing a road on the strip of land at issue. See

Affidavits of Fred W . Martin (dated Oct. 9, 1998 & Oct. 1 9 , 1998)

(document nos. 24 and 2 8 ) . According to M r . Martin, a Portland

Gas representative told him on October 1 9 , 1998 that the “pipe

would be past [his] property by October 28.” Affidavit of Fred

2 W . Martin (Oct. 1 9 , 1998). Analysis I. Motion under Rule 12(h)(3) and Motion for Relief In his motion to dismiss for lack of subject matter jurisdiction under Rule 12(h)(3), M r . Martin contends that Portland Gas obtained a right of entry and possession in July 1998, before it complied with a condition of its FERC certificate known as “Condition 31,” and before FERC had complied with the National Historic Preservation Act, 16 U.S.C. § 470f.1 As a result, this court lacked authority to grant a right of entry and possession to Portland Gas in July 1998 and presently lacks subject matter jurisdiction over the action. M r . Martin makes essentially the same arguments in his motion for relief.

Condition 31 is one of more than sixty environmental conditions relating to the construction and operation of the gas line project (covering, among other things, wetland mitigation, wellhead protection, cultural resources, fisheries, erosion controls, and a hazardous materials inventory), which

This court lacks subject matter jurisdiction to review a challenge to the validity of the certificate, including any claim relating to whether FERC complied with the National Historic Preservation Act, 16 U.S.C. § 470f, or its own regulations. See Tennessee Gas Pipeline C o . v . Massachusetts Bay Transp. Auth.,

(D. Mass. 1998) (“Tennessee Gas II”) (“The District Court’s sole charge and authority is to evaluate the scope of the FERC Certificate, and order the condemnation of property in accordance with that scope.”).

3 included in an appendix to the certificate. Condition 31 directs

Portland Gas to defer construction, among other things, until it

files with the Secretary of FERC certain information about

cultural and historic resources.2

There is no dispute that Portland Gas began construction on

Mr. Martin’s land after FERC acknowledged that Portland Gas had

satisfied the requirements of Condition 3 1 . Portland Gas

received a letter from FERC, dated August 2 0 , 1998, notifying it

of FERC’s determination that Portland Gas had complied with

Condition 3 1 . Portland Gas actually entered the property and

began cutting trees and clearing M r . Martin’s land more than a

month after the August 2 0 , 1998 letter was issued.

a. Subject Matter Jurisdiction

Mr. Martin is mistaken in contending that subject matter

2 Condition 31 provides, in pertinent part: The applicants shall defer construction of facilities and use of all staging, storage, and temporary work areas, and new or to-be-improved access roads until:

i. the applicants file with the Secretary [of FERC] cultural resource reports and treatment plans, as appropriate, and the [State Historic Preservation Officer’s] comments; and

ii. the Director of [the Office of Pipeline Regulation] reviews and approves all reports, considers the comments of the Advisory Council on Historic Preservation, and notifies the applicants in writing that they may proceed.

4 jurisdiction is contingent on compliance with the pre-

construction conditions of the FERC certificate. The federal

statute providing a cause of action to Portland Gas to pursue a

condemnation action in federal district court does not contain

any such limitation. A holder of a FERC certificate may bring an

action in federal district court to acquire land by eminent

domain if it cannot acquire the land by contract or agree on the

purchase price with the landowner. See 15 U.S.C. § 717f(h).

Since M r . Martin has not agreed to allow Portland Gas, a

holder of a FERC certificate, to acquire the land at issue,

Portland Gas was entitled to initiate this action under section

717f(h). Accordingly, the district court has subject matter

jurisdiction over the action pursuant to 15 U.S.C. § 717f(h) and

. Portland Gas’s delayed compliance with

Condition 31 is not a basis for dismissing this action under Fed.

R. Civ. P. 12(h)(3).

b. Right to Enter and Possess

The issuance of an order granting Portland Gas a right to

enter and possess before Portland Gas complied with Condition 31

was within the court’s authority. Courts have concluded that a

landowner cannot use a FERC certificate-holder’s alleged non-

compliance with the conditions in the certificate to prevent a

taking of private property by eminent domain. See, e.g.,

5 Tennessee Gas Pipeline C o . v . 104 Acres of Land,

(D.R.I. 1990) (“Tennessee Gas I ” ) .

In Tennessee Gas I , the court considered whether a gas

pipeline company’s failure to obtain a permit required by a FERC

order prevented it from condemning land. The court concluded

that, absent a stay issued by FERC, “the lack of a required

permit does not prevent condemnation of land in preparation for

construction.”

. The First Circuit denied

Mr. Martin’s request for a stay. M r . Martin has not requested a

stay from the D.C. Circuit and, therefore, has not obtained such

a stay. In sum, there is no authority for this court to vacate

its order granting Portland Gas an immediate right of entry and

possession.

Mr. Martin contends that the holding in United States v .

162.20 Acres of Land,

, 305 & n.4 (5th Cir. 1981),

upon which Tennessee Gas I relies, does not apply to Portland

Gas, a private entity. The court in 162.20 Acres reasoned that

since the initiation of an eminent domain proceeding and an

immediate transfer of title is a neutral act that does not

prevent the government from later complying with the consultation

and review requirements of the National Historic Preservation

Act, 16 U.S.C. § 470f, an allegation that an agency has not

complied with the Act cannot be a defense in an eminent domain

6 action. See 162.20 Acres,

; accord United States ex rel. TVA v . Three Tracts of Land,

(E.D. Tenn. 1976). According to M r . Martin, the rationale for 162.20 Acres does not apply in this case because Portland Gas, a private entity, is not entitled to an immediate transfer of title under any federal law. Since State law, N.H. Rev. Stat. Ann. (“RSA”) 371:15, V , provides a holder of a FERC certificate with a right to such a “quick take,” it is irrelevant whether or not such a right is available under federal law.

RSA 371:15, V , provides that after initiating an eminent domain proceeding, the pipeline company may immediately “enter upon and take possession of the real estate upon providing such security as justice may require to pay any damages occasioned by the entry.” Pursuant to RSA 371:15, V , and in accordance with 15 U.S.C. § 717f(h), this court had the authority to grant Portland Gas’s motion for immediate entry and possession, without reference to whether it had complied with pre-construction conditions.

Mr. Martin contends that the procedures specified in RSA 371:15, V , are available only to pipeline companies that file their actions in State court under RSA 371:15, I , and are not available to companies that file in federal court under 15 U.S.C.

7 § 717f(h). The Natural Gas Act, however, provides that “[t]he

practice and procedure in any action or proceeding in the

district court . . . shall conform as nearly as may be with the

practice and procedure in [a] similar action or proceeding in the

courts of the State where the property is situated . . . .” 15

U.S.C. § 717f(h). RSA 371:15, V , is thus properly construed in

this context to provide the same substantive right to a quick

take, whether the forum is a State or federal court.

Therefore, the principle underlying 162.20 Acres and

Tennessee Gas I applies in this case. Compliance with FERC

conditions cannot be used as a defense to the right of eminent

domain and cannot be cited to divest the court of the authority

to grant immediate entry and possession to the holder of a FERC

certificate. Because Portland Gas followed the pertinent

procedures required under RSA 371:15, V , it was entitled to an

order granting it the right to immediate entry. The court had

the requisite authority to grant Portland Gas’s motion and will

neither dismiss the case nor vacate the July 1998 Order.

II. Motion for 90-Day Letter

In his motion for a 90-day letter, M r . Martin seeks an order

requiring Portland Gas to provide him with written notice before

requiring him to move his farming operation from the land at

issue, in accordance with

(5) and certain

8 regulations. In addition, Mr. Martin seeks an order “remov[ing]”

Portland Gas “from possession of” the easements. M r . Martin

maintains that he harvests timber from a larger parcel of land

that includes the property at issue, so that the property at

issue qualifies as a “farm operation” pursuant to

(5). 3 Portland Gas’s removal of trees from the easement is

allegedly a circumstance in which M r . Martin is “required to move

his business or farm operation,” for which prior notice should be provided.4

3 The cited statute provides, in pertinent part:

[H]eads of Federal agencies shall, to the greatest extent practicable, be guided by the following policies: . . . (5) The construction or development of a public improvement shall be so scheduled that, to the greatest extent practicable, no person lawfully occupying real property shall be required to move from a dwelling . . . or to move his business or farm operation, without at least ninety days’ written notice from the head of the Federal agency concerned, of the date by which such move is required.

(5) (emphasis added). 4 In light of M r . Martin’s admissions that Portland Gas has entered his land and cut trees, and that Portland Gas estimated that it would be done placing pipe on his property by October 2 8 , 1998, his motion for prior notice would appear to be moot. Because M r . Martin has also requested an order removing Portland Gas from the easements, however, the merits of the motion are addressed below.

9 A. Federal Statute

As discussed more fully in my September 2 4 , 1998 Order, the

statute at issue,

(5), does not create any

substantive rights and cannot be cited as an impediment to an

eminent domain action. See Tennessee Gas Pipeline C o . v . New

England Power, C.T.L., Inc.,

0 2 , 104-05 (D. Mass.

1998) (“Tennessee Gas III”); see also

(a).

Therefore, the federal statute provides no basis for relief.

B. Federal Regulations

Mr. Martin also contends that he has a right to prior notice

under 49 C.F.R. Part 2 4 , the regulations promulgated to implement

the Uniform Relocation Assistance and Real Property Acquisition

Policies of 1970,

. As discussed below,

the regulations are not applicable to M r . Martin’s circumstances

and, therefore, do not provide any basis for granting the motion.

The regulation cited by M r . Martin,

(c)(1),

provides that “no lawful occupant shall be required to move

unless he or she has received at least 90 days advance written

notice of the earliest date by which he or she may be required to

move.” See also

(a)(3) (similar). This

regulation applies to the relocation of “displaced persons,” see

, which is further defined in a manner that

10 clarifies its inapplicability to M r . Martin’s circumstances.

The pertinent part of the regulatory definition of

“displaced persons” is any person who moves from the real property or moves his or her personal property from the real property: . . . (iii) As a direct result of . . . the acquisition, rehabilitation or demolition o f , in whole or in part, other real property on which the person conducts a business or farm operation . . . . However, eligibility for such person under this paragraph applies only for purposes of obtaining relocation assistance advisory services under [49 C.F.R.] § 24.205(c) and moving expenses under [49 C.F.R.] § 24.301, § 24.302 or § 24.303.

(g)(1)(iii) (emphasis added).

The cited definition contains a limitation that makes M r .

Martin’s motion unavailing:

[E]ligibility . . . applies only for purposes of obtaining relocation assistance advisory services under [49 C.F.R.] § 24.205(c) and moving expenses under [49 C.F.R.] § 24.301, § 24.302 or § 24.303.

(g)(1)(iii) (emphasis added). M r . Martin has not argued that he is entitled to relocation assistance or payments

for moving expenses. Since the regulation regarding prior notice

of a date certain,

(c), is included within a

subpart of the regulations that governs the provision of

relocation payments and other relocation assistance, see

, M r . Martin has not demonstrated that he is

entitled to such notice.

11 Moreover, M r . Martin does not satisfy the regulatory

definition of a displaced person. M r . Martin lives in

Massachusetts, not on the property. This is clearly not a case

involving the wholesale relocation of M r . Martin’s farm or

business. At issue is the removal of trees from a strip of land

included within a larger parcel from which M r . Martin

periodically harvests timber. M r . Martin will likely be able to

harvest timber from the remainder of the parcel. As Portland Gas

has conceded in its memorandum in opposition to M r . Martin’s

first motion for a TRO, M r . Martin may be compensated in this

proceeding for the value of timber removed from his property,

along with the compensation he may receive for the loss of

ornamental trees, damage to a spring, and alteration of the

property’s character because of a permanent utility corridor.

See generally RSA 371:15, III (owner may recover damages).

Mr. Martin’s contention is that Portland Gas’s cutting of

standing timber satisfies the part of the cited definition

referring to the movement of M r . Martin’s “personal property.”

Mr. Martin’s reading of the regulation is not consistent with the

meaning of “personal property” implied in the regulatory

provision cited in the definition relating to the payment for

moving expenses for any “farm operation which qualifies as a

displaced person,”

. The regulation, which

12 relates to such matters as storage, packing, and disconnecting

personal property, contains no provision suggesting that Portland

Gas’s removal of growing timber from a right of way acquired by a

quick take procedure, is intended to make M r . Martin into a

“person who moves . . . his or her personal property,”

(g). C f . Plumer v . Prescott,

7 7 , 278 (1861)

(until cut, trees “may be regarded as part of the soil in which

they are rooted,” not as personal property); accord Nutting v .

Stratton,

9 , 8 0 , 87 A . 2 5 1 , 251-52 (1913). Thus, M r .

Martin is not a displaced person under the regulations. Because

Mr. Martin’s case is not covered by the regulations, he is not

entitled to any relief based on these regulations.

B. Entitlement to Preliminary Injunctive Relief

Even if the regulations could be construed as providing M r .

Martin with a right to earlier notice of a specific date, an

order removing Portland Gas from possession at this time would

not be a proper remedy, based on the evidence of equitable

factors produced by M r . Martin in support of his request for such

preliminary relief. See Weinberger v . Romero-Barcelo,

(1982) (“a federal judge sitting as chancellor is not

mechanically obligated to grant an injunction for every violation

of law”); Narragansett Indian Tribe v . Guilbert,

, 5

(1st Cir. 1991) (setting forth four-part test for preliminary

13 injunctions, including irreparable harm and balance of equities).

In this case, as in most eminent domain cases, “just

compensation will take the form of money to compensate a property

owner for a physical invasion.” Wisconsin Cent. Ltd. v . Public

Serv. Com'n,

, 1369 (7th Cir. 1996). “With the

question being one of monetary compensation, a plaintiff would be

hard pressed to demonstrate either irreparable harm or an

inadequate remedy at law.” Id. The harm alleged by M r . Martin

includes the removal of trees from a tree farm and the clearing

of a utility corridor on a portion of a farm dating back to the

colonial period. Trees can be replanted, and cleared land

revegetated. Compensation for losses is available in the award

of just compensation or damages. Therefore, in this case, M r .

Martin has not made a sufficient showing of irreparable harm.5

USG Pipeline C o . v . 1.74 Acres,

(E.D. Tenn.

1998) (“If Defendants are successful in having the FERC's

decision overturned, Defendants' property could be restored

5 A West Virginia case cited by M r . Martin, Bettman v . Harness,

(W. V a . 1896), regarding a claim of competing owners of mineral rights relating to the pumping of oil and gas from private land, is inapposite. The Bettman court found that equitable relief is not available in an ordinary trespass action, but is available to enjoin the removal of oil and gas, an exhaustible resource. Bettman did not concern an eminent domain case such as this, where diminished property value may be compensated, cleared land running through a tree farm can be restored, and buried pipe can be removed.

14 substantially to the condition it was in prior to the incursion.

Monetary damages could also be awarded to compensate Defendants

for the trespass to their properties, as well as any damages to

their properties.”).

Mr. Martin has not demonstrated any prejudice as a result of

the lack of notice of a date certain, while counsel for Portland

Gas represented as to M r . Martin’s first request for a TRO that

his client would suffer increased costs if the project were

delayed or rerouted. M r . Martin was aware that Portland Gas

intended to obtain the easements months before construction

began. On the date on which he received Portland Gas’s motion to

enter, more than a month before Portland Gas actually started to

cut down trees, M r . Martin was notified of Portland Gas’s

intention to enter his land “immediately.”

Mr. Martin has also not demonstrated how an injunction to

rectify lack of notice would be anything more than a paper

exercise since Portland Gas could resume construction after the

notice period expired. While M r . Martin contends that the D.C.

Circuit will soon issue a stay of further construction because

his property may be included on the National Register of Historic

Places, the prospect of such a stay remains speculative. Mr.

Martin has no right to an automatic stay. See 15 U.S.C.

§ 717r(c). M r . Martin has not filed a request for a stay with

15 the D.C. Circuit. He has represented that he will not do so

until he receives a ruling from the Department of the Interior

regarding the inclusion of his property on the Register. The

D.C. Circuit may deny his stay application. Therefore, even if

the cited regulation on notice covered M r . Martin, ordering

Portland Gas off the easements for failing to provide notice of a

date certain when trees would be cut would not be an appropriate

equitable remedy, in light of the evidence in the record.

III. Motion for Alternate TRO

In his second motion for a TRO or other preliminary

injunctive relief, M r . Martin cites two bases for ordering

Portland Gas off of the land at issue. First, M r . Martin

contends that the July 1998 Order granting a right of entry and

possession to Portland Gas was invalid because of Portland Gas’s

noncompliance with Condition 3 1 , and FERC’s noncompliance with

the National Historic Preservation Act, 16 U.S.C. § 470f, at the

time the Order was issued. As explained previously, the argument

as to Condition 31 is without merit, and, since it relates to the

validity of the FERC certificates, the claim as to section 470f

is not within the district court’s subject matter jurisdiction,

see 15 U.S.C. § 717r.

Mr. Martin’s second basis for such preliminary relief is

that Portland Gas has failed to comply with Conditions 17 or 19

16 of its certificate.6 These conditions relate to certain pre- and

post-construction reports relating to well or spring locations

and yields.7 In its August 2 0 , 1998 letter to Portland Gas, FERC

specifically authorized construction of the pipeline across M r .

Martin’s land, subject to compliance with Conditions 17 and 1 9 .

M r . Martin cites no authority for the proposition that the district court has the jurisdiction in an eminent domain

proceeding under the Natural Gas Act to ensure that a holder of a

FERC certificate has complied with FERC’s conditions. This

6 Mr. Martin’s motion refers only to Condition 1 7 . His arguments suggest, however, that his concerns relate in fact to Condition 1 9 . At the hearing on his motion, counsel for Portland Gas represented that it had provided evidence to M r . Martin on the morning of the hearing demonstrating that Portland Gas had fully complied with Condition 1 9 . 7 Conditions 17 and 19 provide as follows:

17. Prior to construction the applicants shall file with the Secretary [of FERC] the locations of all wells and springs identified within 150 feet of the construction work area. The applicants shall indicate the distance and directions of each well or spring from both the pipeline centerline and construction work area and indicate whether they are public or private. . . . 1 9 . The applicants shall conduct, with the well- or spring- owner’s permission, pre- and post-construction monitoring of well or spring yield and water quality for all wells or springs within 150 feet of pipeline construction activities that are used for drinking water. Within 30 days of placing the facilities in service, the applicants shall file a report with the Secretary discussing any complaints concerning well or spring yield or water quality and how they were resolved.

17 court’s jurisdiction extends solely to examining the scope of the

certificate and ordering condemnation of property as authorized

in the certificate. See Tennessee Gas I I ,

(D. Mass. 1998). The district court does not have the authority

to enforce compliance with pre-construction conditions.

The relevant statute and regulations place the power to

police compliance squarely upon FERC. FERC’s authority for

imposing such conditions is provided in 15 U.S.C. § 717f(e): “The

Commission shall have the power to attach to the issuance of the

certificate and to the exercise of the rights granted thereunder

such reasonable terms and conditions as the public convenience

and necessity may require.” Section 717m authorizes FERC to

investigate violations of provisions of FERC’s orders, see 15

U.S.C. § 717m(a), and FERC regulations specify procedures for

such investigations, see 18 C.F.R. §§ 1b.1 - . 2 0 . In accordance

with 18 C.F.R. § 1b.8, any person may request that FERC institute

an investigation. FERC can bring an action in district court to

enforce its orders. See 15 U.S.C. § 717s(a).

Condition 2 of the certificate clearly specifies that the

agency has the authority to police compliance with Conditions 17

and 1 9 . Under Condition 2 , FERC declared that the Director of

the Office of Pipeline Regulation (“OPR”) has the delegated

authority to ensure compliance, to issue stop work orders, to

18 modify the conditions, or to impose additional measures, as

necessary “to assure continued compliance with the intent of the

environmental conditions as well as the avoidance or mitigation

of adverse environmental impact resulting from project

construction and operation.” Therefore, M r . Martin may complain

to OPR should he believe that Portland Gas has not complied with

FERC’s conditions. OPR may thereafter investigate and issue an

appropriate order, including a stop work order. M r . Martin may

appeal any order issued by FERC to the Courts of Appeals in

accordance with 15 U.S.C. § 717r.

Under the doctrine of exhaustion of administrative remedies,

Mr. Martin must present his concerns to FERC first. The

doctrine, in the context of cases where Congress has not required

exhaustion, is applied to prevent resort to judicial relief until

after prescribed administrative remedies have been exhausted.

See Portela-Gonzalez v . Secretary of the Navy,

4 , 77

(1st Cir. 1997).

This case presents no facts justifying a departure from the

procedure of allowing the agency to deal with the issue first.

See

(factors justifying relaxation of exhaustion doctrine

include risk of unreasonable delay, particularly if such delay

may result in irreparable harm, lack of agency procedures to

grant meaningful redress, or agency bias). While M r . Martin

19 represented that he telephoned FERC’s enforcement office, M r .

Martin has not shown that he followed the procedures set forth in

18 C.F.R. § 1b.8 for filing a complaint. He has neither alleged

FERC bias, nor provided evidence on which I can find a likelihood

of unreasonable delay.

While M r . Martin maintains that construction of the pipeline

may result in irreparable harm to an aquifer (because gravel used

as a bed for the pipeline “may well conduct the flow of water

away from the spring”), he has not advanced an argument that

complaining first to FERC will result in irreparable harm. His

argument is rather that this court’s schedule for considering his

TRO motion entailed delays that probably already resulted in such

irreversible injury. The upshot is thus that the entire issue of

irreparable harm may be moot at this time, not that M r . Martin

has no obligation to present his complaint to FERC in the first

place, pursuant to FERC’s regulations and Condition 2 .

FERC is not a party to this proceeding. FERC has declared

that its Office of Pipeline Regulation has the authority to issue

a stop work order under Condition 2 . FERC has the fact-finding

ability and the flexibility that the court lacks in this context

to police compliance, to modify existing conditions, or to impose

additional measures to ensure that the intent of the

environmental conditions will be met. M r . Martin’s recourse for

20 his concerns thus lies with FERC in the first instance.

Finally, M r . Martin argues that this court should exercise

its inherent authority to issue preliminary relief in order to

preserve his ability to challenge FERC orders in the D.C.

Circuit. Since the D.C. Circuit has held that a similar

challenge was not moot because of an allegation that an

operational pipeline continued to harm aesthetic interests, see

Moreau v . FERC,

, 566 n.4 (D.C. Cir. 1993), M r .

Martin will likely be able to pursue his claims in the D.C.

Circuit, even if construction on his land is completed.

Therefore, in light of M r . Martin’s failure to demonstrate

that this court has jurisdiction in this context to review

Portland Gas’s compliance with the certificate conditions, M r .

Martin has failed to demonstrate a substantial likelihood of

prevailing on the merits. Since this is the sine qua non of the

quadripartite test for granting a preliminary injunction, M r .

Martin’s motion for an alternate TRO is denied. See Weaver v .

Henderson,

1 , 12 (1st Cir. 1993) (citing Lebeau v .

Spirito,

(1st Cir. 1983)).

Conclusion

Mr. Martin has demonstrated that he is not interested in

exploiting his farmland for profit in this litigation. He has

represented that he has not subdivided his land or attempted to

21 change its historical land uses. His preservation motive is

evident in his effort to have his property listed on the National

Register of Historic Places.

This court’s jurisdiction is limited. The primary purpose

of an eminent domain proceeding is to provide just compensation

and damages, as appropriate, to affected landowners. Even the

potential loss of aesthetic or cultural values that M r . Martin

perceives to be incalculable may be compensated. See, e.g.,

United States ex rel. TVA v . Easement in Logan County,

6 , 80 (6th Cir. 1964) (upholding calculation of lost aesthetic

value resulting from erection of power lines on farm property);

cf. generally Annotation, Unsightliness of Powerline or Other

Wire or Related Structure, as Element of Damages in Easement

Condemnation Proceeding,

(1980).

For the reasons set forth above, M r . Martin’s motion for a

90-day letter (document n o . 9 ) , his motion under Rule 12(h)(3)

(document n o . 2 0 ) , his motion for relief (document n o . 7 ) , and

his motion for an alternate TRO (document n o . 23) are all denied.

SO ORDERED.

James R. Muirhead United States Magistrate Judge Date: November 3 , 1998

cc: Frederick W . Martin, pro se Michael D. Ramsdell, Esq.

22