Category Archives: Eminent Domain

Wintergreen Property Owners Plan to Sue ACP


Press Release from Friends of Wintergreen, November 20, 2017:  Nearly 1,000 Wintergreen Property Owners Plan To Sue the Atlantic Coast Pipeline.  Contact Jonathan Ansell, 804-405-1109

Friends of Wintergreen announced today that nearly 1,000 Wintergreen property owners, a number that is growing daily, plan to individually sue the Atlantic Coast Pipeline for damages to their property if the pipeline company seizes land used by the Wintergreen community. These actions follow a rare split-decision by the Federal Energy Regulatory Commission (FERC) to approve the 600-mile, 42-inch compressed natural gas Atlantic Coast Pipeline (ACP) and grant the private pipeline company the power to use eminent domain to seize private land, including 7-acres of common land at Wintergreen.

“By approving the ACP, FERC effectively guarantees a 14% profit (or over $200 million a year) to the Dominion-managed pipeline company, a return that comes at the expense of many unwilling, uncompensated or under-compensated Virginia landowners”. In the case of Wintergreen property owners, the land to be seized by the pipeline will come with no compensation to individual property owners, but significant inconvenience and damage to their property values” said Jonathan Ansell, Chairman of Friends of Wintergreen, Inc.

Most of the individual “inverse condemnation” lawsuits will be managed by the Norfolk-based eminent domain law firm, Waldo & Lyle PC. According to Brian Kunze, Partner at the firm: “Under the US Constitution and Virginia law, no private property can be damaged or taken for public use without just compensation to the owner. If a property owner does not receive compensation for the taking of land, as is the case for nearly 4,000 individual Wintergreen owners, these owners are entitled to obtain compensation under a legal procedure known as “inverse condemnation”. We intend to file these cases the day after the ACP takes Wintergreen property”.

Separately, Friends of Wintergreen and the Wintergreen Property Owners Association (WPOA) filed a legal action with FERC to halt the construction of the pipeline until a full rehearing is completed. “We believe that FERC’s approval of the pipeline was arbitrary, capricious and not supported by the substantial evidence and alternatives we and others have provided”, said Jay Roberts, Executive Director of the WPOA. “On October 13, the FERC Commission voted 2 to 1 to approve the ACP, a rare split-decision in a federal agency where 98% of votes are unanimous”, noted Ansell. The dissenting opinion was issued by a Commissioner with seven years experience on the FERC Commission; the two Commissioners who approved the ACP were each on the job for about 60 days.

Friends of Wintergreen, Inc. is a not-for-profit corporation dedicated to protecting and enhancing the value, beauty, integrity, and sustainability of the Wintergreen VA area.

Legal Representation

On November 16, 2017, the Charlotte Observer reported that the Atlantic Coast Pipeline is ready to start seizing private property early next year to start construction on the 600-mile ACP, beginning legal condemnation proceedings against holdout property owners as soon as it has received all state and federal permits.

In late October, the Mountain Valley Pipeline sued landowners to gain pipeline easements through eminent domain.  On November 16, 2017, a federal judge slowed MVP’s effort to fast-track one of two lawsuits against hundreds of landowners seeking to use eminent domain to gain easements for construction over the more than 300-mile route across West Virginia and Virginia.  Judge  John Copenhaver indicated “he is going to press MVP attorneys to personally serve all of the landowners with the lawsuits against them, and demand detailed explanations if the company ultimately says it couldn’t find all of the owners and wanted to rely on a public notice in the newspaper instead. ‘The court wants these people located,’ Copenhaver said. ‘The court is expecting due process.'”

Most of the landowners on the ACP route in Nelson County have legal representation. If you do not, email us at friendsofnelson@gmail.com and we will give you the information you need to protect yourself and your land.  (And please take a look at our Eminent Domain page.)  We will continue to stand up and support and back up landowners threatened by the ACP. This is not a done deal. We are still here and ready to help!

Eminent Domain


Nearly six hundred Nelson residents heard Dominion representative Emmett Toms use the threat of eminent domain in August 2014 at the public meeting with the Nelson County Board of Supervisors and Dominion personnel. His remark was something along these lines: “We don’t like to use eminent domain, but we will if we have to.”

On October 27, 2017, the Roanoke Times reported that, “Mountain Valley sues landowners to gain pipeline easements and access through eminent domain.” The story described how “Mountain Valley Pipeline filed a federal lawsuit Tuesday [October 24, 2017] in Roanoke against hundreds of landowners in Virginia to initiate acquiring easements for the project across private properties through eminent domain.” The lawsuit includes landowners in both Virginia and West Virginia, and, according to coverage in the Charleston Gazette-Mail, “The Virginia complaint lists more than 300 separate pieces of property — with the property descriptions taking up 192 pages of a 196-page complaint — and the West Virginia filing lists more than 140 separate property parcels. ‘Condemnation is necessary because MVP has been unable to negotiate mutually agreeable easement agreements with the landowners,’ the MVP lawyers said in both of their complaints.”

In anticipation of possible court proceedings by the Atlantic Coast Pipeline against property owners on the proposed ACP route, we offer information based on suggestions originally prepared by Preserve Montgomery County for landowners on the proposed MVP route.

  • If you are an impacted landowner and have not yet hired an expert eminent domain attorney, we urge you to do so ASAP. Impacted landowners include those whose property the ACP proposes to cross as well as those on whose property the ACP wants to build access roads or staging areas.
  • To hire eminent domain counsel does NOT mean you’re “giving up the fight” – rather, it means you’re getting help to navigate it – you’re preparing for the time you may need to either negotiate or go to trial.
  • If you hire an eminent domain lawyer:
    • You don’t have to pay anything up front
    • If it never comes to eminent domain, you will never pay them
    • All of them charge a similar percentage of an eventual settlement (33% of the DIFFERENCE between the original written offer and the final written offer), so you never need to pay them out of pocket

Among the consequences of negotiating without experienced representation is the risk of being grossly under-compensated in an eventual settlement.

Eminent domain experts say that under federal court rules, landowners have 21 days from the date of service of papers on the landowner to file an “answer/response,” which is a reply in court challenging the ACP’s assertions of their right to take your property. This filing can be basic, but it must be done correctly and in timely fashion. Eminent domain lawyer Chuck Lollar, quoted in the Roanoke Times article, said, “a year could pass before all condemnation cases filed by Mountain Valley go to trial,” but landowners must still file their responses within 21 days.

OPPOSE “early entries.” Many landowners, through their attorneys, will object to “early entry” by the pipeline company or its subcontractors for ANY reason, including tree cutting. Don’t allow anyone associated with or hired by MVP/ACP to take your trees down or do any other “pre-construction activity.” Your attorney will make motions to stop ALL pre-construction activity including tree cutting. If you encounter tree cutters on your property or have questions about their presence on your neighbor’s land and their right to be there, call your attorney, your police or sheriff’s office, or simply call 911 and ask for law enforcement assistance.

Please refer to our Eminent Domain page for additional information on eminent domain and on eminent domain lawyers.

MVP Sues Landowners for Easements Through Eminent Domain

The October 27, 2017, Roanoke Times reported that the Mountain Valley Pipeline has sued landowners to gain pipeline easements through eminent domain. ““Mountain Valley Pipeline filed a federal lawsuit Tuesday in Roanoke against hundreds of landowners in Virginia to initiate acquiring easements for the project across private properties through eminent domain. Both Maureen Brady, a professor at the University of Virginia School of Law, and Chuck Lollar, a Norfolk-based lawyer who specializes in eminent domain, said filing suit against multiple landowners and properties at once is standard procedure for similar projects. Lollar said one reason to file condemnation proceedings against hundreds of landowners at once ‘is to seek one court order granting entry to begin construction, applicable to all property owners who have refused to sign easements, since they would be the remaining obstacle to commencement of construction of the pipeline.’ … The condemnation action targets properties where Mountain Valley has failed to negotiate with landowners an acceptable price for an easement. Many property owners opposed to the pipeline have refused even to enter such negotiations.”

Bold Alliance issued the following press release on October 27, 2017. (Contact Carolyn Reilly, Bold Alliance, 540-488-4358, carolyn@boldalliance.org)

Virginia Landowners Sued in Federal Court by Companies Seeking Eminent Domain Authority for Mountain Valley Fracked Gas Pipeline: Mountain Valley Pipeline, LLC sues landowners seeking eminent domain authority to take their private property for a for-profit fracked gas pipeline.

Rocky Mount, VA — Over 300 Virginia landowners have been sued in federal court by Mountain Valley Pipeline, LLC, which is seeking to use eminent domain authority to take land against property owners’ wishes for its proposed fracked gas pipeline that threatens Virginia’s waterways.

The eminent domain condemnation claims against landowners come in the wake of the lawsuit filed against FERC and Mountain Valley Pipeline by Bold Alliance and more than 50 landowners that challenges the use of eminent domain for private gain by Mountain Valley Pipeline — as well as the proposed Atlantic Coast fracked gas pipeline.

Carolyn Reilly, an organizer with Bold Alliance whose family’s Four Corners Farm in Rocky Mount is on the proposed MVP route, was among those who were served by Mountain Valley Pipeline and now face court hearings and seizure of their land through eminent domain:

“This latest strong-arm tactic of MVP, filing a lawsuit against individual property owners, abuses our rights as citizens of the United States. My family, along with more than 300 Virginia landowners, have stood strong and resisted the greed of a private corporation’s attempts to intimidate and bully us,” said Carolyn Reilly, landowner on the proposed MVP route and organizer with Bold Alliance. “We look forward to the court hearings as they will further prove the negligence, irresponsibility and greed of a for-profit corporation seeking eminent domain for private gain. I, and many other landowners, stand firm in our commitment to preserve and protect the water and defend the land for future generations. It is time for us as citizens to stop corporate greed from attempting to control our lives.”

While the Federal Energy Regulatory Commission (FERC) recently voted 2-1 to issue a certificate of public convenience and necessity for the Mountain Valley Pipeline project, the company still requires a 401 Clean Water Act permit from the Virginia Dept. of Environmental Quality, and landowners and opponents of the proposed fracked gas pipeline continue to urge Gov. Terry McAuliffe, Lt. Gov. Northam and DEQ Director David Paylor to reject these projects, which are abusing eminent domain for private gain, and threatening our land and water.

States are empowered to reject these pipeline applications utilizing the clean water act. Governor Cuomo has done so in New York, and Governors McAuliffe, Cooper and Justice can do so in Virginia, North Carolina and West Virginia, too.

NRDC Outlines 10 Reasons to Stop MVP and ACP

In an October 23, 2017, blog post, the Natural Resources Defense Council (NRDC) says, “The National Environmental Policy Act requires that agencies undertake a robust analysis of reasonable alternatives before making a decision about a proposed project. In the case of these two pipelines, it’s been clear since the beginning that there are cleaner, safer, less destructive, and less expensive alternatives available.  Our list of concerns about these two pipelines is long, but here is an overview of the top ten, with more details to come in future blog posts.”

The top ten list is below – see the NRDC post for detailed explanations of each of the ten.

  • Corporate self-dealing
  • No documented need for either pipeline
  • Consumers will pay for these pipelines
  • No analysis of reasonable alternatives
  • No consideration of existing excess pipeline capacity
  • There will be severe risks to clean water
  • There are serious threats to air quality
  • Countless dangers for forests, endangered species, fish nurseries, and public lands that are used for recreation and other purposes
  • Environmental justice is at risk
  • Farmers and other landowners will lose their land

Legal Objections to FERC Process

Carolyn Elefant, an attorney representing the Bold Alliance, is also an intervenor in the certificate proceedings for the Mountain Valley Pipeline and the Atlantic Coast Pipeline. On September 22, 2017, she filed a letter with FERC pointing out that the environmental review process for both pipelines closed without any meaningful opportunity for intervenors to raise comments on issues not related to the environment. She states that because the deadline for intervention in both MVP and ACP was 30 days after the original applications were filed, the parties were unable to raise all of their objections at the time because the details of the project were not known, and noting that since each application was filed in 2015, both MVP and ACP have “submitted thousands of pages of additional information in response to (FERC) requests. Thus, it was not until late in the process that the parties have had access to sufficient information to raise all of these issues.”

She continues, “The Alliance has already raised statutory and constitutional challenges in federal district court challenging the commission’s delegation of eminent domain and other issues and believes that the federal district court remains the appropriate forum for resolving the issues raised in the complaint. Nevertheless, in the interest of creating a complete record, the Alliance now submits comments in the two proceedings.”

Her letter states:

  • Certificates for export and conditioned and blanket certificates are not authorized by the Natural Gas Act and are not constitutional.
  • The commission’s failure to require bond or to prohibit companies from exercising eminent domain prior to issuance of all necessary permits is unconstitutional.

She then provides a lengthy list of “the particular legal objections that my clients have to the commission’s process in reviewing and granting applications, including to MVP and ACP.”

Read her letter to FERC here (FERC-generated pdf). Her letter was also published in full in the Highland Recorder (subscription required).