Dominion has just filed petitions for “quick take” against at least 21 Nelson landowners, who will now have to deal with making court filings and appearances during the holidays. Petitions were filed in the US Western District of Virginia Federal Court in Lynchburg.
“Quick take” is a formal process of the exercise of eminent domain in which the government (or in this case, a private for-profit company masquerading as a “public” utility) takes possession BEFORE any court ruling on compensation. In other words, Dominion wants access to begin work on these landowners’ properties BEFORE paying the landowners any money, and BEFORE all permits are in place to allow the ACP to begin construction. Some of the 21 landowners were completely unaware that Dominion had filed against them until the Friends of Nelson Landowner Liaison called them with the information. And some landowners had never even been served with notice of the ORIGINAL condemnation lawsuit, even though it had been filed with the court over a month ago!
Dominion loves filing lawsuits as holiday gifts. In the week before Christmas 2014 they began suing landowners who had refused permission for Dominion to survey their property. Dominion filed lawsuits against 27 Augusta County residents and 20 in Nelson County, requesting the court’s permission to enter the properties and survey potential Atlantic Coast Pipeline routes. Reporting on the filings, the Richmond Times Dispatch quoted Dominion officials, who, by the end of December 2014, expected “to file suit against 56 landowners in Augusta and 122 in Nelson. The court would then start serving notices during the first week of January, and those property owners would have three weeks to answer the complaint. A court date would then be set for hearings in each case.”
It is worth noting that a federal court in North Carolina has issued a stay against ACP’s attempt to acquire rights to a NC property by eminent domain, citing the fact that there are pending legal challenges to the ACP that could result in reexaminiation of the project (see story below). Further, last week in New York a state court ruled that a different pipeline company could not use eminent domain proceedings to cross a landowner’s property because the NY State Water Control had denied the permit for the project.
A Federal Court has issued a 90-day stay in an attempt by Atlantic Coast Pipeline, LLC to acquire by eminent domain rights to an 11-acre property in Nash County, NC, citing as a major reason the fact that there are legal challenges to the Atlantic Coast Pipeline project pending in the Fourth Circuit Court of Appeals that could result in a re-examination of the project. In its stay order in the case of Atlantic Coast Pipeline v. Winstead, the U.S. District Court of Appeals for the Eastern District of North Carolina stated:
[T]here are considerable challenges to plaintiff’s pipeline project ongoing in the court of appeals, and plaintiff has not sufficiently rebutted Winstead’s argument that, although the current pipeline challenges do not concern the pipeline route in North Carolina, the outcome of one or more of the challenges could cause or require the currently permitted pipeline route to be reexamined, potentially obviating any need to secure an easement on Winstead’s property. In light of all of these circumstances, the Court in its discretion finds that the factors considered tip in favor of granting a temporary stay of these proceedings.
People and Pipelines is a video series featuring people in the pathway of the Atlantic Coast Pipeline – including Nelson County’s Richard Averitt. Through conducted research and on-site interviews, People and Pipelines is a platform for the histories and experiences of people most impacted by the construction of this pipeline. See their Web page for more information and other videos in the series.
The October 25, 2018, Roanoke Times reports that, “A group of landowners whose property was taken against their wishes for a natural gas pipeline is seeking relief from the U.S. Supreme Court. The appeal, which involves the use of eminent domain by Mountain Valley Pipeline, is believed to be the first time the nation’s highest court has been asked to consider a challenge involving the controversial project. Whether that will happen is far from certain; the court agrees to hear oral arguments and render a decision in only about 80 of the approximately 8,000 cases that get filed each year.”
The suit asks “whether eminent domain, a power normally invoked by governmental bodies for projects such as highways and power lines, should be awarded to a private company in pursuit of profits.”
A U.S. District Court dismissed the case in December, saying it lacked jurisdiction, and the 4th Circuit Court upheld the District Court ruling, which is now being appealed to the U.S. Supreme Court.
Mia Yugo, one of the attorneys for the landowners, said that, although a Supreme Court decision in the current case might come too late to help those filing the appeal, the landowners are taking a stand in hopes of helping future landowners in similar situations. “The right to private property secures our freedom from government overreach,” she said. “It is not a ‘left’ issue or a ‘right’ issue. It is an American issue.”
Watch this powerful recorded slide show narrated by Richard Averitt. Richard made the 11-minute presentation in September 2018 at a Congressional Briefing sponsored by the Niskanen Center. The presentation is deeply personal, and sheds light on the human side of the abuse of eminent domain and the entirely unnecessary Atlantic Coast and Mountain Valley Pipelines.
At a hearing before the 4th Circuit Court on September 25, 2018, Chief U.S. Circuit Judge Roger Gregory questioned the validity of eminent domain laws, describing them as a holdover from the days when Americans were royal subjects.
The case before the court, brought by landowners in Virginia and West Virginia, challenges both the “quick-take” authority federal regulators granted to Mountain valley Pipeline and a lower court ruling saying MVP could go forward even though property owners have not been compensated.
As the hearing began, Gregory questioned East Tennessee Natural Gas Co. v. Sage, a 14 year old ruling from the Court establishing standing for natural gas companies to take land prior to paying compensation.
According to Courthouse News Service, “‘This is something extraordinary the courts have granted and the question is should it happen now before it’s done,’ Gregory said. ‘You want to abort the [normal and lengthy eminent domain] process and take it now. Maybe Sage is wrong.’ he said. Wade Massie, the Stuart and Eskridge attorney who is representing the developers, appeared stunned by the judge’s comments and referred back to the rights granted his clients by the permit, including the right to take the land prior to payment. ‘We have the right to it now,’ he said, stressing he believed the company had followed the letter of the law to date. ‘It was done with notice, these landowners had discovery and evidence hearings.’ Part of the urgency of the land claims comes from the nature of the FERC permit: it only lasts three years. And while parts of it have stalled in the courts, Sage allows the taking of land prior to all legal disputes being resolved. To do otherwise would expose the developers to economic harm, but the status quo harms property owners who may wish to challenge a taking, lawyers for the land owners said. Gregory appeared to agree.”