Category Archives: Property rights

Video: This Land Is My Land


A year ago Sebastian Mlynarski and two others from NY came and interviewed property rights activists and Atlantic Coast Pipeline opponents — Richard Averitt, the Limberts and Union Hill residents among others — about the injustice to landowners on the route of the proposed Atlantic Coast Pipeline.

Click here for the 6 minute video, This Land Is My Land, directed by Sebastian Mlynarski and Rachel Fleit, who hope to produce a feature-length documentary.

Virginia Landowners File Constitutional Case Against FERC

Two press statements on January 3, 2020, one from Protect Our Water, Heritage Rights (POWHR) and the other from Gentry Locke attorneys, announced the filing by landowners of a constitutional challenge against FERC and Mountain Valley Pipeline under the federal non-delegation doctrine.

The POWHR statement says in part, “Plaintiffs have brought a facial constitutional challenge under three counts, alleging that any and all certificates already issued under the Natural Gas Act are void. Plaintiffs are seeking a declaratory judgment from the U.S. District Court in Washington, D.C., asking the Court to declare that Congress’s overly broad delegation of legislative powers to FERC was and is facially unconstitutional; that any delegation of eminent domain power to any and all private actors, including MVP, is facially unconstitutional; that FERC has no authority to issue certificates to applicants seeking to invoke the power of eminent domain to take property; and that all such certificates already issued are void ab initio.”

The Gentry Locke statement says, “The case centers around three constitutional principles involving delegations of Congressional power: 1. A broad delegation of power is unconstitutional; 2. Delegating delegated power is unconstitutional; 3. Delegating legislative power to a private entity is unconstitutional.”

The Gentry Locke statement continues:

“The Complaint is a facial constitutional challenge, which raises three Counts.

  • Count I is about an overly broad delegation of power by Congress to FERC. When it enacted the Natural Gas Act, Congress delegated to FERC the legislative power to decide who can exercise eminent domain without providing FERC with a test to use when making its decisions. Instead, Congress told FERC to make its own test. In doing so, Congress violated the non-delegation doctrine.
  • Counts II and III both involve delegations of eminent domain power to a private entity. Count II is premised on the idea that the power went from Congress to FERC and then to the private entity. This violates the prohibition on the sub-delegation of powers.
  • Alternatively, Count III is premised on a direct delegation from Congress to the private entity. Because eminent domain power is legislative in nature, it cannot be delegated directly to a private entity. This violates the private non-delegation doctrine. The private non-delegation doctrine says that Congress cannot delegate legislative power to a private entity. (“When it comes to private entities, however, there is not even a fig leaf of constitutional justification. Private entities are not vested with ‘legislative Powers.’ Art. I, §1.”) (Alito, J., concurring).

As a result, Plaintiffs are seeking a declaratory judgment declaring that FERC has no authority to issue certificates and that all such certificates already issued are void.”

Russell Chisolm, Co-Chair of Protect Our Water, Heritage, Rights, commented, “We are encouraged that landowners may have a real opportunity for judicial consideration of their claims challenging the constitutionality of delegating Congressional powers to separate entities. The process as it stands has allowed FERC and private corporations to use the extraordinary power of eminent domain to seize property by force from landowners—a process that has continued even in the face of a multitude of missing permits, several pending lawsuits, and the absence of true public need for the Mountain Valley Pipeline.”

See Roanoke Times coverage of the filing here.

Virginia’s History of Displacemment


An article in the Washington Post on October 11, 2019, asks, Will Virginians be able to resist the Atlantic Coast Pipeline? It points out that backers of the ACP see the Supreme Court’s consideration of the ACP’s effort to cross the Appalachian Trail as one of getting government regulations out of the way of a private industry (supposedly) operating for the public good.

“But for people in central Virginia, the push for a pipeline is a story of government interference, part of a century of struggle between government authorities and vulnerable populations that have been displaced from the land. …. Urban and rural communities alike have their own collective memories of the encroachment of government-backed industry. Those memories are reflected in the diverse coalition that has come together to fight the pipeline.”

The article describes how “One of the largest land seizures in the history of the state took place in the same forest that Dominion now contests” when Virginia, in the late 1920s and early 1930s, used eminent domain to acquire 190,000 acres in the rural Blue Ridge Mountains, seizing or condemning the homes and farms of about 465 families, removing 2,000 people from land they had tended for generations. Virginia then donated the land to the federal government for Shenandoah National Park.

In 1964, under the guise of “slum-cleansing,” the city of Charlottesville razed Vinegar Hill, home to a thriving community of African American residents and black-owned businesses, Charlottesville’s center of black economic life and culture. The city destroyed 29 businesses and forced 500 residents into public housing – and then for 20 years the land sat unused.

And now in rural Buckingham County, the ACP’s compressor station threatens Union Hill, a historically black community. Residents there have spoken out against the pipeline – as have residents in Nelson County whose planned and established businesses would also be destroyed by the ACP.

The unusual coalition fighting the pipeline reveals “a surprising alignment of interests across traditional social, racial, economic and political boundaries. In Buckingham, Va., Baptists and yogis have joined to fight the pipeline. That unusual coalition is up against powerful forces: the Trump administration, a big energy company and a Supreme Court dominated by conservative justices. But for more than a century, the people of central Virginia have been battling the government over their right to control their land, farms, parks and city neighborhoods. Whatever happens in the Supreme Court this term, they’ll keep fighting.”

Quick Take


On Friday, November 16th, the Atlantic Coast Pipeline and Dominion filed for Quick Take in the US Western District of Virginia Federal Court in Lynchburg. Quick Take takes away the constitutional right to due process for every defendant. It also usurps Congressional authority to make and change laws. Call your Senator and Congressional Representative and tell them to issue a statement telling the courts to stand down!

The video is a crash course explanation of Quick Take and Eminent Domain as it relates to gas pipelines and to the Atlantic Coast Pipeline specifically. Richard Averitt, Nelson County landowner, explains Quick Take in lay terms.

Dominion Holiday Cheer – Not!


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.