2014-2015 Archives: Surveying and Access

This page includes information from 2014 and 2015.  For current information on survey and access, see our Surveying and Access page.

“Intent to Enter Notices” for Alternate Routes – April 12 2015 Update

Many landowners on the “Alternate Routes” are starting to receive ACP/Dominion’s “Intent to Enter” notice, to enter “on or after April 27.”

They sent this to you because it is a necessary step to comply with 56-49.01, the “survey without permission” statute. It does NOT indicate that they are coming on to your property no matter what you say or do or that they did not receive your denial of entry, or that your denial was ineffective. Of course, the previous sentence only pertains if you sent a denial and received the green slip that proves that they received it. We fully expected them to send you this notice, regardless of your previous actions.

So, what should you do now?

If you have your green slip, you can prove they received your denial if it were to come to pressing charges for trespassing. You probably don’t need to do anything.  If you have not yet denied permission, of course, via certified, return receipt mail it is not too late to do so (See number 3 below).

Still, if you aren’t home when they come to your house, your green slip won’t do you much good. To help ensure they won’t come, you can do a couple of things:

  1. Call the call center telephone number in the letter and tell the operator you want someone to call you back to verify your “do not survey” request is on file with them. When someone calls you back tell them you have your previous letter to them and Dominions return receipt next to your door along with the Sheriff’s number 434-263-7050. Dominion said they would not enter our property without our permission until they have a court order and they do not have a court order. This is Dominion’s stated policy, by the way, bottom of second page: https://www.dom.com/library/domcom/pdfs/gas-transmission/atlantic-coast-pipeline/acp-faq-landowners.pdf
  2. Call the lead Right of Way agent for Nelson, Jeff Arrington, 304-308-1621, and tell him the same.
  3. Send them another certified, return receipt letter reiterating your denial for access for any reason. You can see an example denial letter here: http://friendsofnelson.com/dominion-admits-to-clerical-error/

It’s hard to know the best address to send your second denial to. Friends of Nelson suggests you send one denial to the return address on the letter, and a second to Jamie Burton, Lease & ROW, P.O. Box 2450, Clarksburg, WV 26301. This second address is the one they gave us before for Jamie Burton. It is also an address we have seen consistently applied (with three different names now) to surveyors hired by Dominion.

Remember those No Trespassing signs! Friends of Nelson’s Facebook page has one you can download, print, and put in a plastic sleeve if you would like (scroll down to the April 12 post): https://www.facebook.com/No.Nelson.Pipeline?ref=hl

Receiving the Intent to Enter Notice may feel like a very unwelcome indicator that Dominion is serious, and may proceed to the next step in time – suing you for access. You may want to start to investigate your legal options if that should occur. If they do sue you, you will have 21 days to respond, so, you do not have to engage a lawyer BEFORE they sue – but doing so may have some advantages. Remember, eminent domain attorneys work on a percentage basis, so you don’t need to have money to hire one. See number 3 in the February 23 2015 post below if you are interested in learning more.

Surveying, Access, and Eminent Domain – February 23 2015 update

Important and frequently asked questions (this is not legal advice as we cannot give legal advice):

1. Can I refuse access for surveying?

YES. You must send Dominion a certified, return-receipt letter as soon as possible after you receive their survey notice refusing all access to your property. Not responding at all to the survey notice means that you have given permission. Again, you must respond to refuse permission and explicitly deny permission to survey.

Currently, the survey without permission statute, Va. code 56-49.01, is under a lot of legal controversy. Landowners have sued Dominion in federal court claiming the statute is unconstitutional. Dominion has sued landowners in local courts claiming they have the right to access property even if permission is explicitly denied. None of these suits have been resolved.

Everyone agrees that you can say NO to survey, at least until there is a legal resolution to the above cases.

2. Should I refuse access for surveying?

YES. Large numbers of consecutive landowners refusing access to survey is proving to be a very fruitful tactic.

3. But what if they sue me? I can’t afford a lawyer!

At least three eminent domain firms have stepped forward to represent landowners in the survey suits as part of their engagement for eminent domain services. You need to understand:

• 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% above Dominion’s first written offer), so you never need to pay them out of pocket

While we totally hope that none of us will ever need an eminent domain attorney, engaging one early is a good strategy. First, if you are sued for access, they will defend you. Similarly, they are there for your legal questions. Second, engaging an eminent domain attorney early can send a clear signal that you are not interested in negotiating and Dominion will have to forcefully take your property with compensation decided by a judge. Sending this signal is important, because Dominion and the Federal Energy Regulatory Commission, who decides whether or not to allow eminent domain, like to pretend that eminent domain is very rare. They assume that negotiating means the landowner feels that the pipeline is in their best interest, ignoring the fact that the landowner knows that if they don’t negotiate, Dominion will get their property anyway. We need to help bring this injustice to light, and engaging an eminent domain attorney early helps to do that. Finally, while we hope it never comes to this, a lawyer is essential to ensure that any eventual right of way (ROW) agreement protects your interests. Dominion will try to have the agreement specify their right to put multiple pipelines in the ROW and different substances in the pipelines, greater ROW widths, etc.

Here are several eminent domain or environmental attorneys currently engaged by local landowners:

• Chuck Lollar, 757-644-4657, chuck@lollarlaw.com  http://www.lollarlaw.com/
• Henry Howell, with The Eminent Domain Litigation Group (EDLG) http://eminentdomaingroup.us, 757-446-9998
• Many local landowners have also engaged environmental attorney Joe Lovett pro bono (at no cost) to defend their property rights against Dominion.  He’s with with Appalachian Mountain Advocates, http://www.appalmad.org, 304-645-9006.

Some people prefer to use a lawyer they pay by the hour, rather than signing any agreement. If you would like a recommendation for a lawyer you can pay by the hour, contact us.

4. Can Dominion use eminent domain to take my property against my will?

YES. See above. However, they can only do so if they receive permission from the Federal Energy Regulatory Commission. We are only in the first phase of the pre-filing process right now. There are several important steps to the FERC process, and we need you to participate. We will let you know when and how to participate if you receive our emails (please sign up!), or follow our webpage or Facebook page.

Wondering what’s happening regarding the challenge to the constitutionality of the Va. law (56-49.01) that purportedly allows surveying without permission? Dominion’s motion to dismiss the challenge will be heard on Feb 5 at 10:30 at the Federal Courthouse in Harrisonburg, VA. There will be no testimony or evidence taken at the hearing. The trial has been set for August 10-14, 2015 in the federal courthouse in Charlottesville.  (See September 30 entry below for news articles about the filing of the suit and the full text of the complaint.)

FAQ Eminent Domain VA

Landowner Resources for the Surveying Phase of the Proposed Pipeline

A 2012 amendment to the Virginia Constitution restricted eminent domain. Unfortunately federal law trumps state law so it is still up to the FERC to determine ‘public need and convenience” at the federal level.

2006 VA Attorney General’s Opinion on Access for Gas Line Surveys

Wagner Bill on Gas Co. Access for Surveys

On 9-30-14 a lawsuit was filed against Dominion Transmission, Inc. in US District Court (for the Western District of Virginia) requesting that the Court find Virginia Code 56-49.01 void and unenforceable due to it being unconstitutional. The lawsuit was filed on behalf of five plaintiffs (all from Nelson County, VA), whose property Dominion has stated that they will survey without owner permission. The complaint asks that the statute be found void and unenforceable, that Dominion be enjoined from entering the Plaintiff’s property and that Plaintiff’s be awarded their costs and expenses incurred including reasonable attorney’s fees. Trial by jury was demanded.  Here is the full Complaint.  News coverage of the suit:

 

8-11-14 Farm and Dairy:  Pastures and pipelines: The scope of a pipeline company’s activities on the easement may impact future use, both agricultural and otherwise.  Questions to consider – and ask – and rights to negotiate.