State Supreme Court rules for landowners in pipeline eminent domain case

CHARLESTON, W.Va. — In a case that could affect the path of natural gas pipelines in development in West Virginia, the state Supreme Court ruled in favor of a Monroe County couple who objected to pipeline surveyors who wanted access to their property.

Justices ruled Tuesday that West Virginia’s eminent domain laws apply to projects that have a public use, but that the proposed Mountain Valley Pipeline doesn’t specifically have a benefit for West Virginia because the natural gas isn’t necessarily going to be used here.

The Supreme Court’s ruling upheld a previous Mercer Circuit Court ruling: “We find no error,” Justice Robin Davis wrote.

MORE Read the Mountain Valley Pipeline opinion

The proposed Mountain Valley Pipeline is meant to move gas from northern West Virginia to markets in the mid-Atlantic and southeast regions — in particular delivering gas to Roanoke Gas Company, a distribution company in Virginia.

The court case originated in 2015 when Monroe County residents Bryan and Doris McCurdy, who own 185 acres of land along the proposed pipeline route, objected to requests by an MVP agent to conduct surveys.

The issue went to circuit court, where Judge Robert Irons ruled in August, 2015, that state law does not authorize Mountain Valley Pipeline to enter the McCurdys’ property because the pipeline is not for a public use in West Virginia.

The state Supreme Court agreed.

“MVP has been unable to identify even a single West Virginia consumer, or a West Virginia natural gas producer who is not affiliated with MVP, who will derive a benefit from MVP’s pipeline,” Davis wrote for the court.

Justice Menis Ketchum dissented, saying he doesn’t believe corporations should have the power to take a person’s land by eminent domain in the first place but the laws enacted by the Legislature clearly allow it. Ketchum said this case presented a twist, though.

“The issue in this case is simply whether the proposed right-of-way for a gas transportation pipeline across private property is for a ‘public use,'” Ketchum wrote. “If the taking is for a ‘public use’ then the private corporation has the legal right to enter the property to inspect and survey the land before filing a condemnation action.”

Ketchum wrote that there would be West Virginia benefits in the form of royalties, jobs and severance taxes. Those all could be considered public use, he wrote.

“The majority opinion and the circuit judge narrowly define the term ‘public use,’ even though our Court has continually expanded the definition,” Ketchum wrote. “They decline to follow the modern approach adopted in the well-reasoned cases of the majority of jurisdictions in the United States and the U.S. Supreme Court.”

Justice Allen Loughry wrote a concurring opinion, meaning he sided with the majority but wanted to express some differences in the details. “I write separately to stress the continued importance of this state’s eminent domain laws to our citizenry and to make clear that this Court’s ruling should not be viewed as a vote against the pipeline project.”

But Loughry said the mere act of transporting natural gas across the state border can’t be ruled as “public use.”

“When and if a public use can be demonstrated, through evidence establishing that West Virginians uncontrovertably will have access to this gas, or through legislative or constitutional amendments which provide that shipping this state’s natural gas via pipeline across county and state lines without providing for usage by our citizens constitutes a public use for the purposes of eminent domain, then Mountain Valley can proceed to obtain the surety it desires by means of West Virginia Code 54-1-3.

“Until such time, however, the trial court was correct in ruling that ‘the public interest favors an injunction … to prevent a private business from entering the private property of West Virginians under statute that grants it no right.'”





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