Landowners want dismissal of Mountain Valley Pipeline property case

CHARLESTON, W.Va. — Property owners who are being sued by the Mountain Valley Pipeline have moved to have the federal case dismissed, saying the developers don’t have the proper authority.

Eighteen landowners filed their motion to dismiss on Monday in U.S. District Court in Charleston.

They contend Mountain Valley Pipeline can’t yet commence condemnation proceedings because its certificate from the Federal Energy Regulatory Commission is conditional, “which means MVP still has to clear numerous administrative and regulatory hurdles before it can commence condemnation.”

The landowners also contend private entities cannot condemn private property unless they first demonstrate an ability to pay just compensation — and they say MVP hasn’t yet attempted to do that.

The Mountain Valley Pipeline, along with the similar but separate Atlantic Coast Pipeline, gained approval from the Federal Energy Regulatory Commission in mid-October. One of the commissioners dissented, calling the public interest of the projects into question.

The $3.5 billion Mountain Valley Pipeline would extend 42-inch diameter natural gas pipeline over 303 miles  to transport West Virginia natural gas into southern Virginia.

The developers of Mountain Valley Pipeline filed a federal lawsuit on Oct. 24 to gain eminent domain access to more than 100 properties in Greenbrier, Monroe, Nicholas, Summers, Braxton, Harrison, Lewis, Webster and Wetzel counties.

A similar lawsuit focusing on properties along the pipeline’s path in Virginia was filed on the same date in Roanoke.

Both cases ask for immediate access and entry to be granted prior to just compensation for the property being determined.

In the motion filed this week, the landowners take issue with the conditional permit issued by the Federal Energy Regulatory Commission.

Lawyers for the landowners say the pipeline project still has several hurdles of regulatory approval on the state and federal level.

“If a certificated entity still has additional permits to obtain, there is a chance it will fail to obtain those permits,” wrote lawyers for the landowners.

“If that happens, the entity will never be allowed to begin operations — and it will have taken private property for no reason (i.e. without a public necessity) in violation of the Fifth Amendment.”

Virginia this week is having hearings by its State Water Control Board on pipeline certification.

Also remaining are final authorizations by the U.S.Forest Service and Department of the Interior for permission to cross federal lands, plus authorization from the U.S. Army Corps of Engineers for all stream and wetland crossings.

“With such uncertainty that the MVP project will ever commence construction, let alone complete construction and begin transporting gas, there is simply no public necessity for it to begin taking private property,” wrote lawyers for the landowners.

“And taking private property without public necessity is constitutionally impermissible, so this Court cannot preside over a proceeding where MVP attempts to do just that.”

Lawyers for the landowners also contend Mountain Valley Pipeline has not shown it can pay just compensation for the property it seeks to take.

“In short, taking private property without a showing of adequate funds to pay just compensation is constitutionally impermissible,” the lawyers wrote.

“Yet if the Court deems MVP a ‘holder of a certificate of public convenience and necessity’ for purposes of the Natural Gas Act’s jurisdictional statute, thereby allowing this suit to proceed despite MVP’s failure to show it can pay just compensation, the Court will facilitate exactly that kind of constitutional violation.”

The MVP is a joint venture between EQT Midstream Partners, LP; NextEra US Gas Assets, LLC; Con Edison Transmission, Inc.; WGL Midstream; and RGC Midstream, LLC.

Lawyers for the landowners expressed concern that the partners lack sufficient assets to guarantee just compensation. They say the investors are new to building pipelines.

The landowners say it’s not enough to bank on profits from the pipeline once it is constructed.

“Even disregarding its greenfield status, MVP is inherently at risk of going bust because it is a private company,” the lawyers wrote.

The case is in the courtroom of U.S. District Judge John Copenhaver. The lawyers for the landowners have requested a jury trial on their motion.

Lawyers for Mountain Valley Pipeline have said delays in gaining access to property could cause significant delays to pipeline construction.

They say they need to begin tree clearing within a window set by the U.S. Fish and Wildlife Service this winter or else pipeline construction could be delayed by at least a year.

“If MVP is unable to gain access to commence work on each respective deadline, construction of the entire MVP project may be delayed for as much as one year given that the window for tree clearing is limited to only a few months each year,” the lawyers wrote in a court filling in late November.

The lawyers for the pipeline developers also contend the property owners’ arguments amount to “nothing more than a collateral attack on the FERC Certificate and its findings and arguments they lack standing to raise, with the goal to delay a project that has been thoroughly analyzed and approved by the FERC and found to be in the public interest.”

As the property case has been considered in federal court, some of the original landowners who were sued have reached agreements outside the courtroom.

Others have been filing answers over the past few weeks.

For instance, defendants Norvel Mann, Jean Mann, Thomas Mann, Hannah Mann and Chloda Crosier filed an answer disputing Mountain Valley Pipeline’s need for their property.

“Landowners further deny that MVP has attempted to negotiate mutually agreeable easement agreements, and affirmatively allege that easement negotiations between MVP’s land agents and private property owners throughout West Virginia were intended to intimidate and instill fear in such property owners to motivate them to sign MVP’s form easement agreements.”

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