Judge rules not enough evidence to kick WV pipeline protesters out of trees

UNION, W.Va. — The treetop protesters of the Mountain Valley Pipeline may stay where they are.

Monroe Circuit Judge Robert Irons, at the end of a 3-hour hearing, determined that Mountain Valley Pipeline hadn’t provided enough evidence that protesters are in the way of a planned route through the George Washington & Jefferson National Forests.

“The problem is not nearly as urgent in magnitude as it seemed a couple of weeks ago,” Irons said today as he denied a preliminary injunction requested by the pipeline developers.

Mountain Valley Pipeline is trying to meet a deadline by the end of this month to fell trees along the 303-mile construction route. That’s the window available to lessen the impact on migratory bird and bat habitats.

Meanwhile a handful of protesters late last month started living on platforms in trees near the pipeline’s intended path and along the Appalachian Scenic Trail. The lawsuit by Mountain Valley names two but says there are at least five more who are not named.

Mountain Valley wants the protesters out so it can safely fell the surrounding trees on the pipeline’s path. If its timetable gets off course, the company claims, the pipeline’s completion could then be delayed by up to a year, causing market conditions to change and throwing the whole enterprise in doubt.

MORE: Read Mountain Valley Pipeline’s filing.

It’s been a drama both in the forests of pastoral Monroe County and in the courthouse. About 50 people gathered Tuesday to observe the hearing.

Among the questions were whether the pipeline developers actually have the authority to cut trees where the protesters are encamped and whether the protesters are actually in the zone of the Appalachian Scenic Trail.

There was a lot of discussion about where and if the protesters were, specifically, between mileposts 196.29 and 196.39 — areas in the Appalachian Scenic Trail where MVP does not have authority to fell trees.

Mountain Valley Pipeline brought a professional surveyor to the stand. But a Lewisburg lawyer representing at least some of the protesters, William DePaulo, raised doubt about that testimony too.

DePaulo wanted to know about the role of off-site computers in drawing a map that was being entered into evidence. And he asked about rounding off some of the measurements.

In the end it was enough to raise doubt in Judge Irons’ mind.

“As I sit here, I don’t really know whether or not it’s right,” Irons said.

The judge described the area in dispute as just a sliver of the 303-mile project.

“I don’t know if there’s any compelling urgency of making this decision today,” he said. “Whether you start today or next week it won’t make a difference one way or another.”

Natalie Cox, a spokeswoman for MVP, said the pipeline development company is disappointed with the ruling but will carry on with other aspects of the project.

“While we are disappointed with the Court’s decision, the MVP project team will continue to move forward with construction activities along other portions of the 303-mile route,” Cox stated.

“As always, we respect the opinions of those who are opposed to the MVP project and we want to ensure everyone’s safety throughout the various phases of the construction process.”

DePaulo, the lawyer for the other side, said that if there’s irreparable harm to MVP it’s not from the protesters blocking the path of the pipeline.

It’s from the way the protest may make people question the project, DePaulo said.

“What they’ve engaged in, basically, is symbolic speech. They’re up in a tree. In the middle of winter, adverse conditions, threat to health and safety,” he said. “Why would reasonably intelligent people, informed of the risk voluntarily go up there?”

“Must be because they’re thought about the implications of this particular pipeline going forward.”

Tuesday’s hearing was one flareup in the broader fight over the pipeline.

The pipeline would extend 42-inch diameter natural gas pipeline to transport West Virginia natural gas into southern Virginia.

The project would go through Greenbrier, Monroe, Nicholas, Summers, Braxton, Harrison, Lewis, Webster and Wetzel counties.

The company says full construction is on track to begin in the spring and completion of the project in late 2019.

It’s still possible the developers of Mountain Valley Pipeline could continue to pursue a permanent injunction in Monroe Circuit Court. And there are ongoing court challenges in the federal court system over environmental and eminent domain issues.

When MVP starts construction, the project will proceed in 11 distinct segments along the pipeline’s length.

After crews fell trees on properties used for service facilities and access roads, as well as those with endangered species, MVP’s contractors will work in a line to excavate and install pipeline along each of the 11 segments.

Maury Johnson, a Monroe County resident who was at the hearing on Tuesday, said residents have all kinds of questions about the pipeline project.

“Mountain Valley maps have been unclear to many of us for a long time,” said Johnson, who lives in Greenville.

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