Court opts not to hear survey law appeal

Published 4:32 pm Tuesday, March 15, 2016

Could the recent Virginia Supreme Court pipeline ruling impact the ACP’s cases?

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The Supreme Court of Virginia has opted not to hear an appeal related to a surveying law that has enraged landowners in the path of a natural gas pipeline — a decision that could impact similar suits filed by Atlantic Coast Pipeline (ACP) LLC in Buckingham, Cumberland and Prince Edward.

The Roanoke Times reports that, following the court’s decision March 7, Mountain Valley Pipeline contractors can return to conduct survey work in Franklin County despite the lack of consent from landowners who last year denied access to surveyors.

The law allows natural gas companies to enter private property without an owner’s permission as long as the company has followed  notification procedures outlined in the statute — the same statue Dominion, the lead partner of the proposed 550-mile ACP, has sued several landowners over, seeking permission to survey to identify the best route for the planned project.

“The court made the right decision,” said Dominion spokesman Aaron Ruby. “It reflects the consensus of the state and federal courts in Virginia that have consistently ruled that the survey statute is constitutional.”

A majority of the suits filed by the ACP are in Buckingham County. One suit has been filed in Prince Edward Circuit Court, while another has been filed in Cumberland Circuit Court.

A March 9 court hearing for the landowners was postponed.

If the cases are appealed by landowners or ACP counsel up to the state’s supreme court, the same decision not to hear the appeal could be rendered.

ACP filed the suits under section 56-49.01 of the Code of Virginia, which allows natural gas companies to make examinations, tests, hand auger borings, appraisals and surveys for “its proposed line or location of its works as are necessary … to satisfy any regulatory requirements and … for the selection of the most advantageous location or route. …”

The law also requires natural gas companies to give landowners notice of intent to enter their property.

During the first court hearing in October, Circuit Court Judge Donald Blessing ruled that the Virginia Code section ACP was suing under to attempt to gain access to the properties was constitutional.

“We continue to believe that the statute that these companies are relying on to enter people’s property is unconstitutional,” said Joshua E. Baker, an attorney with Waldo & Lyle, who represents landowners in the suits. “In 2012, Virginians overwhelmingly voted to amend our constitution to guarantee that property rights are a fundamental right, deserving of extra protection.”

He said he was disappointed in the Virginia Supreme Court’s decision not to hear the appeal.

“It is not a controlling decision, because (the supreme court) didn’t hear the case and write an opinion, but I would expect the supreme court’s refusal to hear the … case could persuade other trial courts that the trial court in (case) got it right. I would certainly expect ACP’s lawyers to argue that is exactly what this means.”

“Property owners around the commonwealth need to continue to press their cases forward and to bring this injustice to the legislature. In that effort, we will continue to represent property owners in their struggle for fair treatment and full protection under our constitution.”

Attorneys representing the landowners have asked that the judge dismiss the suits, saying that the law conflicted with the Virginia Constitution.

According to media reports, in August, a Giles County judge had rejected an argument that the law provided for an unconstitutional “taking” of property without compensation.

“I believe that the right to enter … on surveying is unconstitutional and an extreme affront to citizen’s property rights,” said Chad Oba, chair of the Friends of Buckingham (FOB) opposition group to the ACP. “It is essentially legalizing trespassing. The application for this pipeline which must prove that the pipeline is in the public interest has not even been approved by the … FERC … Private property owners have even less power to protect their land than federal agencies. FOB does not in any way agree with this ruling.”

Other attorneys in the suits didn’t respond for comment.