Justices say pipeline company can’t survey land without permission

By Kyla Asbury | Nov 16, 2016

CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that Mountain Valley Pipeline would be violating West Virginians’ basic rights by going onto their property to survey land without permission.

The justices upheld the August 2015 ruling by Monroe Circuit Judge Robert A. Irons, according to the Nov. 15 opinion.

Justice Robin Jean Davis authored the majority opinion. Justice Allen Loughry concurred and filed his own concurring opinion. Justice Menis Ketchum dissented and filed his own dissenting opinion.

Residents Bryan McCurdy and Doris McCurdy argued that allowing the pipeline company onto their property without their permission violates a basic right of all West Virginians, and the Supreme Court agreed.

“The circuit court based its decision on its finding that MVP’s pipeline is not being constructed for a public use in West Virginia,” the majority opinion states. “In addition, the circuit court granted the McCurdys both a preliminary and a permanent injunction prohibiting MVP from entering their property.”

After considering the parties’ briefs and oral arguments, as well as the relevant law, the Supreme Court ruled that it found no error and affirmed Monroe Circuit Court’s rulings.

MVP wants to construct and operate a nearly 300-mile natural gas transmission pipeline from Wetzel County to Pittsylvania County, Va., and while MVP will not directly own the gas being transported, nearly 95 percent of the gas to be transported is owned by MVP’s affiliates.

On Oct. 27, 2014, MVP submitted a request to FERC to initiate the pre-filing that will lead to an application for the issuance of a certificate of public convenience and necessity for the pipeline.

The McCurdys own approximately 185 acres of land in Monroe County, along the proposed route for the pipeline. In February 2015, the McCurdys were contacted by an MVP agent who requested access to their property to conduct surveys that were necessary to complete MVP’s application process for obtaining the certificate of public convenience and necessity.

The McCurdys declined consent to the surveys and MVP sent them a letter on Feb. 24, 2015, providing notice of MVP’s intention to take legal action to obtain access to the property unless the McCurdys gave permission by March 9, 2015.

On March 18, 2015, the McCurdys filed a lawsuit against MVP in Monroe Circuit Court seeking declaratory judgment that MVP had no right to enter their property for surveying purposes and further sought both the preliminary and permanent injunctions prohibiting MVP from entering the property.

The circuit court ruled with the McCurdys and MVP appealed the decision to the Supreme Court.

Davis wrote that the pipeline’s primary purpose would be to move gas from the producing regions of Northern West Virginia to markets in the Mid-Atlantic and Southeast regions of the United States.

MVP claims that nearly all of the gas to be transported will be produced in West Virginia, and that the pipeline “will provide needed capacity for additional development of natural gas in West Virginia.”

However, no agreements have been reached that would provide gas to any consumers in West Virginia, and no “definitive evidence” that any non-MVP affiliated gas producers would benefit from the pipeline, according to the majority opinion.

In his concurring opinion, Loughry said while he agreed, he wanted “to stress the continued importance of the 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.”

“When and if a public use can be demonstrated, through evidence establishing that West Virginians uncontrovertibly 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 purposes of eminent domain, then Mountain Valley can proceed to obtain the survey it desires by means of West Virginia Code…” Loughry said.

In his dissenting opinion, Ketchum said he does not think private companies should be able to exercise eminent domain but that the Legislature has decided otherwise.

Ketchum also argued in favor of a broader definition of “public use” than the majority opinion allowed, saying that many West Virginians might, indeed, benefit from the MVP project.

“There is no doubt that the natural gas transportation pipeline will enlarge West Virginia resources, increase industrial energies, and promote productive power in West Virginia,” Ketchum wrote in his dissenting opinion. “Moreover, it will increase prosperity in West Virginia through the increased amount of severance tax collected on natural gas extracted from West Virginia land.”

W.Va. Supreme Court of Appeals case number: 15-0919

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