By November 17, 2017 Read More →

Judge taps on brakes in Mountain Valley Pipeline land easement case

By KEN WARD JR.

Charleston Gazette-Mail

CHARLESTON, W.Va. — A federal judge on Thursday tapped on the brakes — at least for now — in Mountain Valley Pipeline’s effort to fast-track one of two lawsuits against hundreds of landowners seeking to use eminent domain to gain easements for construction of its more than 300-mile natural gas project across West Virginia and Virginia.

U.S. District Judge John Copenhaver indicated that he would not be granting a request from MVP lawyers that all of the landowners in the company’s West Virginia lawsuit be forced to respond by Dec. 4 to the company’s motions for summary judgment to force unwilling landowners to allow surveys of their property and to “immediate access and possession” of those properties to begin construction of the pipeline.

“There is no prospect that the court is going to require an answer by December 4 to those motions,” Copenhaver said during a morning status conference he held in open court in Charleston.

Copenhaver also indicated that he is going to press MVP attorneys to personally serve all of the landowners with the lawsuits against them, and demand detailed explanations if the company ultimately says it couldn’t find all of the owners and wanted to rely on a public notice in the newspaper instead.

“The court wants these people located,” Copenhaver said. “The court is expecting due process.”

Lawyers for Mountain Valley Pipeline had asked for the Dec. 4 deadline for responding to its motions when it filed suit in U.S. District Court in Charleston to exercise the eminent domain rights that the Federal Energy Regulatory Commission granted when it approved a certificate of “public convenience and necessity” for the pipeline, which would run from Wetzel County, West Virginia, to Pittsylvania County, Virginia.

But lawyers for some landowners argued in court filings and at Thursday’s status conference that the company’s “hurry-up offense” approach to the case would mean the case was moving forward before all landowners had been properly served and also would mean unfairly tight deadlines for many of them to respond to the MVP motions.

“Just to put it bluntly, not everyone has received their invitation to this party yet,” said Derek Teaney, an Appalachian Mountain Advocates attorney who represents some of the landowners who have been served. “We think this process needs to be a little bit more deliberate than it has been.”

MVP attorney Nicolle Bagnell told Copenhaver that the company is diligently trying to personally serve all the landowners. Out of about 115 landowners or parcels currently part of the litigation, Bagnell said, there were 24 who have not yet received personal notice and could be subject to notice by publication. Since filing its lawsuit late last month, MVP has reached agreement with some landowners, reducing the total number left in the case, Bagnell said.

In court filings, MVP has said it urgently needs to acquire the properties for the pipeline so it can begin cutting trees before February 2018 and complete that work before March 31, 2018, to comply with environmental timelines to protect endangered bats. Landowners have noted that, while MVP wants to have the pipeline completed and in operation by November or December 2018, the FERC certificate gives the company three years to complete construction and be operational.

Rather than the initial fast timeline that MVP attorneys wanted, Copenhaver ordered MVP to file a response by Wednesday to a filing in which lawyers for some of the landowners raised questions about the deadlines for handling the case, the need for landowners to seek information from MVP about the exact boundaries of the easements approved by the FERC and regarding other government permits MVP still needs.

The landowners noted in a court filing Thursday morning that MVP’s owner-operator, EQT Midstream Partners, said in a recent securities filing that the MVP joint-venture partnership “has insufficient equity to finance its activities during the construction phase of the project,” raising questions about the ability to fairly compensate landowners along the entire project route.

“There are quite a number of significant issues that are raised,” Copenhaver said. The judge gave the landowners until Dec. 1 to reply to the response due next week by MVP, and said he would then schedule another conference to discuss how the case will proceed.

The case is called “Mountain Valley Pipeline LLC v. An Easement to Construct, Operation and Maintain a 42-inch Gas Transmission Line Across Properties in the Counties of Nicholas, Greenbrier, Monroe, Summers, Braxton, Harrison, Lewis, Webster, and Wetzel, West Virginia, et. al.” Under the Natural Gas Act, the FERC certificate for MVP gives the company the ability to acquire through the exercise of eminent domain the rights of way needed to construct the pipeline. The exercise of such rights is typically handled through a lawsuit in federal court.

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.

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