By November 16, 2016 Read More →

WV high court rules for landowners in pipeline case

BECKLEY, W.Va. — On Tuesday the state’s highest court upheld a Monroe County judge’s ruling that a proposed natural gas pipeline crossing several counties is not being constructed for public use thus allowing property owners the right to bar surveyors from entering their land.

“It’s a great day for private property owners in West Virginia,” said Attorney Derek O. Teaney, who represented Brian and Doris McCurdy, a Monroe County couple who blocked surveyors from Mountain Valley Pipeline LLC from entering their property in early 2015.

Writing for the majority, Justice Robin Davis said MVP failed to show the 300-plus mile pipeline project would serve West Virginia’s best interest. She wrote that state law allows eminent domain for the use of constructing, maintaining and operating pipelines “when for public use.”

However, she wrote, “MVP has been unable to identify even a single West Virginia consumer, or a West Virginia natural gas producer who is not affiliated with MVP, who will derive a benefit from MVPs pipeline … In fact, the only benefit to West Virginia that has been asserted by MVP in this appeal is that the benefit to producers and shippers of the natural gas that is located in West Virginia. Significantly, however, the owners of the natural gas are affiliated with MVP.”

Davis’ 28-page ruling was signed by Justices Brent Benjamin and Margaret Workman. Justice Alan Loughry concurred with the majority, but wrote the Court’s “ruling should not be viewed as a vote against the pipeline.”

Chief Justice Menis Ketchum dissented. He stated laws enacted by the West Virginia legislature have provided that a private corporation may enter, examine and survey the land before taking it.

“I personally do not believe private, for-profit, corporations should have the power to take a person’s land by eminent domain. However, the laws enacted by our legislature clearly allow such a taking,” Ketchum wrote.

The McCurdy’s argued that surveyors with the Mountain Valley Pipeline coming onto land without permission violates basic rights of all West Virginians.

“The right to exclude others from private property is one of the most treasured strands in the bundle of property rights,” their attorney told the West Virginia Supreme Court of Appeals in October.

MVP’s attorney, Charles Piccirillo, argued surveying is “essentially non-invasive” and property owners can raise the question later whether MVP has legal rights to use eminent domain for right-of-way construction traversing landowners’ property.

MVP asked the court to overturn a Monroe County injunction halting MVP’s surveyors from coming on residents’ land without permission. In August 2015, Monroe County Circuit Judge Robert A. Irons ruled in favor of the McCurdy’s, writing MVP “is not vested with eminent domain” under West Virginia law.

In court documents, Teaney argues the pipeline does not fit the definition of public use, because “not a single West Virginian will have access to or otherwise use gas carried to the pipeline,” which runs from Wetzel County, W.Va., to Pittsylvania County, Va.

MVP argued legislators enacted a law which “permits companies to enter lands for the purpose of examining, surveying and laying out the land, ways and easement by natural gas company.”

While the legal battled is at an end in West Virginia, it’s far from over. The Federal Energy Regulatory Commission could rule in late spring or early summer MVP has a right to eminent domain, which under the Supremacy Clause of the Constitution, would render the state’s ruling moot.

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