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From thorny to thornier: Pipeline companies tap state law to gain access to properties

From thorny to thornier: Pipeline companies tap state law to gain access to properties

A Franklin County couple said a gas pipeline survey crew came onto their property without providing the sort of notification they specifically requested.

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Derek and Marion Hanes added donkeys to their 20 acres to help protect the couple’s goats from coyotes.

But if the donkeys brayed when the pipeline routing crew passed through, the animals’ hee-haw racket did nothing to drive the surveyors away.

The Haneses were dismayed one day in March to find evidence of a crew’s passing — including a piece of orange surveyor’s tape tied to a gate.

The couple had consented to surveying of their 20 acres off Grassy Hill Road in Franklin County by contractors working for Mountain Valley Pipeline.

Derek Hanes said they granted permission for several reasons, including the comparatively small acreage involved and its ready visibility for surveying from Grassy Hill Road, a public road. If the acreage involved had been 100 acres or more, he said, the couple might have barred access simply to try to impede the project.

But he said their permission hinged primarily on the agreement that Mountain Valley’s contractor would notify them on the day of surveying so that the couple could, as pipeline representatives frequently trumpeted as a incentive for embracing surveying, help guide the buried pipeline’s path across their property to the least disruptive route.

That collaboration didn’t happen, the Haneses say.

Hundreds of property owners along the 300-mile route of the 42-inch diameter interstate natural gas transmission pipeline proposed by Mountain Valley have had to decide whether to grant or deny permission for surveying.

For those who have denied permission or simply ignored the pipeline company’s entreaties, the thorny question of access just got thornier.

Mountain Valley Pipeline, a $3.2 billion joint venture of EQT Corp., NextEra Energy and partners, recently mailed 274 certified letters to Virginia property owners who have not yet granted permission for company contractors to survey their land for a possible pipeline route.

The letters initiate a process set by Virginia law. The controversial statute, 56-49.01, allows natural gas companies that provide proper notice to survey private properties without an owner’s consent.

The first of two required certified letters requests permission to enter the property for surveying and inspection. By law, the letter must specify the proposed date for surveying and be mailed not less than 15 days before the inspection date.

The second certified letter provides a “notice of intent” to enter the property. That notice of intent must also must specify the date of the proposed entry and be made not less than 15 days before the date of the mailing of the notice .

Lawyers representing some property owners contend that 56-49.01 violates provisions of state and federal constitutions. The law is being challenged in both state and federal courts in actions brought by landowners who might be impacted by the route of the separately proposed Atlantic Coast Pipeline, a joint venture of Dominion, Duke Energy and others.

Both pipelines aim to transport natural gas at high pressure that has been extracted by hydraulic fracturing, or fracking, in Marcellus and Utica shale formations in the Appalachian Basin. And both are in the “pre-filing” stage of seeking project approval from the Federal Energy Regulatory Commission.

Pipeline construction would require a temporary right-of-way of about 125 feet and a permanent right-of-way of about 75 feet, Mountain Valley has said. If FERC green lights the project, Mountain Valley could use eminent domain to acquire rights-of-way across private property if negotiations don’t yield a mutuallyacceptable sum.

The potential for such a transaction galls those who contend that private companies bent on private gain should have no access to eminent domain.

The Norfolk-based law firm of Waldo and Lyle has cited an amendment to the state constitution that was passed by a large margin in November 2012 by Virginia voters: “That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use.”

Virginia Attorney General Mark Herring has said that 56-49.01 is not unconstitutional, noting, among other things, that entering a property simply and temporarily for surveying is not a taking of property.

David Seriff and his wife, Bridget Simmerman, live in Montgomery County. One pipeline route proposed by Mountain Valley would bisect their property.

Seriff said the couple received the first certified letter from Mountain Valley on May 2.

“I have engaged Waldo and Lyle attorneys to fight what we believe to be an unconstitutional code and encouraged others to follow suit,” Seriff said Friday.

He said he has posted the couple’s property with signs that read: No Pipeline, No Trespassing, No Surveying.

Aaron Ruby, a spokesman for Mountain Valley, said that even after providing notice as outlined by law, survey crews will not enter a property that has been posted and will similarly retreat if an owner is present and forbids entry.

In such cases, Ruby said, crews will back off and Mountain Valley will seek a court order affirming that it has provided mandated notice and has a right to enter the property without permission.

Lawyers from Waldo and Lyle and from the West Virginia-based non-profit Appalachian Mountain Advocates have said they will represent clients pro bono who want to contest Mountain Valley’s right to survey without permission.

Isak Howell, a former reporter for The Roanoke Times, is a lawyer for Appalachian Mountain Advocates. Howell said the organization has heard from property owners who have received the certified letter.

“Yes, we will defend any landowner who is sued and will argue, as we have done on the Dominion line, that the statute is outside the bounds of the newly amended state constitution,” Howell said.

Meanwhile, Derek Hanes said he clearly spelled out the couple’s conditions for surveying in phone conversations with David Ozee, a right-of-way field agent for Coates Field Service, a contractor working for Mountain Valley. Hanes said he provided his cellphone number and informed Ozee that he works just minutes away from home and could readily respond.

“I said, ‘I’m allowing this surveying contingent upon my meeting with the crews during the surveying,’ ” Hanes said, recalling the conversations with Ozee.

Hanes said he called Ozee to complain after the crew passed through and was told that the surveyors were private contractors who did not always stick to a predictable schedule.

Ruby said an apparent miscommunication resulted in the survey crew not coordinating its visit with the Haneses. He said crews plan to contact the couple and return to their property.

The pipeline’s current route through the Haneses’ land would roughly parallel Teel Creek on one side and Grassy Hill Road on the other and pass comparatively close to their house.

Hanes said the couple has put their heart and soul into the property and believe the pipeline’s presence would gut its value.

“Who in their right mind would choose to buy a home that’s less than 100 yards from a 42-inch [diameter] transmission pipeline?” Hanes asked.

“If MVP believes that property values aren’t devalued, and that position is supported by FERC, then they should be willing to buy private properties, therefore taking on the risk and reward.”

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