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Judge allows Mountain Valley Pipeline work to proceed on private property
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Judge allows Mountain Valley Pipeline work to proceed on private property

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Work on a natural gas pipeline through Southwest Virginia could soon encroach upon private property owned by people who want nothing to do with the project.

A federal judge on Friday granted Mountain Valley Pipeline immediate possession of the parcels, which it gained through the laws of eminent domain after nearly 300 landowners refused the company’s offers to purchase easements through which the pipeline will pass.

Although U.S. District Court Judge Elizabeth Dillon ruled Jan. 31 that Mountain Valley had the right to use eminent domain, she effectively put the company’s plans on hold by requiring it to present more information on the value of the properties it sought to condemn.

Based on appraisals and other data submitted since then, Dillon ruled the company can use land it does not own — as long as it posts a bond and makes deposits to ensure that property owners will be compensated for their losses in future proceedings.

The judge’s decision comes as preliminary construction of the 303-mile buried pipeline ramps up.

Over the past few weeks, the Federal Energy Regulatory Commission has been granting Mountain Valley permission to start work on certain parts of the pipeline in Giles, Craig, Montgomery, Roanoke, Franklin and Pittsylvania counties that were not tied up in the eminent domain case.

Tree cutting is expected to begin this week in Roanoke County, according to a notice posted to the county’s website.

Chain saw crews are working under a tight deadline imposed by federal wildlife protections, which require all trees known to be habitats of threatened bats to be felled by March 31, before the bats begin to emerge from their hibernation caves.

Mountain Valley must leave the trees where they fall for now, and is prohibited from engaging in any land-disturbance activities until it receives approval of a sediment and erosion control plan from the Virginia Department of Environmental Quality.

As the lengthy regulatory process nears an end, pipeline opponents are turning to the courts, where a half-dozen or so legal challenges are pending.

Last week, the Sierra Club and several other environmental organizations asked the 4th U.S. Circuit Court of Appeals to issue a stay on construction until it can consider a lawsuit brought by the groups against the U.S. Forest Service.

The groups are seeking a review of the forest service’s decision to allow the pipeline to pass through 3.5 miles of the Jefferson National Forest.

“Pipeline construction impacts to forests, streams and wetlands, and the resulting loss of ecological services they provide, constitute injury to the public interest in protecting natural resources pursuant to environmental laws,” lawyers wrote in seeking the stay.

Shortly after the motion was filed, the court gave lawyers for the forest service and Mountain Valley until Friday to respond. By then, tree cutting may have already begun.

On Thursday, FERC gave Mountain Valley its go-ahead for tree cutting in the national forest along a right of way that will pass under the Appalachian Trial. Plans call for boring a tunnel for the pipeline as it reaches the summit of Peters Mountain to bypass the scenic trail.

In another last-ditch effort to stop tree cutting, a group of protestors has taken a stand on Peters Mountain. Two self-described pipeline resisters have been sitting on wooden platforms erected in two trees along the pipeline’s route since Feb. 26, assisted by a network of supporters.

A human barricade more than 60 feet off the ground would make it “impossible to cut the forest without threatening severe harm to those resisting,” the group said in a statement.

The forest service is aware of the protestors and is “working to determine what our response might be to ensure everyone’s safety once Mountain Valley Pipeline, LLC is authorized to begin tree clearing,” a spokeswoman said last week. An update from the agency was not available Monday.

Efforts to contact the protestors — who are in a remote area far from roads and reliable cellphone service — were unsuccessful.

While much of the opposition to the pipeline has focused on the threat it poses to pristine mountain land and streams, the issue of property rights has dominated the proceedings in Dillon’s court.

The laws of eminent domain, which allow for the taking of private land for a public purpose, are normally reserved for governmental agencies that provide services such as highways and bridges. As a private company, Mountain Valley gained the power of eminent domain with a key approval in October from FERC, which found a public need for a pipeline that will transport natural gas at high pressure from northern West Virginia to Pittsylvania County.

At a hearing in January, landowners along the pipeline’s path testified about spoiled views, fears of contaminated well water, sleepless nights caused by worry, and disruptions in farming activity and outdoor recreation on land that would be forever changed.

“It would cut my farm in half,” Michael Williams testified of the pipeline’s impact on his Giles County property.

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Chip Lollar, a Norfolk eminent domain attorney representing dozens of landowners whose properties will be crossed by the Atlantic Coast and Mountain Valley pipelines, said the developers have taken different tacks in seeking immediate access to properties where owners have refused to sign easement agreements.

“Mountain Valley Pipeline just pretty much sued everyone at one time,” Lollar said. “ACP has taken a different approach. They’re kind of trying to go after a few groups at a time.”

Aaron Ruby, a spokesman for Dominion Energy, the lead partner in the Atlantic Coast Pipeline, has called eminent domain “a last resort” as it seeks access to begin pre-construction work such as cutting down trees with chainsaws along portions of the route, which has begun in Virginia and elsewhere.

Last week, a federal judge Lynchburg allowed Dominion workers to begin cutting down trees on 16 properties in Buckingham, Bath, Augusta and Highland counties, the News & Advance reported. In the first large group of owners sued by ACP, Dominion had sought access to 27 properties but the judge refused to allow to access to the other 11 because of lack of adequate notice.

Ruby said the company has negotiated agreements with more than 80 percent of the owners of the land the pipeline will cross.

“The court proceedings that we’ve started are all properties that we’re going to be doing construction in the coming weeks and months,” Ruby said.

The company still lacks some permits and has not been issued a notice to proceed by the Federal Energy Regulatory Commission, the final approval before full construction begins.

However, the federal agency has authorized a series of limited steps, such as an order Monday granting the company authorization to begin cutting down trees in wetlands.

“The problem is in federal court it seems like it’s almost impossible to stop these things. Once FERC issues a certificate, you’re just scrambling to delay it in some regard,” said Lollar. He added that many landowners are fighting for rerouting of the crossing of their property or other tweaks.

“At this point, for most of them it will come down to what they’re owed,” he said. “A lot of people don’t feel they were made fair offers.”

Richmond Times-Dispatch staff writer Robert Zullo contributed to this report.

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