United States District Court, W.D. Virginia
James Klemic, Joan Klemic, Charlotte Rea, Peter J. Osborne,
Karen F. Osborne, Plaintiffs: Neal L. Walters, LEAD ATTORNEY,
Scott Kroner PLC, Charlottesville, VA.
Dominion Transmission, Inc., Atlantic Coast Pipeline LLC,
also known as ACP, Defendants: Earle Duncan Getchell, Jr.,
John David Wilburn, LEAD ATTORNEY, McGuireWoods LLP,
Richmond, VA; John David Wilburn, LEAD ATTORNEY, Stephen
Phillip Mulligan, McGuireWoods LLP, Tysons Corner, VA.
Commonwealth Of Virginia, Intervenor: Stuart Alan Raphael,
LEAD ATTORNEY, Office of the Attorney General, Richmond, VA.
K. Dillon, United States District Judge.
Code § 56-49.01 authorizes a natural gas company to
enter private property without the landowner's written
permission and perform a survey for a proposed natural gas
pipeline. Pursuant to this statute, defendant Atlantic Coast
Pipeline, LLC (ACP), a joint venture of defendant Dominion
Transmission, Inc., and three other companies, has notified
plaintiffs Joan and James Klemic, Charlotte Rea, and Karen
and Peter Osborne that it could enter their properties and
conduct surveys for a new pipeline in the future, but that it
has no intention of doing so now. In an attempt to stop ACP
or any other company from entering their properties for this
purpose, plaintiffs filed this action, alleging that the
statute, on its face and as applied, violates the United
States and Virginia Constitutions, and is thus void and
unenforceable. Notably, plaintiffs do not challenge, in this
case, whether a proposed natural gas pipeline will traverse
Virginia, nor the route of any proposed pipeline.
now move to dismiss plaintiffs' complaint under Federal
Rule of Civil Procedure 12(b)(1) for lack of subject-matter
jurisdiction and Rule 12(b)(6) for failure to state a claim
upon which relief can be granted. The Commonwealth of
Virginia, which has intervened to defend the
constitutionality of the statute, also urges dismissal. For
the following reasons, the court concludes that
plaintiffs' facial challenges to the statute fail because
the statute does not deprive a landowner of a
constitutionally protected property right, and that
plaintiffs' as-applied challenges fail because they are
not ripe. The court will therefore grant defendants'
motion and dismiss plaintiffs' complaint.
Plaintiffs own properties in Nelson
either individually or jointly, own properties in Nelson
County, Virginia. (Dkt. No. 1, Compl. ¶ ¶
7-18.) The Klemics have six parcels, totaling
about 196 acres. ( Id. ¶ 8.) The parcels "
contain some cleared fields with the balance in
woodland." ( Id. ¶ 9.) They also contain a
number of streams that feed into Rockfish River as well as
two Civil War era cemeteries. ( Id. ) The
Klemics' house is on one of the parcels. ( Id. )
owns three parcels, comprising roughly 30 acres. (
Id. ¶ 11.) She lives on one of the parcels,
which is " mostly wooded." ( Id. ¶
13.) Her house sits on a raised portion that overlooks a
floodplain along Rockfish River. ( Id. )
Osbornes have one parcel consisting of approximately 101
acres. ( Id. ¶ 15.) About half of the parcel
contains a mixture of pastures and woodlands, and the rest
" slopes up the southwest face of Pilot Mountain."
( Id. ) The portion that runs up the mountain is
" heavily wooded with two springs." ( Id.
) A pre-Civil War era slave cemetery is located somewhere on
the parcel. ( Id. ) The Osbornes' house is on
the parcel. ( Id. )
plaintiffs' parcels are posted with " no
trespassing" signs and no commercial activity takes
place on them. ( Id. ¶ ¶ 10, 14, 18.)
Dominion notifies plaintiffs of a new pipeline and asks for
written permission to enter their properties and conduct
surveys for the project.
2014, Dominion sent a letter to plaintiffs, informing them
that the company was planning to build a new 550-mile
interstate natural gas pipeline (now known as the Atlantic
Coast Pipeline) and that their properties were located within
the proposed route. (Dkt. No. 1, ¶ ¶ 19-20; Dkt.
No. 1-1 at 1, Ex. A.) To determine the suitability of the
properties for the project, Dominion asked plaintiffs for
written permission to enter and conduct surveys. (Dkt. No. 1,
¶ 20; Dkt. No. 1-1 at 1.) Plaintiffs did not comply with
Dominion's request. (Dkt. No. 1, ¶ 25; Dkt. No. 1-1
Dominion notifies plaintiffs of its intent to enter their
properties without written permission and
conduct surveys for the pipeline
following month, Dominion sent another letter to plaintiffs,
this time giving them notice that, although the company had
not received written permission to enter their properties, it
nonetheless planned to move forward with the surveys for the
pipeline project. (Dkt. No. 1, ¶ ¶ 20; Dkt. No. 1-1
at 1.) Dominion explained that, after giving notice, it had
authority to enter and perform the surveys under §
56-49.01 (Dkt. No. 1, ¶ 24; Dkt. No. 1-1 at 1), which
provides in full:
A. Any firm, corporation, company, or partnership, organized
for the bona fide purpose of operating as a natural gas
company as defined in 15 U.S.C. § 717a, as amended,
may make such examinations, tests, hand auger borings,
appraisals, and surveys for its proposed line or location of
its works as are necessary (i) to satisfy any regulatory
requirements and (ii) for the selection of the most
advantageous location or route, the improvement or
straightening of its line or works, changes of location or
construction, or providing additional facilities, and for
such purposes, by its duly authorized officers, agents, or
employees, may enter upon any property without the written
permission of its owner if (a) the natural gas company has
requested the owner's permission to inspect the property
as provided in subsection B, (b) the owner's written
permission is not received prior to the date entry is
proposed, and (c) the natural gas company has given the owner
notice of intent to enter as provided in subsection C. A
natural gas company may use motor vehicles, self-propelled
machinery, and power equipment on property only after
receiving the permission of the landowner or his agent.
B. A request for permission to inspect shall (i) be sent to
the owner by certified mail, (ii) set forth the date such
inspection is proposed to be made, and (iii) be made not less
than 15 days prior to the date of the proposed inspection.
C. Notice of intent to enter shall (i) be sent to the owner
by certified mail, (ii) set forth the date of the intended
entry, and (iii) be made not less than 15 days prior to the
date of mailing of the notice of intent to enter.
D. Any entry authorized by this section shall not be deemed a
trespass. The natural gas company shall make reimbursement
for any actual damages resulting from such entry. Nothing in
this section shall impair or limit any right of a natural gas
company obtained by (i) the power of eminent domain, (ii) any
easement granted by the landowner or his predecessor in
title, or (iii) any right-of-way agreement, lease or other
agreement by and between a natural gas company and a
landowner or their predecessors in title or interest.
Va. Code Ann. § 56-49.01.
attached a " Notice of Intent to Enter Property" to
its June 2014 letter. (Dkt. No. 1, ¶ 22; Dkt. No. 1-1 at
2.) In the notice, Dominion explained that the survey process
would consist of several steps. (Dkt. No. 1-1 at 1.) First,
" a contract survey crew" would mark the
anticipated right of way. ( Id. ) Then " [a]
traditional survey crew" would locate the proposed route
using " transits and other surveying equipment." (
Id. ) And finally, " technicians [would] study
the proposed route for any historical or archeological
significance, endangered species, soil types, and other
similar conditions." ( Id. )
During this process," Dominion continued, " there
[could] be very minor earth disturbance" --which would
" be promptly refilled and repaired" --and the
surveyors could have " to clear pathways through brush
and other growth." ( Id. ) Dominion also stated
that it would reimburse plaintiffs for " any actual
damage" that their properties sustained as a result of
" the survey process in the unlikely event that damage
occur[red]." ( Id. ) It further said that it
intended to start " the surveys on [their] propert[ies]
on or after July 11, 2014," and that the " process
[would] take several weeks to complete." ( Id.
receiving Dominion's June 2014 letter and notice, each
plaintiff " explicitly den[ied] permission for Dominion
to enter upon his or her private property." (Dkt. No. 1,
¶ 25; Dkt. No. 1-1 at 3, Exhibit B.) Dominion responded
with another letter in August 2014, acknowledging
plaintiffs' denial of its request for permission to enter
their properties. (Dkt. No. 1, ¶ 25; Dkt. No. 1-1 at 3.)
It stated, however, that it still intended to go forward with
the surveys, though it would not enter plaintiffs'
properties until it had a court order to do so. (Dkt. No. 1,
¶ 25; Dkt. No. 1-1 at 3.) It also said that it planned
to begin the surveys " on or after August 21,
2014." (Dkt. No. 1-1 at 3.)
Plaintiffs file suit to stop Dominion from entering
their properties and conducting surveys for the
to prevent Dominion from entering their properties and
conducting surveys for the pipeline project, plaintiffs filed
this action under 42 U.S.C. § 1983 in September 2014,
claiming that § 56-49.01, " both on its face and as
applied," violates the U.S. and Virginia Constitutions,
and is therefore void and unenforceable. (Dkt. No. 1 at 1-4,
13.) In Counts I and II of their complaint,
plaintiffs claim that the statute takes their property right
to exclude for private use or without just compensation, in
violation of the Fifth Amendment and Article I, § 11 of
the Virginia Constitution. ( Id. ¶ ¶
26-36.) In Count III, they claim that the statute
unreasonably seizes their right to exclude, in violation of
the Fourth Amendment. ( Id. ¶ ¶ 37-41.)
And in Count IV, they claim that the statute deprives them of
their property right to exclude without due process, in
violation of the Fourteenth Amendment. ( Id. ¶
seek a declaration that the statute is void and
unenforceable, an injunction prohibiting Dominion or any
others acting on its behalf or in conjunction with it from
entering their properties and conducting surveys under the
statute, and an award of their attorney's fees and costs.
( Id. at 4,13.)
Dominion moves to dismiss plaintiffs' complaint, and the
Commonwealth intervenes to defend the constitutionality of
response to plaintiffs' complaint, Dominion filed this
motion to dismiss under Rule 12(b)(1) for lack of
subject-matter jurisdiction and Rule 12(b)(6) for failure to
state a claim upon which relief can be granted. (Dkt. No. 3,
Mot. to Dismiss.) Pursuant to 28 U.S.C. § 2403(b), the
Commonwealth has intervened to defend the constitutionality
of § 56-49.01. (Dkt. No. 21, Mot. to Intervene.) It also
advocates dismissal. (Dkt. No. 22 at 30, Intervenor's
Mem. in Defense of Va. Code § 56-49.01.)
Judge Michael F. Urbanski heard oral argument from the
parties and the Commonwealth on February 5, 2015, and took
the matter under advisement. (Dkt. No. 33 at 1, 107-08,
Hr'g Tr.) On June 22, he transferred the case to the
undersigned. (Dkt. No. 36, Order.) Shortly thereafter, the
court offered the parties and the Commonwealth an opportunity
to reargue their positions. They accepted the invitation,
submitted supplemental memoranda, and presented additional
oral argument on August 4.
ACP assumes control of the pipeline project and is made a
the transfer, the parties and the Commonwealth moved to add
ACP as a party defendant. (Dkt. No. 38 at 1-2, Mot. to Allow
Joinder of ACP.) Sometime after the plaintiffs filed their
complaint, ACP assumed responsibility of the pipeline project
and sent notices to plaintiffs, telling them that it intended
to enter their properties and conduct surveys, in accordance
with § 56-49.01. ( Id. at 1.) The parties and
the Commonwealth thus agreed that ACP is a necessary party to
this action under Federal Rule of Civil Procedure
19(a)(1)(B). ( Id. at 2.)
court granted the motion and added ACP as a party defendant.
(Dkt. No. 39 at 1, Order.) It also ordered that ACP is deemed
to have joined Dominion's motion to dismiss and its
supporting memorandums, and that plaintiffs' opposition
to the motion is deemed asserted against ACP. ( Id.
ACP changes the proposed route of the
hearing on August 4, 2015, ACP informed the court that it has
made a change to the proposed route of the pipeline and that
it no longer runs through plaintiffs' properties. At this
time, then, ACP has no intention of entering the properties
and conducting surveys for the pipeline project. But it also
stated that it cannot guarantee that it will not change the
route back in the future.
MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER
first move to dismiss plaintiffs' complaint under Rule
12(b)(1) for lack of subject-matter jurisdiction. They
contend that the court lacks subject-matter jurisdiction over
plaintiffs' claims because they are not ripe. (Dkt. No. 4
at 17-23, Defs.' Mem. in Supp. of Mot. to Dismiss.) For
its part, the Commonwealth maintains that plaintiffs'
facial challenges to § 56-49.01 are ripe, but that their
as-applied challenges are not. (Dkt. No. 22 at 38-39; Dkt.
No. 41 at 13-15, Intervenor's Mem. in Resp. to Pls.'
court agrees with the Commonwealth. It will thus grant
defendants' Rule 12(b)(1) motion to dismiss in part and
deny it in part, and dismiss plaintiffs' as-applied
challenges without prejudice.
Standard of Review
motion to dismiss under Rule 12(b)(1) tests the court's
subject-matter jurisdiction over the plaintiff's claim.
The plaintiff bears the burden of establishing that
subject-matter jurisdiction exists. Evans v. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999). In deciding a
Rule 12(b)(1) motion to dismiss, " the district court is
to regard the pleadings as mere evidence on the issue, and
may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment."
Id. (quoting Richmond, F. & P. R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991)). It must,
however, " view the alleged facts in the light most
favorable to the plaintiff, similar to an evaluation pursuant
to Rule 12(b)(6)." Lovern v. Edwards, 190 F.3d
648, 654 (4th Cir. 1999). Dismissal under Rule 12(b)(1) is
proper " only if the material jurisdictional facts are
not in dispute and the moving party is entitled to prevail as
a matter of law." Evans, 166 F.3d at 647
(quoting Richmond, F. & P. R. Co. , 945 F.2d at
Plaintiffs' claims are not
turning to the ripeness of plaintiffs' claims, the court
must first address whether ACP's subsequent change to the
proposed route of the pipeline renders the claims moot. The
parties and the Commonwealth submit that it does not, and the
Mootness is primarily a function of the Article III 'case
or controversy' limitation on the jurisdiction of the
Federal courts." Am. Legion Post 7 v. City of
Durham, 239 F.3d 601, 605 (4th Cir 2001). A case becomes
" moot when the issues presented are no longer
'live' or the parties lack a legally cognizable
interest in the outcome." United States v.
Springer, 715 F.3d 535, 540 (4th Cir. 2013) (quoting
Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct.
1944, 23 L.Ed.2d 491 (1969)). Since the "
'case-or-controversy requirement subsists through all
stages of federal judicial proceedings, . . . it is not
enough that a dispute was very much alive when suit was
filed,' the parties must retain a concrete interest in
the outcome of the litigation throughout all stages of the
proceedings." Id. (quoting Lewis v.
Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct.
1249, 108 L.Ed.2d 400 (1990)).
defendant's " voluntary cessation of challenged
conduct does not ordinarily render a case moot because a
dismissal for mootness would permit a resumption of the
challenged conduct as soon as the case is dismissed."
Knox v. Service Emps. Int'l Union, Local 1000,
132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012). Hence, it is
" well established" that voluntary cessation "
moots an action only if 'subsequent events ma[ke] it
absolutely clear that the allegedly wrongful behavior could
not reasonably be expected to recur.'" Wall v.
Wade, 741 F.3d 492, 497 (4th Cir. 2014) (quoting
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145
L.Ed.2d 610 (2000)).
case, defendants and the Commonwealth do not contend that
ACP's change to the proposed route of the pipeline moots
plaintiffs' claims. And for good reason. ACP admits that
it cannot guarantee that it will not change the route back
across plaintiffs' properties in the future. It is
therefore possible that the " allegedly wrongful
behavior" here could recur. Wall, 741 F.3d at
497 (quoting Laidlaw, 528 U.S. at 189). For this
reason, the court concludes that plaintiffs' claims are
Plaintiffs' facial challenges are ripe,
but their as-applied challenges are
is a threshold question of justiciability drawn from both
Article III limitations and prudential considerations.
Sansotta v. Town of Nags Head, 724 F.3d 533, 545
(4th Cir. 2013). " The doctrine of ripeness prevents
judicial consideration of issues until a controversy is
presented in clean-cut and concrete form." Scoggins
v. Lee's Crossing Homeowners Ass'n, 718 F.3d
262, 270 (4th Cir. 2013) (quoting Miller v. Brown,
462 F.3d 312, 318-19 (4th Cir 2006)). Its purpose " is
to require courts to avoid taking premature judicial action,
thereby preventing them from becoming entangled in
'abstract disagreements.'" Id. (quoting
Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct.
1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds
by Califano v. Sanders, 430 U.S. 99, 105, 97
S.Ct. 980, 51 L.Ed.2d 192 (1977)). " The burden of
proving ripeness falls on the party bringing suit."
Miller, 462 F.3d at 319.
determine ripeness, a court must " balance the fitness
of the issues for judicial decision with the hardship to the
parties of withholding court consideration." Doe v.
Va. Dep't of State Police, 713 F.3d 745, 758 (4th
Cir. 2013). " A case is fit for adjudication 'when
the action in controversy is final and not dependent on
future uncertainties.'" Scoggins, 718 F.3d
at 270 (quoting Miller, 462 F.3d at 319). In other
words, " [a] claim is not ripe for adjudication if it
rests upon contingent future events that may not occur at
all." Id. (alteration in original) (quoting
Texas v. United States, 523 U.S. 296, 300, 118 S.Ct.
1257, 140 L.Ed.2d 406 (1998)). The hardship prong " is
'measured by the immediacy of the threat and the burden
imposed on the [plaintiff] who would be compelled to act
under threat of enforcement of the challenged law.'"
Doe, 713 F.3d at 759 (quoting Charter Fed. Sav.
Bank v. Office of Thrift Supervision, 976 F.2d 203,
208-09 (4th Cir. 1992)).
Plaintiffs' facial challenges are
facial challenges are fit for judicial review at this time.
" Such . . . challenges to regulation are generally ripe
the moment the challenged regulation or ordinance is
passed." Suitum v. Tahoe Reg'l Planning
Agency, 520 U.S. 725, 736 n.10, 117 S.Ct. 1659, 137
L.Ed.2d 980 (1997); see alsoYee v. City of
Escondido, 503 U.S. 519, 534, 112 S.Ct. 1522, 118
L.Ed.2d 153 (1992) (" As this allegation does not depend
on the extent to which petitioners are deprived of the
economic use of their particular pieces of property or the
extent to which these particular petitioners are compensated,
petitioners' facial challenge is ripe." ). And the
prudential ripeness requirements set forth in Williamson
County Regional Planning Commission v. Hamilton Bank of
Johnson City, 473 U.S. 172, 186, 195, 105 S.Ct. 3108, 87
L.Ed.2d 126 (1985), which are normally applicable to takings
claims under the Fifth Amendment, do not apply to facial
challenges to regulation. Holliday Amusement Co. of
Charleston, Inc. ...