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Charlottesville Division James Klemic v. Dominion Transmission, Inc.

United States District Court, W.D. Virginia

September 30, 2015

CHARLOTTESVILLE DIVISION JAMES KLEMIC, et al., Plaintiffs,
v.
DOMINION TRANSMISSION, INC., et al., Defendants

          For James Klemic, Joan Klemic, Charlotte Rea, Peter J. Osborne, Karen F. Osborne, Plaintiffs: Neal L. Walters, LEAD ATTORNEY, Scott Kroner PLC, Charlottesville, VA.

         For 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.

         For Commonwealth Of Virginia, Intervenor: Stuart Alan Raphael, LEAD ATTORNEY, Office of the Attorney General, Richmond, VA.

         MEMORANDUM OPINION

         Elizabeth K. Dillon, United States District Judge.

         Virginia 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.

         Defendants 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.

         I. BACKGROUND

         A. Plaintiffs own properties in Nelson County.

         Plaintiffs, either individually or jointly, own properties in Nelson County, Virginia. (Dkt. No. 1, Compl. ¶ ¶ 7-18.)[1] 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. )

         Rea 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. )

         The 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. )

         All of plaintiffs' parcels are posted with " no trespassing" signs and no commercial activity takes place on them. ( Id. ¶ ¶ 10, 14, 18.)

         B. Dominion notifies plaintiffs of a new pipeline and asks for written permission to enter their properties and conduct surveys for the project.

         In May 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 at 1.)

         C. Dominion notifies plaintiffs of its intent to enter their properties without written permission and conduct surveys for the pipeline project.

         The 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,[2] 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.

         Dominion 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. )

         After 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.)

         D. Plaintiffs file suit to stop Dominion from entering their properties and conducting surveys for the pipeline project.

         Seeking 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.)[3] 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. ¶ ¶ 42-46.)

         Plaintiffs 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.)

         E. Dominion moves to dismiss plaintiffs' complaint, and the Commonwealth intervenes to defend the constitutionality of § 56-49.01.

         In 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.)

         District 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.

         F. ACP assumes control of the pipeline project and is made a party defendant.

         Following 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.)

         The 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. )

         G. ACP changes the proposed route of the pipeline.

         At 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.

         II. MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION

         Defendants 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.' Suppl. Mem.)

         The 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.

         A. Standard of Review

         A 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 768).

         B. Plaintiffs' claims are not moot.

         Before 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 court agrees.

         " 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)).

         The 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)).

         In this 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 not moot.

         C. Plaintiffs' facial challenges are ripe, but their as-applied challenges are not.

         Ripeness 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.

         To 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)).

         (1) Plaintiffs' facial challenges are ripe.

         Plaintiffs' 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. ...


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