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Little v. Dominion Transmission, Inc.

United States District Court, W.D. Virginia, Harrisonburg Division

September 30, 2015

WILLIAM W. LITTLE, II, et al., Plaintiffs,
v.
DOMINION TRANSMISSION, INC., Defendant

          For William W. Little, II, Wendy M. Little, Plaintiffs: Nicholas August Hurston, LEAD ATTORNEY, Hurston Law Offices, Richmond, VA; William Worthington Little, II, LEAD ATTORNEY, The Law Office of William Little II, Staunton, VA.

         For Dominion Transmission, Inc., Defendant: John David Wilburn, Stephen Phillip Mulligan, LEAD ATTORNEYS, 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.

         Defendant Dominion Transmission, Inc., a natural gas company, wants to build a new pipeline through Virginia. The proposed route runs across property owned by plaintiffs William W. Little, II, and Wendy M. Little. To determine whether the property is suitable for the project, Dominion intends to enter and conduct a survey, in accordance with Virginia Code § 56-49.01. Seeking to prevent Dominion from entering the property, the Littles filed this action, alleging that Dominion's entry would be a trespass, and that § 56-49.01 is unconstitutionally vague and thus void.

         Dominion now moves to dismiss the Littles' verified complaint under Federal Rule of Civil Procedure 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 § 56-49.01, also urges dismissal. For the following reasons, the court concludes that the Littles fail to state a trespass or vagueness claim. It will therefore grant Dominion's motion and dismiss the Littles' complaint.

         I. BACKGROUND

         The Littles own property in Augusta County, Virginia, which they use as their primary residence. (Dkt. No. 1-1 at 3.)[1] On August 12, 2014, they received a letter from Dominion, informing them that the company desires to construct a new pipeline (now known as the Atlantic Coast Pipeline) through Virginia and that their property is located within the proposed route. ( Id. at 2, 11.) To verify the suitability of the property for the project, Dominion asked for the Littles' written permission to enter and conduct a survey. ( Id. at 2, 11-12.) It stated that it planned to begin the survey " on or about August 27, 2014." ( Id. at 11.) Enclosed with the letter was a summary of the survey process. ( Id. at 11, 17-18.)

         Roughly a month and a half later, on September 25, 2014, the Littles sent a letter to Dominion, denying the company's request to enter their property. ( Id. at 3, 13-14.) They further warned Dominion that " NO TRESPASSING IS ALLOWED" and that any " person caught on [the property] following this notice will be physically ejected and a request will be made to local law enforcement for that person's arrest." ( Id. at 2, 13.)

         On October 10, 2014, Dominion sent another letter to the Littles, this time giving them notice that, although the company has not received written permission to enter their property, it nonetheless " intends to enter upon [the property] in order to perform certain surveys and studies." ( Id. at 2, 16.) It stated that, as a natural gas company, it is " authorize[d] . . . to enter upon property, without permission," for such purposes under § 56-49.01 ( id. at 16), 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 further explained in its October 10, 2014 letter that the survey process will consist of several steps. (Dkt. No. 1-1 at 16.) First, " a contract survey crew" will mark the anticipated right of way. ( Id. ) Then " [a] traditional survey crew" will locate the proposed route using " transits and other surveying equipment." ( Id. ) And lastly, " technicians . . . will 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 may be very minor earth disturbance" --which " will be promptly refilled and repaired" --and the " surveyors may . . . need to clear pathways through brush and other growth." ( Id. ) Dominion also stated that it will reimburse the Littles for " any actual damage" that their property sustains as a result of " the survey process in the unlikely event that damage occurs." ( Id. ) Dominion further said that it intends to start the survey process " on or after October 27, 2014," and that the " process will take several weeks to complete." ( Id. )

         In an attempt to stop this entry onto their property, the Littles filed this action against Dominion in the Circuit Court of Augusta County, Virginia, on October 23, 2014. ( Id. at 2-10.) They assert two claims in their verified complaint. ( Id. at 3-5.) First, they allege that Dominion's entry would be a trespass because they have " affirmatively and in writing denied permission for [Dominion's] proposed entry," and because § 56-49.01 " does not permit [Dominion] to dig for artifacts or to clear pathways over [their] land." ( Id. at 5.)

         Second, the Littles allege that § 56-49.01 is unconstitutionally vague, and therefore void, " because [its] language describes [Dominion's] right of entry when [the] owner's permission is not received prior to the date entry is proposed, but does not address a situation where the owner affirmatively denies permission to ent[er]." ( Id. at 6 (internal quotation marks omitted).) They further allege that the statute is impermissibly vague " because [its] language invites arbitrary and discriminatory enforcement, due to delegat[ing] to [Dominion] the task of interpreting how to respond to landowners who affirmatively deny entry, as opposed to those who simply do not respond." ( Id. )[3]

         The Littles request preliminary and permanent injunctions prohibiting Dominion from entering their property, a declaration that § 56-49.01 is void for vagueness, a declaration that Dominion's entry onto the property would be a trespass, and an award of attorney's fees and costs. ( Id. at 5-8.)

         Dominion removed the case to this court and now moves to dismiss the Littles' complaint under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. (Dkt. Nos. 1, 5.) It argues that the Littles fail to allege sufficient facts to support a trespass claim and that § 56-49.01 is not unconstitutionally vague. (Dkt. No. 6.) In accordance with 28 U.S.C. § 2403(b), the Commonwealth has intervened to defend the constitutionality of the statute. (Dkt. No. 24.) It likewise contends that the statute is not impermissibly vague and advocates dismissal. (Dkt. No. 24.)

         District Judge Michael F. Urbanski heard oral argument from the parties and the Commonwealth on February 19, 2015, and took the matter under advisement. (Dkt. No. 26.) On June 19, he transferred the case to the undersigned. (Dkt. No. 35.) Shortly thereafter, the court offered the parties and the Commonwealth a chance to reargue their positions. They declined the invitation.

         II. ...


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