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Mountain Valley Pipeline, LLC v. Easements to Construct, Operate, and Maintain a Natural Gas Pipeline Over Tracts of Land In Giles County

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

March 7, 2018

MOUNTAIN VALLEY PIPELINE, LLC, Plaintiff,
v.
EASEMENTS TO CONSTRUCT, OPERATE, AND MAINTAIN A NATURAL GAS PIPELINE OVER TRACTS OF LAND IN GILES COUNTY, CRAIG COUNTY, MONTGOMERY COUNTY, ROANOKE COUNTY, FRANKLIN COUNTY, AND PITTSYLVANIA COUNTY, VIRGINIA, et al., Defendants.

          MEMORANDUM OPINION AND ORDER ON OBJECTIONS TO PROPOSED ORDERS FOR ALL PROPERTIES

          Elizabeth K. Dillon, United States District Judge.

         By order dated January 31, 2018, the court granted MVP immediate possession of nine properties conditioned on the posting of the security set by the court. (Dkt. No. 340.) MVP has now provided that security. (Dkt. Nos. 354, 357.) The court also directed MVP to submit proposed orders granting immediate possession of the nine properties, and defendants were given seven days in which to object to those proposed orders. (Dkt. No. 340, ¶ 6a.) MVP submitted those orders on February 7, and objections were filed by some of the landowners. (Dkt. Nos. 360, 374, 381.) MVP filed a response (Dkt. No. 408) and in its response also offered to revise the orders. According to MVP and as evidenced by emails it has provided, it consulted with counsel for the landowners regarding its proposed revised orders and subsequently submitted revised orders for the nine properties. (Dkt. No. 420). It also submitted orders on all the remaining properties on February 22 and 23, 2018. On March 6, 2018, it posted the security set by the court for all of the remaining properties.

         Two groups of landowners filed objections to the nine revised orders and to the proposed orders MVP has submitted with regard to the remaining properties, as have two pro se defendants, Elijah and Kristin Howard. (Dkt. Nos. 484, 488, 496.)[1] MVP has responded to those objections (except for the Howards' objection, which was filed after MVP's response). (Dkt. No. 493.) Additionally, a prior filing by the Town of Chatham, in which it objected to the appraisal of its property filed by MVP, also requested that any order granting immediate possession include an indemnification requirement. (Dkt. No. 450.) The court treats that as an objection to the proposed order by the Town of Chatham, as well. The remaining defendants have not filed any objections to the proposed orders.

         For the reasons set forth herein, the court will deny some objections as moot, overrule the objections in part, sustain them in part, and take them under advisement in part. The court will enter MVP's proposed orders consistent with its rulings herein.

         I. DISCUSSION

         A. Moot Objections

         As to the objections in docket numbers 374 and 381, the same defendants have filed subsequent objections to the revised orders. Thus, the court denies as moot the earlier objections. (Dkt. Nos. 374, 381.) The court is not sure whether The Nature Conservancy's objections (Dkt. No. 360) remain as to the revised orders, but will address the brief arguments in those objections herein.

         B. Objections Already Addressed by Prior Orders

         Some landowners object to the proposed orders on grounds that have already been rejected by the court. For example, The Nature Conservancy posits that the court does not have authority to grant immediate possession as injunctive relief and that doing so violates the separation-of-powers doctrine. (Dkt. No. 360.) The court has already addressed and rejected this argument in its January 31, 2018 Memorandum Opinion. (Dkt. No. 339.)

         Similarly, a number of defendants also object on the grounds that the court could not rely on the appraisals submitted by MVP to set security in this matter. (See, e.g., Dkt. No. 484 at 2; Dkt. No. 488 at 5.) The court has rejected that argument, as well, both as to the first nine properties (Dkt. No. 339) and as to the remaining properties (Dkt. No. 486). These objections are overruled.

         C. Objections Due to MVP's Alleged Failure to Comply with FERC Conditions

         Some defendants object to immediate possession because they allege MVP has failed to satisfy conditions set by FERC. As the court has already noted in a prior opinion, this court does not determine, and has no authority to police, compliance with FERC conditions. (Dkt. No. 339.) Thus, objections on this basis-such as those raised by The Nature Conservancy (Dkt. No. 360), are overruled.

         D. Objections Due to Imprecise Description of Easements

         Some defendants object on the grounds that the proposed orders all contain an attachment with the same generic listing of easements. They note that the listed easement descriptions may be applicable to that specific property, but that not all descriptions are applicable to each tract. They contend that this will be confusing and will complicate the determination of what is being taken. (Dkt. No. 484 at 2-3; Dkt. No. 488 at 3.) One group of defendants focuses on two descriptions they refer to as “blanket access easements.” Pointing to some examples, they argue that the designations on the attached plats do not delineate which of the following two easements MVP is seeking: “the right of ingress and egress to, from, on, and across the permanent and exclusive rights-of-way to access other properties or sections of the pipeline, ” or “the right to clear trees, brush, or other vegetation as necessary.” (Dkt. No. ...


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