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Mountain Valley Pipeline, LLC v. Easements to Construct

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

May 4, 2018



          Elizabeth K. Dillon United States District Judge

         On April 20, 2018, Mountain Valley Pipeline (MVP) filed a verified motion asking the court to enforce a prior order and to hold in contempt John Coles Terry III (Coles), who is an owner of two parcels of land, MVP Parcel Nos. VA-RO-45 and VA-RO-046, that are part of this condemnation proceeding.[1] (Dkt. No. 790.) The motion also asks the court to hold in contempt Coles' wife, Theresa Ellen “Red” Terry (Red), and his daughter, Theresa Minor Terry (Minor). (Id. at 6-7.) As all parties agree, Red and Minor are occupying tree stands on the parcels that are within the path of the easements over which MVP has been granted immediate possession by this court (Easements).[2] In its verified motion, MVP alleges that Coles, Red, and Minor are in contempt of the court's March 7, 2008 orders granting MVP possession of the Easements, which precluded landowners from interfering with MVP's use of and access to the Easements. It asks that the court impose measures designed to coerce compliance with that measure and, if necessary, to have Red and Minor removed from the tree stands so that it may continue its activities on the Easements.

         Upon receipt and review of the motion for contempt, the court issued an order to show cause, setting the motion for a May 1, 2018 hearing and directing all three Terrys to appear. Coles appeared for the hearing, and all three Terrys were represented by the same counsel. Although it is undisputed that Red and Minor had actual notice of the motion and the order to show cause, they did not come down from their respective tree stands, and they were not present at the hearing.

         The Terrys' written response to the motion for contempt includes a cross-motion asking the court to hold MVP in contempt. (Dkt. No. 830.) In it, they assert that MVP is prohibited by the court's prior orders from felling trees after March 31, 2018, and thus that it is MVP who is violating the court's orders. They rely on the same basic theory as a defense to the contempt motion against them, among other arguments. The Terrys' suggested remedy is for the court to prevent MVP from engaging in all tree-felling until November 2018.

         At a brief status conference held the day before the hearing, MVP agreed that it could be prepared to present evidence and argument on the cross-motion at the same May 1, 2018 hearing already set for its motion. (Dkt. No. 835.) MVP also filed a written opposition to the motion shortly before the hearing. (Dkt. No. 836.) Thus, in a hearing lasting more than four hours, the court received evidence and heard argument on both motions, which are now ripe for disposition.

         For the reasons set forth herein, the court will deny the Terrys' motion for contempt and will grant MVP's motion and find Coles, Red, and Minor in contempt. The court will impose sanctions on all three of them: on Coles in an attempt to partially compensate MVP for his violations, and on Red and Minor in an attempt to coerce their compliance with the court's prior order.


         In October 2017, after a years-long process of reviewing MVP's application and receiving public comments, the Federal Energy Regulatory Commission (FERC) granted a certificate giving MVP the right to condemn the Easements under the Natural Gas Act. MVP then filed this condemnation suit, seeking to condemn all Easements along the FERC-approved path for the pipeline. On January 31, 2018, the court granted MVP's motion for partial summary judgment, concluding that the FERC order gave MVP the right to condemn Easements on the land parcels along the approved route of its pipeline, which included the Easements on the two Terry parcels. (Dkt. Nos. 339, 340.) The court also determined that MVP was entitled to immediate possession of the parcels before the completion of condemnation proceedings in this case. Thus, after MVP posted the security required by the court, the court entered orders granting immediate possession of the Easements to MVP. (Dkt. Nos. 592, 593.)

         Both of those orders included the following language, which MVP alleges in its motion that the Terrys have violated:

It is further ORDERED that defendants and their agents, servants, employees, and those in active concert and participation with them, are prohibited from delaying, obstructing, or interfering with access to or use of the Easements by MVP or its agents, servants, employees, or contractors.

(Dkt. Nos. 592, 593.)

         After obtaining immediate possession, MVP began tree-felling along the pipeline route, including tree-felling by hand on both Terry properties. Since April 2, 2018, and April 3, 2018, respectively, Red and Minor have been in the tree stands continuously.[4] They remained there through the time of the May 1, 2018 hearing, and no one has advised the court that they have since vacated the tree stands.

         MVP's contractors were tree-felling on both parcels on April 12, 2018, but they did not cut trees in the immediate areas of the tree stands because of the obvious danger to Minor and Red. Instead, MVP contacted the Roanoke County Police. According to briefing in the case, both Red and Minor have been charged with misdemeanor trespass and other misdemeanor offenses in Roanoke County. Although warrants have been issued for their arrests, they have steadfastly refused to come down from their tree stands. Subsequent to the issuance of the warrants, the Roanoke County Police have maintained a presence at the base of the tree stands and set up a security perimeter that keeps others from delivering supplies or other materials to Red or Minor. It appears that the police may be waiting to execute the warrants until the women voluntarily come down from their tree stands, and the police have been sending up food and water to Red and Minor since their supplies ran out. After continued refusals by Minor and Red to vacate the tree stands and allow MVP to continue its activities, MVP filed its contempt motion.

         Additional facts relevant to both motions will be discussed in the context of analyzing the motions for contempt.


         MVP contends that it has been harmed and delayed in its ability to fell trees on the Easements located on the Terry properties as a result of the occupancy of the tree stands, and it requests that the court hold all three Terrys in contempt. The Terrys, for their part, argue that it is MVP who is in violation of the court's prior order. They contend that MVP has violated the court's January 31, 2018 memorandum opinion and order by continuing to fell trees after March 31, 2018, which they say is inconsistent with representations MVP made to the court to obtain that order. After discussing the applicable legal standards, the court will address the Terrys' motion first and then will turn to MVP's motion.

         A. Standards for Civil Contempt[5]

         In order to find a person in civil contempt, the person moving for a contempt finding must prove each of the following elements by clear and convincing evidence:

(1) the existence of a valid decree of which the alleged contemnor had actual or constructive knowledge;
(2) that the decree was in the movant's “favor”;
(3) that the alleged contemnor by its conduct violated the terms of the decree, and had knowledge (at least constructive knowledge) of such violations; and
(4) that [the] movant suffered harm as a result.

Ashcraft v. Conoco, Inc., 218 F.3d 288, 301 (4th Cir. 2000) (citation omitted).

         The Fourth Circuit has also held that “the plain language of [Federal Rule of Civil Procedure 65] establishes the principle that a court, in the exercise of its equitable powers, may hold in contempt those who act in concert with named parties to frustrate an injunctive decree or to avoid compliance with it. The principle is confirmed by precedent.” E.E.O.C v. Int'l Longshoremen's Assoc, 541 F.2d 1062, 1064 n.1 (4th Cir. 1976) (citing Regal Knitwear Co. v. N.L.R.B., 324 U.S. 9 (1945), Thaxton v. Vaughan, 321 F.2d 474 (4th Cir. 1963), Day Companies v. Patat, 440 F.2d 1343 (5th Cir. 1971), and Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 833 (2d Cir. 1930)). Thus, the mere fact that Red and Minor are not parties to the underlying suit or injunction does not protect them from being held in contempt.[6]

         The parties stipulated that Coles, Red, and Minor all received actual notice of MVP's motion and the court's order to show cause, which set the matter for a hearing. Additionally, MVP received notice of the Terrys' cross-motion for contempt and had the opportunity to file a written response (albeit in a very brief amount of time) and to argue its merits at the hearing. Thus, the court concludes that all three Terrys and MVP had adequate notice of the possibility that they ...

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