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Mountain Valley Pipeline, LLC v. Easements to Construct

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

May 15, 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 ON MOTION FOR ENFORCEMENT REGARDING MVP PARCEL NO. VA-FR-076.01

          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 the four landowners of a property, MVP Parcel No. VA-FR-076.01 (the Tract), that is part of this condemnation proceeding. (Mot. to Enforce, Dkt. No. 791.) The landowners are David J. Werner, Betty B. Werner, Ian Elliott Reilly, and Carolyn Elizabeth Reilly. (Id.) The motion also requests that the court hold in contempt several unidentified persons (the Tree-sitters) who are occupying tree stands on the Tract within the limits of the easements (the Easements) over which MVP has been granted immediate possession by this court.

         Specifically, MVP alleges that all four landowners and the Tree-sitters are in contempt of the court's March 8, 2018 order granting MVP possession of the Easements, because they have violated the following language in the order:

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. No. 658.)

         MVP contends that “the Werners and Reillys have condoned the occupation of the Tract by [the Tree-sitters], and they have refused to take the necessary action to remove [the Tree-sitters] from the Tract.” (Mot. to Enforce 3.) MVP asks that the court impose measures designed to coerce compliance with its March 8 order and, if necessary, to have the Tree-sitters removed from the tree stands so as to give MVP full access to the Easements, including the ability to fell trees without harming the Tree-sitters. It also attaches letters sent to the landowners' counsel, in which MVP requests that counsel “and the Werners and Reillys take all necessary action to remove the treesitters and others from the easement areas by 9:00 a.m.” on April 20, 2018. (Dkt. No. 791-1.)

         Upon receipt and review of the motion for enforcement, the court issued an order to show cause, setting the motion for a May 4, 2018 hearing and directing the Werners, the Reillys, and the unknown Tree-sitters to appear and show cause as to why they should not be held in contempt. (Dkt. No. 813.)

         The Werners and Reillys already had counsel in the condemnation proceedings, and additional counsel entered an appearance for them with regard to the contempt proceedings. (Dkt. No. 805.) The contempt motion was briefed, and all four landowners, along with their counsel, appeared at the hearing.

         With regard to the Tree-sitters, the court does not know if any of them were present at the May 4 hearing, but none made their presence known. Instead, based on the testimony and argument provided to date, the Tree-sitters' identities are unknown to the court, and they have been wearing masks while up in the tree stands, presumably to obscure their identities. The court's order to show cause thus referred to them as Jane and John Does and directed service on them through the United States Marshals Service's (USMS) reading it aloud and through posting it on a tree in which they are located, both of which were done. (Dkt. Nos. 813, 821.) It is unknown, however, whether any Tree-sitters were present at the time of the USMS reading. Additionally, prior to the issuance of the show cause order, MVP read aloud notice of its motion to enforce and advised any of the Tree-sitters then present of the court's prior order. (See, e.g., Dkt. Nos. 822, 852.) Based on a video recording introduced at the hearing, which clearly was taken from the perspective of a Tree-sitter, at least one of the Tree-sitters had notice of MVP's motion and the court's prior order, although the court does not know which one, or whether that particular Tree-sitter remains in a tree stand in an Easement.

         Having considered the arguments of the parties and the evidence adduced at the hearing, the court concludes that both Ian Elliott Reilly and Carolyn Elizabeth Reilly are in contempt of this court's prior order and should be fined for the contempt. The court's reasons are discussed in more detail herein.

         As to the Werners, and despite the fact that MVP filed its motion against all four landowners, there was no evidence as to any affirmative action by either Mr. or Mrs. Werner vis-à-vis the Tree-sitters, other than they may have initially purchased the RV where some of the Tree-sitters are staying. They, like the Reillys, have not asked the Tree-sitters to leave. But these two facts, without more, are insufficient to show a concerted effort with the Tree-sitters to violate the court's order, and so the court will deny the motion for contempt as it pertains to the Werners. In light of that denial, the court's focus in the remainder of this opinion is properly on the Reillys.

         The court further concludes that, due to inadequate evidence of notice to any particular John or Jane Doe Tree-sitter currently in the tree stands in the Easements, the court cannot at this time find any Tree-sitter in contempt. Thus, MVP's motion as to the Tree-sitters will be denied without prejudice. The court's reasoning is discussed in more detail below.

         I. FACTUAL BACKGROUND[1]

         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 and other easements under the Natural Gas Act. MVP then filed this condemnation suit, seeking to condemn all of the 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 Reillys' Tract. (Dkt. Nos. 339, 340.) The court also determined that MVP was entitled to immediate possession of the Easements before the completion of condemnation proceedings in this case. Thus, after MVP posted the security required by the court, the court entered an order granting immediate possession of the Easements to MVP. (Dkt. No. 658.)

         As already noted, that order included the following language, which MVP alleges in its motion that the Reillys and the Tree-sitters 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.

(Id. at 2.)

         After obtaining immediate possession, MVP began tree-felling along the pipeline route, although as of the date of the hearing, it had not yet attempted to cut trees along its Easements on the Reilly Tract. MVP inspected the area, however, in anticipation of the needed tree-clearing, and it learned that there are Tree-sitters going in and out of tree stands in the Easements. After sending a letter to the Reillys' counsel requesting that the landowners take action to have the Tree-sitters vacate the Easements, and after no responsive action was taken, MVP contends that the Tree-sitters are interfering with their ability to plan and conduct tree-clearing. As a result, MVP brought this motion.

         Both Reillys testified at the hearing, and the court finds that many of their answers were purposefully evasive and sometimes blatantly misleading. They repeatedly stated that they did not “know” who the Tree-sitters were, and both offered the justification that their property is an operating farm and they have a lot of visitors or people coming and going. But upon being pressed further and/or instructed by the court that they had to answer specific questions, there was more forthcoming testimony.

         During her testimony, Mrs. Reilly admitted that “some of the people that are in the tents and campers” are the same people that go up the trees, although she was not sure which specific person or persons go up the trees. Mr. Reilly, too, acknowledged knowing nicknames of at least two people staying in the campers or tents, and that it was “entirely possible” those two had been Tree-sitters, but due to the masks he was not sure. Mrs. Reilly also testified that the visitors had asked for, and received from her, permission to stay on the Tract and that the tree stands appeared after they arrived. She further testified that she had allowed the persons to use the tents and the camper from January through the hearing.

         The following exchange between MVP's counsel and Mrs. Reilly near the end of her testimony, taken from a rough draft of the transcript, is typical of the reluctance to divulge known information:

Q. Is there any other information that you have about the identity of the treesitters that you have not shared with us today?
A. No.
Q. I was prompted to ask a little broader question as far as the identity of the people in the tents and RV camper. Do you have any information as to who those people are?
A. Yes.
Q. And who are those people? What people do you know in the ...

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