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Mountain Valley Pipeline, LLC v. Easements To Construct, Operate

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

August 2, 2019



          Elizabeth K. Dillon, United States District Judge.


         Before the court are Mountain Valley Pipeline's (MVP) requested amendment to paragraph 69 of its complaint that seeks to add unnamed tree-sitters as defendants (Dkt. Nos. 1094, 1095) and MVP's motion for a preliminary injunction against those tree-sitters (Dkt. No. 1108). MVP alleges that there are two tree-sitters on the Bohon property that are preventing MVP from clearing trees and that they or their supporters have, on at least two occasions, assaulted a security officer who was accompanying the tree-clearing crew. (Dkt. No. 1262.)

         Procedurally, the proposed addition of tree-sitters as parties to the case and the request for a preliminary injunction enjoining them from occupying or otherwise interfering with MVP's use of the easements differ from prior MVP motions that were granted by the court. Those prior motions (Dkt. Nos. 790, 791) sought relief to enforce this court's orders prohibiting defendants and related categories of persons from interfering with MVP's access to, or use of, its easements. The motions also asked the court to hold the tree-sitters in civil contempt. The tree-sitters in those cases were shown to be acting in concert with named parties (landowners) to interfere with the court's orders. Unlike the factual circumstances in those prior proceedings, there is no allegation or proof here that the tree-sitters are acting in concert with the landowners. Moreover, in one of its previous rulings, the court found that a landowner's failure to asking a tree-sitter to leave the property was insufficient, by itself, to prove concerted action to frustrate or interfere with the court's injunction so as to find a landowner or tree-sitter in contempt. (Mem. Op. 3-4, Dkt. No. 863.) Presumably, these rulings led MVP to pursue an attempt to add the tree-sitters as defendants here.

         For the reasons discussed herein, the court finds that the tree-sitters are not proper defendants in the case and will dismiss them. The court will also deny MVP's motion for a preliminary injunction. This ruling, however, does not mean that MVP is without remedies.


         On December 20, 2018, Mountain Valley Pipeline (MVP) filed an amendment pursuant to Federal Rule of Civil Procedure 71.1(f) purporting to amend paragraph 69 of its complaint regarding MVP Parcel Numbers VA-MO-022 and VA-MO-023, owned by Cletus Woodrow Bohon and Beverly Ann Bohon, stating that unnamed Tree-Sitter 1 and Tree-Sitter 2 are “occupying the easements on the property, and MVP intends to seek removal of these individuals and those supporting them.” (Dkt. No. 1094.) MVP also filed a Notice of Filing of Amendments, which states that “MVP is amending paragraph 69 of the complaint to add Tree-Sitter 1 and Tree-Sitter 2 as defendants.” (Dkt. No. 1095.) In response to these two filings, the court entered an order to show cause regarding: (1) why parcel VA-MO-023 was included in the amendment when it appeared that the purported owners never owned that specific parcel and that the parcel had been dismissed; and (2) why the court should not dismiss the tree-sitter defendants as improperly joined under Federal Rule of Civil Procedure 71.1(i)(2). (Order Show Cause, Dkt. No. 1097.)

         In its response to the order to show cause, MVP explained the status of VA-MO-023 to the court's satisfaction. As relevant here, both parcels have been merged into a single parcel that is now designated as VA-MO-022 (Resp. Order Show Cause 2, Dkt. No. 1098), and it is no longer necessary to address that issue.

         As to the joinder of the tree-sitter defendants, MVP explains that the tree-sitters and their supporters are on the land comprising the revised route MVP seeks to condemn. (Id. at 1-2.) Because the court granted MVP immediate possession of the relevant area (Dkt. No. 1071), MVP asserts that the tree-sitters are interfering with its use of the easements. Accordingly, MVP responds to the court's show cause order by characterizing the tree-sitters' occupation-with the “express purpose and intent of preventing MVP from exercising its rights under the Court's order”-as claiming an interest in the property under Rule 71.1(c)(3). (Resp. Order Show Cause 3-4.)

         In addition, MVP notes that Rule 71.1(a) dictates that the other federal rules of civil procedure apply in condemnation proceedings except as the rule provides otherwise. Because Rule 71.1 “does not state that owners and claimants are the only persons who may be joined as defendants, ” MVP argues, the joinder rules under Rule 20 apply. (Id. at 4.) MVP contends that if landowners or tree-sitters are blocking the easements, then the purpose of this case-which MVP describes as its entitlement to immediate possession of the easements needed to construct and operate the pipeline and its ability to obtain them by condemnation-will not be met. As such, because MVP seeks possession of the easements from both the landowners and tree-sitters in order to construct the pipeline, it argues that the claims for relief against both “arise out of the same transaction or occurrence, and common questions of law or fact arise with respect to them, ” pursuant to Rule 20, thereby allowing joinder of the tree-sitters. (Id. at 5.) As a final note, MVP states that, although it could, it should not have to proceed against the landowners for contempt and seek removal of the tree-sitters as persons in active concert, or seek relief in state court, in order to have the tree-sitters removed. (Id. at 6.)

         Shortly after it filed its response to the court's order to show cause, MVP filed a motion for a preliminary injunction against the tree-sitters. (Mot. Prelim. Inj., Dkt No. 1108.) In it, MVP reiterates its belief that the tree-sitters are proper parties. Under the relevant factors set forth in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008), MVP asserts that it is entitled to injunctive relief because (1) it is likely to succeed on the merits since the court already determined it is entitled to condemn easements on the property; (2) it will suffer irreparable harm without injunctive relief because construction of the pipeline will be delayed; (3) the balance of equities tips in MVP's favor because the tree-sitters have no legal right to occupy the easements and they will not sustain legal injury if removed; and (4) a preliminary injunction is in the public's interest since FERC determined that the pipeline will serve public convenience and necessity. (Mot. Prelim. Inj. at 2-3.) As such, MVP seeks an order enjoining the tree-sitters from occupying or interfering with MVP's use of easements on any parcels needed for the pipeline, directing the tree-sitters to vacate their tree-stands and the easements on parcel VA-MO-022, imposing fines against the tree-sitters, making the order applicable to agents, servants, employees, and attorneys of, or people in active concert or participation with, the tree-sitters, and directing the United States Marshal Service to take necessary action for enforcement of the order. (Id. at 3-4.)

         On January 4, 2019, the court held a hearing on its order to show cause and MVP's motion for a preliminary injunction. (Dkt. Nos. 1111, 1128.) MVP appeared and argued, but the tree-sitters were not present at the hearing. However, counsel for amicus curiae, Tammy Belinsky and Daniel Breslau, appearing on their behalf and on behalf of all persons consulting with, providing counsel to, or supporting the tree-sitters, argued in support of their motion for leave to file an amicus curiae brief in opposition to MVP's motion for a preliminary injunction. (Dkt. Nos. 1115, 1128.) The court took all motions under advisement and later granted the motion for leave to file an amicus curiae brief.[1] (Dkt. Nos. 1128, 1132.) Belinsky and Breslau filed their brief in opposition to MVP's motion for a preliminary injunction, arguing that the tree-sitters were improperly joined as defendants and that MVP's motion should be denied. (Br. Opp'n Mot. Prelim. Inj., Dkt. No. 1142.) MVP then filed a reply brief. (Reply Mem. Supp. Mot. Prelim. Inj., Dkt. No. 1143.) MVP also filed notices of additional evidence with regard to its schedule, costs, the fact that tree-sitters are still present in the location (but may now be different people), and noting the assaults upon its security guards by tree-sitters or their supporters. (Dkt. Nos. 1234, 1245, 1262, 1290.)

         The matters relating to the order to show cause and the motion for a preliminary injunction have been thoroughly ...

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