ROANOKE, Va. (CN) – Karen Scott pointed out her kitchen window to a historic cemetery located on a knot of a hill across the gravel driveway of the Bent Mountain homestead she shares with her husband.
Continuing to tell the story of the land, she pointed to the top of Bent Mountain, the highest point in Roanoke County, where the soggy ground, known as headwaters, eventually flows down to make the Roanoke River.
“You’ve got life on one end and death on the other,” she said. Her husband Jim pipes in:” “And a pipeline poking right through the middle of it.”
The Scotts are among hundreds of land owners who are challenging eminent domain claims against parts of their property by the EQT Corporation.
Pittsburgh-based EQT is building a natural gas pipeline called the Mountain Valley Pipeline that will connect gas resources in Pennsylvania and West Virginia to markets along the Eastern Seaboard. But they’ll have to carve a path through the Shenandoah Valley, and the Scotts’ land, first.
Karen Scott has lived on Bent Mountain since the early 1990s, though her family bought the tract of land much earlier than that. She’s got a deed dating back to 1860 to prove just how old the land and the cemetery, as well as Civil War-era log-cabin houses that also sit on the property, really are.
In an effort to preserve this history, and their land, the Scotts denied construction access to Mount Valley Pipeline, the EQT subsidiary that shares its name with the pipeline itself.
A recent federal court ruling offered the couple at least a glimpse of hope in their fight.
The Scotts first heard about the pipeline back in October 2014 when a surveyor showed up on their land. According to Jim, the surveyor asked if they could start mapping out space for the pipeline and Jim said no; it was hunting season after all, and he didn’t want surveyors getting in the way of his favorite seasonal pastime.
This refusal held the pipeline at bay temporarily. Not long after, the Scotts received letters explaining that EQT had every right to map the land in anticipation of a successful eminent-domain claim, with approval of the Federal Energy Regulatory Commission, the federal agency that oversees interstate gas pipelines.
From there, things got more complicated.
Jim’s son Frederick, named after his grandfather, planned to build a house on his father’s land. But the proposed pipeline path went right through the ideal spot. The family tried to move the house to a different part of the tract, and even began digging a septic system atop a hill just north of Jim’s house, but a second plan devised by the pipeline showed construction running through there too.
After two years, Frederick gave up and bought a house down the road.
“It’s crazy that a private gas company can evict your children from your farm and basically shut down the hope of ever having somebody live there,” Jim said.
Stephen Clarke, an attorney with Waldo & Lyle PC in Norfolk, Virginia, is representing the Scotts in their legal fight.
He said eminent-domain law, an area he’s specialized in for about a decade, is not often sympathetic to land owners, though it does require reasonable compensation for the land taken. And while the concept of eminent domain dates back centuries, the legal strategy being pursued by EQT is of a bit more recent vintage.
While the Federal Energy Regulatory Commission set a 2020 deadline for the project, EQT said in court it hoped to complete the project before the end of 2018.
This speedy request for access to land is known, according to Clarke, as a “quick take.”
The Natural Gas Act, which permits eminent domain by energy companies, doesn’t give them quick-take power, but 2004’s Eastern Tennessee Natural Gas Company vs. John Sage, does.
That ruling by the Richmond-based Fourth Circuit said energy companies can go to courts to request early access to land, as long as they can prove the money they will eventually offer to impacted residents, filed as a bond with the courts, will reasonably compensate the landowners.
But in a Jan. 31, 2018, opinion, U.S. District Judge Elizabeth Dillon said EQT was too hasty in its request. Court documents show that the pipeline company used a real estate appraiser to determine the land value on nine of the properties in question. They then used tax assessments, something inadmissible in court in eminent-domain cases, to determine the value on the other more than 250 impacted properties.
“Although it is true that some cases allow tax assessment evidence to establish the value of property, they are not binding on this court and some even question or acknowledge that assessments are not dispositive of the valuation issue,” Dillon wrote. “Under Sage … something more is required before the landowners’ occupancy can be disturbed.”
“It’s good news for people in this case, for the Scotts,” Clarke said. “It will help them recover the full amount of compensation they are entitled to.”
“[Judge Dillon] obviously reviewed everything with a fine-tooth comb, and she found it was a constitutional requirement that the pipeline company show there is an adequate provision for payment for these landowners, and [EQT] didn’t meet that burden,” he said. “I haven’t seen a court undertake that analysis in any of the pipeline cases I’ve looked at or been involved with.”
As for the Scotts, they’re just as surprised to be thrust into an argument usually reserved for heated debates over environmental issues. Jim said he considers himself a conservationist and not an activist. He doesn’t have a problem with the pipeline as long as the process is open and the company works with those it will impact, unlike what they’ve done so far.
“We don’t object to power or energy; we all need that. We acknowledge that,” he said. “We just expected a more thorough … review where they’d show this was the wrong place to stick it with these pristine waters.”
Natalie Cox, a spokeswoman for Mountain Valley Pipeline, said the company was pleased with the court’s overall decision to grant the company its eminent-domain requests.
As for the order asking for new assessments, Nox said the company has already submitted a new plan to the courts to meet the request for information.
“The MVP project team appreciates, and agrees with, the court’s concern regarding landowners’ interests being protected prior to allowing entrance upon the properties,” Cox said in a statement, adding that the recent opinion will have no bearing on the scheduling of where construction will begin.