RICHMOND, Va. (CN) — The Virginia Supreme Court was asked Wednesday to clarify a state law governing how natural gas companies give notice to landowners when they want to survey private property without permission.
At issue is surveying for the Mountain Valley Pipeline, a more than 300-mile project that aims to bring natural gas from West Virginia to North Carolina and beyond.
In April 2016, surveyors for the pipeline company entered Fred W. Vest’s land in Bent Mountain, Virginia. Vest had denied the company access to his land and when they showed up anyway, following a series of communications and a second notice, he filed a trespass case against the company’s employees.
Counterclaims were filed back and forth, but in the end a judge in Roanoke County sided with Mountain Valley Pipeline LLC, granting it summary judgment and dismissing the trespass claim.
Vest appealed to the Virginia Supreme Court, asserting violations of a state law that stipulates certain notification requirements the company allegedly failed to fulfill before superseding a landowner’s denial of access.
During oral arguments held Wednesday afternoon – through a live stream, a first for the court, because of the Covid-19 outbreak – attorney Evans Edwards with the Roanoke-based firm Gentry Locke LLP, representing Vest, said that despite poor wording in the confusing state law at issue, the company’s entry onto his client’s property was still a violation.
He pointed to a specific line in Virginia’s right of entry provision for natural gas companies, which states: “Notice of intent to enter shall… be made not less than 15 days prior to the date of mailing of the notice of intent to enter.”
“MVP could not mail the notice 15 days prior to mailing the notice,” Edwards said. “It was a chronological impossibility to not give Vest proper notice 15 days prior to the date they mailed it.”
Justice Arthur Kelsey, one of eight judges who heard the arguments, stopped Edwards short and wondered if the court even needed to get to his question about the notification law or if the judges should instead address the issue as civil trespass.
“If the [earlier] notices are effective, if those were withdrawn and the landowner was misled, then the only trespass is the [April date]?” Kelsey asked. “Does it require us, if you were to be right on the [earlier notice] invalidation, would it require us to interpret the statute? Would it matter because there would still be a trespass?”
“The trial judge would have to instruct the jury on the correct meaning of the statute, which we say is the language of the law,” Edwards replied.
Wade Massie with the Abingdon-based Penn, Stuart & Eskridge represents MVP in the dispute. He agreed with Vest’s argument that the law at issue appeared problematic, but he instead asserted it was up to the courts to interpret it the same way it has been in the nearly two decades since it was enacted.
“This is not a mistake in legislative judgment… This is what we see as a mistake in expression where the General Assembly wrote something it could not have intended,” Massie said, asking the court to use “context, purpose or practical application” as a guiding principle instead of altering the law.
“That's part of the court’s duty, to make sense of this text,” Massie added. “I don’t think the court can walk away and say they can’t make sense of it. This statute has a practical meaning, with 16 years of application to surveys.”
The judges did not signal when they intended to rule.
Neither Massie nor Edwards returned requests for comment following Wednesday’s hearing.
In an emailed statement, MVP spokesperson Natalie Cox said the company was unable to comment on the case, but she stressed the case would not impact any other easements the company has acquired for the project.
Vest might be in luck, as the Virginia Supreme Court has heard several cases about notices of entry related to pipeline projects and most recently they sided with the landowner.
In the court’s July 2017 decision in Chaffins v. Atlantic Coast Pipeline, Justice William Mims found the pipeline company failed to follow proper notice procedures and reversed a lower court’s ruling against the property owners.
In that case, the notice failed to give a specific date. Atlantic Coast Pipeline LLC argued external factors could preclude a guaranteed date from being used, but Mims said it was still up to the company to be as clear and supportive of the landowner as possible.
“Importantly, at each step, the natural gas company must provide advance notice,” the ruling states. “These notice requirements allow the landowner to be present during the tests if desired, arrange for livestock to be confined prior to the entry, and ensure that any property damage is documented.”
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