Klemic v. Dominion Transmission, Inc.
Citation | 138 F.Supp.3d 673 |
Decision Date | 30 September 2015 |
Docket Number | Civil Action No. 3:14–cv–00041. |
Parties | James KLEMIC, et al., Plaintiffs, v. DOMINION TRANSMISSION, INC., et al., Defendants. |
Court | U.S. District Court — Western District of Virginia |
Neal L. Walters, Scott Kroner PLC, Charlottesville, VA, for Plaintiffs.
Earle Duncan Getchell, Jr., McGuirewoods LLP, Richmond, VA, John David Wilburn, Stephen Phillip Mulligan, McGuirewoods LLP, Tysons Corner, VA, for Defendants.
Virginia Code § 56–49.01 authorizes a natural gas company to enter private property without the landowner's written permission and perform a survey for a proposed natural gas pipeline. Pursuant to this statute, defendant Atlantic Coast Pipeline, LLC (ACP), a joint venture of defendant Dominion Transmission, Inc., and three other companies, has notified plaintiffs Joan and James Klemic, Charlotte Rea, and Karen and Peter Osborne that it could enter their properties and conduct surveys for a new pipeline in the future, but that it has no intention of doing so now. In an attempt to stop ACP or any other company from entering their properties for this purpose, plaintiffs filed this action, alleging that the statute, on its face and as applied, violates the United States and Virginia Constitutions, and is thus void and unenforceable. Notably, plaintiffs do not challenge, in this case, whether a proposed natural gas pipeline will traverse Virginia, nor the route of any proposed pipeline.
Defendants now move to dismiss plaintiffs' complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The Commonwealth of Virginia, which has intervened to defend the constitutionality of the statute, also urges dismissal. For the following reasons, the court concludes that plaintiffs' facial challenges to the statute fail because the statute does not deprive a landowner of a constitutionally protected property right, and that plaintiffs' as-applied challenges fail because they are not ripe. The court will therefore grant defendants' motion and dismiss plaintiffs' complaint.
Plaintiffs, either individually or jointly, own properties in Nelson County, Virginia. (Dkt. No. 1, Compl.¶¶ 7–18.)1 The Klemics have six parcels, totaling about 196 acres. (Id. ¶ 8.) The parcels "contain some cleared fields with the balance in woodland." (Id. ¶ 9.) They also contain a number of streams that feed into Rockfish River as well as two Civil War era cemeteries. (Id. ) The Klemics' house is on one of the parcels. (Id. )
Rea owns three parcels, comprising roughly 30 acres. (Id. ¶ 11.) She lives on one of the parcels, which is "mostly wooded." (Id. ¶ 13.) Her house sits on a raised portion that overlooks a floodplain along Rockfish River. (Id. )
The Osbornes have one parcel consisting of approximately 101 acres. (Id. ¶ 15.) About half of the parcel contains a mixture of pastures and woodlands, and the rest "slopes up the southwest face of Pilot Mountain." (Id. ) The portion that runs up the mountain is "heavily wooded with two springs." (Id. ) A pre-Civil War era slave cemetery is located somewhere on the parcel. (Id. ) The Osbornes' house is on the parcel. (Id. )
All of plaintiffs' parcels are posted with "no trespassing" signs and no commercial activity takes place on them. (Id. ¶¶ 10, 14, 18.)
In May 2014, Dominion sent a letter to plaintiffs, informing them that the company was planning to build a new 550–mile interstate natural gas pipeline (now known as the Atlantic Coast Pipeline) and that their properties were located within the proposed route. To determine the suitability of the properties for the project, Dominion asked plaintiffs for written permission to enter and conduct surveys. (Dkt. No. 1, ¶ 20; Dkt. No. 1–1 at 1.) Plaintiffs did not comply with Dominion's request. (Dkt. No. 1, ¶ 25; Dkt. No. 1–1 at 1.)
The following month, Dominion sent another letter to plaintiffs, this time giving them notice that, although the company had not received written permission to enter their properties, it nonetheless planned to move forward with the surveys for the pipeline project. (Dkt. No. 1, ¶¶ 20; Dkt. No. 1–1 at 1.) Dominion explained that, after giving notice, it had authority to enter and perform the surveys under § 56–49.01 (Dkt. No. 1, ¶ 24; Dkt. No. 1–1 at 1), which provides in full:
Va.Code Ann. § 56–49.01.
Dominion attached a "Notice of Intent to Enter Property" to its June 2014 letter. (Dkt. No. 1, ¶ 22; Dkt. No. 1–1 at 2.) In the notice, Dominion explained that the survey process would consist of several steps. (Dkt. No. 1–1 at 1.) First, "a contract survey crew" would mark the anticipated right of way. (Id. ) Then "[a] traditional survey crew" would locate the proposed route using "transits and other surveying equipment." (Id. ) And finally, "technicians [would] study the proposed route for any historical or archeological significance, endangered species, soil types, and other similar conditions." (Id. )
"During this process," Dominion continued, "there [could] be very minor earth disturbance"—which would "be promptly refilled and repaired"—and the surveyors could have "to clear pathways through brush and other growth." (Id. ) Dominion also stated that it would reimburse plaintiffs for "any actual damage" that their properties sustained as a result of "the survey process in the unlikely event that damage occur[red]." (Id. ) It further said that it intended to start "the surveys on [their] propert[ies] on or after July 11, 2014," and that the "process [would] take several weeks to complete." (Id. )
After receiving Dominion's June 2014 letter and notice, each plaintiff "explicitly den[ied] permission for Dominion to enter upon his or her private property." (Dkt. No. 1, ¶ 25; Dkt. No. 1–1 at 3, Exhibit B.) Dominion responded with another letter in August 2014, acknowledging plaintiffs' denial of its request for permission to enter their properties. (Dkt. No. 1, ¶ 25; Dkt. No. 1–1 at 3.) It stated, however, that it still intended to go forward with the surveys, though it would not enter plaintiffs' properties until it had a court order to do so. (Dkt. No. 1, ¶ 25; Dkt. No. 1–1 at 3.) It also said that it planned to begin the surveys "on or after August 21, 2014." (Dkt. No. 1–1 at 3.)
Seeking to prevent Dominion from entering their properties and conducting surveys for the pipeline project, plaintiffs filed this action under 42 U.S.C. § 1983 in September 2014, claiming that § 56–49.01, "both on its face and as applied," violates the U.S. and Virginia Constitutions, and is therefore void and unenforceable. (Dkt. No. 1 at 1–4, 13.)3 In Counts I and II of their complaint, plaintiffs claim that the statute takes their property right to exclude for private use or without just compensation, in violation of the Fifth Amendment and Article I, § 11 of the Virginia Constitution. (Id. ¶¶ 26–36.) In Count III, they claim that the statute unreasonably seizes their right to exclude, in violation of the Fourth Amendment. (Id. ¶¶ 37–41.) And in Count IV, they claim that the statute deprives them of their property right to exclude without due process, in violation of the Fourteenth Amendment. (Id. ¶¶...
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...basis that they [e]ffect a taking without just compensation have been consistently rejected." (quoting Klemic v. Dominion Transmission, Inc. , 138 F.Supp.3d 673, 690 (W.D. Va. 2015) ). Accordingly, it concluded that "[a] landowner has no constitutionally protected property right to exclude ......
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...court decides another constitutional challenge to Virginia Code § 56–49.01 in Klemic v. Dominion, Transmission, Inc., No. 3:14–cv–00041, 138 F.Supp.3d 673, 678–79, 2015 WL 5772220 at *1 (W.D.Va. Sept. 30, 2015). There, several landowners, who, like the Littles, received notices of intent to......
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