Klemic v. Dominion Transmission, Inc.

Citation138 F.Supp.3d 673
Decision Date30 September 2015
Docket NumberCivil Action No. 3:14–cv–00041.
Parties James KLEMIC, et al., Plaintiffs, v. DOMINION TRANSMISSION, INC., et al., Defendants.
CourtU.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.



, District Judge.

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.

A. Plaintiffs own properties in Nelson County.

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.)

B. Dominion notifies plaintiffs of a new pipeline and asks for written permission to enter their properties and conduct surveys for the project.

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. (Dkt. No. 1, ¶¶ 19–20; Dkt. No. 1–1 at 1, Ex. A.) 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.)

C. Dominion notifies plaintiffs of its intent to enter their properties without written permission and conduct surveys for the pipeline project.

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:

A. Any firm, corporation, company, or partnership, organized for the bona fide purpose of operating as a natural gas company as defined in 15 U.S.C. § 717a


] as amended, may make such examinations, tests, hand auger borings, appraisals, and surveys for its proposed line or location of its works as are necessary (i) to satisfy any regulatory requirements and (ii) for the selection of the most advantageous location or route, the improvement or straightening of its line or works, changes of location or construction, or providing additional facilities, and for such purposes, by its duly authorized officers, agents, or employees, may enter upon any property without the written permission of its owner if (a) the natural gas company has requested the owner's permission to inspect the property as provided in subsection B, (b) the owner's written permission is not received prior to the date entry is proposed, and (c) the natural gas company has given the owner notice of intent to enter as provided in subsection C. A natural gas company may use motor vehicles, self-propelled machinery, and power equipment on property only after receiving the permission of the landowner or his agent.

B. A request for permission to inspect shall (i) be sent to the owner by certified mail, (ii) set forth the date such inspection is proposed to be made, and (iii) be made not less than 15 days prior to the date of the proposed inspection.

C. Notice of intent to enter shall (i) be sent to the owner by certified mail, (ii) set forth the date of the intended entry, and (iii) be made not less than 15 days prior to the date of mailing of the notice of intent to enter.

D. Any entry authorized by this section shall not be deemed a trespass. The natural gas company shall make reimbursement for any actual damages resulting from such entry. Nothing in this section shall impair or limit any right of a natural gas company obtained by (i) the power of eminent domain, (ii) any easement granted by the landowner or his predecessor in title, or (iii) any right-of-way agreement, lease or other agreement by and between a natural gas company and a landowner or their predecessors in title or interest.

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.)

D. Plaintiffs file suit to stop Dominion from entering their properties and conducting surveys for the pipeline project.

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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