Mountain Valley Pipeline, LLC v. McCurdy

• Citation: 793 S.E.2d 850,238 W.Va. 200
• Decision Date: 15 November 2016
• Docket Number: No. 15-0919,15-0919
• Court: Supreme Court of West Virginia
• Parties: MOUNTAIN VALLEY PIPELINE, LLC, Defendant Below, Petitioner v. Brian C. MCCURDY and Doris W. McCurdy, Plaintiffs Below, Respondents

238 W.Va. 200
793 S.E.2d 850

MOUNTAIN VALLEY PIPELINE, LLC, Defendant Below, Petitioner
v.
Brian C. MCCURDY and Doris W. McCurdy, Plaintiffs Below, Respondents

No. 15-0919

Supreme Court of Appeals of West Virginia.

Submitted: October 11, 2016
Filed: November 15, 2016

Charles S. Piccirillo, K. Brian Adkins, Shaffer & Shaffer, PLLC, Madison, West Virginia, Attorneys for Petitioner.

Derek O. Teaney, Appalachian Mountain Advocates, Inc., Lewisburg, West Virginia, Attorney for Respondents.

Davis, Justice:

In this appeal, petitioner and defendant below, Mountain Valley Pipeline, LLC ("MVP"), challenges an order entered by the Circuit Court of Monroe County that granted declaratory judgment to Bryan and Doris McCurdy ("the McCurdys"), respondents and plaintiffs below, declaring that MVP has no right to enter their property to survey the area as a potential location for a natural gas pipeline MVP plans to construct. The circuit court based its decision on its finding that MVP's pipeline is not being constructed for a public use in West Virginia. In addition, the circuit court granted the McCurdys both a preliminary and a permanent injunction prohibiting MVP from entering their property. After considering the parties' briefs and oral arguments, as well as the relevant law, we find no error. Therefore, we affirm the rulings of the Circuit Court of Monroe County.

I.

FACTUAL AND PROCEDURAL HISTORY

MVP¹ is in the process of seeking approval from the Federal Energy Regulatory Commission ("FERC") to construct and operate a nearly 300-mile natural gas transmission pipeline from Wetzel County, West Virginia, to Pittsylvania County, Virginia. MVP is a pipeline company that will not directly own the gas to be transported. However, nearly ninety-five percent of the gas to be transported is owned by affiliates of MVP.²

793 S.E.2d 853

The proposed pipeline, known as the Mountain Valley Pipeline ("MVP's pipeline"), will serve the primary purpose of moving gas from the producing regions of northern West Virginia to markets in the Mid-Atlantic and Southeast regions of the United States. MVP asserts that nearly all of the gas to be transported in MVP's pipeline will be produced in West Virginia, and further contends that MVP's pipeline will provide needed capacity for additional development of natural gas in West Virginia. MVP's pipeline currently has two main delivery points: The Transco pool in Pittsylvania County, Virginia, which serves the entire east coast; and the Columbia WB pipeline, which, similar to MVP's pipeline, is a natural gas transportation pipeline. An agreement has been reached whereby MVP's pipeline will deliver gas to Roanoke Gas Company, a local distribution company that serves consumers in Virginia. However, no agreements have been reached that would provide gas to any consumers in West Virginia. Although MVP avers that such agreements are likely, there is no absolute right for local distribution companies or consumers to access MVP's pipeline, and there currently is no definitive evidence that any West Virginia consumers or non-MVP affiliated natural gas producers would benefit from MVP's pipeline.

On October 27, 2014, MVP submitted a request to FERC to initiate the pre-filing process that will lead to an application for the issuance of a certificate of public convenience and necessity for MVP's pipeline. At the time of the entry of the circuit court order herein appealed, MVP had not yet filed its formal application with FERC for a certificate of public convenience and necessity; however, MVP avers that its application has now been filed.

Respondents, plaintiffs below, Bryan and Doris McCurdy ("the McCurdys"), own approximately 185 acres of land in Monroe County, West Virginia, along the proposed route for MVP's pipeline. They have lived on a portion of their property, which consists of three tracts, since 1984. The proposed route for MVP's pipeline will cross all three of the McCurdys' tracts and, according to the circuit court, would come near to their barn and their residence.

In February 2015, the McCurdys were contacted by an MVP agent who requested access to their property to conduct surveys that are necessary to complete MVP's application process for obtaining the certificate of public convenience and necessity. The McCurdys declined to consent to the surveys. MVP then sent the McCurdys a letter, dated February 24, 2015, providing notice of MVP's intention to take legal action to obtain access to the property pursuant to W. Va. Code § 54–1–3 (1923) (Repl. Vol. 2016)³ unless the McCurdys acquiesced to the surveys by March 9, 2015.

Thereafter, on March 18, 2015, the McCurdys filed suit against MVP in the Circuit Court of Monroe County seeking a declaratory judgment that MVP has no right to enter their property for surveying purposes and further seeking both a preliminary and a permanent injunction prohibiting MVP from entering their property. MVP removed the suit to federal district court, but the federal court ultimately determined that it lacked subject matter jurisdiction because the amount in controversy was less than $75,000. Accordingly, the district court remanded the case to the Circuit Court of Monroe County for further proceedings. Following an evidentiary hearing, the circuit court, by order entered on August 19, 2015, granted declaratory judgment to the McCurdys, and also granted them preliminary and permanent injunctions. In doing so, the circuit court concluded that W. Va. Code § 54–1–3 does not authorize MVP to enter the McCurdys' property because MVP is not vested with the power of eminent domain insofar as its pipeline is not for a public use. The circuit court based its conclusion on the fact that no West Virginia consumer would use any of the gas to be transported in MVP's pipeline. The circuit court further enjoined MVP from entering the McCurdys' property under color of Chapter 54 of the West Virginia Code without

793 S.E.2d 854

the McCurdys' express permission. This appeal followed.

II.

STANDARD OF REVIEW

The circuit court's order herein appealed by MVP granted to the McCurdys declaratory judgment as well as preliminary and permanent injunctive relief. With respect to a declaratory judgment, this Court has held that "[a] circuit court's entry of a declaratory judgment is reviewed de novo ." Syl. pt. 3, Cox v. Amick , 195 W.Va. 608, 466 S.E.2d 459 (1995).

Our review of the circuit court's grant of a preliminary injunction has three parts:

" ‘In reviewing the exceptions to the findings of fact and conclusions of law supporting the granting of a temporary or preliminary injunction, we will apply a three-pronged deferential standard of review. We review the final order granting the temporary injunction and the ultimate disposition under an abuse of discretion standard, West v. National Mines Corp ., 168 W.Va. 578, 590, 285 S.E.2d 670, 678 (1981), we review the circuit court's underlying factual findings under a clearly erroneous standard, and we review questions of law de novo .’ Syllabus Point 4, Burgess v. Porterfield , 196 W.Va. 178, 469 S.E.2d 114 (1996)." Syl. pt. 1, State v. Imperial Marketing , 196 W.Va. 346, 472 S.E.2d 792 (1996).

Syl. pt. 1, Camden – Clark Mem'l Hosp. Corp. v. Turner , 212 W.Va. 752, 575 S.E.2d 362 (2002). As to the circuit court's award of a permanent injunction, our review is for an abuse of discretion:

Unless an absolute right to injunctive relief is conferred by statute, the power to grant or refuse or to modify, continue, or dissolve a temporary or a permanent injunction, whether preventative or mandatory in character, ordinarily rests in the sound discretion of the trial court, according to the facts and the circumstances of the particular case; and its action in the exercise of its discretion will not be disturbed on appeal in the absence of a clear showing of an abuse of such discretion.

Syl. pt. 11, Stuart v. Lake Washington Realty Corp ., 141 W.Va. 627, 92 S.E.2d 891 (1956).

Finally, we note that, to the extent our resolution of this appeal involves the interpretation of statutes, our review is de novo : "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. pt. 1, Chrystal R.M. v. Charlie A.L. , 194 W.Va. 138, 459 S.E.2d 415 (1995). With due regard for the foregoing standards, we proceed to our analysis of the issues raised on appeal.

III.

DISCUSSION

The circuit court's decision in this case was based upon its determination that MVP could only enter the McCurdys' property for a public use pursuant to W. Va. Code § 54–1–3. On appeal MVP argues that a finding of public use is not required for a mere survey, and, assuming arguendo that it is, MVP's pipeline is for a public use. We address these issues in turn.

A. Public Use Requirement

This case turns on the language of W. Va. Code § 54–1–3. The circuit court reasoned that, because W. Va. Code § 54–1–3 authorizes only companies invested with the power of eminent domain to enter property against the will of the property owner, it must first be determined that MVP is invested with that power. Noting that W. Va. Code § 54–1–1 (1931)...