Thursday, November 17, 2016

West Virginia Victory Against Eminent Domain Abuse

"Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has." - Margaret Meade


I couldn't be more proud of Tom Fitzgerald's work and the efforts the many hundreds of Kentuckians who helped lay important legal precedents to protect our homes and water from corporate eminent domain abuse. This week, another important victory in West Virginia occurred.

The West Virginia Supreme Court cited the Kentucky Court of Appeals decision in Bluegrass Pipeline v. KURE for support for the idea that an interstate pipeline simply moving product by pipeline through a state and not serving in-state customers can't use state condemnation law (including the right to enter and survey property) because there is no "public use" by residents of the state.

The KURE decision limits the use of state condemnation law even more rigorously than the WV Court, since the power to condemn for pipelines in the Commonwealth is limited to public utilities, and is not available to private companies even if they are serving in-state customers.

Let's continue the good work so others across the country can build on these legal successes and stand firm to protect their homes and water. 

According to a report from Colorlines.com, "At least one water protector contesting the Dakota Access Pipeline embraced this win: Dallas Goldtooth, a campaign organizer with the Indigenous Environmental Network, posted to Facebook on the decision yesterday with the words, “In other great news!”

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The Appalachian Mountain Advocates PR statement for Tuesday 11/15 says:

A pipeline that does not serve a state's consumers, but simply passes through as it delivers gas elsewhere, cannot assert a right to survey private land without permission.

The West Virginia Supreme Court decision has importance for opponents of pipelines that need to survey and condemn easements as their gas is shipped to export or to distant chemical factories.

West Virginia property owners won an important case at the West Virginia Supreme Court of Appeals on Tuesday when that Court sided with Appalachian Mountain Advocates attorneys, ruling that the Mountain Valley Pipeline cannot survey for its proposed natural gas pipeline without landowner permission. The Court held that such a survey would constitute an illegal “private taking for private use,” because the proposed pipeline would not benefit West Virginians.
The Supreme Court’s ruling came in a case brought by Appalachian Mountain Advocates on behalf of Bryan and Doris McCurdy. Mountain Valley Pipeline threatened to sue the McCurdys after they refused to allow the pipeline company to survey their homeplace in Monroe County, West Virginia. Appalachian Mountain Advocates helped the McCurdys sue Mountain Valley Pipeline first to keep the company from trespassing on their property. They argued that state law prohibits the pipeline company from setting foot on McCurdy’s property without their permission unless the pipeline company first showed that its pipeline would be for public use.
Mountain Valley Pipeline could not make that showing because no West Virginians will use the gas transported through the pipeline.
Appalachian Mountain Advocates represented the McCurdys when they won in the trial court in 2015. The pipeline company later appealed this decision to the West Virginia Supreme Court of Appeals. On November 15, 2016, the West Virginia Supreme Court affirmed the trial court’s ruling, and held that the Mountain Valley Pipeline is not for public use by West Virginians.
“This is a great day for private property rights in West Virginia,” said Derek Teaney, Senior Attorney with Appalachian Mountain Advocates, who represented the McCurdys in their case against Mountain Valley Pipeline. “This ruling vindicates the rights of landowners in the path of this ill-advised pipeline and shows that private companies cannot bully West Virginians into allowing them onto their property without their permission.”
The Mountain Valley Pipeline would transport fracked natural gas over 300 miles from northwestern West Virginia to southern Virginia to connect to the Transco Pipeline, a mega-pipeline that ships gas to burn in the Southeast. The pipeline would be 42 inches in diameter (by comparison, Keystone XL would have been just 36 inches). Contact: Derek Teaney, Senior Attorney, 304.793.9007, dteaney@appalmad.org