County landowner's pipeline appeal set for Va. Supreme Court this week
RICHMOND - Can Augusta County landowner Hazel Palmer deny Dominion Energy surveyors access to her property?
That is the question the Supreme Court of Virginia will consider Wednesday, along with another similar civil case from Buckingham County, involving the issue of private property rights in relation to the construction of the proposed Atlantic Coast Pipeline.
Palmer, an an 83-year-old widow, owns a property just below the Appalachian Trail and Blue Ridge Parkway that the pipeline is routed to intersect. She's the fourth generation in her family to own the land after her maternal great-grandparents purchased it in 1880 — generations of her family have lived there and taken care of the property "with great pride," she said in a September 2016 Letter to the Editor to The News Leader.
"My heart is broken that I am forced to give up land for a private company to install a pipeline. This should not happen in the United States of America," she wrote in her letter.
Her attorney, Henry Howell, said that both the U.S. and Virginia constitutions "shield" Palmer from the abuse of the power of eminent domain, in a press release put out by Friends of Nelson, a pipeline opposition group.
"Hazel Palmer is standing at her property line facing the army of economic and political power that Dominion has amassed against her,” he said. “She is looking that army in the face, and saying, 'You will not take my family land for your profits’.”
The Supreme Court of Virginia granted her appeal in September, taking issue with an Augusta County Circuit Court judge's ruling that surveyors could come on her property. The court cited a question over the use of a Virginia law that describes the rights of natural gas companies to enter property, enabling representatives of the Atlantic Coast Pipeline to enter Palmer's private property. It also asks whether this law infringes on the "fundamental right to private property in violation of Article I, § 11 of the Virginia Constitution."
What the court will have to determine is whether the state statute requires an entity, in this case the Atlantic Coast Pipeline construction group, to be considered a public service company to be able to access private property without permission from the landowner.
The court will also hear an appeal from a group of Buckingham County landowners on Dominion's right to enter their private properties. They're appealing a Buckingham County judge's ruling that pipeline surveyors had a right to enter their private properties without first notifying the landowners of the specific date of entry, even though the pipeline builder hasn't been given the right to exercise eminent domain yet, according to the Friends of Nelson press release. Their appeal argues that this violates Virginia law and constitutes criminal trespass.
Dominion spokesperson Aaron Ruby pointed out after the Supreme Court granted Palmer's appeal in September that circuit courts all across the commonwealth — in Augusta, Nelson, Nottoway, Buckingham, Cumberland, Prince Edward, Chesapeake, Dinwiddie, Southampton, Suffolk and Brunswick have all ruled in favor of the Atlantic Coast Pipeline group's right to enter property. And in 2015, a U.S. District Court ruled in favor of the pipeline group, concluding that the Virginia law in question "does not deprive a landowner of a constitutionally protected property right."
“We’re confident that the Virginia Supreme Court will uphold the Circuit Court ruling in Augusta County,” Ruby said.
Through its surveys Dominion wants to identify the best route and avoid "environmentally sensitive resources or culturally or historically sensitive areas," he said. The group has received landowner permission for more than 90 percent of the route, he said at the time and have now completed more than 98 percent of route surveys.
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