comments for people's hearing on ferc...
TRANSCRIPT
e see our dr1~~
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~.PreserveRoanoke.o~
Comments for People's Hearing on FERC Abuses
Roberta M. Bondurant, Preserve Roanoke/Bent Mountain
and Protect Our Water, Heritage, Rights (POWHR)
I'm from just south of Roanoke, Virginia and northeast of Virginia Tech — an almost 4.000 foot
mountain, an upland plateau of rich, fertile farmland, orchards, springs and streams —Bent
Mountain, Virginia, home to the Nature Conservancy's Bottom Creek Gorge Preserve, the Blue
Ridge Parkway, the Crooked Road Music Trail, vineyards and the Floyd Fest Music Festival.
The Mountain Valley Pipeline, a consortium of private limited liability corporations, proposes to
cross this mountain.
Since October 2014 residents have suffered abuses from so called "survey statutes" that exist in
at least 14 other states. (See Attached article by Carolyn Elefant.) Far from typical boundary
surveys, they allow data mining and physical takings — of soils and rock samples, vegetation and
cultural artifacts that could not be otherwise obtained. Landowners own not just the property, but
the information on its water, flora and fauna — everything contained in that property — in the
"information age," all of that holds certain value. Under federal fast track permitting rules, these
statutes are being used, up front, pre-application and precertification — as part of the larger
"taking." There are no restrictions on the what gas companies may do with this information; no
present process whereby landowners can obtain copies of reports from international survey
companies, and no apparent disposal of the information in the event this pipeline is denied. l
Virginia's statute includes consequences for failure of specific notice to landowners that include
criminal and civil trespass, and landowners have sought enforcement of these provisions. Still,
many crews descend upon properties regardless of whether the landowner is present, without any
apparent background checks or personal identification tags. Virginia's statute is so poorly
written it promotes legalized theft. Z
I Virginia's statute, Va. Code Ann. X56-49.01, was passed in 2004. Read with federal regulations, the
statute in fact recognizes a landowners denial of permission —but in the "fast track permit" universe the
companies, the courts and enforcement authorities have ignored that right. See Attached.
z Statutory application and enforcement is highly variable, depending upon the attending officers', county
attorneys and court interpretations —all in a state where campaigns are funded by the gas industry and
judges are appointed. The Virginia statute has been used to muscle landowner into submission; they
have been barraged with confusing and repetitive sets of certified letters, covering broad and rolling
1
Many landowners who simply can't be present when the company decides to show up; but those
most vulnerable to these laws, of course, include many fragile and elderly folks living alone. In
its application, MVP admits that the elderly are disproportionately affected in each of the 11
counties it proposes to blast and burrow through, but insists it has no obligation to mitigate for
the elderly because it would do them no harm. (See MVP App. Resource Report 5.) There are
numerous instances where MVP has used deception and outright falsehoods to take advantage of
the elderly.3
On Columbus Day Monday, with courts closed, two weeks before its own scheduled hearing on
the survey issue, MVP circumvented the court process putting over thirty surveyors on two
properties of sizable acreage. See Attached Survey Video. With county police representing they
were powerless to help landowners at the scene, these surprise invasions went forward. At day's
end a 6th generation descendant of Poor Mountain, wept when surveyors showed her 6 bags of
artifacts they dug from her family's state designated historic property, and told her they couldn't
give her the GIS points so she could return them to their sacred place.4
With possibly three armed parties at any scene, the inconsistent enforcement of the provisions of
the Virginia statute are a recipe for mayhem. We are asking state courts and legislators for
abolishment of these statutes, but federal authorities should also take heed. These abuses are
dangerous and intolerable. Long before gas lobbyists sponsored these statutes we wrote a
Constitution that embraced a fundamental right to private property, with private being the
operative word. When we fail to revolt against the invasion and plundering of our homeplaces,
which give life to the right of privacy, then we have lost what it is to be American, but much
more than that, what it is to be human. s
ranges of dates, which allow survey crews to troll the area for unattended properties, and thus to steal onwith the owner never knowing they were there; on at least two occasions surveyors have ignored attorneyagreements not to enter; landowners have been sued for injunctive relief and money damages, in furtherefforts by Next Era, MVP and Coates surveyors to chill their right to deny permission to enter.
3 One neighbor, a 70 year old Vietnam vet, twice attempted gentleman's agreements with the company sothat he could attend a few special trips with his only grandson; both times, upon his information that he'dbe away on the company's preferred day, surveyors stole on; when he secured warrants for criminaltrespass, the company sued him for money damages. Another neighbor, an 80 year old who's lived herwhole life in the home beside the orchard across from Bottom Creek, denied permission and wassurprised by three surveyors one day, who walked out of her wetlands and past her house with threebuckets of mud, and refused to stop until she told them a third time. They had apparently been droppedoff and picked up by cars evading detection of the public and police.
'Since November 7, 2016 the Franklin County Sherriff has continued his support in excusing surveyorsfrom properties, and Virginia's State Police have followed suit to assist landowners across all counties.
5 The West Virginia Supreme Court said it like this: "(P)rivate taking for private use" is prohibited. MI~Pv. Mc Curdy, Davis, J., Op. No-15-0919, p. 25 (2016).
§ Sb-49.Q t. \tatural gas companies; right oPentry upon property_
.~.l~py fimt, cosz~oration, con~j~aRy, or partnership, organized for the bona fide ~uc~dsc of o~efatin~ as anatural gas can:ppr~y as de~sed sn ~5 U.S.C. § 717a, as amended, may made such eXBmiiipPitsns, 9es15,land Huger tr~rin~s, a~gra+cats, and surveys for its proposed line or loeatian of iis~ti~ro~~s as are necessary(i) to satisfy anyregulatory. requirements ari~i (it} foi tRie selec~ion of EJ~e most Advaata~eans loca?ion arrouf~, tl~e imDr6vemeni or straightening of -its line or works, ciienges of location ar co~struciion, ur~rovidinp additional faaiiitics, atn~t f4rsucl~ purposes, by its duly uuti~orized ~cers,.B;ents, oremploy.~es,may enter u~a~i ~y property wittiaut tire~w~ itten permissian of its owaef if (a) ~tI~e natural has ~omaanyiias requested else otiv~er's Aermissian io in5p~ct t1~e probes y as pravid~tl in. SUFrsceEion B, (b)11t~ ciyvner~s~~~ricte~~ permissio» is_ not received prior Ea tine cla~e entry is proposed, and (c)~tlie, naeurd! gas carnpany l~zs3i~en t(ie a~vner notice of intent to enter as peovided in subsec~fon ~. A r~ataeal ~;ns company r+~as~ use~~otor •lehicics, seE~=propelled maciuney; and pnFVer egaipmen[ on property only after receiving Nze~crmissttin of fhe I~ncfowner.or his agent.
F3.;4 quest Cor ~ei-inissioii to inspect shall (ij be sent to the owner by cerEified n1ai1, (ii) set forht3se date such ir~s~OC~fiotr is propaser3 to be made, and (iii be made not less than 15. days prior €o totedate of EFsc praposesl inspection.
.~~1Votice oP intent to e»ter shall (i} be sent.ib tl~e otivner by cei~i~~21 matt, (ii) set foeth the da4e aF ehe.intended entry, us4d'(iii) be made not less ttt~o 15 days prior to tha date of mailing o~tiie notice of inten!to enter.
ta.Any entry avthor'szed tsy this secFian sfral) not be deem€d a Erespass. 't`fie -aaturat _ as compass/ s~3altrria~ e icim6ursenacnt far anya~tuai c3~ma~es.resultin~ t'~om-such entry. Nothing in this section shell irrspairor li3nit any right of:a natural gas cam~any oE~iaineci by (i) the jsower aTerrii~te~t dar,~ai~i, ('tij any easeme~egrajtteil liy t4ic lAr~do~vsser or his predecessor in !itl~, or (iii) any right-of tvay Qareeir~ent, t~zse or otf=ernareemeni by.and beEtyeen a r~aturat g`as co~n~aiiy and a ~andaLVner or their prcdec~ssors in titre er inter est.{2U04, c. 529.)
Prepared by the Law Offices of Carolyn Elefant PLLCwww.lawo~cesofcaroiynelefant.com - [email protected]
Release Date: August 2015
If you're a community or property owner impacted by a proposed pipeline, one of the first decisions thatyou may have to make early in the process is whether to allow the pipeline to access your property tosurvey the potential pipeline route. To complicate matters, you'll be confronted with conflictinginformation from competing sources: on the one hand, the pipeline's land agents may tell you that theycan take your property by eminent domain so you might as well cooperate, while project opponents —many of whom do not actually own property impacted by the pipeline —will try to persuade you that ifeveryone along the pipeline denies the company the right to survey, the project will go away.
The truth is that there's little truth to either of these positions. A pipeline cannot invoke eminent domainuntil FERC grants a certificate, which can take anywhere between six months and two years. At the sametime, surveys aren't necessary for a pipeline to file a FERC application (companies can gather informationfrom public files and even Google so denying access won't stop the project from moving forward.
Ultimately, the decision as to whether to grant a pipeline the right to access your property to survey is anentirely individual and fact-specific decision that belongs to you -the impacted landowner. Generallyspeaking, inmost cases, there's little to be gained by allowing access for surveys. Still, in some instancesyou may not have a choice (because entry is allowed under state law), and in other scenarios, grantingaccess may result in a route change that could minimize impacts to your property.
Finally, in NO instance should landowners ever grant a company carte blanche access to their property.Any grant of a right of entry should be memorialized in a written agreement that among other things (1)provides for advance notice of a site visit, and limits access to a single site visit; (2) provides landownerswith all survey results and (3) preserves the landowners' objection to the project so that a pipeline cannotmischaracterize agrant ofentry as support.
To assist landowners, this pamphlet summarizes the considerations to take into account in making adecision on whether to allow a pipeline to survey the property, along with a survey of select state laws andcourt rulings on the access question. Please bear in mind that this pamphlet DOES NOT constitute legaladvice or any type of recommendation to grant or deny surveys, which remains a decision within the solediscretion of each impacted landowner.
Copyright: Law Offices of Carolyn Elefant PLLCDO NOT REPRINT WITHOUT ATTRIBUTION AND A LINK TO www.lawofficesofcarolVnelefant.com
LANDOWNER SYRYEY ~ONSIOERAt10NS
• -
~-
~.. .
Does state law
giv
e th
e pipeline the
right of
Under fe
dera
l law, a pipeline does not
hav
e a
If state law
or courts all
ow access, lan
down
ers can...
entr
y?right t
o su
rvey
property prior to obtaining a
FERC cer
tifi
cate
(after the cer
tifi
cate
is is
sued
,Co
nsid
er a con
stit
utio
nal challenge to the law
if i
t doe
s
it can gain access by eminent do
main
). As th
eno
t co
mpen
sate
lan
down
ers for access [no
te-
attached chart sho
ws, state la
ws vary, and
constitutional challenges may be costly]
some gra
nt the pipeline the right to sur
vey
prop
erty
to prepare
its ap
plic
atio
n. Do NOT
Accompany lan
d agents during the su
rvey
and
accept the pipeline's word tha
t state la
wme
mori
aliz
e the
visit with notes, ph
otog
raph
s and
authorizes acc
ess;
instead, re
ad the sta
tute
video;
yourself or consult with an at
torn
ey. Where
state la
w al
lows
surveys, lan
down
er options
Requ
est a site visit fro
m FERC staff or re
tain
you
r own
are li
mite
d.ex
pert
s or con
sult
ants
for an in
depe
nden
t ev
alua
tion
[note —cost of
consultant may be prohibitive]
Are the proposed surveys invasive?
Most of the pre-
certificate surveys requested
There
Is no reason to
all
ow inv
asiv
e su
rvey
s pr
e-
are relatively non
- inv
asiv
e and in
volv
e mo
stly
cert
ific
ate and ev
en those state laws th
at allow entry
tracking the
route or ob
serv
atio
n of
terr
ain.
for no
n-in
vasi
ve stu
dies
oft
en pro
hibi
t gr
ound
-breaking
However, so
metimes, a pipeline may seek
acti
vity
.permission for more inv
asiv
e st
udie
s —such as
core
sampling or
other geo
tech
nica
l te
sts
which can cause more dama e
.
Copyright: Law Offices of Carolyn Elefant PLLC
DO NOT REPRINT WITHOUT ATTRIBUTION AND A LINK TO www.lawofficesofcarolynelefant.com
Landowner Survey Considerations-P. 1
•
•
• •
•-
Will
the pr
opos
ed pip
elin
e ro
ute im
pact
crit
ical
, unique or environmentally or
cul
tura
lly
sens
itiv
e features of the property?
Will the company agr
ee to my proposed
cond
itio
ns of access?
t
•
Some
time
s, th
e proposed
pip
elin
e ro
ute
will
run inclose proximity to
a landowners' home,
septic or we
lls or
may imp
act se
nsit
ive fe
atur
esof the
property su
ch as wetlands or cultural
resources. Al
tern
ativ
ely,
the
pipeline mi
ght
bise
ct the
pro
pert
y an
d limit us
es and
create
more sig
nifi
cant
harm tha
n a ro
ute
adju
stme
nt.
If a pip
elin
e is unaware of th
ese
impa
cts an
d ad
opts
a particular route, it
may
be more difficult to ch
ange
far
ther
into th
epr
oces
s.
If landowners de
cide
to al
low ac
cess
, the
y can
impose cer
tain
limits on acc
ess (
this can
be
communicated thr
ough
a for
mal le
tter
or a
simple list t
rans
mitt
ed by em
ail)
. These may
incl
ude advance notice of si
te vis
its,
acc
ess to
survey results, and agr
eeme
nt to remediate
any damages cau
sed du
ring
the site visi
t.
•• .
OPTION 1:
In some ins
tanc
es, allowing a pip
elin
e ac
cess
to su
rvey
can re
sult
in av
oidi
ng the
se types of individual impacts,
subject to the
restrictions below:
Landowners sho
uld document in writing (and
file at
FERC) that granting ac
cess
is f
or pur
pose
of identifying
certain impacts al
ong the ro
ute and that lan
down
er
continues to obj
ect to the pipeline;
Land
owne
r sh
ould
require pipeline to pro
duce
all
survey results
OPTION 2:
Instead of allowing pi
peli
ne acc
ess to survey property,
landowner can
reta
in its own con
sult
ants
to pr
epar
einformation sh
owin
g im
pact
s and make them available
to pip
elin
e an
d FE
RC. A landowner can
also invite FERC
staf
f or
oth
er public officials to vis
it the pro
pert
y and
conduct their own ind
epen
dent
analysis of imp
acts
.
If a company refuses to agree in
writing to th
e terms of
a landowner ac
cess
agr
eeme
nt for sur
veys
(or at a
i minimum, of
fer an
alt
erna
tive
agreement), th
e'~, c
ompa
ny's
den
ial sh
ould
be documented at FERC —and
', the landowner sho
uld refuse deny any
fur
ther
access at
that
point.
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righ
t: Law Offices of Car
olyn
Elefant PLLC
DO NOT REPRINT WITHOUT ATTRIBUTION AND A LINK TO www.lawofficesofcarolynelefant.com
Landowner Survey Con
side
rati
ons-P.
2
•
•
• •
~-
Will
den
ial of access st
op or slow the
pipeline
process?
Has the pipeline come on my pro
pert
y without
auth
oriz
atio
n?
t
•
Project opponents often contend that denying
access for surveys wil
l slow or even sto
p the
pipeline. Th
is is no
t en
tire
ly tru
e. Pipelines can
gath
er most of th
e data required for th
e FERC
certificate th
roug
h existing inf
orma
tion
and
even tools like Google Maps. FERC
will
allow
the pipeline to conduct surveys after th
e
certificate is
granted and the pipeline gains th
e
power of eminent do
main
. And while many
state agencies wild no
t is
sue a permit wit
hout
surv
ey dat
a, FERC can s
till grant a cer
tifi
cate
cond
itio
ned on the company's subsequent
receipt of state per
mits
. Si
mply
put
, the
re is no
evid
ence
to su
gges
t th
at denying sur
vey access
will
sto
p or
even delay the pipeline.
In some instances, pipeline land agents wil
l
access property even wit
hout
seeking
perm
issi
on. Th
is alo
ne justifies bar
ring
access
in the
fut
ure.
•• •
As a landowner, your property
is constitutionally
protected by the Fifth Amendment, and (barring state
laws to th
e contrary), you have the ri
ght to deny the
pipeline the right to su
rvey
for wha
teve
r reason. But
bear in mi
nd tha
t denying su
rvey
s wi
ll not
sto
p the
pipeline —and you must take st
eps to protect you
rsel
f
and your property beyond sim
ply denying ac
cess
.
If a land ag
ent arrives on a pro
pert
y wi
thou
t
auth
oriz
atio
n, th
is con
stit
utes
tre
spas
s. Landowners
may con
tact
law
enforcement to have the
lan
d agent
removed fro
m th
e property.
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efan
t PL
LC
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RINT
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RIBU
TtON
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Landowner Su
rvey
Con
side
rati
ons-P.
3
Alabama
Ala.
Code 418-
1A-5
0 Ye
s. § 18-1A-50 states that "[
a] condemnor [d
efin
ed in §
Ala. Code 4 18-1A-3
18-1A
-3 as "[
a] person empowered to condemn"] and
its
AIa. Code § 10A-2
1-2.
01
agen
ts and
employees may enter upo
n re
al property fo
r a
reas
onab
le tim
e an
d make sur
veys
, examinations,
phot
ogra
phs,
tests, sou
ndin
gs, borings, and
sam
plin
gs, or
enga
ge in other ac
tivi
ties
for the pur
pose
of ap
prai
sing
the
property or de
term
inin
g wh
ethe
r it is s
uita
ble an
d wi
thin
the power of the condemnor to take for
pub
lic use..."
A pip
elin
e company is so empowered, and
is ab
le to file for
entry in
cir
cuit
court under §
18-1A-5
1. Under § 10A-
21-
2.01, ac
orpo
rati
on "formed for
the purpose of
constructing, operating, or maintaining pi
peli
nes"
may
exer
cise
sta
te eminent dom
ain.
Alaska
Arizona
Arkansas
Cali
forn
iaColorado
Connecticut
Conn. Gen. St
at.
§
48-13
Probably not
.
§
48-13
pro
vide
s: "Upon filing a notice of
condemnation of a condemning aut
hori
ty, ei
ther
bef
ore or
after the institution of
a condemnation proceeding and
after re
ason
able
not
ice to the property owner or owners
affe
cted
, the Sup
erio
r Co
urt.
..ma
y authorize such
cond
emning authority to enter upon and
int
o la
nd..
.for
the
purpose of
ins
pect
ion,
survey, bor
ings
and
other tes
ts."
This
doe
s no
t seem to extend survey authority to an en
tity
lack
ing FERC cer
tifi
cati
on.
Dela
ware
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righ
t: Law Off
ices
of Carolyn El
efan
t PLLC
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Survey of St
ate Survey Law-P
. 1
Walker v. Gateway Pip
elin
e Co
., 601
So.2
d 970 (Ala. 1992) (upholding a
lowe
r court's order perm
itti
ng ent
ry
by pip
elin
e company to cond
uct pre-
cond
emna
tion
surveys in pursuit of
a FERC certificate)
Town of Wallingford v. Werbiski,
274 Con
n. 483 (200
5) (holding that a
town seeking to condemn pri
vate
prop
erty
was ent
itle
d to an
inju
ncti
on pre
vent
ing landowners
from
int
erfe
ring
wit
h survey activity,
inte
rpre
ting
§ 48-13
to reinforce
broad surveying au
thor
itie
s already
given to mun
icip
alit
ies)
.
Flor
ida
Fla.
Stat. § 361.01
Fla. Srat. § 361
.05
Geor
gia
Ga. Code Ann. § 22-3-82
Ga. Code Ann. ~ 22 -3-88
Hawaii
Idaho
Illinois
Indi
ana
Iowa
Kansas
Yes.
§ 361.01 al
lows
any cor
pora
tion
"or
gani
zed fo
r th
e
purpose of constructing, mai
ntai
ning
, or
operating public
work
s, or th
eir pr
oper
ly aut
hori
zed agents" to
"enter upon
any ►
ands
" ne
cess
ary to the
ir business and condemn suc
h
land. §3
61.0
5 clarifies th
at any nat
ural
gas
company—
whether state- or FERC-r
egul
ated
, can exercise eminent
domain and may ent
er/s
urve
y/examine pr
oper
ties
to
determine th
e most adv
anta
geou
s route(s).
Yes. § 22-3-8
2(b)
stat
es tha
t "[a] pip
elin
e company sha
►Iha
ve a rig
ht of re
ason
able
acc
ess to property proposed as
the si
te of a pi
peli
ne for
the
purpose of co
nduc
ting
a sur
vey
of the
sur
face
of su
ch property fo
r us
e in det
ermi
ning
the
suit
abil
ity of suc
h property for
pla
ceme
nt of a pi
peli
ne."
§
22 -3-88 clarifies that this rig
ht ext
ends
to companies
"tra
nspo
rt[i
ngj or
dis
trib
ut[i
ng]"
nat
ural
gas in Ge
orgi
a.
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ices
of Ca
roly
n Elefant PLLC
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K TO www.lawofficesofcarolynelefant.com
Surv
ey of St
ate Su
rvey
Law-P
. 2
N/A
N/A
Kentucky
Ky. Rev. St
at. Ann.
§
278.502
Ky. Re
v. Stat. Ann.
§
416.230
Kv. Rev. Stat. Ann.
§
416.540
Loui
sian
aMaine
Maryland
Probably not
. § 278
.502
sta
tes th
at natural
gas
companies
regulated by
the
Sta
te Public Se
rvic
e Co
mmis
sion
may
"condemn the
lands and material or
the use and
occupation of th
e la
nds"
nee
ded for th
e pi
peli
ne. § 416
.230
sets
out
Kentucky's co
ndem
nati
on petition process for ga
s
pipe
line
s in Circuit Court. § 416
.540
def
ines
a condemnor
as any "pe
rson
, corporation, or entity" who is gi
ven
eminent domain power, wh
ich encompasses "the ri
ght of
[suc
h entities] t
o [take for a public use]" und
er Kentucky
law.
Md. Real Prop. § 12-11
1 No. § 12-11
1 only all
ows entry and surveying by entities
who are
"acting on behalf of the Sta
te or of any of
its
inst
rume
ntal
itie
s or
any bod
y politic or
cor
pora
te having
the power of eminent domain..." Under Mar
ylan
d law,
pipelines are no
t public uti
liti
es and
the
refo
re do not
hav
e
"power of eminent domain;" ho
weve
r, once the
certificate
is granted, th
e companies may be gr
ante
d th
e ri
ght to
survey.
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righ
t: Law Offices of Carolyn El
efan
t PL
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RIBU
TION
AND A LINK TO www.l
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fice
sofc
arol
ynel
efan
t.co
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Bluegrass Pipeline Co.. LL
C v.
Kentuckians Un
ited
to Restrain
Emin
ent Domain, In
c., 2015 WL
2437864 (C
t. App. Ky. May 22, 2015)
(holding that state eminent domain
power rea
ches
only companies
regu
late
d by the
Sta
te Public Service
Commission).
King v. Mayor &Council of Rockville,
52 Md.App. 113
, 123 (1982) ( "We
think, without deciding, that
if [an
entity] un
dert
ook
acti
viti
es beyond
the scope of tho
se anticipated und
er
[§ 12-
111]
, [landowners] co
uld
invo
ke the
power of th
e co
urt to
enjo
in suc
h ac
tion
s.").
NOTE —there
is at le
ast one
unreported MD low
er cou
rt case
involving a pr
o se
litigant that
allowed su
rvey
acc
ess prior to the
Company att
aini
ng a cer
tifi
cate
.
Massachusetts
Mass. Ann. Laws ch. 164, §72
Mass. Ann. Laws ch. 164, §72A
Mass. Ann. Laws ch. 164, §758
Mass. Ann. Laws ch. 164, §75C
Mass. Ann. Laws ch. 164, §75D
Michigan
Mich. Comp. Laws Serv. § 213.51
Mich. Comp. Laws Serv. § 213
.54
Mich. Comp. Laws Serv. § 483
.102
Minnesota
Mississippi
Miss
ouri
Montana
Yes but
requires company to seek authorization from DPU.
Section 72 sta
tes that any "company...providing or
seek
ing
to pro
vide
transmission service" may petition th
e
Department of Public Utilities (DPU) to construct a
transmission or distribution lin
e, and DPU may authorize
exercise of eminent domain aut
hori
ty. § 72A allows DPU to
authorize Ma
ssac
huse
tts el
ectr
ic companies, wh
ich do not
incl
ude interstate natural gas
companies (un
der Ch
. 164, §
1) to con
duct
sur
veys
bef
ore eminent domain proceedings.
(Under § 75B, any natural gas
company, whether org
aniz
ed
under Mass. la
w or
tho
se of any other state, wh
ich has a
FERC Cer
tifi
cate
, falls und
er the umb
rell
a of Cha
pter
164
once it
file
s a copy of the Certficate wit
h DPU.) § 75D
inco
rpor
ates
§ 72A to al
low DPU to authorize na
tura
l gas
pipe
line
companies to co
nduc
t preliminary surveys.
Maybe. For con
demn
atio
n purposes, § 213.51 de
fine
s a
priv
ate ag
ency
as any cor
pora
tion
"authorized by law to
condemn pro
pert
y." § 483
.102
gives thi
s power to
companies tra
nspo
rtin
g na
tura
l ga
s vi
a pi
peli
nes —but only
if the
lin
es wil
l be used wi
thin
the state (an
d an interstate
pipe
line
lik
ely will not) § 213
.54(
3) st
ates
tha
t, wit
h
reas
onab
le not
ice to
the landowner, "[
aJn ag
ency
or an
agen
t or
employee of an age
ncy may ent
er upon property
before fi
ling an action for
the purpose of ma
king
surveys,
measurements, ex
amin
atio
ns, tests, sou
ndings, and
bori
ngs.
.."
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Survey of State Survey Law-P
. 4
Carl
isle
v. Deaartment of Public
Util
itie
s, 353 Mass. 722 (1968)
(uph
oldi
ng DPU's power to gr
ant
authority to
ent
er pri
vate
lands for
preliminary su
rvey
s wi
thou
t a prior
grant of power to make a taking).
City
of Me
lvin
dale
v. Trenton
Warehouse Co., 505 N.W.2d 540,
541 (M
ich. App. 1993) (uph
oldi
ng a
lowe
r co
urt'
s grant of a per
mit to
the City to en
ter private property to
inspect and tes
t it
pur
suan
t to
§
213.54(3) despite th
e fact that
"public us
e and purpose" had no
t
yet been established). NOTE —not
an NGA case
Nebraska
Nevada
New Ham
pshi
re
New Jer
sey
New Mexico
N.H.
Rev
. Stat Ann. § 362
.2
Unlikely given lim
ited
pur
pose
. § 362
.2 defines "pu
blic
N.H.
Rev
. Stat. Ann. § 371
:2-a
ut
ilit
y" to in
clud
e corporations and companies "owning or
oper
atin
g any
pipeline...for the tra
nspo
rtat
ion,
dis
trib
utio
n
or sal
e of
gas.
.." § 371
:2a th
en extends the right to en
ter
land "over which a public utility de
sire
s to ere
ct fa
cili
ties
"
"for
the
pur
pose
of su
rvey
ing and ma
king
suc
h other
inve
stig
atio
n as
is necessary to de
term
ine the locations of
the bo
unda
ries
of su
ch land and of
the
facilities it d
esir
es to
erec
t thereon..."but only where utility has need to ascertain
owne
rshi
p or has "f
iled a petition at the
NH PUC (a
s
opposed to
FER
C)..
.wit
h re
spec
t to
a par
ticu
lar tr
act of
land
"
N.J.
Stat. Ann. § 20:
3-2
Unlikely. § 20:
3-2(m), f
or eminent dom
ain pu
rpos
es,
N.J.
Stat. Ann. § 20:
3 -16
defi
nes "p
ubli
c ut
ilit
y" to in
clud
e "every natural gas
N.l.
Stat. Ann. § 48:10
-1
pipeline utility...vested with the power of eminent domain
and su
bjec
t to regulation un
der State or Federal law
." An
interstate pipeline is not
"vested" wi
th eminent dom
ain
authority until a certificate issues. § 20:
3-16
states th
at a
"pro
spec
tive
condemnor...may ent
er upon any pro
pert
y
whic
h it has aut
hori
ty to condemn for the pur
pose
of
maki
ng stu
dies
, surveys, t
ests, s
oundings, borings and
appr
aisa
ls" with ten
day
s' notice. § 48:10-1 aff
irms
tha
t
pipeline companies can condemn land for easements.
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N/A
Cree
k Ranch. In
c. v. New Jer
sev
Turn
pike
Authority, 383 A.2d 11
0,114 (N
.J. 1978) (
citi
ng §20:3-1
6 as
prov
idin
g authority for the
prospective condemnor to su
rvey
,
but al
so to acquire a br
oade
r right-
of-entry permit to "cl
ear,
grade, and
drai
n...
land
...") but doe
s not involve
interstate pipeline.
New Yor
k
Nort
h Carolina
N.Y.
Pub
. Se
rv. Law § 120
Unclear. Pub. Serv. Law § 120 states th
at the
New York la
w
on siting tr
ansm
issi
on lin
es inc
lude
s "fuel gas tr
ansm
issi
on
line[s)" 1,0
00 feet or lon
ger and tr
ansp
orti
ng gas at
>_125,000 psi. There is no statute providing for pre-
cond
emna
tion
sur
veys
of potential pipeline sit
es.
Organizations Ilike Stop NY Fracked Gas Pipeline assert
landowners can refuse pr
e-Certification entry for su
rvey
s
but do not
cite statutes to th
at eff
ect
(http://s
topn
ygip
elin
e.or
~/wp-
content/up
load
s/2015/02 /LawverMemo 020215.pdf).
N.C.
Gen. Stat. § 40A-3(aJ
Sometimes. § 40A-3
(a) de
fine
s a pr
ivat
e condemnor to
N.C. Gen. Stat. g 40A-11
incl
ude "[c]orporations, bod
ies po
liti
c or persons having]
N.C. Gen. St
at. ~ 62-190
the power of eminent domain for the
construction
of...pipelines...originating in North Ca
roli
na for the
transportation of.
..ga
s." Th
is section als
o limits the
width of
any nat
ural
gas
pipeline easement to 100 fe
et. § 40A-1
1
then
sta
tes th
at "[a
]ny condemnor without hav
ing filed a
peti
tion
or complaint...is aut
hori
zed to
enter upon any
lands, but not structures, to make surveys, borings,
exam
inat
ions
, and app
rais
als as
may be necessary or
expe
dien
t in
carrying out and per
form
ing
its rights or du
ties
under thi
s Ch
apte
r" with 30 days' notice to
the
landowner.
§ 62-190 ext
ends
eminent domain rights to pip
elin
e
companies incorporated
in North Carolina or
"foreign
corp
orat
ions
domesticated under" NC law. Such
corporations may then extend pip
elin
es from wit
hin NC
into ano
ther
sta
te.
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. 6
King v. Power Aut
hori
ty, 44 A.D.2d
74, 76 (N.Y. App. Div
. 1974) (holding
that a sta
te power authority's entry
onto pri
vate
land for seismological
and subsurface ex
amin
atio
ns was
not un
cons
titu
tion
al, and not
ing
that
"[t]he Le
gisl
atur
e ha
s lo
ng
recognized the
necessity for
entry
upon pri
vate
pro
pert
y for th
e
purp
ose of making surveys...prior to
cons
truc
tion
of pu
blic
improvements") (aff
'd King v.
Power
Auth
orit
y, 38 N.Y.2d 756 (N
.Y. 1975).
Duke Power Co. v. Herndon, 217
S.E.2d 82, 84 (N.C. Ct. App. 1975)
("The present action
is not an action
to condemn aright-of-way across
defe
ndan
ts' lands. This
is an action
to enf
orce
the statutory right of
plaintiff under G.S
. 40 -3 to 'en
ter
upon' defendants' lan
ds for the
purp
ose of making a sur
vey of the
prop
osed
route. Such a sur
vey
clea
rly is
necessary bef
ore pl
aint
iff
can undertake in
tell
igen
tnegotiations wit
h de
fend
ants
for a
purc
hase
...o
r...
inst
itut
e
condemnation proceedings.").
North Dakota
Ohio
Oklahoma
Oregon
Ohio Rev
. Code Ann. § 163.01
Unclear but see caselaw. § 163.01(G) defines a pub
lic
Ohio Rev
. CodeAnn. ~ 163.03
util
ity as
including any pub
lic or private agency regulated by
Ohio Rev
. Code Ann. § 163.05
the st
ate Public Uti
liti
es Commission or,
meeting the
Ohio Code 4905.02
definition of Ohio Code 4905.02 (which requires service for
end use) or "ho
ldin
g a certificate of pub
lic co
nven
ienc
e and
nece
ssit
y gr
ante
d by [FERC]." § 163.03 states tha
t any
agency may, "prior to.
..th
e filing of a pe
titi
on [for
appropriation under § 163
.05]
, enter upon any lands,
wate
rs, and pre
mise
s for the purpose of making suc
h
surveys, soundings, dr
illi
ngs,
appraisals, and examinations
as are
necessary or pr
oper
for the pur
pose
of th
e agency
under sections 163.01 to 163.22..." Under str
ict terms of
Texas Ea
ster
n Tr
ansm
issi
on. LP
v.
Bara
ck, 2014 WL 1408058 (S
.D. Ohio
Apr. 11, 2014) (finding tha
t plaintiff
with a pending FERC certificate
application was a "company
organized for th
e purpose of
transporting natural...gas
through...pipes" snd is t
herefore an
"agency th
at has the pow
er of
eminent do
main
"; holding that
plai
ntif
f "is permitted pursuant to
...§
163.03 to enter upon lan
ds..
.for
the
statute, pipeline wi
thou
t a certificate may not quality as
purp
ose of conducting necessary
utility, but caselaw (next column) reaches con
trar
y result
surveys..."; and gra
ntin
g a request
and allows su
rvey
s.
for a pr
elim
inar
y in
junc
tion
for
Okla
. St
at.
tit.
27,
§ 7
Maybe. The pla
ce to start with Oklahoma eminent domain
Okla
. St
at.
tit.
66, § 51
is with ra
ilro
ads;
66 Okl
. St
. § 51 states th
at "any railroad
corp
orat
ion au
thor
ized
to co
nstr
uct,
ope
rate
, or maintain a
rail
road
within this state, has po
wer and
is authorized to
enter up
on any lan
d for th
e purpose of exa
mini
ng and
surv
eyin
g its ra
ilro
ad..
." 27 Okl. St. § 7 then states tha
tnatural ga
s di
stri
buti
on companies have th
e same emi
nent
doma
in power as ra
ilro
ad corporations.
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imme
diat
e access).
N/A
Penn
sylv
ania
~'
r~ Pa.
ions. ~r
U~2.
~ ~0~
No. 66 Pa.
Cons. Stat. § 102 def
ines
a "pu
blic uti
lity
" to
Tennessee Gas Pipeline Co. v.
26 Pa.
Cons. Stat. § 309
inc ►
ude "[
a]ny
per
son or
cor
pora
tion
s...
oper
atin
g in
Garr
ison
, 2010 U.S
. Di
st. LEXIS
66 Pa. Con
s. Stat. § 102
[Pen
nsyl
vani
a] equipment or facilities" f
or tra
nsmi
ttin
g94422, *3 (M.D. Pa.
Sep
t. 10, 2010)
natu
ral ga
s to the pub
lic.
Such an ent
ity
is a condemnor
("I
n cl
aimi
ng a right to enter
under 26 Pa.
Cons. Stat. § 202
, and under 26 Pa.
Cons. Stat.
Defendants' property to ca
rry ou
t
§ 309
(a),
a condemnor may, prior to a ta
king
, with notice,
the surveys, Plaintiff fuses sta
te and
has "the right to enter upon any land or improvement in
federal la
w in a way tha
t does not
order to make stu
dies
, surveys, te
sts,
soundings and
stand up to cl
ose scrutiny...[T]he
appraisals." However, the
cas
e la
w (see directly in
fra)
takes
Natural Gas Act does not
provide for
care to di
stin
guis
h between federal and sta
te authority so
pre-condemnation entry onto
as to avoid burdening a landowner with the above reading.
Plai
ntif
f's property, nor does it po
int
to sta
te law
for
such
authorization.").
Rhode Island
South Carolina
South Dakota
Tennessee
Tenn
. Code Ann. § 29 -16-121
Yes.
§ 29-16-1
21 sta
tes th
at "[a] pe
rson
or company
Midwestern Gas Tra
nsmi
ssio
n Co. v.
Tenn
. Code Ann. 4 65-28-101
actu
ally
intending to make application for
[eminent
Gree
n, 2006 Tenn. App. LEXIS 115
domain] privileges...and entering upon the land of another
(Ten
n. App. Feb
. 24
, 2006) (holding
for th
e pu
rpos
es of making the
req
uisi
te exa
mina
tion
s and
that §29-16-1
21 was not
preempted
surveys...is liable only for
the actual damage done..." § 65-
by the Nat
ural
Gas Act
, and that
28-101 et se
q. extend this authority to ga
s pipelines
entities seeking to conduct su
rvey
s
regulated by Tennessee sta
te age
ncie
s.do not
need sta
te condemnation
authority or
a FERC cer
tifi
cate
).
Texas
Utah
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. 8
Vermont
Vt. Stat. Ann. ti
t. 30, 4110
Probably not. 30 V.S
.A. § 110 extends eminent domain
N/A
Vt. Stat. Ann. ti
t. 30, § 116
power to Vermont corporations and fo
reig
n corporations
Vt. Stat. Ann. ti
t. 30, § 248
unde
r VT Public Service Board ju
risd
icti
on. § 116 cl
arif
ies
that
this ti
tle applies to pipelines.
§ 248(a)(3) co
mplicates things regarding interstate
pipelines: No company, it
says, "may begin site preparation
for or commence construction of
any [new] nat
ural
gas
faci
lity
...u
nles
sthe
Pub
lic Service Bo
ard fi
rst.
..is
sues
a
certificate" for it
. Thi
s in
clud
es tra
nsmi
ssio
n li
nes th
at hav
e
been
certified und
er the Natural Gas Act. § 24
8(a)(3)(B),
but excludes any company within the meaning of
the NGA
unless such a company is
constructing a pipeline tha
t is "not
solely sub
ject
to federal [NGA] jurisdiction." § 248
(a)(
3)(C
)
reserves for the Boa
rd the right to offer an opinion on a
project to be constructed in Vermont "i
n co
nnec
tion
wit
h
fede
ral ce
rtif
icat
ion"
proceedings.
5 V.S
.A.
§
3518 giv
es railroad corporations the abi
lity
to
cond
uct preliminary surveys, but no sta
tute
explicitly
extends this authority to pi
peli
ne companies as
is done in
Oklahoma.
Virg
inia
Va. Code Ann. §
56-
49.01
Likely but cas
es are pen
ding
and
constitutionality
Pending. A law
suit
challenging the
challenged.
§
56-49
.01 al
lows
any nat
ural
gas company to
constitutionality of
§
56-
49.0
1 is
"make such examinations, tests, hand au
ger bo
ring
s,ongoing in the U.S
. Di
stri
ct Cou
rt for
appr
aisa
ls, and su
rvey
s for its pr
opos
ed line...as are
the Western
Dist
rict
of Vi
rgin
ia
necessary...to sat
isfy
any regulatory re
quir
emen
ts" wi
thou
t(Klemic v. Dominion Tr
ansm
issi
on.
landowner's permission if the company pre
viou
sly
Inc., 3
:14-cv
-00041(W.D. Va
.)).
requested and di
d no
t receive
it.
See State Br
ief Defending Statute
Washington
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West Virginia
W.Va. Code 54-
1 -3
Unclea
r. All
ows company wit
h eminent domain to co
nduc
t Mo
unta
in Val
ley La
wsui
t ag
ains
t
surv
eys;
unclear is
interstate pi
peli
ne is deemed to have
landowners — pending in federal
eminent do
main
in ad
vanc
e of
certificate.
court, West Virginia, 15-
cv-3
858.
Wisconsin
Wyoming
Appendix (te
xt of ap
plic
able
sta
tute
s):
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ate Su
rvey
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