comments for people's hearing on ferc...

e see our dr1~~

~3

e°' ̂E.

'o3

~.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.

Copy

righ

t: Law Offices of Car

olyn

Elefant PLLC


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.

Copyright: Law Offices of Carolyn El

efan

t PL

LC

DO NOT REP

RINT

WITHOUT ATf

RIBU

TtON

AND A LINK TO www.lawofficesofcarolynelefant.com

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

Copy

righ

t: Law Off

ices

of Carolyn El

efan

t PLLC


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.

Copyright: Law Off

ices

of Ca

roly

n Elefant PLLC

DU NOI REPRINT WITHOUT ATTRIBUTION AND A LIN

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.

Copy

righ

t: Law Offices of Carolyn El

efan

t PL

LCDO NOT REP

RINT

WITHOUT ATT

RIBU

TION

AND A LINK TO www.l

awof

fice

sofc

arol

ynel

efan

t.co

mSurvey of State Survey Law

-P

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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DO NOT REPRINT WITHOUT ATTRIBUTION AND A LIN



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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ices

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efan

t PLLC




. 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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ices

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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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ices

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awof

fice

sofc

arol

ynel

efan

t.co

m


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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