Landowners in the path of proposed Atlantic Coast Pipeline look to federal judge for relief

A lone Southern yellow pine tree has stood in the middle of Marvin Winstead Jr.’s Nash County field for at least 100 years. It is the heart of his 70-acre farm, which has been in his family for three generations.

The tree has survived hurricanes and tornadoes, cold snaps and heat waves, droughts and floods. But it may not survive the Atlantic Coast Pipeline. A portion of the 600-mile route is planned to slice through Winstead’s property, and will take the tree with it.

“The tree was my mother’s pride and joy,” Winstead testified in U.S. District Court in Elizabeth City on Wednesday. “You can’t replace it for 100 years,” Winstead testified. “It’s irreplaceable to me.”

In some ways, the endurance of Winstead’s beloved pine symbolizes the tenacity of a handful of landowners who refuse to be cowed by ACP, LLC — a company formed by Dominion Energy and Duke Energy, co-owners of the pipeline. For various reasons, some philosophical and others financial, the landowners, including Winstead, have declined to negotiate with ACP, LLC on what would constitute a fair payment for seizing part of their property under eminent domain.

Eminent domain is generally used by government to condemn land for roads and other public benefits. But in this case, private companies, while providing public benefits but also earning billions in revenue from them, are using those powers.

Frustrated by the landowners, the utilities have filed a motion asking a federal judge to force Winstead and other hold-outs to allow contractors to immediately begin tree-cutting on their land. To expedite the process, ACP is using a “quick-take”: Instead of paying upfront for the land, as is standard practice for eminent domain, the utilities are agreeing to a bond that they say will guarantee the landowners will be paid after a jury determines the amount.

The roadblocks posed by the reluctant landowners, ACP lawyers argue, will inflict expensive delays on the $6.5 billion project and cause the companies and their contractors “irreparable harm.”

[easy-tweet tweet=”What is the harm in giving us access now or later?”]

Meanwhile, the landowners will suffer no such harm from allowing construction to begin now,  ACP lawyers claim. “What is the harm in giving us access now or later?” Richard D. Holzheimer, Jr., an attorney with McGuireWoods, the firm representing the ACP, asked the court. He acknowledged the project would inflict “irreparable harm” but “not from early access.”

Landowners say harm has already been done, and there’s more in store. Unlicensed land agents and surveyors working on behalf of ACP have allegedly tried to hoodwink them, changing the amount of acreage to be condemned and low-balling them on the price. Their contractors have allegedly trespassed on private property. The pipeline would cross Winstead’s field, making part of it unable to grow robust crops.

The ACP has failed to communicate with them for months at a time, they say, and now wants to rush the process.  This purported crisis, the landowners and their attorneys argue, is of ACP’s own making.

 

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Built in 1904, the federal courthouse in Elizabeth City is only a few years older than Winstead’s tree. Here, in a high-ceilinged room warmed by red velvet curtains and 12-foot-high doors and window panes made of mahogany, noise from the steam radiators occasionally chattered over the attorneys and the witnesses, even Judge Terence Boyle. For nearly five hours, there were many tense moments, in which Boyle appeared exasperated and both sides sparred in open court.

The ACP is a 600-mile natural gas project that is proposed to run from West Virginia, through Virginia and eight counties in eastern North Carolina: Northampton, Halifax, Nash, Wilson, Johnston, Cumberland, Sampson and Robeson.

Dominion Energy began contacting some landowners about possible routing as early as 2014. But it would be another three years before the Federal Energy Regulatory Commission held public hearings and issued formal documents about the ACP.

ACP attorneys argued that the landowners and concerned citizens have had ample opportunity to comment on the 600-mile project to the Federal Energy Regulatory Commission. However, those comments were overwhelmingly opposed to the project.

FERC took no formal action on the project for most of 2017 because it lacked a quorum. President Trump had not appointed nominees to replace resigning members for nearly six months — until September 2017. Faced with a backlog, FERC quickly approved the ACP and other pipeline projects in October.

“FERC said ‘This is the route’,” Holzheimer said. “No one wants it in their yard. We have to put it somewhere.”

[easy-tweet tweet=”No one wants it in their yard. We have to put it somewhere”]

That “somewhere” is central to the landowners’ opposition. A second landowner, Ronald Locke, testified that an initial survey showed 1.83 acres of his Halifax County property would be condemned. A subsequent survey indicated 2.27 acres would be needed. Meanwhile the offer proposed by the ACP’s land agent fell by 30 percent, from $20,000 to $14,000.

Months passed between initial discussions and subsequent ones, but neither ACP representatives nor the land agent Doyle Land Services —  which had been operating in the state without a license — returned his call, Locke said.

“I can’t get a straight answer,” testified Locke, who manages the land in a trust for his son. He said he was willing to negotiate a price, but that he’s “tried to work with them, but they won’t work with me. I want facts.”

[easy-tweet tweet=”I can’t get a straight answer. I want facts”]

Likewise, Winstead said that he has not allowed surveyors on his property, but still has found surveyors’ tape — and surveyors themselves — on his land. In one instance, he testified, he encountered a surveyor who immediately stepped on to neighboring property when spotting Winstead. The crew chief for the company then told him that the pipeline wasn’t coming through his property, Winstead testified: “He misrepresented the facts.”

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The fluidity of the Trump administration’s environmental policies are also working behind the scenes in favor of the ACP. Issued last year, the Final Environmental Impact Statement for the project detailed the permanent and temporary harm that construction and operation of the pipeline would cause. That includes deforestation, damage to wetlands and rivers, and destruction of wildlife habitats, including those for endangered species and migratory birds.

Nonetheless, FERC said that the harm could be mitigated if proper procedures were established, and approved the project.

But in an ironic twist, attorneys for the landowners tried to bolster their case based on a recent Trump administration proposal that would allow for the killing of migratory birds. ACP lawyers argued that landowners need to give contractors access to their property immediately so that crews can cut trees outside of migratory bird nesting season. If those crews don’t finish timbering by March 31, the next opportunity isn’t until November, which would put the project even further behind.

[easy-tweet tweet=”There is no emergency”]

The ACP agreed to adhere to these restrictions in the migratory bird plan that it filed with FERC and the U.S. Fish and Wildlife Service. So far, the ACP has not asked for an extension.

But the ACP might not even need the leniency. The Department of Interior proposed in January that the Migratory Bird Act should cover only the intentional killing of migratory birds, not what are known as “incidental takes” — accidental killings.

While environmental advocates nationwide have roundly denounced the ruling, in this case, it could work in the landowners’ favor. Since ACP contractors presumably wouldn’t be hunting or stalking the birds — instead harming them only through destroying part of their habitat — the Migratory Bird Act would not apply to the project. Freed from those federal requirements, there is no urgency to cut trees now to avoid nesting season.

“There is no emergency,” argued Charles Lollar, an attorney representing Ronald Locke.

ACP lawyers were unswayed. “Those trees will be felled now or in November,” Holzheimer told the court. “The landowners want to delay to harm us.”

[easy-tweet tweet=”The tree is irreplaceable to me”]

Lawyers for the landowners noted that there could be more delays because 10 cases are pending against the ACP in various federal courts. If the ACP loses any of those cases, the route changes, or in the unlikely event that the project were scrapped altogether, “landowners would be irreparably harmed if the trees are felled and [FERC’s] order is reversed,” said attorney Catherine W. Cralle-Jones, who is representing Winstead.

Every day that Winstead can hold off the ACP from building the pipeline, which will run 275 feet from his house and affect 11 acres of his farm, is another day his tree can stand, his fields can be fully planted and his property will retain its value.

The judge, who by the end of the day was clearly exasperated with the bickering and maybe even the cacophonous radiator, said he would issue his ruling “as soon as I’m capable.”