Landowners Can’t Stop Pipeline Surveys

Property owners in Nelson County lose their constitutional challenge to defendants’ assertion of a right under Va. Code § 56-49.01 to enter onto plaintiffs’ property to survey for a natural gas pipeline should proposed routes for the pipeline change to cross plaintiffs’ properties; plaintiffs’ facial challenges to the Virginia statute fail because the statute does not deprive a landowner of a constitutionally protected property right, and plaintiffs’ as-applied challenges fail because they are not ripe.

Defendants and the commonwealth do not contend that ACP’s change to the proposed route of the pipeline moots plaintiffs’ claims. And for good reason. ACP admits that it cannot guarantee that it will not change the route back across plaintiffs’ properties in the future. It is therefore possible that the “allegedly wrongful behavior” here could recur. The court concludes plaintiffs’ claims are not moot.

Plaintiffs’ facial challenges are ripe, but their as-applied challenges are not. Facial challenges to regulation are generally ripe the moment the challenged regulation or ordinance is passed. However, the as-applied challenges are not fit for judicial review at this time. Defendants have not entered plaintiffs’ properties, and they have no intention of doing so now, given the change to the proposed route of the pipeline. Plaintiffs’ as-applied challenges thus rest on contingent future events that may not occur at all.

Withholding judicial review of their as-applied challenges at this time will not cause plaintiffs undue hardship because they face no immediate threat of injury. Defendants have not entered plaintiffs’ properties, and they have no current plans to do so. If defendants change their mind at some point in the future, they have said they will obtain a court order before entering plaintiffs’ properties. The court concludes plaintiffs’ as-applied challenges are not ripe.

The court dismisses plaintiffs’ facial challenges with prejudice for failure to state a claim. Plaintiffs allege state action for purposes of their federal-law claims and the court has supplemental jurisdiction over their state-law claim. Because plaintiffs allege defendants seek to enter their properties pursuant to the right of entry granted in Va. Code § 56-49.01, the court concludes plaintiffs’ allegations establish that defendants are state actors under 42 U.S.C. § 1983. The court also denies defendants’ motion to dismiss the claim for failure to allege the violation of a federal right.

Plaintiffs allege four separate facial challenges to § 56-49.01. None succeeds. The statute is not facially unconstitutional under the Fifth Amendment. The common law and courts recognize the privilege to enter for survey purposes. Every other state has codified, and courts have upheld, the common-law privilege to enter for survey purposes, and Virginia law is in accord with the common law. Even assuming a right to exclude here, § 56-49.01 does not effect a compensable taking of that right. The Virginia state satisfies the Takings Clause’s public-use requirement.  Entry-for-survey statutes do not require utilities to buy a “pig in a poke.”

The statute also is not facially unconstitutional under the Virginia Constitution. For the same reasons that plaintiffs failed to allege a plausible facial challenge under the Takings Clause, they fail to allege a plausible facial challenge under Article I, § 11 of the Virginia Constitution.

Nor is the statute facially unconstitutional under the Fourth Amendment, as an unreasonable seizure of plaintiffs’ right to exclude others from their property.

Finally, the statute is not facially unconstitutional under the 14^th Amendment. A landowner does not have a property right to exclude an authorized utility from entering his property for survey purposes.

Suit dismissed.

Klemic v. Dominion Transmission Inc. (Dillon) No. 3:14cv41, Sept. 30. 2015; USDC at Charlottesville, Va. VLW 015-3-483, 35 pp.