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Pipeline Company Notices Needed ‘Date Certain’

A pipeline company’s notices to landowners that the company would come onto their land “on or after” a particular date, in order to conduct preliminary surveys authorized by Va. Code § 56-49.01, did not provide sufficient notice to enable the owners to protect their real or personal property interests; the Supreme Court of Virginia reverses a decision finding the notices sufficient and remands the case.

Appellee Atlantic Coast Pipeline LLC (ACP) is a public service company engaged in the underground storage and transportation of natural gas in interstate commerce. It is a “natural gas company,” as defined by federal law and subject to the jurisdiction of the Federal Energy Regulatory Commission. ACP is seeking FERC’s regulatory approval to build a natural gas transmission line that would extend from West Virginia to North Carolina, passing through Virginia. As part of this process, ACP must conduct surveys, tests, appraisals and other examinations upon properties located along the pipeline’s proposed routes.

On March 6, 2015, ACP sent appellant landowners letters seeking permission to enter their properties to conduct preliminary surveys. When the owners withheld their consent, ACP provided notices of intent to enter their properties “on or after April 27, 2015” pursuant to Va. Code § 56-49.01. The notices explained that the statute authorized “certain natural gas companies to enter upon property, without permission, for examinations, tests, hand auger borings, appraisals and surveys.”

However, rather than enter the properties at that time, ACP filed petitions for declaratory judgment against the owners. The owners responded that the notices failed to set forth the date of the intended entry, as required by Code § 56-49.01(C). The circuit court issued a final order holding that ACP was entitled to enter the owners’ properties pursuant to Code § 56-49.01.

We reverse and remand the case.

Reason for notice

At each step, the natural gas company must provide advance notice. The notice requirements allow the owner to be present during the tests if desired, arrange for livestock to be confined prior to the entry and ensure that any property damage is documented. The owner may also wish to ensure that vehicles, self-propelled machinery and power equipment are not used on the property without permission, as provided in the statute.

The notice must provide the owner with dates certain upon which the natural gas company intends to enter the property. ACP’s “on or after” notices did not do this. At best, they informed the owners that it was possible the entry would occur on April 27, 2015. But they also reasonably implied that it could be an indeterminate amount of time later. In fact, the notices allowed for the possibility that the entry could occur years after the stated date. This vagueness provided the owners with no meaningful way of knowing when the entry would occur and thereby rendered the notices ineffective.

Code § 56-49.01(C) requires that a notice of intent to enter provide dates certain upon which entry is intended. ACP’s “on or after” notices failed to do this.

The court rejects ACP’s contention that this appeal is moot, as it sent the owners additional notices stating the surveys would be conducted between July 6, 2016, and July 11, 2016. This case is not moot because the controversy between the litigants still remains. July 12, 2016, is “after” April 27, 2015, so the original notices would provide a right of entry on this date if they are valid as ACP Contends. By their explicit, open-ended terms, they would provide ACP with an ongoing right of entry onto the owners’ properties to this day for any of the purposes outlined in Code § 56-49.01-(A).

Reversed and remanded.

Chaffins v. Atlantic Coast Pipeline LLC (Mims) No. 160582, July 13, 2017; Buckingham County Cir.Ct. (Blessing) Isak Howell, Evan D. Johns for appellants; Benjamin L. Hatch, M. Melissa Glassman, John D. Wilburn, Richard D. Holzheimer Jr., Brooks H. Spears, Robert W. Loftin for appellee. VLW 017-6-053, 8 pp.