Little v. Dominion Transmission, Inc.

138 F. Supp. 3d 699, 2015 U.S. Dist. LEXIS 132551, 2015 WL 5730424
CourtDistrict Court, W.D. Virginia
DecidedSeptember 30, 2015
DocketCivil Action No. 5:14-cv-00060
StatusPublished
Cited by5 cases

This text of 138 F. Supp. 3d 699 (Little v. Dominion Transmission, Inc.) is published on Counsel Stack Legal Research, covering District Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Little v. Dominion Transmission, Inc., 138 F. Supp. 3d 699, 2015 U.S. Dist. LEXIS 132551, 2015 WL 5730424 (W.D. Va. 2015).

Opinion

MEMORANDUM OPINION

ELIZABETH K. DILLON, District Judge.

Defendant Dominion Transmission, Inc., a natural gas company, wants to build a new pipeline through Virginia. The proposed route runs across property owned by plaintiffs William W. Little, II, and Wendy M. Little. To determine whether the property is suitable for the project, Dominion intends to enter and conduct a survey, in accordance with Virginia Code § 56-49.01. Seeking to prevent Dominion from entering the property, the Littles filed this action, alleging that Dominion’s entry would be a trespass, and that § 56-49.01 is unconstitutionally vague and thus void.

Dominion now moves to dismiss the Lit-tles’ verified complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. The Commonwealth of Virginia, which has intervened to defend the constitutionality of § 56^19.01, also urges dismissal. For the following reasons, the court concludes that the Littles fail to state a trespass or vagueness claim. It will therefore grant Dominion’s motion and dismiss the Littles’ complaint.

I. BACKGROUND

The Littles own property in Augusta County, Virginia, which they use as their primary residence. (Dkt. No. 1-1 at 3.)1 On August 12, 2014, they received a letter [701]*701from Dominion, informing them that the company desires to construct a new pipeline (now known as the .Atlantic Coast Pipeline) through Virginia and that their property is located within the proposed route. (Id. at 2, 11.) To verify the suitability of the property for the project, Dominion asked for the Littles’ written permission to enter and conduct a survey. (Id. at 2, 11-12.) It stated that it planned to begin the survey “on or about August 27, 2014.” (Id. at 11.) Enclosed with the letter was a summary of the survey process. (Id. at 11,17-Í8.)

Roughly a month and a half later, on September 25, 2014, the .Littles sent a letter to Dominion, denying the company’s request to enter their property. (Id. at 3, 13-14.) They further warned Dominion that “NO TRESPASSING IS ALLOWED” and that any “person caught on [the property] following this notice will be physically ejected and a request will be made to local law enforcement for' that person’s arrest.” (Id. at 2,13.)

On October 10, 2014, Dominion sent another letter to the Littles, this time giving them notice that, although the company has not received written permission to enter their property, it nonetheless “intends to enter upon [the property] in order to perform certain surveys and studies.” (Id. at 2, 16.) It stated that, as a natural gas company, it is “authorize[d] .:. to enter upon property, without permission,” for such purposes under § 56-49.01 (id. at 16), which provides in full:

A.Any firm, corporation, company, or partnership, organized for the bona fide purpose of operating as a natural gas company as defined in 15 U.S.C. § 717a,[2] as amended, may make such examinations, tests, hand auger borings, appraisals, and surveys for its proposed line or location of its works as are necessary (i) to satisfy any regulatory requirements and (ii) for the selection of the most advantageous location or route, the improvement or straightening of its line or works, changes of location or construction, or providing additional facilities, and for such purposes, by its .duly authorized officers, agents, or employees, may enter upon any property without the written permission of its owner if (a) the natural gas company has requested the owner’s permission to inspect the property as provided in subsection B, (b) the owner’s written permission is not received prior to the date entry is proposed, and '(c) the natural gas company has given the owner notice of intent to enter as provided in subsection C. A natural gas company may use motor vehicles, self-propelled machinery, and power equipment on property only after receiving the permission of the landowner or his agent.
B. A request for permission to inspect shall (i) be sent to the owner by certified mail, (ii) set forth the date such inspection is proposed to be made, and (iii) be made not less than 15 days prior to the date of the proposed inspection.
C. Notice o’f intent to enter shall (i) be sent to the owner by certified mail, (ii) set forth the date of the intended entry, and (iii) be made not less than 15 days prior to the date of mailing of the notice of intent to enter.
D. Any entry authorized by this section shall not be deemed a trespass. The natural gas company shall make reimbursement for any actual damages resulting from such entry. Nothing in • this section shall impair or limit any right of a natural gas company obtained by (i) the power of eminent domain, (ii) [702]*702any easement granted by the landowner or his predecessor in title, or (iii) any right-of-way agreement, -lease or other agreement by and between a natural gas company and a landowner or their predecessors in title or interest.

Va.Code Ann. § 66-49.01;

Dominion further explained in its October 10, 2014 letter that the survey process will consist of several steps. (Dkt. No. 1-1 at 16.) First, “a contract survey crew” will mark the anticipated right of way. (Id.) Then “[a] traditional survey crew” will locate the proposed route using “transits and other surveying equipment.” (Id.) And lastly, “technicians ... will study the proposed route for any historical or archeological significance, endangered species, soil types, and other similar conditions.” (Id.)

“During this process,” Dominion continued, “there may be very minor earth disturbance”—which “will be promptly refilled and repaired”—and the “surveyors may ... need to clear pathways through brush and other growth.” (Id.) Dominion also stated that it will reimburse the Lit-tles for “any actual damage” that their property, sustains as a result of “the survey process in the unlikely event that damage occurs.”' (Id.) Dominion further said that it intends to start the survey process “on or after October 27, 2014,” and that the “process will take. several weeks to complete.” (Id.)

In an attempt to stop this entry onto their property, the Littles filed this: action against Dominion in the Circuit Court of Augusta County, Virginia, on October 23, 2014. (Id. at 2-10.) They assert two claims in their verified complaint. (Id. at 3-5.) First, they allege that Dominion’s entry would -be a trespass because they have “affirmatively and in writing denied permission for [Dominion’s] proposed entry,” and because § 56-49.01 “does not permit [Dominion] to dig for artifacts or to clear pathways over [their] land.” (Id. at 5.)

Second, the Littles allege that § 56-49.01 is unconstitutionally vague, and therefore void, “because [its] language describes [Dominion’s] right of entry when [the] owner’s permission is not received prior to the date entry is proposed, but does not address a situation where the owner affirmatively denies permission to ent[er].” (Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
138 F. Supp. 3d 699, 2015 U.S. Dist. LEXIS 132551, 2015 WL 5730424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/little-v-dominion-transmission-inc-vawd-2015.