Case 5:15-cv-03858 Document 57 Filed 05/22/15 Page 1 of 7 PageID #: 533

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
MOUNTAIN VALLEY PIPELINE, LLC,
Plaintiffs,
CIVIL ACTION NO. 5:15-cv-03858
v.
KENNETH DOSIER, et al.,
Defendant.
MEMORANDUM IN SUPPORT OF MOTION TO CERTIFY QUESTION TO WEST
VIRGINIA SUPREME COURT OF APPEALS
INTRODUCTION
Certain Defendants (hereinafter, “Defendants”) identified below submit this
Memorandum in Support of their Motion to Certify Question to the West Virginia Supreme
Court of Appeals. This memorandum and the motion that it supports are filed on behalf of the
following Defendants: Michael Losch, Charles F. Chong, Rebecca A. Chong, Wilda Judy,
Melissa Howard, W. Nathaniel Bernhart, Marietta Lyall (Clendenen), Sara L. Alm, Harold
Bostic, Leressa Bostic, Woodrow Estep, Randy L. Stone, Jr., Kimberly Stone, Donna Huffman,
Suzanne Fry (Soucier), Harold Butler, Dale L. McMillion, Alicia McMillion, D. Lane
McMillion, Roger A. Flanagan, Betty J. Flanagan, Margaret Ann Burkhardt, Phillip Harrah,
Tammy A. Capaldo, Steve Ballard, Cathy Ballard, Clarence A. Thomas, Joyce L. Thomas, and
Anthony M. Carter.
W. Va. Code § 51-1A-3 provides that
[t]he supreme court of appeals of West Virginia may answer a question of law
certified to it by any court of the United States . . . if the answer may be
determinative of an issue in a pending cause in the certifying court and if there is
no controlling appellate decision, constitutional provision or statute of this state.

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Defendants submit that the following question of law is determinative of the question whether
Plaintiff has a statutory right to enter Defendants’ properties to conduct surveys related to its
proposed natural gas pipeline:
Whether, under West Virginia Code § 54-1-1 et seq., a proposed natural gas
pipeline is “for public use,” as that term is used in W. Va. Code § 54-1-2(a)(3),
when consumers of natural gas in West Virginia will not be served with gas from
that pipeline, under reasonable and proper regulations, along the entire line
traversed, and for reasonable fixed rates.
As explained below, that determinative question is appropriate for certification because no
controlling appellate decision, constitutional provision, or statute may apply.
FACTUAL BACKGROUND
Plaintiff, a Delaware limited liability company whose principal office is in Pennsylvania,
intends to construct a 300-mile long, 42-inch diameter natural gas pipeline across Defendants’
property. CM/ECF # 1 at ¶¶ 2, 78, & 81. Plaintiff sought permission from Defendants to enter
their properties to survey the proposed pipeline route across the property, but Defendants
declined to allow Plaintiff to enter their private properties. Id. at ¶ 81.
ARGUMENT
Chapter 54 of the West Virginia Code governs eminent domain. Its provisions must be
strictly construed, however, because eminent domain, when granted, deprives West Virginians of
their fundamental rights in private property. State ex rel. Firestone Tire & Rubber Co. v. Ritchie,
153 W. Va. 132, 138 (1969); State, by State Road Commission v. Bouchelle, 137 W. Va. 572,
576 (1952); City of Mullens v. Union Power Co., 122 W. Va. 179, 7 S.E.2d 870, 871 (1940);
Fork Ridge Baptist Cemetery Ass’n v. Redd, 33 W. Va. 262, 10 S.E. 405, 407 (1889); Adams v.
Trustees of Town of Clarksburg, 23 W. Va. 203 (1883).
W. Va. Code § 54-1-3 provides that

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any incorporated company . . . invested with the power of eminent domain under
[Chapter 54 of the West Virginia Code], by its officers, servants and agents may
enter upon lands for the purpose of examining the same, surveying and laying out
the lands, ways and easements which it desires to appropriate, provided no injury
be done to the owner or possessor of the land; but no company or body politic,
under the authority of this section, shall throw open fences or inclosures on any
land, or construct its works through or upon the same, or in anywise injure the
property of the owner or possessor, without his consent, until it shall have
obtained the right so to do in the manner provided in this chapter.
That extraordinary right of entry established by that section is strictly limited, however, to
entities invested with the power of eminent domain by the West Virginia Legislature. W. Va.
Code § 54-1-1 makes that authority available to certain governmental and corporate bodies, but
such entities must be organized for a “purpose of internal improvement for which private
property may be taken or damaged for public use as authorized in section two of this article.”
Section 2(a)(3) of Article 1 of Chapter 54 of the West Virginia Code provides that
“public uses for which private property may be taken or damaged” include
[f]or constructing, maintaining and operating pipelines, plants, systems and
storage facilities for manufacturing gas and for transporting petroleum oil, natural
gas, manufactured gas, and all mixtures and combinations thereof, by means of
pipes, pressure stations or otherwise . . . when for public use, the extent of the
area to be acquired for such purpose to be determined by the court on the basis of
reasonable need therefor.
W. Va. Code § 54-1-2(a)(3) (emphasis added). Corporations may exercise the right of eminent
domain under that section only when they are transporting natural gas “for public use.” Id.
Consequently, the determinative question in this action is whether Plaintiff’s proposed
pipeline is “for public use” as that term is used in W. Va. Code § 54-1-2(a)(3). That question is
purely one of state law. As Defendants argue in their memorandum in support of their Motion to
Dismiss Pursuant to FRCP 12(b)(6), the West Virginia Supreme Court of Appeals has held that,
to be “for public use,” natural gas pipelines must provide certain and definite rights of access to
natural gas to West Virginians along the entire route of the pipeline for reasonable and fixed

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rates. United Fuel Gas Co. v. Public Serv. Comm’n, 95 W. Va. 415, 121 S.E. 281, 283 (1924);
Carnegie Natural Gas Co. v. Swiger, 72 W. Va. 557, 79 S.E. 3, 9 (1913); Hardman v. Cabot, 60
W. Va. 664, 55 S.E. 756, 759 (1906); Charleston Natural Gas Co. v. Low, 52 W. Va. 662, 44
S.E. 410, 414 (1901); Varner v. Martin, 21 W. Va. 534, 1883 WL 3202 at *15 (1883). Plaintiff
does not, and cannot, allege that its proposed pipeline would provide such access to West
Virginia consumers. Consequently, the proposed pipeline is not for public use.
If for any reason the Court were to conclude that the above cited precedent does not
control this action, then there would be no controlling appellate decisions on point, making
certification to the West Virginia Supreme Court of Appeals appropriate under W. Va. Code §
51-1A-3. Moreover, there are no controlling constitutional provisions or statutes. Although the
proposed certified question is one of statutory interpretation, that does not render it inappropriate
for certification. The West Virginia Supreme Court of Appeals regularly addresses certified
questions that involve statutory construction. See, e.g., Harper v. Jackson Hewitt, Inc., 227 W.
Va. 142, 147 (2010) (responding to certified question requiring interpretation of W. Va. Code §§
46A-6C-1(1) & 46A-6C-2(a)); L.H. Jones Equipment Co. v. Swenson Spreader LLC, 224 W.
Va. 570 (2009) (responding to certified question requiring construction of West Virginia Farm
Equipment Dealer Contract Act); Taylor v. Nationwide Mut. Ins. Co., 214 W. Va. 324 (2003)
(responding to certified question requiring construction of West Virginia Unfair Trade Practices
Act).
The West Virginia statute governing certified questions is the Uniform Certification of
Questions of Law Act. W. Va. Code § 51-1A-13. The West Virginia statute expressly provides
that “[t]his article shall be construed as to effectuate its general purpose to make uniform the law
of those jurisdictions which enact it.” Id. § 51-1A-12. Accordingly, interpretation of the West

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Virginia certified question statute should conform to the application of the similar statutes in
other states that have adopted the Uniform Certification of Questions of Law Act. Connecticut is
one such state. C.G.S.A. § 51-199a. Interpreting Connecticut’s certified question statute, the
United States Court of Appeals for the Second Circuit has concluded that, although a federal
court “may ordinarily interpret ambiguous state statutes using the normal rules of statutory
interpretation, even in the absence of controlling state authority,” statutory construction
questions should be certified if other “factors strongly suggest that we defer to the [state]
Supreme Court.” Sealed v. Sealed, 332 F.3d 51, 59 (2d Cir. 2003). One such factor is whether
the state has a “compelling interest” in the issue presented by the case. Id.
Here, West Virginia has a compelling interest in the question presented by this case
because it involves the exercise of the extraordinary state power of eminent domain. That power
is “in derogation of the rights of the citizen,” and, therefore, the West Virginia Supreme Court of
Appeals has held that “such power must be strictly construed for the protection of the private
rights of the citizen.” McConiha v. Guthrie, 21 W. Va. 134, 1882 WL 3554 at *8 (1882).
Consequently, West Virginia has a compelling interest in ensuring that its statutes governing the
power of eminent domain are properly construed. That is particularly true as the question
presented in this case will likely rear its head again in the future regarding additional proposed
natural gas pipelines in West Virginia. Sealed, 332 F.3d at 59 (“Where a question of statutory
interpretation implicates the weighing of policy concerns, principles of comity and federalism
strongly support certification.”). As a result, the question of what the term “for public use”
means in W. Va. Code § 54-1-2(a)(3) should be certified to the West Virginia Supreme Court of
Appeals under W. Va. Code § 51-1A-3.
CONCLUSION

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For the foregoing reasons, Defendants respectfully request that, if the Court determines
that it has subject matter jurisdiction over this case, the Court certify the question presented by
this action to the West Virginia Supreme Court of Appeals.
Respectfully submitted,
/s/ Derek O. Teaney
DEREK O. TEANEY (WVSB # 10223)
ISAK HOWELL (WVSB # 11558)
Appalachian Mountain Advocates
P.O. Box 507
Lewisburg, WV 24901
Telephone: (304) 793-9007
Fax: (304) 645-9008
E-mail: dteaney@appalmad.org
Counsel for Defendants Michael Losch, Charles F.
Chong, Rebecca A. Chong, Wilda Judy, Melissa
Howard, W. Nathaniel Bernhart, Marietta Lyall
(Clendenen), Sara L. Alm, Harold Bostic, Leressa
Bostic, Woodrow Estep, Randy L. Stone, Jr.,
Kimberly Stone, Donna Huffman, Suzanne Fry
(Soucier), Harold Butler, Dale L. McMillion, Alicia
McMillion, D. Lane McMillion, Roger A. Flanagan,
Betty J. Flanagan, Margaret Ann Burkhardt, Phillip
Harrah, Tammy A. Capaldo, Steve Ballard, Cathy
Ballard, Clarence A. Thomas, Joyce L. Thomas, and
Anthony M. Carter

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 Case 5:15-cv-03858 Document 57 Filed 05/22/15 Page 7 of 7 PageID #: 539

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
MOUNTAIN VALLEY PIPELINE, LLC,
Plaintiffs,
CIVIL ACTION NO. 5:15-cv-03858
v.
KENNETH DOSIER, et al.,
Defendant.
CERTIFICATE OF SERVICE
I, Derek O. Teaney, do hereby certify that, on May 22, 2015, I electronically filed the
foregoing document with the Clerk of the Court using the ECF system, which will send
notification of such filing to the following ECF participants:
Stephen F. Gandee
E. Ryan Kennedy
Robinson & McElwee, PLLC
P.O. Box 128
140 West Main Street, Suite 300
Clarksburg, WV 26302-0128
Counsel for Defendant
Charles S. Piccirillo
Kenneth B. Adkins
Shaffer & Shaffer PLLC
P.O. Box 38
Madison, WV 25130-0038
Counsel for Defendant
Respectfully submitted,
/s/ Derek O. Teaney
DEREK O. TEANEY (WVSB # 10223)
Appalachian Mountain Advocates
P.O. Box 507
Lewisburg, WV 24901
Telephone: (304) 793-9007
Fax: (304) 645-9008
E-mail: dteaney@appalmad.org

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