Case 2:17-cv-04214 Document 60 Filed 12/04/17 Page 1 of 13 PageID #: 1503

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MOUNTAIN VALLEY PIPELINE, L.L.C.,
Plaintiff,
v.

Civil Action No. 2:17-cv-04214

AN EASEMENT TO CONSTRUCT, OPERATE
AND MAINTAIN A 42-INCH GAS
TRANSMISSION LINE ACROSS PROPERTIES
IN THE COUNTIES OF NICOLAS,
GREENBRIER, MONROE, SUMMERS,
BRAXTON, HARRISON, LEWIS, WEBSTER
AND WETZEL, WEST VIRGINIA, OWNED
BY D. LANE MCMILLION, ET AL.,
Defendants.
DEFENDANTS MANNS’ AND CROSIER’S ANSWER TO
COMPLAINT TO ACQUIRE PROPERTY INTERESTS BY EMINENT DOMAIN
NOW COME Defendants, Norvel P. Mann, Jean M. Mann, Thomas B. Mann, Hannah G.
Mann and Chloda Crosier (hereinafter collectively referred to as “Landowners”), by counsel,
pursuant to FRCP Rule 71.1, as their answer, objections, and grounds of defense to the complaint
(“Complaint”) filed herein by Plaintiff Mountain Valley Pipeline, L.L.C. (“MVP”), and state as
follows:
I.
Rule 71.1 (e)(2)(A) and (B) Statements
As required by FRCP Rule 71.1(e)(2) subsections (A) and (B), Landowners hereby
identify the real property in which they claim an interest to be that real property described in

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Exhibit A of the Complaint, as Tax Map No. 05-25-31.3, and state the nature and extent of their
interest in such property to be fee simple.
II.
Response to Allegations of Complaint
In response to the first sentence of the preamble in the opening un-numbered paragraphs
of MVP’s Complaint, Landowners state that MVP’s allegations constitute legal conclusions as
opposed to facts, to which no response is required. Landowners admit that the Federal Energy
Regulatory Commission (the “FERC”) entered an order on October 13, 2017, granting MVP the
certificate attached as Exhibit B to the Complaint, the content of which speaks for itself.
Landowners deny that the property interests described in the Complaint and in Exhibit B are
“necessary for the construction, operation, and maintenance of an interstate pipeline and
associated appurtenances necessary for its operation” (defined as the “MVP Project”) or that it is
in the public interest, and affirmatively allege that only two recently appointed FERC
commissioners voted in favor of issuing MVP a certificate; the third commissioner questioned
the public interest and need, finding that MVP failed to establish need for the gas its pipeline
would transmit through the properties of Landowners and other defendants, relying instead upon
its projections of need without any factual basis to support them. Landowners further deny that
“the MVP Project seeks to help meet the public’s demand for natural gas in the Mid-and South
Atlantic regions of the United States by providing transportation of natural gas to those regions
from the Marcellus and Utica Shale formations in central Appalachia,” and affirmatively allege
that the public’s demand for natural gas, especially in those regions of the United States,
continues to decrease due primarily to the existing abundant supply of natural gas. The
transmission of gas in a manner that has such a negative impact on the utility and market value of
large amounts of private properties is not in the public’s best interest, nor is it convenient or
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necessary. Landowners deny that the MVP Project requires, as a part of its FERC certification,
all the property interests described in the Complaint across the described properties including
those of Landowners. Landowners further deny that MVP has attempted to negotiate mutually
agreeable easement agreements, and affirmatively allege that easement negotiations between
MVP’s land agents and private property owners throughout West Virginia were intended to
intimidate and instill fear in such property owners to motivate them to sign MVP’s form
easement agreements, which granted rights well beyond those needed or authorized by the FERC.
The remaining allegations of the opening un-numbered paragraphs are denied, and Landowners
require strict proof thereof.
JURISDICTION AND VENUE
1.

Paragraph 1 of the Complaint alleges legal conclusions to which no response is

required. To the extent that Paragraph 1 alleges facts, Landowners are without specific
knowledge of them and therefore deny the same and call for strict proof thereof.
2.

Landowners admit the allegations of paragraph 2 of the Complaint.

3.

Landowners admit that their property is located in the Southern District of West

Virginia. The allegation in paragraph 3 of the Complaint that venue is proper under the cited
statute is a legal conclusion to which no response is required.
THE AUTHORITY TO CONDEMN
4.

Landowners are without specific knowledge of the allegations contained in

Paragraph 4 of the Complaint relating to MVP’s composition or purpose, and therefore deny the
same and require strict proof thereof. The remaining allegations of paragraph 4 are legal
conclusions to which no response is required; to the extent they allege any facts, Landowners are
without specific knowledge of them and therefore deny the same and call for strict proof thereof.

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5.

In response to paragraph 5 of the Complaint, Landowners admit that the FERC

entered an order granting MVP a certificate, to which order Landowners object and assert
defenses for the reasons set forth in Section III. below; Landowners state that Exhibit B speaks
for itself as to any findings by the FERC.
6.

The allegations contained in paragraph 6 of the Complaint were previously

alleged in the Complaint’s opening un-numbered paragraphs, and are again denied by
Landowners; Landowners’ affirmative allegations in response thereto are re-alleged as if set forth
in full herein.
7.

The allegations contained in paragraph 7 of the Complaint were previously

alleged in the Complaint’s opening un-numbered paragraphs, and are again denied by
Landowners; Landowners’ affirmative allegations in response thereto are re-alleged as if set forth
in full herein. Landowners further affirmatively allege that the easements which MVP seeks to
acquire across properties of Landowners and other named defendants herein are neither necessary
nor convenient to the public.
8.

The allegations contained in paragraph 8 of the Complaint were previously

alleged in the Complaint’s opening un-numbered paragraphs, and are again denied by
Landowners; Landowners’ affirmative allegations in response thereto are re-alleged as if set forth
in full herein.
9.

Paragraph 9 of the Complaint alleges legal conclusions to which no response is

required. To the extent that Paragraph 9 alleges facts, Landowners deny the same and call for
strict proof thereof. Landowners affirmatively deny that MVP was granted by the FERC or
Section 7(h) of the Natural Gas Act (“NGA”) all the rights it claims to have acquired as
described in the Complaint, to construct, operate and maintain the MVP Project.

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THE EASEMENTS TO BE TAKEN
10.

Landowners deny the allegations contained in paragraph 10 of the Complaint, and

affirmatively allege that the property and property rights MVP sues to acquire in the Complaint
are unnecessary. Landowners further affirmatively allege that the maps/plats attached as Exhibit
C, as they pertain to property of Landowners, have descriptions insufficient to transfer on the
public records real property rights of the nature being sought in this proceeding, and deny that all
easements are located over and along the route approved by FERC.
11.

In response to the allegations contained in paragraph 11, subparagraphs (a)

through (f), Landowners deny that the easements described therein are necessary, and
affirmatively allege that MVP seeks to acquire more rights than it needs to construct, operate and
maintain the Pipeline. Landowners deny that the MVP Project will provide any significant public
use, purpose or benefit, and affirmatively allege that instead the MVP Project will enable natural
gas to be transported to foreign overseas markets for MVP’s private gain, all at great cost and
expense to Landowners and other defendants herein, who have refused to involuntarily partner
with MVP. Landowners further affirmatively allege that none of the map/plats attached as
Exhibit C to the Complaint have descriptions sufficient to transfer on the public records real
property rights or interests of the nature being sought in this proceeding.
12.

Landowners are without specific knowledge of the facts alleged in paragraph 12

of the Complaint, relating to pipeline construction specifications, and therefore deny the same
and require strict proof thereof. Landowners affirmatively allege that the depth of the pipeline is
not set forth in the Complaint, the interference with Owner’s cultivation and use of their
properties will be permanent, and the negative impact upon the values of their properties will be
substantial. The allegations in paragraph 12 describing the limitations MVP intends to place upon

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Landowners properties are a contributing but not only factor in the diminution in value the MVP
Project will cause to Landowners’ remaining property.
THE PROPERTY OWNERS
13.

Paragraph 13 of the Complaint alleges facts relating to the ownership interests of

each of the named defendants therein in certain real properties described in Exhibit A, in which
MVP seeks to acquire property rights in this condemnation proceeding. Landowners admit they
own fee simple interests in the real properties set forth in Section I of this Answer. As to the
descriptions of the other properties alleged to be owned by other defendants herein, Landowners
are without specific knowledge as to the accuracy of them, and therefore deny the same and
require strict proof thereof.
OTHERS WHO MAY CLAIM AN INTEREST
14.

Landowners are without specific knowledge of the allegations contained in

Paragraph 14 of the Complaint relating to other persons who claim an interest in the property
rights MVP seeks to condemn, and therefore deny the same and require strict proof thereof.
15.

Landowners deny any and all allegations of fact not specifically admitted herein.

16.

Landowners reserve the right to assert any and all additional defenses, legal or

factual, affirmative or otherwise, which may be justified by facts learned through discovery or
otherwise prior to any hearing or trial on the Complaint or by evidence upon any such hearing or
trial.

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III.
Rule 71.1 (e)(2)(C) Statement of All of Landowners’
Objections To Complaint and Defenses to Taking
Pursuant to FRCP Rule 71.1 (e)(2)(C), Landowners object to the relief requested in
MVP’s Complaint, and assert as their specific objections and defenses to the taking by eminent
domain of Landowners’ property and property rights, the following:
1.

MVP has not obtained all of the necessary approvals and permits (the “Permits”)

which are conditions precedent in FERC’s Order granting MVP a Section (e) conditional
certificate for the project to proceed, specifically in respect to the:
(a) Permit required under § 404 of the Clean Water Act, 33 U.S.C. § 1344, following
input from the Army Corps of Engineers Pittsburgh, Huntington and Norfolk
Districts;
(b) Permit from the Virginia Marine Resources Commission for crossing Virginia
streams and rivers with drainage areas greater than 5 square miles;
(c) Permit from the Army Corps of Engineers for wetlands crossings along the
proposed pipeline path in West Virginia and Virginia;
(d) Permit and/or final approval from West Virginia Division of Culture and History,
required under § 106 of the National Historic Preservation Act, 54 U.S.C. §
306108.
(e) Permit from a West Virginia locality for the compressor station which is part of
the MVP Project;
(f) Permit from the U.S. Forest Service for the MVP Project;
(g) Leases with the Bureau of Land Management which are required for the MVP
Project to go through lands of the U.S. Forest Service.

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2.

MVP cannot establish any substantive right of eminent domain because without

the Permits the certificate remains conditional under the NGA.
3.

There exists no urgency to justify immediate entry since construction cannot begin

until the Permits issue.
4.

MVP has no power of quick-take similar to that granted to the federal government

in the Declaration of Taking Act, 40 U.S.C. § 3114 (b), as Congress granted natural gas
companies a right of eminent domain under Section (h) of the NGA that only provides possession
upon compensation by trial.
5.

MVP has failed to even attempt to reach any reasonable agreement with

Landowners to acquire by contract the easements it is seeking in this proceeding.
6.

The Complaint describes rights to be acquired in Landowners’ properties that

exceed the rights granted by FERC in its certificate, including, without limitation, the right to use
Landowners’ private roads and properties to access it proposed easements.
7.

FERC’s order granting MVP the right of eminent domain under Section (h) of the

NGA and the regulatory approval process before FERC are being challenged in proceedings filed
in the U.S. District Court for the Western District of Virginia (Berkley, et al. v. Mountain Valley
Pipeline, LLC, et al., Case No. 7:17-cv-00357, filed July 27, 2017) and in the U.S. District Court
for the District of Columbia (Bold Alliance et al., v. Federal Energy Regulatory Comm’n, et al.,
Case No. 1:17-cv-01822-RJL, filed Sept. 5, 2017). This condemnation proceeding should be
stayed or dismissed until such time as these (Berkeley and Bold) lawsuits can be fully
adjudicated.

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8.

FERC’s former Acting Chair, Commissioner LaFleur, wrote a dissenting opinion

(the second time ever for a dissent by a FERC commissioner in a Section 7 gas pipeline
certificate case) in a 2-1 vote approving MVP’s certificate, concluding that the MVP Project as
proposed is not in the public interest for two reasons: (a) the FERC records demonstrate that
regional needs may be met by alternate approaches that could provide significantly fewer
environmental impacts; and (b) the need for gas to be provided by the MVP proposed project is
unknown, a fact that shifts the balance analysis toward denial of the certificate. Mountain Valley
Pipeline, LLC, Equitrans, L.P. 161 FERC ¶ 61,744. These issues should therefore be thoroughly
discovered, briefed, argued and adjudicated before construction of a project of this magnitude is
allowed to begin on the private properties of Landowners and other defendants herein.
9.

More than twenty requests for a rehearing before FERC have been filed by groups

of FERC intervenors, as interested parties, some requesting a stay of the certificate order (FERC
Docket No. CP16-10); MVP should therefore not be allowed to proceed with the right of eminent
domain in the MVP Project until FERC has ruled upon those requests, as the substantive right of
eminent domain claimed by MVP is still before FERC.
10.

MVP’s proposed project violates Section 4(f) of the U.S. Department of

Transportation Act, 49 U.S.C. § 303 and 23 U.S.C. § 138.
11.

MVP’s proposed project violates Art. III, Section 3-9 of the West Virginia

Constitution and the Fifth Amendment of the U.S. Constitution.
12.

MVP has failed to comply with the Uniform Policy on Real Property Acquisition

practices, 42 U.S.C. § 4651 and the Uniform Relocation Assistance Act, 42 U.S.C § 4621-4638,

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specifically no appraisals have been presented to Landowners in order to provide evidence of
value.
13.

MVP has failed to describe easement areas in sufficient detail to adhere to

minimal requirements to transfer real property interests and provide constructive notice to the
public under federal or West Virginia law.
14.

A judicial grant of MVP’s request for immediate access and entry prior to the

determination of just compensation will violate the separation of powers doctrine, in that only
Congress can grant MVP quick-take power of eminent domain, which it has not done in the
NGA.
15.

MVP failed to demonstrate in proceedings before the FERC, and cannot

demonstrate, nor has it alleged its Complaint, that it is financially capable of justly compensating
all defendants herein, including Landowners, for the property interest and property it seeks to
acquire by the extraordinary governmental power of eminent domain. Unless and until such
financial condition is established by actual payments following just compensation trials, MVP
has no right to enter, take possession, and begin construction of the MVP Project.
16.

The FERC cannot lawfully grant the right of eminent domain delegated to it by

Congress via the NGA because Congress’ delegation of the power under 15 U.S.C. § 717f(h) is
overly broad. Under the non-delegation doctrine, Congress must properly limit the exercise of
any delegated power by setting forth an intelligible principle—a standard—for the regulatory
body to follow in its case-by-case assessments. Congress failed to set forth any intelligible
principle to FERC under the NGA. In doing so, Congress delegated not only the authority to
execute the law to FERC but also the authority to determine what the law shall be, which is

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impermissible under the U.S. Constitution, regardless of whether the standard applied by FERC
could even pass constitutional muster, which it does not here. Because Congress’ delegation of
the power of eminent domain to FERC is overly broad, FERC cannot lawfully exercise the power
of eminent domain and cannot confer the power to MVP or any other natural gas company.
17.

MVP’s motion for FRCP Rule 56 partial summary judgment on immediate access

and entry prior to the determination of just compensation raises a multitude of factual issues
upon which Landowners should be allowed the right to take discovery under Rule 56(d)(2)
and/or through any others means available to Landowners.
18.

Landowners reserve the right to make further objections and assert further

defenses to the take which may be learned through discovery or otherwise requested herein or
through any other means available, prior to or during any hearing or trial.
IV
DEMAND FOR JURY TRIAL
Landowners respectfully request and assert their right to a jury trial separate from
other defendants herein, as to their constitutional right to be justly compensated for property and
property rights acquired in this proceeding.
WHEREFORE, Landowners pray that the Court:
a. Enter an order dismissing the Complaint;
b. Alternatively, if it is determined that MVP has a substantive right to proceed
to acquire from Landowners the properties and property rights described in the
Complaint, that Landowners be awarded full and just compensation for such
interests as determined by a jury in a separate trial from the other defendants,
to occur before any construction of the MVP Project begins;

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c. That Landowners be awarded reasonable attorneys’ fees and costs in this
matter;
d. For such other and further relief as the nature of this case and equity and
justice may require to make Landowners whole in this proceeding.

Respectfully submitted,
/s/Charles M. Lollar, Jr.
Charles M. Lollar, Jr.
W.V. I.D. No. 13105
Email: chip@lollarlaw.com
Charles M. Lollar*
Email: chuck@lollarlaw.com
LOLLAR LAW, PLLC
109 E. Main St., Suite 501
Norfolk, VA 23510
Phone: (757) 644-4657
Facsimile: (757) 644-4659
*Not admitted before this Court,
Statement of Visiting Attorney filed
C. Joseph Stevens
W.V. I.D. No. 3604
Email: Joe@jstevenslaw.com
W. Jack Stevens
W.V. I.D. No. 7234
Email: Jackie@jstevenslaw.com
STEVENS & STEVENS
8137 Court Avenue
Hamlin, WV 25523
Phone (304) 824-5253
Facsimile (304) 824-7779
Counsel for Landowners

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Certificate of Service

I hereby certify that on December 4, 2017, I electronically filed the foregoing Answer,
Objections and Defenses to Taking with the Clerk of Court using the CM/ECF system, which
will send notification of such filing to all counsel of record, including the following:
Nicolle R. Snyder Bagnell
REED SMITH
Reed Smith Centre
225 Fifth Avenue
Pittsburgh, PA 15222
Email: nbagnell@reedsmith.com
Counsel for Mountain Valley Pipeline, L.L.C.
/S/Charles M. Lollar, Jr.
Charles M. Lollar, Jr.
W.V. I.D. No. 13105

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