Mountain Valley Pipeline, LLC v. 4.72 Acres of Land

529 F.Supp.3d 563

MOUNTAIN VALLEY PIPELINE, LLC, Plaintiff,

v.4.72 ACRES OF LAND, OWNED BY Fred W. VEST, Defendant.

Civil Action No. 7:18-cv-00647

United States District Court, W.D. Virginia, Roanoke Division.

Signed March 29, 2021

Mark E. Frye, Penn Stuart & Eskridge, Bristol, TN, Seth Michael Land, Stephen M. Hodges, Wade W. Massie, Penn, Stuart & Eskridge, Abingdon, VA, for Plaintiff.

Evans Greenwood Edwards, Thomas Jack Bondurant, Jr., Gentry Locke Rakes & Moore, William B. Hopkins, Jr., Martin Hopkins & Lemon PC, Roanoke, VA, for Defendant.

MEMORANDUM OPINION AND ORDER

Elizabeth K. Dillon, United States District Judge

Before the court are the following motions: (1) defendant's emergency motion to prevent or restrict Mountain Valley Pipeline's (MVP) use of temporary road access (Dkt. No. 59),¹ and (2) defendant's motion to stop MVP's work on the pipeline project pending the court's resolution of the first motion. (Dkt. No. 60.) The court held a hearing on these motions on January 15, 2021. (Dkt. No. 63.) At the hearing, the court indicated that it would deny defendant's motion to prevent or restrict temporary road access and deny as moot defendant's motion to stop work. The court also stated that it would issue a written opinion, which is set forth herein.²

I. BACKGROUND

On October 13, 2017, the Federal Energy Regulatory Commission (FERC) issued an order granting a Certificate of Public Convenience and Necessity to MVP for the construction, operation, and maintenance of an interstate gas pipeline across properties in the counties of Giles, Craig, Montgomery, Roanoke, Franklin, and Pittsylvania, Virginia, owned by several landowners, including defendant Fred W. Vest. (Compl. ¶ 1, Ex. 1, Dkt. No. 1, Case No. 7:17-cv-00492.) MVP then filed a lawsuit, MVP v. Easements , Case No. 7:17-cv-00492 (W.D. Va.), pursuant to its power of eminent domain as authorized by the Natural Gas Act (NGA), to condemn property interests necessary to construct the pipeline.

On January 31, 2018, the court entered a memorandum opinion and order granting MVP's motion for partial summary judgment and conditionally granting MVP's motion for an immediate stay. (Dkt. Nos. 339, 340, Case No. 7:17-cv-00492.) With respect to Vest's property, MVP acquired a temporary access easement (1.19 acres), a temporary workspace (1.87 acres), and a permanent easement (1.66 acres). (Compl. ¶ 136, Ex. 132, Case No. 7:17-cv-00492.) The court has also granted MVP an easement to use the driveway shared by Vest's property (MVP-VA-RO056) and property owned by Robert and Aimee Hamm (VA-RO-5748) as an access road. (Vest Statement ¶ 4, Dkt. No. 59-1; Dkt. No. 3-166, Case No. 7:17-cv-00492 (Notice of Condemnation describing 0.15 temporary access easement on MVP Parcel No. VA-RO-5748).) The rights and privileges applicable to the various easements provide that landowners "may fully use and enjoy the premises to the extent that such use and enjoyment does not interfere with or obstruct MVP's rights described herein." (See Dkt. No. 598, Case No. 7:17-cv-00492 (Order Granting Immediate Possession of MVP Parcel No. VA-RO-056).) The court's ruling was affirmed on appeal by the Fourth Circuit Court of Appeals. MVP v. 6.56 Acres , 915 F.3d 197 (4th Cir. 2019). The Supreme Court denied certiorari. Givens v. MVP , ––– U.S. ––––, 140 S. Ct. 300, 205 L.Ed.2d 199 (2019).

Precision Pipeline LLC, contractor for MVP, is preparing an access road across the Vest property. (Declaration of Abraham C. Jones (Jones Decl.) ¶ 2, Dkt. No. 62-1.) The improvements are designed to facilitate the movement of equipment and supplies to the right of way for construction of the pipeline. (Id. ) All work being performed on Vest's property is within the route that was approved by FERC and in accordance with the terms and conditions of FERC's orders for the project. (Id. ¶ 3.)

In these motions, Mr. Vest expresses "overwhelming fear, concern and anxiety" for his wellbeing, given his significant health issues, and the wellbeing of his family regarding (1) the presence of MVP adult male coworkers, most of whom are from out of state in the midst of a global pandemic, in close contact with his granddaughters; (2) close and frequent passage of large company pickup trucks; and (3) close passage of large earth moving machinery used for tree clearing, grading, trenching, and laying pipe. (Vest Statement ¶ 12.)

With these concerns in mind, Vest is requesting an order that directs MVP's "avoidance of my family road, and recognizing MVP's present and continuing use of two other available entry points at Mileposts 243.5 (Bottom Creek Road workspace) and at Milepost 246 (Bent Mountain/Montouri Road)." (Id. ¶ 18.) In his motion papers, Vest explicitly requested that the court "prevent MVP from using his Access Road and to construct the pipeline on his property by using the Access points along the ROW [right of way] as they are constructed on both sides of his farm." (Dkt. No. 59 at 7 (emphasis in original).) When pressed at the hearing, however, counsel indicated that Vest does not seek to amend the FERC certificate and eliminate MVP's easement. Instead, Vest focused on his request for alternative relief: that the court require MVP to give reasonable notice to Vest regarding the scope of work before entering the access road and to impose mutually agreeable time and date restrictions on when MVP may enter the access road.

II. ANALYSIS

Vest seeks relief pursuant to the All Writs Act, which empowers a federal court to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). The Act enables a federal court to "issue such commands ... as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained."

In re Am. Honda Motor Co., Inc. , 315 F.3d 417, 437 (4th Cir. 2003) (quoting Pa. Bureau of Corr. v. U.S. Marshals Serv. , 474 U.S. 34, 40, 106 S.Ct. 355, 88 L.Ed.2d 189 (1985) ). The "power conferred by the Act extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice ... and encompasses even those who have not taken any affirmative action to hinder justice." United States v. N.Y. Tel. Co. , 434 U.S. 159, 174, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977) (citations omitted). The Act is a "residual source of authority to issue writs that are not otherwise covered by statute." Pa. Bureau of Corr. , 474 U.S. at 43, 106 S.Ct. 355. "Where a statute specifically addresses the particular issue at hand, it is that authority, not the All Writs Act, that is controlling." Id. Ultimately, the authority to grant relief under the All Writs Act is to be "used sparingly and only in the most critical and exigent circumstances." Wis. Right to Life v. Fed. Election Comm'n , 542 U.S. 1305, 1306, 125 S.Ct. 2, 159 L.Ed.2d 805 (2004) (Rehnquist, C.J., in chambers).

Courts analyze various elements when determining whether to invoke the All Writs Act, including whether any applicable federal law governs the request, whether there is any constitutional issue that is implicated, whether a prior order of the court exists that a further order will aid, and whether exceptional circumstances justify invocation of the All Writs Act. In re Application for Order Authorizing Disclosure , 849 F. Supp. 2d 526, 580–81 (D. Md. 2011) ; see also In re Apple, Inc. , 149 F. Supp. 3d 341, 350 (E.D.N.Y. 2016) (explaining that the "plain text" of the statute confers authority to issue orders when issuance is "in aid of" the issuing court's jurisdiction, the type of writ must be "necessary or appropriate" to provide such aid, and the issuance must be "agreeable to the usages and principles of law") (quoting 28 U.S.C. § 1651(a) ); Bordelon Marine, LLC v. Bibby Subsea ROV, LLC , CIVIL ACTION No. 16-1106, 2017 WL 396188, at *3–4 (E.D. La. Jan. 30, 2017) (stating that a party seeking relief under the All Writs Act must satisfy three elements: (1) there must be "no other adequate means to attain the relief" that is sought, (2) a party's right to issuance of the writ must be "clear and indisputable," and (3) the order must be "appropriate under the circumstances").

As courts have explained, the power to issue writs under the All Writs Act is limited to situations where the court must act to protect its own jurisdiction. See, e.g., Miller v. Donald , 541 F.3d 1091, 1096 (11th Cir. 2008) (explaining that to "counter such threat and to protect its jurisdiction, the district courts are authorized by the All Writs Act ... to restrict access to vexatious and abusive litigants"); Klay v. United Healthgroup, Inc. , 376 F.3d 1092, 1100 n.12 (11th Cir. 2004) (distinguishing injunctions under the All Writs Act from "traditional injunctions, predicated upon causes of action rather than threats to a court's jurisdiction"). MVP's conduct in the use of its easements, obnoxious though it may be to Vest (and other landowners), does not present a threat to the court's jurisdiction. See, e.g., In re Managed Care Litig. , 236 F. Supp. 2d 1336, 1341 (S.D. Fla. 2002) ("Under the All Writs Act, an injunction requires ‘a threat ... to the jurisdiction of the court,’ not just ‘to the plaintiff's continuing interest in prosecuting his lawsuit ....’ " (quoting Sea Containers Ltd. v. Stena AB , 890 F.2d 1205, 1213 (D.C. Cir. 1989) )); see also Dimitri D. Portnoi, Resorting to Extraordinary Writs: How the All Writs Act Rises to Fill the Gaps in the Rights of Enemy Combatants , 83 N.Y.U. L. Rev. 293 (Apr. 2008) (discussing Klay , and noting that the "key difference between an [All Writs Act] injunction and a traditional injunction is the purpose for which it is issued. A traditional injunction issues to protect an individual; an [All Writs Act]...