138 F. Supp. 3d 673
W.D. Va.2015Background
- Plaintiffs (Klemic, Rea, Osborne) own rural parcels in Nelson County, VA; each received Dominion/ACP notices seeking permission to enter and survey for the proposed Atlantic Coast Pipeline under Va. Code § 56-49.01.
- Dominion/ACP sent certified request letters; plaintiffs refused permission; Dominion/ACP then issued notices of intent to enter under § 56-49.01 but later stated they would seek a court order before entry if necessary.
- Plaintiffs filed a § 1983 action alleging facial and as-applied violations of the Fifth Amendment (takings), Fourth Amendment (unreasonable seizure), Fourteenth Amendment (due process), and Article I, § 11 of the Virginia Constitution; they sought declaratory and injunctive relief.
- Defendants moved to dismiss for lack of subject-matter jurisdiction (ripeness) and for failure to state a claim; Commonwealth of Virginia intervened to defend the statute.
- After filing, ACP altered the pipeline route so it no longer currently crosses plaintiffs’ properties and stated it has no present intent to enter, but might change the route later.
- The court held plaintiffs’ facial challenges ripe but their as-applied claims unripe; it dismissed the facial challenges on the merits (Rule 12(b)(6)) and dismissed as-applied claims without prejudice (Rule 12(b)(1)).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ripeness / Mootness | As-applied challenges present imminent injury from statutory right to enter | No present plans to enter; claims speculative and therefore unripe; route change does not moot due to possible recurrence | Facial challenges are ripe; as-applied challenges not ripe and dismissed without prejudice; claims not moot because cessation was voluntary and could recur |
| Fifth Amendment takings (facial) | § 56-49.01 effects a taking of the right to exclude without compensation | Entry-for-survey is a long-recognized common-law privilege and minimally intrusive; statute reimburses damages; public use satisfied | Facial takings challenge fails — no constitutionally protected right to bar survey entry; even assuming such a right, the statute does not effect a compensable taking |
| Fourth Amendment search/seizure (facial) | Statute unreasonably seizes right to exclude from property (search/seizure) | Entries are limited, temporary, often in open fields (not curtilage), and tailored by procedural limits; not unreasonable seizures | Facial Fourth Amendment claim fails — plaintiffs did not plausibly allege curtilage intrusion or unreasonable seizure |
| Fourteenth Amendment procedural due process & VA Const. Art. I §11 (facial) | § 56-49.01 provides no pre-deprivation hearing and permits takings for private benefit absent certificate | Statute provides notice, request for permission, reimbursement of damages, and serves public purpose facilitating regulated pipeline construction | Facial due process and state-constitution claims fail — no protected property interest shown and statute’s procedures and public-purpose satisfy constitutional requirements |
Key Cases Cited
- PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980) (temporary, limited invasions may not constitute compensable takings)
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (permanent physical occupations are per se takings)
- Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978) (ad hoc takings test balancing economic impact, expectations, and character of government action)
- Kaiser Aetna v. United States, 444 U.S. 164 (1979) (government-imposed navigational servitude constituted a taking)
- United States v. Causby, 328 U.S. 256 (1946) (government overflights that destroy use can constitute a taking)
- Jackson v. Metro. Edison Co., 419 U.S. 345 (1974) (private entity performs state function when exercising eminent domain power)
- Washington State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) (facial challenges are disfavored; plaintiff must show statute invalid in all applications)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) (voluntary cessation doctrine: defendant’s cessation does not moot suit unless wrongful behavior cannot reasonably recur)
- Presley v. City of Charlottesville, 464 F.3d 480 (4th Cir. 2006) (Fourth Amendment protection focused on home and curtilage)