Judge Denies Preliminary Injunction Against Tree Sitters

March 28 UPDATE

Judge Irons filed his written order March 27 denying Mountain Valley Pipeline’s request for a preliminary injunction against individuals associated with the tree-sit on Peters Mountain.

During the hearing on a petition for preliminary injunction filed by MVP against the tree sitters, MVP attorneys argued and the project manager testified that, if the petition was denied, MVP would suffer economic harm. However, based on the presented evidence, Judge Irons disagreed.

“Needless to say, the possibility of economic harm to Plaintiff, should this request for preliminary injunctive relief be denied, is speculative, at best,” the Court’s Order said. “Also, due the scope and complexity of the project, this Court is dubious that it will be completed and operational, within the time frame contemplated by the Plaintiff.”

In testimony, licensed WV surveyor Marshall Wayne Robinson asserted that the tree sitters were located seven feet to the west of milepost 196.29, which is within MVP’s permitted tree cutting zone in the Jefferson National Forest. However, “in the course of cross examination, it became apparent that the witness was testifying that the location of the tree sits, the mileposts in question, and other relevant matters, was based in whole or in part, on the work of other surveyors,” the Order stated. Additionally, most of the points Robinson was using for reference were determined based on their distance from the Appalachian National Scenic Trail.

“This Court would simply observe that ANST is not a fixed point, it is not paved or fenced, and that it is simply a footpath, at the top of a steep, wild, rugged and inaccessible mountain, existing within a fixed corridor,” the Court’s Order said. “The location of ANST changes according to the whims and footsteps of its users, and it should never be used as a fixed monument or reference for surveying purposes, as used by Plaintiff’s expert and as depicted by the document marked as Plaintiff’s exhibit 13 [the map presented in Robinson’s testimony].”

Judge Irons also noted the issue of rounding involved in the map presented by MVP allegedly showing exactly where the tree sitters were located.

“The use of “rounding,” perhaps tolerable in other contexts, is not acceptable here for the simple reason that the range of error inherent in “rounding” has the potential to subsume within it the precise distance which it purports to measure,” the Order said. “Such a range of error eliminates any probative value of the proffered exhibit.”

Additionally, Irons noted that Robinson has a vested financial interest in the project being seen to completion, as he has been a contracted employee of MVP since 2014.

“While this does not disqualify him as a witness, and indeed, he has appropriate qualifications to testify as an expert witness, his testimony has to be considered as that of a person who has a significant financial stake in the outcome of this litigation and a significant interest in its outcome,” the Order said.

This issue of financial interest, Irons noted, is also present in the testimonies given March 13 by Robert Cooper, MVP project manager, and Ralph Wright, Security Director.

Of note in Irons’s Order is the consideration of public interest. Specifically, Irons stated that the tree sitters “generally represent the interest of the public and the environment, such as the interest in protecting the waters underlying Peters Mountain, its flora and fauna, its view shed, the ANST, and similar interests that will or may be destroyed, if this request for a preliminary injunction is granted, and the project proceeds before the public interest is considered at a trial on the merits. These interests may suffer irreparable harm if the preliminary injunction is granted.”

Based on his consideration of the evidence and facts as they were presented, Judge Irons asserted that the preliminary injunction should not be granted, and that the case should proceed to trial without emergency relief for MVP.

In the decision, Irons cited Morrisey v. W. Virginia AFL-CIO, Weatherholt v. Weatherholt, and Wisconsin Gas Co. v. F.E.R.C. as relevant case law.

Judge Irons Order Denying Preliminary Injunction

Original Post from March 20

Monroe County, WV — After hearing additional evidence March 20, Judge Robert Irons of the Monroe County Circuit Court denied Mountain Valley Pipeline, LLC’s request for a preliminary injunction against Appalachians Against Pipelines, as well as two named and five unnamed individuals.  Appalachians Against Pipelines is the loosely-formed group associated with the tree sit currently taking place on Peters Mountain within the West Virginia boundary of the Jefferson National Forest, in close proximity to the Appalachian Trail.

In his ruling, Judge Irons found that Mountain Valley Pipeline’s presented evidence regarding the location of the tree sitters was questionable enough that MVP did not satisfy the burden of proof needed to incur the preliminary injunction.

wv-sit

 

MVP attorneys brought Marshall Robinson, President and CEO of Allegheny Surveys, Inc, to testify in regards to a map created by his company late last night indicating that the platforms associated with the tree sit are within mileposts 196.26 and 196.29, and thus within an area that MVP has permission to cut trees.

William DePaulo, arguing for the respondents, pointed out the numerous flaws existing in MVP’s presented map of the locations of two platforms, including issues with the scale of the map and inaccurately represented distances between mileposts. He pointed out that MVP carried the burden of proof to show where the tree sitters are located relative specifically to milepost 196.29, a distance they never clearly indicated on their map.

In his closing arguments, DePaulo conceded one way that MVP does stand to suffer irreparable harm as a result of the tree-sitters’ actions: the tree camp brings MVP further into the public eye, and additional public scrutiny may, indeed, result in irreparable harm for the company as the American public questions the need for the pipeline itself.

You can listen to a statement from DePaulo here.

Both DePaulo’s closing remarks and Judge Irons’s ruling drew applause from the numerous attendees.

Pipeline opponents have expressed their gratitude for the courage and hope the tree sitters have inspired in pipeline resisters throughout Virginia and West Virginia. Such admiration was shown at the Giving Witness vigil in Newport, VA March 18, where attendees expressed both lamentations at the pain MVP has brought over the past four years, as well as hope and energy moving forward, in part bolstered by the tree sitters.

Through posts on the Appalachians Against Pipelines Facebook page, the tree sitters have expressed their thanks to their supporters and those who continue to fight the Mountain Valley Pipeline.

Relevant Media Coverage

W.Va. judge denies injunction to remove pipeline protestors from trees (Roanoke Times)

A morning with the pipeline protesters (Register-Herald)

‘Somebody’s Up There Sittin’ in a Tree’ – A Look at the Ongoing Pipeline Protest on Peters Mountain (WV Public Broadcasting)

Court decides whether tree-sitters may continue their protest of Mountain Valley Pipeline (WVVA)

Mountain Valley Pipeline protesters continue tree-top vigil in W.Va. (Roanoke Times)

Tree sitters win reprieve, as West Virginia judge denies MVP request for injunction (WDBJ7)

Judge rules not enough evidence to kick WV pipeline protesters out of trees (WV MetroNews)

Judge changes his mind in pipeline hearing (WVNSTV)

Judge Sets New Hearing for Tree-Sit Injunction Case

Monroe County, WV– Citing “credible” evidence presented by counsel for the respondents in the case of Mountain Valley Pipeline, LLC vs. Appalachians Against Pipelines, Judge Robert Irons has set an additional hearing date for Tuesday, March 20, 2018 at 10:30 AM in the Monroe County Court. According to the court order,

The “Notice to Proceed” offered as trial exhibit 5, appears to authorize construction activities within the Commonwealth of Virginia, but generally prohibits any such activity within the boundaries of the Appalachian National Scenic Trail, between mile posts 196.29 and 196.39.

Petitioner represented that it had such a document, and requested leave to file it as a supplemental exhibit. At the time, William De Paulo, as counsel for one of the Respondents objected to leaving the record open, which objection was overruled, and leave was given to supplement the record, with leave to the Respondent to make such response to this supplemental filing as might be appropriate.

Since that time, Petitioner has filed as a supplemental exhibit, a “Notice to Proceed” from FERC, as to the portions of the project occurring with the geographic boundaries of the State of West Virginia, between mile posts 65.6 and 196.3.

Respondent subsequently filed a responsive pleading, with an attached affidavit from Daniel Shaffer, a purported expert in Geographic Information Service (GIS), along with a map, showing that the area in question, in which the Petitioner is seeking to restrain the Respondents from engaging in activities calculated to interfere with tree cutting, to be outside the area for which Petitioner has a permit, and outside the area in which the Jefferson National Forest is closed to such activities.

The Court has reviewed these documents, and has considered the evidence offered at the previous hearing, and it appears that there is a credible issue, as to whether or not the area in question, is within the permitted area in which the Petitioner’s activities are allowed to occur.

As of this date, the tree sitters have been perched in their tree-top village for 19 days.

Map of Peters Mountain and Appalachian Trail
General Location of Work Area

Hear the West Virginia Public Broadcasting report on the Peters Mountain Stand.

Forest Service Closes Jefferson National Forest for MVP, VDHR Comments on Treatment Plans

Mountain Valley Pipeline filed Supplemental/Additional Information documents with FERC March 9. Though the documents were filed at 4:36pm EST March 9, they were not available on FERC’s eLibrary service until March 12. Included in the filing was the following:

Closure Notice for portions of the Jefferson National Forest

Joby Timm, Forest Supervisor for the George Washington and Jefferson National Forests, signed a closure order March 7 affecting certain parts of the national forests in close proximity to the MVP construction zone.

The order prohibits access to the forest 200 feet on both sides of the centerline of the pipeline right-of-way, as well as all of Mystery Ridge Road and a portion of Pocahontas Road between the first Forest Service gate and the intersection with Mystery Ridge Road.

The order notes the footpath of the Appalachian Trail and the Brush Mountain East Road as exceptions to the restriction. Additionally, the order does not apply to federal, state, or local law enforcement officers, members of an organized rescue or firefighting force engaged in the performance of an official duty, and persons working under a permit, contract, or agreement issued by the federal, state, or local regulatory entity which specifically authorizes activity within the area and roads noted in the order.

The order is said to have been issued “for the protection of public health and safety,” and violations of the order is punishable by a find of up to $5,000 for an individual or $10,000 for an organization, imprisonment for up to six months, or both.

Request for Permission regarding Cultural Resources, Letters from VA Department of Historic Resources

MVP requested permission to implement treatment plans for the following cultural resources:

  1. Northern route at 44FR370
  2. Big Stony Creek Historic District
  3. Bent Mountain Rural Historic District, Bent Mountain Apple Orchard Rural Historic District, and Coles-Terry Rural Historic District

MVP also attached two letters from Roger Kirchen, Director of the Review and Compliance Division for the Virginia Department of Historic Resources (VDHR). The letters indicate that the treatment plans for the aforementioned districts are “reasonable in scale, proportionate to the effect, and takes into consideration previous comments from DHR, the Advisory Council on Historic Preservation, and other consulting parties.” This letter comes despite numerous letters submitted to FERC by consulting parties indicating the contrary.

>> MVP Supplemental Materials Filed 3/9/18

In addition, MVP filed Supplemental Information March 12 in which the company requested permission to implement treatment plans for the Greater Newport Rural Historic District. Attached was another letter from Kirchen — eerily similar to the letters filed March 9 — with the addition of a statement noting that “extensive comments on the Treatment Plan have been provided to MVP and the FERC from consulting parties and other stakeholders” and reminding “FERC of its responsibility under the PA to meaningfully consider all comments from consulting parties prior to approving any final Treatment Plan.”

>> MVP Cultural Resources Request for Permission Filed 3/12/18

 

FERC Issues NTP No. 12, Allows Tree Cutting in Jefferson National Forest

FERC issued Notice to Proceed No. 12 March 1, just one day after Mountain Valley Pipeline filed the request to which the notice responds. The Notice allows the hand-felling of trees to being in the Jefferson National Forest in discontinuous segments along the pipeline route between about mileposts 196.4 and 221.1, and at five additional temporary workspaces and two access roads in Giles and Montgomery Counties, Virginia. The Notice does NOT allow construction to commence at these sites.

Additionally, the Notice delineated the following clarifications:

“You may not cut any trees within 300 feet of each side of the pipeline crossing of the Appalachian National Scenic Trail (ANST), between about MPs 196.29 and 196.39 as stated in the BLM’s February 19, 2018 notice to proceed with clearing, and in accordance with Mountain Valley’s ANST bore and crossing plan. You may not conduct other construction activities, including pipeline installation, within the Jefferson National Forest until after Mountain Valley documents it has permission for those activities from the BLM. In addition, Mountain Valley must adhere to the conditions outlined in the BLM’s notice to proceed with tree clearing, including avoidance of impacts on archaeological site 44GS241.”

>> MVP Notice to Proceed No. 12

MVP Files Requests for NTP Nos. 12 & 13, Includes Jefferson National Forest

Mountain Valley Pipeline filed Requests for Notice to Proceed (NTP) Nos. 12 and 13 February 28.

Request for NTP No. 12 asks for permission to begin the hand-felling of trees in portions of the Jefferson National Forest in Giles and Montgomery Counties in Virginia.

MVP attached a written authorization to begin felling trees from the Bureau of Land Management (BLM). The authorization from BLM indicates that they will allow tree-felling to begin between mileposts (MP) 196.26 to 198.45 in Monroe County, WV and Giles County, VA. The only exception along this stretch is 0.1 mile segment around the Appalachian National Scenic Trail (MP 196.29 to 196.39), which will be crossed in Monroe County via a boring method that will not include tree-felling.

BLM also indicates permission to begin tree-felling between mileposts 218.62 and 220.85 in Montgomery County, VA.

>> MVP-Request-NTP12

Request for NTP No. 13 asks FERC to allow construction to being on segments of the pipeline in Webster and Summers Counties, WV and Giles, Roanoke, and Pittsylvania Counties, VA. MVP also requests permission to proceed with construction of facilities in Wetzel, Harrison, Doddridge, Fayette, and Summers Counties, WV as well as Giles, Roanoke, and Pittsylvania Counties, VA.

MVP indicates that, while the project has received all permits and authorizations required under federal law, “the timing of the actual construction may vary depending upon state permits” following the issuance of a Notice to Proceed.

>> MVP-Request-NTP13

MVP requests that the NTP Nos. 12 and 13 be issued by March 1 and 2, respectively.

 

FERC Issues NTP No. 10 Despite Indian Creek Watershed Association Objections

FERC granted Mountain Valley Pipeline’s Request for Notice to Proceed No. 10 on February 21. The Notice allows construction to commence on the following:

  1. Discontiguous portions of the pipeline between mileposts 65.5 and 196.3;
  2. The Sherwood Interconnection in Doddridge County, WV
  3. 507 additional temporary workspaces, 2 access roads, 2 yards, and 19 anode beds, in Braxton, Greenbrier, Monroe, Nicholas, Summers, and Webster Counties, in West Virginia

The Notice prohibits construction and use of the Losch/Cunningham Farmstead and the access road located approximately milepost 69.9 until after documentation of completed fieldwork required by the associated Treatment Plan is filed.

The Notice also suggests that MVP “voluntarily withold construction” of ten small segments totaling approximately 23 miles of the pipeline between mileposts 66.9 and 195.9.

>> Notice to Proceed No. 10

The Notice to Proceed comes the day after objections were filed by the Indian Creek Watershed Association, a non-profit organization based in Union, WV.

Indian Creek Watershed Association objected to MVP’s Request for Notice to Proceed No. 10, particularly in a section of Monroe County with a large amount of karst near the steep slopes of Peters Mountain and the Appalachian Trail.

With the objection, Indian Creek Watershed Association included new information that showing that MVP’s filings “disregard the significant environmental risks to critical private and public water resources caused by constructing a 42-inch diameter pipeline from MP 191.4 to MP 196.2” — information that the organization states calls MVP’s compliance with Conditions 12, 19, and 20 of the FERC Certificate into question.

>> Indian Creek Watershed Association Objections to NTP No. 10