2017-07-05 / Front Page

Judge gives gas company access to farmland over owners’ objections

by Kate Shunney

A Morgan County Circuit Court judge granted access to private farmland to a natural gas company despite arguments by property owners that they have not finalized an agreement to let a new pipeline run across their land.

Judge Laura Faircloth rejected an attorney’s motion last Friday to dismiss an action by Mountaineer Gas condemning farmland for a proposed natural gas distribution line.

Judge Faircloth quickly sided with attorneys for Mountaineer Gas during the civil hearing on Friday, June 30 at the Morgan County Courthouse.

Dozens of people filled the courtroom awaiting the judge’s decision.

In April, attorneys for Mountaineer Gas filed a civil lawsuit against the owners of Crossroads Canning Company, Inc. – a farm holding along Martinsburg Road owned by the Kesecker family. The lawsuit asked the court to give the company access and use of the Kesecker’s land in order to build the natural gas pipeline.

The Keseckers recently hired their own attorney, Chip Lollar, to defend against the move. Lollar argued Friday that Mountaineer Gas had not met the requirements of state law to gain access to the farmland. He said documents weren’t specific enough about what the easement would be used for, and argued that Mountaineer Gas should not have immediate access to the property.

“Mountaineer doesn’t specify the diameter of the pipe, or whether the easement will be for one or more pipelines,” Lollar argued.

He told the court that the property is more than 500 acres in size and construction of a gas pipeline across it will “greatly affect their ability to farm it.”

“A bond of $50,000 is nowhere near the damage it’s going to cause the Keseckers,” Lollar said.

Robertson objected to Lollar’s description of the land, and said Mountaineer is seeking 3.6 acres of permanent easement and 6.4 acres of temporary easement to build the pipeline.

He said the parties weren’t in court to decide if the pipeline project should happen, but if the project could be considered a “public use” and the property could be condemned for that purpose.

Lollar argued that state law is meant to protect property owners in such cases.

“It’s not fair to grant an easement when that property owner has no idea what that easement entails,” he said, referring to a contract that would give Mountaineer the right to put pipelines, compressors and other equipment on private land.

He said the contract allows for the pipeline to carry gas, oil, petroleum “and any other substances they want” across the Kesecker farm.

Lollar argued that the family would have to be compensated not just for the property taken for easement, but for the “diminution of use” – how the pipeline would change their ability to farm or use all of their land.

Mountaineer attorneys told the court they were prepared to deposit $59,471.97 into a bond with the court on Friday as security for future compensation for the Kesecker easement. Attorney Christopher Robertson of Jackson Kelly asked that Mountaineer Gas get a right of entry to the Kesecker property as soon as the bond was deposited.

Lollar argued that Mountaineer must wait to get on the land until they have paid the Keseckers in full for the easement.

PSC hearing?

Judge Faircloth and Robertson both made reference during the Friday hearing to an earlier Public Service Commission (PSC) hearing relating to the pipeline project.

Judge Faircloth asked if the Kesecker’s had attended that hearing in Charleston. Lollar said they were unaware of the hearing and didn’t attend it, but had filed letters of protest against the proposed pipeline project.

Judge Faircloth, in granting Mountaineer’s request to deposit the bond and gain entry to the Kesecker property, said the Kesecker’s had notice about PSC hearings about the project but failed to do their “due diligence” by attending.

The Public Service Commission of West Virginia approved the specifics of the pipeline expansion project in November 2016. They have not held hearings about the project since then, according to case records. Last November, Mountaineer Gas said they were still laying out the route of the proposed pipeline.

Members of the Kesecker family said after Friday’s hearing that they weren’t aware of any official PSC meetings about their land or its role in the natural gas project.

PSC spokeswoman Susan Small said Friday that the state utility agency has “no role” in questions of land acquisition for utility projects in West Virginia. She said any questions about property entry or easements for a utility project are settled at the Circuit Court level.

Last fall, company officials told The Morgan Messenger they rarely used eminent domain to get access to private property when building gas pipelines.

Judge Faircloth ruled Friday that the bond amount being offered by Mountaineer Gas was “appropriate” and the “proposed use is a public use.”

A later hearing, at least six months out, will be set for a trial on determining the final value of the Kesecker easement. Family members indicated there were several appeal avenues they could follow in the case.

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This hurts on so many

This hurts on so many levels. It hurts the Keseckers, whose family has owned this land for generations. This judge has given a gas company carte blanche to put whatever it wants, whenever they want, on land that never belonged to them. It hurts Morgan County as we become just another sacrifice zone to the fossil fuel company. It hurts a local industry, Blue Flame, who now runs the risk of losing one of their biggest customers. It hurts the climate, as once again, fossil fuels are favored over renewable energy. This pipeline will carry fracked gas. it hurts to know our local legislators, commissioners, and other "leaders" have given this pipeline their support despite heavy opposition from their constituents. One of them in particular is busy drafting bills making life easier for gas companies, trying to give them rights to trespass on private land (it failed), passing the cost of this and all future pipelines to consumers, and using Forced Pooling to make it easier for gas companies to acquire easements (it failed). Remember in November. Remember. The pipeline will only serve those few that live less than 100 ft from it-and that's if you're willing to pay thousands for the connection-and buy all new appliances! The only benefit to our county is possibly US Silica - who wants to wreak their own havoc on our County by blasting even closer to town.! We should all feel sick. Judge Faircloth, in her obviously pre-written statement, has denied the Keseckers the sanctity of their land.



this court's ruling seems

this court's ruling seems to broadly based .. it grants wide options of use of the land in question . it does not define exact routing thru the said property. access for purposes of surveying a route would have been reasonable , but to grant a open ended access in theory to any part of the property strikes me as wrong. how close to dwellings and to existing working wells? so many details not addressed