A federal judge should not act as an “enforcer” for the Mountain Valley Pipeline by using her power to remove two protesters from trees blocking the path of the controversial pipeline, supporters are arguing in court.

U.S. District Court Judge Elizabeth Dillon was asked in a brief filed Wednesday to deny Mountain Valley’s request for a preliminary injunction, which the company says it needs to evict two people identified in court records only as “Tree-sitter 1” and “Tree-sitter 2.”

Since early September, two protesters have been living in tree stands about 50 feet above the forest floor on a steep mountainside in eastern Montgomery County, frustrating Mountain Valley’s efforts to complete tree-cutting.

But Mountain Valley is “improperly seeking to enlist this Court to act as its enforcer in its dealings with persons opposing pipeline activities and construction,” Roanoke attorney John Fishwick wrote in a friend-of-the-court brief in support of the tree-sitters.

Fishwick does not represent the actual protesters, who have kept to their perches rather than attend court proceedings and defend themselves against Mountain Valley’s civil action.

As the attorney for two supporters of the tree-sitters — Floyd County attorney Tammy Belinsky and Virginia Tech professor Daniel Breslau — Fishwick was allowed to make arguments on their behalf.

One of his arguments is that Mountain Valley took a flawed legal tack by bringing the tree-sitters into an earlier case that gave the company control of the construction easement on which the protest is being staged.

Last year, Dillon ruled that the laws of eminent domain allowed the company to take possession of about 300 parcels it needed to run its pipeline through Southwest Virginia, over the objections of the property owners.

However, the only people who can be named as defendants in such a condemnation case are those who either own the land or have a property interest in it, Fishwick contends.

In successfully removing other tree-sitters, Mountain Valley was allowed to invoke the eminent domain ruling when the protesters had clear ties to the land they sought to defend.

For example, a mother and daughter who spent more than a month in trees on their family’s land atop Bent Mountain eventually came down in May after Dillon threatened to hold them in contempt of court.

But unlike Red and Minor Terry, the tree-sitters in the current case have no legal ownership interest in a piece of land off Yellow Finch Lane that belongs to Cletus and Beverly Bohon.

Cletus Bohon has said that the protesters did not ask his permission before they took to the trees, and that he had no advance notice that a demonstration was in the works. But as someone who opposed Mountain Valley’s taking of his land, Bohon has not ordered them to leave, either.

Mountain Valley did not name the Bohons as defendants in its motion for a preliminary injunction.

The motion asks Dillon to order the tree-sitters down, and to subject them to fines and forced removal by U.S. Marshals if they refuse her command.

It also asks that the injunction apply to anyone who acts as “the agents, servants, employees, and attorneys of the tree-sitters and to all other persons who are in active concert or participation with them.”

That would be a clear violation of the constitutional rights of people like Belinsky, who has consulted with representatives of the tree-sitters, and Breslau, who is part of a team of supporters on the ground, Fishwick argued.

“The right to hire and consult with an attorney, as well as the right to associate with others, is protected by the First Amendment,” the friend-of-the-court brief stated.

“Regardless of one’s view of the impact or necessity for the pipeline itself, it is key to our free society that the rights of the people to speak out and associate with others on matters of great political and societal importance ... be protected.”

Tree-top blockades are the latest form of yearslong resistance to the pipeline, which opponents say will scar the scenic landscape of Southwest Virginia and contaminate its waters.

Since work began in February, Mountain Valley has been cited for violating environmental regulations more than 300 times. Several key permits have been thrown out by a federal appeals court, and the State Water Control Board voted last month to reconsider its water quality certification for the pipeline.

Mountain Valley will now have seven days to file a reply to Fishwick’s brief. A written opinion from Dillon is expected sometime after that.

Meanwhile, a post Tuesday from the tree-sitters to the Facebook page of Appalachians Against Pipelines indicates that the protest continues.

“Day 133,” the post read.

“Still here.”

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Laurence Hammack covers environmental issues, including the Mountain Valley Pipeline, and business and enterprise stories. He has been a reporter for The Roanoke Times for more than three decades.

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