With negotiations stalled, the Fenton family last week became the first Nelson County landowners to be sued by the Atlantic Coast Pipeline under the power of eminent domain.
In the United States District Court’s Western District of Virginia on Jan. 31, Atlantic Coast Pipeline LLC filed suit against Fenton Family Holdings LLC, the company of Will and Lilia Fenton, seeking permanent and temporary easements for the project.
ACP wants access to land near the Blue Ridge Parkway and Wintergreen Resort where the Fenton Inn, a Bavarian village-style bed and breakfast, is located.
According to the suit, ACP “has negotiated with the Owner and has made several efforts to acquire the Easements by contract. However, [ACP] and the Owner have been unable to agree upon the compensation to be paid.” The suit means a judge will determine “just compensation.”
The Fentons said Thursday they were offered compensation for their land by Dominion Energy, lead partner of the 600-mile interstate natural gas pipeline project, at least twice and turned down those offers. Will Fenton said additional attempts to negotiate appropriate compensation were unsuccessful.
“We have done everything conceivable to make them aware of our situation, explain our worries about the situation and what we’re looking at economically, because we don’t want to be forced out of business by their big business,” he said.
To move the process toward construction, Dominion spokesman Aaron Ruby said ACP has reached a point that now compels legal action with resistant landowners along the route .
ACP can sue under the power of eminent domain following the Federal Energy Regulatory Commission’s approval of the project last October.
“Over the last few months, we’ve made final, good-faith attempts to reach these agreements. In each case, our final offers were well above the appraised value of the properties” Ruby said.
“Accordingly, we’ve started the process in the federal courts to secure easements for some of these properties where we plan to begin construction this year. … This is not our preference. It is an absolute last resort that we’re only taking after exhausting every other option. We remain actively engaged with all landowners in the hopes of reaching agreements.”
More than 80 percent of landowners along the route — which will go through West Virginia, Virginia and North Carolina, as well as 27 miles in Nelson County — have signed easement agreements already, Ruby said.
He added ACP so far has filed suits to gain easements from about 100 landowners who make up a portion of the remaining 20 percent. Landowners who have been sued own properties where ACP plans to begin construction in 2018.
ACP has not reached agreements with all landowners on the route in Nelson County, but no eminent domain suits have been filed against other Nelson landowners. Most ACP construction in Nelson is slated for 2019, Ruby said.
In the case of the Fentons, the company seeks the easements because it plans to start construction on the land this year, Ruby said. Construction in the area requires horizontal drilling beneath the Blue Ridge Parkway.
ACP’s suit seeks “immediate possession of the Easements prior to the determination of just compensation.” Such a judgment by the court would allow ACP to move toward construction without having to wait for a final determination on how much a landowner deserves for the easement on his or her property.
In all eminent domain cases, if ACP is granted easements or immediate entry onto properties, ACP still only would be allowed to perform permitted activities. In Virginia, ACP cannot conduct full-scale construction yet and is allowed only to fell trees in upland areas with handheld equipment.
Additionally, FERC ordered in its approval last October all permanent rights of way are restricted to 50 feet.
Will Fenton said Thursday the lengthy process, including the latest court fight, feels akin to a “slow-motion robbery.”
“It’s kind of like being a fish on a fish hook,” he said. “How long until you get exhausted and let them reel you in, as far as negotiations? That’s where we’re at.”
He added any compensation from ACP won’t be enough to offset losses he believes his family’s company will take.
“It’s not as if we [were] waiting around to get extra compensation,” Fenton said. “There’s not really a point economically that [is worth putting] myself through this four-year experience that we’ve had so far, and it’s really only beginning. … If we could make the pipeline disappear from our property, from our area here, there’s numerous people [in Nelson], including myself, who would write a check … to not have gone through this.”
The Fentons’ federal case hearing is set for Feb. 26 in Lynchburg.