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Gas company wins ‘right of eminent domain’ hearing against family farm

Mountaineer Gas Company won an eminent domain hearing on June 30 against the Kesecker family and their Crossroads Canning Company. The gas company could take approximately 8.6 acres of the family’s farmland for a natural gas pipeline that will serve Berkeley County. 

The expansion pipeline constructed by Mountaineer Gas, based in Charleston, is due in part to Procter and Gamble Company’s request for natural gas at its new plant in Tabler Station Business Park south of Martinsburg. The company’s available capacity in Martinsburg was very close to being consumed by P&G’s request. It would connect in Berkeley Springs to a proposed pipeline by Columbia Gas Transmission coming from Pennsylvania, through Hancock, Md. to Berkeley Springs. That Columbia Gas line would be constructed several feet underground where crossing under the Potomac River and C & O Canal.  The National Park Service has yet to approve an application to survey an area just west of Hancock.

The proposed Mountaineer Gas pipeline will run from a location near Lover’s Leap in north Morgan County, to Martinsburg along the north side of Route 9 and will cut through the middle of the Kesecker farm, which sits along Route 9 between Berkeley Springs and Hedgesville. The farm comprises some 500 acres split into various parcels. Mountaineer Gas Company’s proposed route would affect three parcels of the total acreage.

The Mountaineer pipeline is a proposed 10-inch distribution line that would be approximately three feet below ground. There are three segments of the proposed project. Segment 1 from Morgan County to Martinsburg is 24 miles. The total distance, expected to be completed by October, is 56 miles. Mountaineer Gas has a projected cost of $45 million dollars.

According to http://www.easternpanhandleprotectors.com, the current planned route also includes 100 creek and wetland crossings, including Back Creek and Sleepy Creek. It will need 140 parcels of landowners’ rights to complete the pipeline.

FAMILY FARM & EFFECTS OF PIPELINE ON FARMING

Because of its shallow depth, it has presented concerns for local farmers like the Keseckers because of the weight of their farming machinery crisscrossing their properties.

Patricia Kesecker said she and her family have been dealing with various representatives of Mountaineer Gas for many months. Patricia and Dean Kesecker don’t want the pipeline to go through some of their prime cleared land used for hay and other crops. Their family company spans several generations of two family branches, and she said she and her husband have a lot of blood, sweat, and tears in the land. Kesecker said she and her family have worked hard over the years to clear the land and remove countless large rocks. The land around much of Morgan County is rocky.

They wanted to wait on any kind of negotiation with the company—if any—until the final approvals were given on the Columbia Gas pipeline. She said at last count, Mountaineer Gas had fulfilled 85% of their rights of way. Her family and a few others are holding out.

“We dealt with two different representatives,” said Kesecker. “We couldn’t reach a financial agreement with one, and the next one said the route was what it was, and we had to sign. When we didn’t, we were told they would send someone who would ‘take care of the matter.’”

The route laid out by the gas company will essentially cut it in two, land-locking one portion. She said the route would give the company 75 feet right of way for approx. 5,000 feet to construct the line, and that her family would be responsible for all maintenance on the land afterward, except for some financial compensation for three years for crop interruption.

She said Mountaineer Gas told them the family would still have to pay taxes on the land, and be responsible for any breaks or damage to the pipeline. She’s concerned that if it is installed, there will be a breach some day, and her family could be responsible for a high dollar amount of damages, even if they are not at fault. Mountaineer Gas could not be reached for comment since the June 30 hearing, and the petition filed on behalf of Mountaineer Gas did not specify this.

And, according to the contract they were urged to sign, she said they cannot take heavy equipment across the right of way.

She said, “We have combines, tractors, and other farm equipment that weighs several tons. We wouldn’t be able to get access to part of the farm. And the route will take it under Cain Lane, which the highway department clears with plows. That’s heavy equipment.”

Her husband Dean, 80, said it had taken him years to establish a particular kind of grass for the cattle. The family produces their own feed. The seed isn’t available anymore, and he said it would ruin several acres of the land.

“Sometimes it’s not about the money,” she said. “It’s about heritage.”


LAWYERS’ ARGUMENTS

In the petition filed against the Keseckers, Mountaineer Gas says that it was unable to come to an agreement with the Keseckers on an amount of compensation for the rights of way through their property.

She said, “My husband and I didn’t find out about the hearing until about two weeks ago. There aren’t many eminent domain attorneys around, and we had to find one to take the case.”

That was part of the argument Chip Lollar of Lollar Law gave at the hearing on June 30. He filed a motion to dismiss the petition by Mountaineer Gas. He argued that the Kesecker family had not had sufficient time to file a response against the lawsuit, but did so as soon as possible.

He also argued that, according to West Virginia Code 54-2-13, Mountaineer Gas sought unlawful entry, and is a for-profit company, not a public utility; therefore, he said it is not subject to taking advantage of eminent domain laws. Eminent domain is supposedly only utilized when an infrastructure project is serving the public good.

His motion to dismiss said Mountaineer Gas admitted that certain portions of the pipeline project had yet to be approved, and therefore, any entry onto the subject property was “premature at this time and should not be permitted in accordance with West Virginia Code and case law.

Lollar said, “It’s like David versus Goliath.  If this was a road for traffic, maybe people could get behind it. Under eminent domain, they can only take the land for the public good or public purpose. With gas pipelines, that argument is more murky. Is this for public good, or not? Public use or public benefit stipulation has really eroded down. The laws in West Virginia especially are not meant to protect property owners. It makes it easy for companies like Mountaineer Gas to take land.”

He said the West Virginia legislature needs to change the laws to help property owners.

Lollar argued, according to West Virginia Code 54-2-2, the petition filed by Mountaineer Gas failed to stipulate specific purposes for the land to be taken.

“They allege they seek the easement for a pipeline, but what rights do they seek beyond that?” Lollar said. “It remains to be seen the actual size of the pipeline. And, the company could later install more than one pipeline if they get the land. They could transport gas, petroleum, or any other substances they want. They could put up solar panels, or wind turbines and make a profit. They could do whatever they want.”

The petition filed by Mountaineer Gas said, they wish to acquire a permanent right of way and easement by means of condemnation over, across, and upon certain parcels and the exclusive right to “construct, lay, maintain, operate, replace, relocate, repair, change the size of, and abandon or remove, one or more pipelines, compressors, drips, valves, measuring and regulating equipment, and other appurtenant facilities necessary or convenient thereto, including, but not limited to, equipment, pigging conduits and telecommunications and/or cathodic protection, for the transportation of gas, oil, petroleum products and/or any materials or substances which may be transported singly or in combination through a pipeline and/or for fiber optic lines on, over, and across the property.”

Loller said Mountaineer Gas will be allowed to recoup the costs of putting in the infrastructure from the state. The company can recoup most of their cost thanks to SB390 which went into effect last year. Through SB390, Mountaineer Gas can apply to the Public Service Commission of West Virginia (PSC) to recoup at least part of its investment in infrastructure expansion, essentially using tax dollars.

“You could almost say the taxpayers are paying for the company to take their own land,” he added.

The petition by Mountaineer Gas said the company would clear and keep clear the easement of all buildings and structures, control, cut down, trim, and remove trees and underbrush, cut and trim, and keep cut and trimmed, any trees located outside the easement area which in their opinion might interfere with the operation of the pipeline. They would have the right at all times to ingress to and egress from the property of the Keseckers for the purpose of exercising their rights to the easement, including the use of any roads already constructed on the property, and they would open fences for their use, but promised to keep them closed at other times.

Chris Robertson of Jackson Kelly in Martinsburg represents Mountaineer Gas. One of the arguments he made in court was that the pipeline will serve customers in Berkeley and Morgan Counties.  Morgan County currently does not have natural gas.  The Morgan County Board of Education has expressed possible interest in natural gas service for some schools. And Procter and Gamble is in the process of signing a contract with Mountaineer Gas for service at the new facility in southern Berkeley County.

However, Kesecker said, to their knowledge, no one whose land the pipeline would pass through has been given the option of hooking onto it for residential or commercial gas service in Morgan County.

The petition states customers applying for service after July 1, 2017, would be responsible for the cost of service lines. It does not stipulate where in the Eastern Panhandle those lines could be constructed.

Robertson also disagreed with Lollar’s argument that the gas company was a private company seeking the rights of way for private profit. He said the company was recognized by the PSC as a public utility.

Robertson said, “Mountaineer Gas is a public utility recognized by the PSC. They want to condemn certain property already approved by the PSC.”

Robertson sought a temporary construction easement with immediate entry to be granted onto the land, and a permanent easement to entry. He also disputed the size of the acreage to be taken, estimating it to be 6 acres rather than 8-plus subject to the easement and 3.65 ac. subject to temporary easement.

The appraised value, according to Robertson, was $46,491. He said they had a check ready of $59,471.97.

Judge Laura Faircloth of the 23rd Circuit Court asked if the Keseckers were aware of a PSC hearing in Charleston on the matter.

Lollar said they were not; but Robertson said protest letters were filed with the PSC, so he argued they were aware.

Faircloth’s opinion was that the Keseckers did not do their “due diligence” by attending any PSC hearing.

Robertson could not be reached for further comment this week. A paralegal provided PSC hearing information.  According to PSC Case # 16-0922-G-390P, a hearing was held Oct. 5, 2016 in Charleston. The PSC entered its approval on the pipeline November 30, 2016. No hearings about the project have been held since then.

As of November 2016, Mountaineer Gas was still determining the route of the proposed pipeline.  And Patricia Kesecker said they weren’t aware of the hearing at the time, contrary to the judge’s opinion; she didn’t know who wrote letters. At the time of the hearing, she said they did know the role their land would play in the pipeline project.

Lollar also stated that the compensation offered by Mountaineer Gas wasn’t enough to disrupt or inhibit the continued farming operation on the Kesecker property. He also stated having a gas pipeline through their land will devalue the property on the whole for future generations, and they should be compensated for “diminution of use.”

Judge Faircloth took only a few moments to side with Mountaineer Gas, ruling the bond amount offered was appropriate and the use was a public use. Mountaineer Gas also won immediate entry rights onto the land. But, she said the Keseckers would have time to get their own appraisal.

The courtroom was filled with supporters of the Keseckers and others whose land had been affected. They were surprised at the short duration of the hearing.

Kesecker said, “We feel like sheep led to the slaughter.”

Lollar said June 30th, the next step is whether they can appeal, or whether their only option is to negotiate each and every line of the original contract, so that the Keseckers can be compensated properly, be relinquished of responsibility if any damage, breaches, or explosions were to happen to the line on their property, and so they can try to continue farming the land as they have done for many years without much impediment.

“The way the law in West Virginia is set, it’s very difficult for an owner to say the company doesn’t have the right to take their property,” said Lollar. “Most of my job is to make sure they’re treated fairly or compensated fairly.”

A hearing to be set at least six months into the future will determine the final value of the easement.

Lollar said landowners do have a voice. “Lots of eminent domain cases in West Virginia go uncontested. Property owners are sued and assume they can’t afford a lawyer or don’t know how to fight.”

Photo: Patricia Kesecker