Marvin Winstead Jr.’s pine tree will survive another day. US District Court Judge Terence Boyle ruled today that Winstead and fellow defendant Ron Locke do not have to allow Atlantic Coast Pipeline contractors on their property to begin tree-cutting — at least for now.
Earlier this week in Elizabeth City, Judge Boyle heard arguments from both attorneys for Atlantic Coast Pipeline, LLC, a company formed by co-owners Dominion Energy and Duke Energy, and lawyers for the landowners over tree-cutting and access to land.
ACP, LLC had asked Boyle to force Winstead and Locke to allow them access to their properties, even though they had not yet negotiated payment for the condemned land. ACP wants to exercise eminent domain on 2.27 acres of Locke’s farm and more than 11 on Winstead’s — including the family’s 100-year-old pine tree that lies in the pipeline’s path.
In his 14-page ruling, Boyle, a George H.W. Bush nominee, determined that neither Winstead nor Locke had not been given a reasonable opportunity to negotiate with ACP, LLC.
In Winstead’s case, surveyors allegedly trespassed on his property. Although Winstead did receive an offer from ACP, LLC in January 2016, he testified Wednesday that a surveyor’s crew chief subsequently told him his land wasn’t even on the pipeline route.
Locke testified that he had tried to communicate with ACP, LLC about compensation, but that the company had failed to contact him.
Eminent domain is a power usually reserved for government to build projects, such as roads, that are in the public interest. However, there is a legal precedent for private companies to use the authority as long as the project is also in the public interest.
While Boyle found in favor of Winstead and Locke, the rest of his order supported ACP, LLC’s claims. Those include that the company would suffer “irreparable harm” if access isn’t granted, and that it is in the public interest that ACP gain that access to build the pipeline.
Boyle also ruled that ACP, LLC can invoke eminent domain on property belonging to 11 other landowners in Northampton, Halifax, Nash and Cumberland counties, and start construction on those tracts.
However, Boyle wrote in his ruling, “to protect the landowners,” ACP, LLC must deposit an amount three times the appraised value of each parcel it plans to condemn with a federal district court clerk. If the appraised value is less than $3,000, then ACP, LLC must deposit $9,003.
The utilities also must obtain a bond twice the appraised value of the parcels.
The payments are only for security, Boyle wrote, and not the compensation itself.
Also today, as Policy Watch reported, ACP, LLC asked the Federal Energy Regulatory Commission for a deadline extension to begin its tree-cutting. That timbering was supposed to be finished by March 31.