Access to Right of Way (ROW)

Letter to Surface Land Owners Regarding Rights of Way from George Neall:

My wife and I own property where two other property owners have a deeded ROW/easement across our property. Anyone could use this ROW, even unauthorized people, if we did not control it by having a locked gate and/or periodically checking people who use it. We can install gates on the ROW for control of our goats and horses, i.e., where they graze. Right now there are 3 gates through which the ROW users must go through and promptly close. So the deeded ROW does not prevent us from using the property as we see fit.

The video from the BBC details what visitors to family cemeteries where mountain top removal has taken place must typically do in West Virginia. Visitors have to “jump through several hoops” to visit such cemeteries. They have to schedule the visit in advance, wait for an escort, and undergo “hazard training”.

I visited several fracking sites two years ago where energy companies had uncontrolled access to well pads, across surface land they did not own. At that time, I questioned how such companies could do this without any input or control by the surface property owner. I understand the reality that many state’s laws give mining and energy companies the right to do almost anything they think they need to do in order to mine the coal or recover the gas/oil they are after. But do those same state laws mean that surface owners have no legal rights”? I don’t think so as this would surely be seen as a violation of their Constitutional rights.

I’m not an attorney, but it seems to me that surface owners would still retain certain legal rights over the access and use of their property for ROWs or activities like mining. If I were a surface owner and companies were driving across my land, I think I would try to manage or control what was happening. I realize that I could not legally prohibit a mineral owner from gaining access to my property, but surely I would retain the right to ensure that anyone entering the property had the legal right to do so.

Without this right, unauthorized parties could “openly and notoriously” enter my property and potentially claim it under adverse possession. Pollution and/or damage might occur to my land. Without knowing exactly who might have caused it, it would be difficult to recover damages from the responsible party. My land might be posted for hunting and fishing and this cannot be controlled if unauthorized people have access. This would require knowing who the authorized people and companies were. I would also notify the company of any insurance requirements that might affect their access or operations. We are all familiar with signs that say something like “Our insurance prohibits customers from entering the shop”. As landowners, we have similar rights.

I think that if I were a property owner and had mining/oil/gas/pipeline construction traffic across or through my property I would try doing the following:
1.            Notify the mining owner/ROW user that effective on such-and-such date I would be installing an access gate to the road. The purpose of the gate would be to ensure unauthorized personnel were not trespassing on or using my property.
2.            Ask the mineral owner/ROW user to provide me with the names of companies, personnel, and vehicles (by vehicle make/model and license plate number) who are authorized to have access to the land and let them know that access to people or companies not listed would be denied.
3.            Ask the mineral owner/ROW user to notify authorized personnel that the land is posted and hunting and fishing are prohibited. Firearms are not permitted to be carried on the property.
4.            The gate would be in the closed position when attended and personnel desiring access must stop and check in with the attendant, who would open the gate after ensuring the person was authorized. Vehicles will be required to stop upon both entering and leaving.
5.            When the gate is unattended, persons/vehicles wishing access would not be required to stop, but a camera (like a game camera) could record the license plate number of each vehicle and the time/date.
6.            Notify the mineral owner/ROW user that smoking on the property is prohibited due to the increased fire hazard and litter associated with cigarette butts. The mineral owner/ROW user should advise all authorized personnel of this restriction. Littering is also prohibited. Violators will be issued a fine and/or denied access.
7.            Notify the mineral owner/ROW user they are responsible for contamination resulting from their use of the ROW
8.            Post speed limits on unpaved access roads to limit the amount of dust generated.
9.            Notify the mineral owner/ROW user that livestock (goats, cattle, horses, etc.) may be grazing in certain areas and that gates controlling livestock access, if closed, must be promptly re-closed to prevent livestock from straying.

Mining companies have the “hazard training requirements. Surface owners have a similar “rules” requirement, whereby people authorized by the mineral owner/ROW user to have access would be required to read a “rulebook” and sign a form acknowledging they have read the book and will comply with the requirements? They could even be issued a card, just like the coal companies do for the hazard training. Of course, authorized personnel would need to show their card each time. Perhaps they could be required to schedule visits in advance, just like the mountaintop removal coal companies do for people visiting grave sites?

I would expect the mineral owner(s)/ROW users to legally try to prevent me from doing this. With proper backing/support, such legal actions should be welcomed as they could be used to generate lots of negative public opinion of the mining/oil/gas company/ROW user, and might help establish a legal precedent that would help protect other property owners’ rights.

>> George Neall, Retired Engineer/P.E.

Watch the video at this site:
http://www.bbc.com/news/magazine-28304338

Hello, Everyone: Date: September 11, 2015

Many people have been approached with contracts for easements, roads, pipeline rights of way, and other legal documents for access to property. Bear in mind, these contracts are written for the benefit of the company, not the landowner.

It is up to each landowner to read these and decide what they want in the contract – that is, IF they wish to sell. But IF you must, you also MUST be armed with information. If you can’t afford a lawyer, at least read up.

Please see, attached and below, the list of recommended additional specifications to be added to Right of Way offers to protect landowners.  Pay special attention to points 8 and 22. Please feel free to forward this to others who may be or may know land and/or mineral owners.  Besides the ones contained herein, you can add your own. 

Too many landowners have been made to feel that they have no choice in whether or not they should sign a contract for the use or sale of their land for pipelines. Companies have been illegally citing Eminent Domain as a reason to give up claim or sign for less than the property, or the LOSS of it, is worth. Do not be taken in by this argument.

If you do not wish to sign, there is no compunction to do so at this time, because, and THIS IS IMPORTANT, the interstate pipelines ACP and MVP have not yet been approved by FERC, and this approval is required before ED can be applied. And if you do hold out, the rewards could be greater if you are forced into court. 

With a pipe this large (42″) going through, your property will be devalued up to 75% by what will soon be an outdated piece of infrastructure, when you might have instead put in some solar panels that would increase your property value. Not to mention a life-changer. Interestingly, the ACP is at one point less than half a mile from Buckhannon-Upshur High School, straddling route 20. Can you imagine the mayhem in our county if that line exploded? Promises are just that: words.  How smart is it to trust a for-profit company with our lives?

If you have already signed and you feel that it was done under duress, fraud, or misrepresentation, you may have legal grounds to revoke the contract (so don’t spend that money yet!). Contact a lawyer who handles Eminent Domain Abuse, such as Joe Lovett, Isak Howell, or Chuck Lollar.

As landowners and citizens in this time of taking private property for corporate gain, we must stay abreast of information which keeps the power in our hands. The future of our families and our state depend upon it.

>>>>>> April Keating, Concerned Citizen, Buckhannon, WV

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Pipeline Easement and Right-of-Way Agreements - 
A Landowner’s List of Terms to Negotiate

From the Blog posted by Attorney Eric C. Camp on December 9, 2013 

The following article (blog) discusses terms a landowner should consider when negotiating a Pipeline Easement or Right-of-Way Agreement (collectively called “Easement Agreement”). This list is not exhaustive; each situation is different, as are the laws of each state. This list is not legal advice. When negotiating an Easement Agreement, a Landowner should seek independent legal advice at the outset of negotiations, not just before signing the Easement Agreement or condemnation proceedings.

In this list, the terms “easement” and “right-of-way” are interchangeable. Also, the Grantee is called the “Pipeline Company” and the Grantor is called the “Landowner.”

You can View Blog here.

Elise Keaton & Joe Lovett speaking

Jackson’s Mill Meeting – Appalachian Mountain Advocates stands ready to help landowners

From S. Tom Bond, Retired Chemistry Professor & Resident Farmer, Lewis County, WV

Mountain Lakes Preservation Alliance held meeting concerning the complaints of rural residents regarding the numerous planned pipelines in West Virginia and surrounding states Saturday, January 10. It was held in the West Virginia Building at Jackson’ s Mill 2:00  to 5:00 pm.

The presentation was made by the Greenbrier River Watershed Association. which has held over a dozen such meetings previously. The first speaker was Elsie Keaton, Outreach and Education Coordinator. Her talk involved the location and character of the four main pipelines, three of which are 42 inches in diameter and one 36, and several smaller ones which lead to and supply them.

The pipelines will require 75 foot rights of way and will go through numerous streams, both causing siltation. They must be kept cleared for the life of the project, an unspecified time. Some companies say they will not use herbicide to keep them clear, but most observers think when the cost mounts, they will resort to herbicide, which will drift off the right of way, injuring surrounding forest or farmland.

The resistance is very high in the Southern end of the Atlantic Coast Pipeline, because of the specialized agriculture there (vineyards, etc.) and relatively dense population. Many of the pipelines center around Doddridge County and Lewis County, in the center of West Virginia. Timber on rights of way is largely wasted, piled up and burned.

The next section was conducted by Joe Lovett, a lawyer employed by the Greenbrier River Watershed, a specialist in representing property owners. He pointed out that in a negotiation, such as for a right of way, it is “human nature” for each party to try to get all they can. The company is not excepted. The property owner must think about his own interest, but recognize what the company must have to make a deal.

Some of the things one must try to get for him/herself is that the route must be completely identified, not just access their land. Some things that must be prevented by the lease are (1) changes in location of the pipe over the property; (2) only one line, no additional lines parallel at later date; (3) no additional uses, such as a connecting road between wells, or a road and a well, or communication lines, or facilities beyond what are necessary for the original pipeline.

Some things you might want to get into a right of way are: Be sure the right of way returns to the surface owner at the end of use of the pipeline. Will you allow it to be converted to some other use? What happens to the pipe at the end of its useful life? Is it to be left in the ground, or removed for salvage? If salvage, whose pipe is it, theirs or yours? How is the surface to be reclaimed?

What about your fences? Will they have to be changed? Who will pay, who will do the work? Will gates be needed for access by the company? Who will pay? Who will replace, since gates don’t last as long as pipelines may be used? Remember customs can change, and likely will, during the life of the pipeline. Get it in writing!

What about leaks and possible explosions? These should not occur in a properly constructed pipeline for several decades. If infrastructure is allowed to deteriorate in aged pipelines it can happen. Several do occur each year, and standards are not as high in rural areas as they are in urban areas.

Joe Lovett answered questions from the floor for half an hour or more. The most important thing for a landowner, he said was to NEVER SIGN A PAPER THE FIRST TIME IT IS PRESENTED TO YOU. Take time to think about it, do research, and discuss it with people you trust.

Joe Lovett pleaded for surface owners to get a lawyer familiar with pipelines, so the important features of a right of way will be covered. (This author reminds the reader that lawyers are specialized in our time, just like doctors. Ask around and find one who does this sort to work! Any layer can legally do your work but all are not trained or experienced in pipeline rights of way. A good choice would be to contact the Greenbrier River Watershed Association.)

The final presentation was by Pamela C. Dodd, Ph. D., a hydrogeologist. She informed us an hydrologist was trained in how water moved on the surface, and a hydrogeologist is trained in how it moves both on the surface and in the subsurface.

First she explained a few concepts such as ground water, water table and water shed. Then she showed how water moves from the tops of a hill or mountain underground to the stream in the valley. Next she emphasized how vegetation affected this flow. When there is forest and litter at the top it retains water for a more uniform flow in the stream below. If the vegetation cover is reduced at the top, more run off occurs and the stream rises. Since less is retained, so the flow in the dry season is less. Removing vegetation near the top of a mountain causes the stream flow to be greater when it rains and less in a dry time.

She also explained how a leak in a gas well near the top of a hill or mountain would be carried in the aquifer downhill toward the valley, polluting the water table as it went.

The audience of about 125 was very attentive. Meetings will be held by the various companies in the next few weeks.

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From MetroNews … The organization is planning a similar meeting in Craigsville on January 29 and is in talks to play host to events in Buckhannon and Harrison County.

For a pro-pipeline perspective, Dominion is putting on its own informational meetings for the ACP with open houses January 21 at the Elkins Gandy Conference Center from 5 p.m. to 7:30 p.m. and January 22 at Jackson’s Mill at the same time. For the Supply Header project, a January 26 open house will be held from 5 p.m. to 7:30 p.m. at the Doddridge County Park.

EQT will be putting on an open house meeting, providing information on the Mountain Valley project, January 27 at the Progressive Women’s Association building from 5:30 p.m. to 8 p.m. in Clarksburg.

Landowners at WV Building of Jackson's Mill

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“Groups opposed to natural gas pipeline projects hold informational meeting in Lewis County”  by Aaron Payne, WV Metro News, January 17, 2015

“Landowners learn about gas pipelines”  by Roger Adkins, Inter-Mountain, January 19, 2015

Residents in VIRGINIA oppose the A.C.P.

“Both sides to square off with interstate pipeline meetings”

From an Article by Chris Lee, Inter-Mountain News (Elkins, WV), January 17, 2015

Elkins, WV — Groups in support of and in opposition to the proposed Atlantic Coast Pipeline will hold meetings within sight of one another at the same time Wednesday.

Dominion Resources is planning an open house meeting at the Gandy Dancer Conference Center beginning at 5 PM to provide the community with informational materials. Officials said experts will be present, including engineers, representatives from the Federal Energy Regulatory Commission and other Dominion executives, who will field any questions or concerns about the project.

Beginning at noon, WV Matters is hosting an all-day gathering at the Iron Road Inn – located next to Gandy Dancer – celebrating the successes of the group that has tasked itself with informing the residents of West Virginia about the alleged personal health and public safety issues regarding pipeline construction and operation. According to a press release, high definition maps of the proposed route and an illustration of the alleged damages the northern region of West Virginia would sustain from pipeline and fracking activities will be on display at the WV Matters meeting.

Bob Orndorff, director of Government Affairs for Dominion Resources, said his company’s open house, which is a requirement of the pre-filing process they are working with the Federal Energy Regulatory Commission to complete, is also simply the right thing to do. “We are trying to hit each of the counties where the pipeline is planned and holding open houses so we can provide information very general and very specific information to all the residents in and around the areas where the pipeline will be,” he said. “We try to centrally locate these informational meetings to provide information about the project.”

Orndorff said meetings like this allow landowners the chance to have a dialogue with pipeline officials. “That’s part of the process that we use with these open houses. We’ll have individual landowners come up and tell us about specific features that are on their land so that we can understand better where we’d like to be and where they would like us to be as kind of part of a compromise that we go through as we look at these routes,” he said.

Orndorff said he understands this is an emotional issue. “If someone expresses their opinion and this is an opportunity for them to express their opinion we respect the opposition and deal with them on a daily basis, so my sense is, we’re ready,” Orndorff said. “We know how to handle individuals like that. We hope that people conduct themselves reasonably and we will do the same.” Orndorff said if the pipeline project is ultimately approved it will create jobs and promote economic growth in the region.

WV Matters officials oppose the pipeline project, however. “WV Matters is about facts, not opinion,” Dominion opposition event organizer Lauren Ragland said. “Our message is gentle. We’re not arguing. Some fight (but) we are sharing facts.”

Maria Gunnoe, community organizer for the Ohio Valley Environmental Organization and a sponsor for WV Matters, will be speaking about community organization and the “impacts of such a massive project on our ability to live in our beautiful state.” at the organization’s “celebration of the facts,” Ragland said.

“Dominion has been very secretive and in some cases dishonest with the residents. I personally feel that Dominion is intentionally creating a divide in order to conquer,” Ragland said. “While communities debate, discuss and deliberate, Dominion is moving forward.” Other speakers are scheduled throughout the day addressing multiple issues.

J. Barroso, a Mill Creek landowner, owns an expanse of property that includes several natural springs and caves and is home to at least one protected species. He said when requesting to come onto his land, prospectors threatened him with eminent domain if he refused to comply.

“My reply was clear: I react negatively, very badly indeed, to threats and intimidation! My answer was still a resounding no. And it is no to this day and until I get all the information I need, answers to all the questions I have been asking, etc.,” he wrote in a recent email exchange with The Inter-Mountain. “Until my concerns are addressed, I will continue to deny permission to survey. Anything else is akin to signing a blank check, or signing a contract without reading it, and no sane person does that!”

Barroso, who is currently traveling abroad, said he regrettably will be unable to attend the Dominion meeting to express his concerns, but he doesn’t believe much can be accomplished, regardless.

“The meeting, as I see it, and from other similar initiatives sponsored/organized by Dominion, is nothing more than marketing for Dominion,” Barroso wrote. “Landowners will get nothing out of it other than more pamphlets promoting the safety of the pipelines (we all know they are far from safe) and how natural gas is clean energy (we all know it is not! It burns cleaner than gas, but it is dirty energy when we consider the whole process, from extraction to final product) and how it will create jobs (which it will not, only temporarily and mostly for out of state workers).”

The 42-inch diameter, 550-mile long pipeline will deliver natural gas from the Marcellus and Utica Shale fields in North Central West Virginia to Robeson County in North Carolina. The pipeline’s capacity is expected to be approximately 1.5 billion cubic feet per day. The construction of the pipeline is expected to cost up to $5 billion.

The Atlantic Coast Pipeline is a joint venture of Dominion Resources, Duke Energy, Piedmont Natural Gas and AGL Resources.

Current maps show, in Randolph County, the pipeline will cross from Helvetia, through Mill Creek, along the Kumbrabow State Forest border, across U.S. Rt 250 near the Huttonsville Correctional Center and up to Cheat Mountain. The proposed route would pass through Monongahela National Forest.

The pipeline also would include the construction of  three (or more) compressor stations, the first of which would be located near the beginning of the route in WV. The second would be located in Buckingham County, VA, and the third would be located near the Virginia-North Carolina state line.

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For pipeline route maps see:  www.appalmad.org/maps and www.wvmatters.com