Judge issues stay in Summers County MVP case

Ashby Berkley looks over the pipeline work being done on his camp ground off of Route 3 in Pence Springs.(Rick Barbero/The Register-Herald)

HINTON — Summers and Monroe County Circuit Judge Robert Irons issued a temporary stay Tuesday to work being done in Summers County on the Mountain Valley Pipeline (MVP).

Specifically, the stay will halt work being done on property where the pipeline will enter the Greenbrier River in Pence Springs.

The motion was brought before Irons by Greenbrier River Watershed Association, Indian Creek Watershed Association, Ashby Berkley, and Ty and Susan Bouldin, after Berkley was made aware that tree removal had begun on his property last week.

Among concerns over due process, the petitioners have argued that the West Virginia Department of Environmental Protection (DEP) permit for the crossing is not in compliance with the Natural Streams Preservation Act.

Attorney Kevin Thompson, who made arguments for the petitioners, told Irons that the stay was necessary because if not granted, the petitioners' appeal would be worthless because construction would be quickly finished and their concerns would not receive their due process.

Attorney Robert McLusky, who represented pipeline interests during the hearing, argued that a delay in construction would push back the Greenbrier River crossing until next summer.

An attorney with DEP, seated next to McLusky, agreed with his arguments and asked the judge to allow the construction to proceed.

While listening to the arguments from McLusky, Judge Irons told the attorney that he had not had sufficient time to review documents that McLusky had submitted and said McLusky's 25-page brief and a 1,000-page record had only been submitted to the court after its closing on Monday.

The judge also countered the attorney's argument that a stay would automatically lead to a lengthy delay in the construction process.

"I have heard that before on cases involving the Mountain Valley Pipeline," Irons said, explaining his role in a Monroe case earlier in the year involving two tree-sit protestors blocking construction on the pipeline on Peters Mountain.

"It was represented that there was a hard deadline," Irons harkened back to the previous case. "Well, that deadline got extended for a couple months. It seems to me that these deadlines aren't really set in stone on this particular project."

Irons granted the stay in the case and scheduled the next hearing for 10 a.m. Oct. 23 at the Summers County Courthouse.

• • • 

After the hearing, as he looked over the land in question, Berkley said, "Hopefully, it will give everybody time to take a breath of air and look at it."

While thankful for the stay, the landowner has been frustrated with the process and has little hope of stopping construction across his land in a metaphorical and physical sense.

Berkley explained that while a crossing seems simple enough, the proposed path of the pipeline comes straight down the mountain across the road, before tunneling under the road and entering his property.

After entering the property, the pipeline will not enter the Greenbrier River at the nearest point, instead, making another turn to the west, effectively splitting Berkley's property in two.

While expecting construction for the past two years, Berkley said he knew work was coming when two divers tasked with moving threatened mussels turned up two weeks ago.

Last Monday, Berkley received a call from neighbors that pipeline workers were on the land cutting down trees in the pipeline's path.

Though the pipeline interests haven't reached a deal with the landowner, federal law allows them to proceed with construction through their Federal Energy Regulatory Commission permitting.

According to Berkley, he was offered $23,000 for the property which used to contain campsites.

"Who the hell is going to come here and camp on top of it, a 42-inch pipeline," the landowner said. "They've rendered my property absolutely useless."

Along with the campsites, the property contains two cottages which Berkley rented out in the past for substantial amounts in the summertime.

"You can't rent them a place if there's going to be a big bulldozer in the road, in the yard," Berkley said. "So, I've lost two years of revenue."

Along with the property's rental value, Berkley argued that the land itself is worth over a half million dollars, citing smaller, adjacent lots that he sold in the past.

All of those smaller lots, which do not have installed utilities like the lot in question, all sold for more than the amount that Berkley was offered by MVP.

To make matters worse, Berkley said that he will still have to pay taxes on the land that the pipeline goes through, even though in essence he has lost any practical use of the land and has to seek permission from MVP to even mow over the pipeline.

• • •

Berkley has a historical tie to the property, serving as a lifeguard for the historic lodge that once stood on the property.

He would eventually buy the lodge and turn it into a restaurant before it would burn down.

"I've been renting cottages and grounds on these properties since about 1964," Berkley said.

In addition to his personal concerns, the landowner is concerned about the potential environmental impact.

Expecting that the pipeline workers will have to cut trees that line the bank of the river to cross, Berkley explained that the soil is loam and could quickly erode.

"This whole field floods," Berkley said. "We know that. That's why it's a campground instead of a housing development."

The landowner added that the DEP's participation in the process had been nothing but "pathetic."

Arguing that he could not even clear a creek bed on the property because of the Greenbrier River's inclusion in the Natural Stream Preservation Act, Berkley said that the DEP's rules seem to not apply to the pipeline project.

"The DEP would never let me do this," Berkley said. 

-- Email: mcombs@register-herald.com; follow on Twitter @mattcombsRH

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