By Calvin Trice, The News Leader
HARRISONBURG – If Dominion asks a landowner for permission to survey property for a pipeline route and the homeowner says “no,” can the company come onto the land anyway?
Churchville homeowners William and Wendy Little believe their “no” means no. Dominion’s representatives say the company still has the right to survey the couple’s 5 acres.
The Littles’ lawyer argued in a hearing for their federal lawsuit Thursday that the state law that grants natural gas companies the right to study private land without the owner’s permission doesn’t speak to the Littles’ case.
Virginia’s statute allows such private property entry and doesn’t count it as trespass if the company asks to study the land and doesn’t receive permission. Nicholas Hurston, representing the Littles, said state law doesn’t cover an explicit no to Dominion’s request, which William Little put into writing in September and sent by certified mail.
If his explicit denial doesn’t matter, “The entire purpose of requesting permission would be without meaning,” Hurston told U.S District Judge Michael Urbanski.
State law isn’t clear on whether a written “no” should be considered the same as not receiving written permission to survey. Because of that, the Littles’ lawsuit asks Urbanski to declare the law void because it’s unconstitutionally vague and can’t be properly enforced.
Dominion’s attorney, John Wilburn, said the state assumes that natural gas companies can regard a rejection of a survey request the same as not receiving permission. That’s the purpose of the law, and an attorney general’s opinion written shortly after it was passed in 2004 affirmed that explicitly, Wilburn said.
Attorney generals’ opinions don’t have the force of law, but the fact that state lawmakers have not bothered to clarify it since then-Attorney General Bob McDonnell issued his opinion in backs that interpretation. “No” means it’s still OK to survey, he said.
“It indicates that the General Assembly agrees with the attorney general’s interpretation of the statute,” Wilburn said. Dominion asked the judge to dismiss the lawsuit.
William Little, who is himself a lawyer, argued on his own behalf, and noted that a state lawmaker asked McDonnell for an opinion on the law because it’s not clear. “If it were clear, no explanation from the attorney general would have been needed,” Little said.
Urbanski peppered lawyers from both sides with stiff questionings during the hourlong hearing – often cutting them off with challenges as they made their arguments.