Our friend and colleague Alan Ackerman posted a note on his blog about a recent District Court ruling from the Western District of Virginia which upheld the power of a potential condemnor to enter property for the purposes of survey, without formally taking the property. See "Virginia Federal Judge Follows What May Be the Majority Rule for Surveys." But Alan didn't post the court's written ruling. So here you go, all 35 pages of it.
The issue was whether a Virginia statute, which "authorizes a natural gas company to enter private property without the landowner's written permission and perform a survey for a proposed natural gas pipeline," is a facial violation of the U.S. and Virginia Constitutions, and "is thus void and unenforceable." Slip op. at 1. The court granted the gas company's motion to dismiss. It concluded that the facial challenge failed because the property owners do not possess a right to exclude entries for purposes of surveying in anticipation of an exercise of eminent domain. It also concluded that an as-applied challenge was not ripe.
This is similar to -- but not the same as -- the issue now being considered by the California Supreme Court in Property Reserve, Inc. v. Dep't of Water Resources, No. S217738. In that case, an as-applied challenge, the entries which the Department of Water Resources proposed to undertake were not minor and innocuous, but pretty major, and, as the Court of Appeal concluded, were well beyond the minor intrusions allowed by California's entry statute. The Court of Appeal concluded the proposed entries rose to the level of takings, meaning that if the DWR wanted to undertake them, it would have to exercise its eminent domain power to do so. For more about why, see the amicus brief we filed in that case.
This is a different case as evidenced by the Virginia's court's ruling that the as-applied challenge was not ripe because the gas companies "have not entered plaintiffs' properties, and they have no intention of doing so now, given the change to the proposed route of the pipeline." Slip op. at 11. That being so, there was no way to tell whether the gas company's proposed entries went too far. The court merely held that Virginia's statute was not unconstitutional in all cases, something that should not be surprising given the number of similar statutes around the country, and the low level of interference with a landowner's rights that they allow. It's when the entry allowed by the statute is used for intrusive entry that there's constitutional trouble.
We presume that were a Virginia gas company propose to make entries that exceed what is contemplated in the statute or otherwise interfere with an owners' property rights in a concrete way, that it well could be a taking and subject to the same rules recognized by the California Court of Appeal. The Virginia court didn't foreclose this, but merely told the owners to come back when you're subject to actual and not hypothetical entry by the gas companies. That may not happen with these plaintiffs, because it appears that the gas companies are looking at other parcels. And maybe this was the goal all along.
The Virginia court also rejected Fourth Amendment and Due Process challenges. Again, not a surprise, is it?.