A three-judge panel of a federal appeals court on Tuesday restored a jury award of more than $520,000 to compensate a Roanoke County family after some of their land was seized for the Mountain Valley Pipeline, reversing a district judge’s decision last year that had cut the award almost in half.
In their published opinion, judges Stephanie Thacker, Roger Gregory and James Wynn Jr. of the Richmond-based 4th Circuit U.S. Court of Appeals agreed with the Terry family that evidence presented at a 2022 trial supported a jury awarding the higher amount.
The case centered on just how much the family should be paid based on the value of their 560 acres of Bent Mountain land and how much value they would lose from easements impacting 8.37 acres used in the construction of the controversial natural gas pipeline.
Joe Sherman, a Norfolk attorney representing the property owners — named in the case as Frank Terry Jr., John Coles Terry III and Elizabeth Lee Terry, aka Elizabeth Lee Reynolds — said in a statement to Cardinal News that “common sense is critical to protecting our common interests and the court of appeals affirmed that common sense is not obsolete in our modern system of justice.”
“The Terrys stood in the gap against an overreaching pipeline company for nine years to protect their interests and the court’s decision will help countless other landowners as a law of the land,” Sherman said.
The 303-mile, 42-inch-diameter Mountain Valley Pipeline is set to transport up to 2 billion cubic feet of natural gas daily from West Virginia through six Virginia counties, ending at a compressor station near the North Carolina border. The project was first announced in 2014, and after years of delays the developers hope to have it in service by the end of this month at a total cost of $7.85 billion.
During the pipeline’s development, most property owners in its path agreed to sell easements to their land. Some refused and were sued by the pipeline company, which had been granted the power of eminent domain to seize private land for an infrastructure project deemed to be in the public interest.
The Terry family became among the best-known of the pipeline’s opponents when John Coles Terry III’s wife, Theresa “Red” Terry, and their daughter, Theresa Minor Terry, made headlines protesting the pipeline by camping out in trees on their land for five weeks in 2018. The two women came down after U.S. District Judge Elizabeth Dillon threatened $1,000-a-day fines.
Mountain Valley Pipeline spokesperson Natalie Cox on Tuesday declined to specify what the company’s next steps might be following the appeals court ruling in the Terry family’s case.
“Although Mountain Valley firmly believes the decision by the district judge was correct,” Cox said in a statement, referring to the decision last year that reduced the jury’s award, “we look forward to concluding this outstanding issue and securing a final resolution in this matter.”
During the case’s original four-day jury trial in March 2022, the Terry family called real estate appraisers as expert witnesses. One testified that the land was worth $1.9 million and another testified that the land would be reduced in value by 30% by the pipeline easements.
With those figures, the family asked the jury for $570,000, which is 30% of $1.9 million. The jury awarded nearly all of that amount: $523,327.
Mountain Valley Pipeline appealed the verdict, arguing that the Terrys had improperly mixed the two experts’ testimony that appraised the land’s highest value based on its potential use as a wind farm but calculated the reduction in value based on the land’s use as residential property.
In April 2023, Dillon agreed with the pipeline company and calculated a new award using testimony from a single appraiser who calculated the land’s value as residential property worth about $850,000, as well as that appraiser’s assessment of the pipeline’s impact. That led to a reduced award of $261,033.
The family then appealed the case to the 4th U.S. Circuit Court of Appeals, arguing that the jury’s original verdict was supported by the testimony at trial and that the jury could in fact have reached the larger award based solely on residential values.
In Tuesday’s opinion, the three appeals court judges agreed.
“Because the jury’s verdict can be supported using residential values alone, it is unnecessary for us to decide whether it is improper for a jury to mix commercial and residential valuations in just compensation cases,” Thacker wrote in the opinion, in which she was joined by Gregory and Wynn.
The judges also ordered the district court to consider a motion by the Terry family to recover attorney fees and costs.
The court’s decision comes as Mountain Valley Pipeline developers have asked the Federal Regulatory Energy Commission, which regulates the construction of interstate natural gas pipelines, for permission to put the pipeline in service by the end of this month.
Pipeline supporters say it will meet a market demand for natural gas. The project received a boost this past summer when Congress passed a law fast-tracking its completion and shielding it from most legal challenges.
Opponents say the project is unnecessary, dangerous and harmful to the environment. For years they have mounted legal and permitting challenges against the pipeline and its proposed $370 million extension into North Carolina.
The pipeline’s use of eminent domain to seize land is at the heart of another case that has already gone before the U.S. Supreme Court.
In that case, six Southwest Virginia landowners argue that Congress violated the constitutional separation of powers when it gave the legislative power of eminent domain to FERC, which then authorized pipeline developers to seize private land.
The case went before the U.S. Supreme Court once, and in April 2023 the nine justices unanimously sent it back to a Washington, D.C.-based federal appeals court. That was a victory for the landowners, but a temporary one, as that court dismissed the lawsuit for a second time.
The six landowners have again appealed their case to the U.S. Supreme Court and await a decision on whether the high court will take it up.
