LYNDHURST — Hazel F. Palmer was 10 years old when she moved here from Lynchburg with her parents in 1943 to take care of her grandmother in the house her grandfather had built at the turn of the 20th century on the western slope of the Blue Ridge Mountains.
Her great-grandfather bought the land in 1880. Her husband died there in a logging accident in 1992. Her daughter and her husband built a log home on the property last year, and their children and grandchildren are the sixth and seventh generations to enjoy the mountain land.
Palmer, now 83, has taken a stand that will carry her to the Supreme Court of Virginia to determine whether Atlantic Coast Pipeline LLC had the right to survey her ancestral land without her permission to chart a route for a 42-inch-wide natural gas pipeline through the property and the mountain itself.
“I’m fighting to protect my heritage,” she said in an interview at the home of her daughter, Denise Everhart, on Reeds Gap Road on the other side of the mountain from Wintergreen Resort in Nelson County.
Aaron Ruby, a spokesman for the Delaware limited liability company and its lead partner, Richmond-based Dominion, acknowledged the hardship for Palmer and her family.
“We sympathize with the position Ms. Palmer is in,” Ruby said. “On a basic human level, it’s impossible not to. We all have families, and we all have things we want to pass on to the next generation. We’re going to do everything we can to minimize the impact on her property so it’s preserved for her children and grandchildren. And we’re confident she’ll be able to do that.
“There’s no escaping that construction on her property is going to be an inconvenience, but it’s temporary and we’re going to restore the land as close as we can back to the way we found it. She’ll also be compensated fairly.”
The 110 acres Palmer owns here in Augusta County would be on one end of a nearly mile-long tunnel the pipeline company would drill through the mountain from Nelson at the entrance to Wintergreen to avoid the Appalachian Trail and Blue Ridge Parkway hundreds of feet above.
Palmer and her daughter have been compensated by the pipeline company for allowing it to take core samples of the soil and rock beneath her land where the pipeline would enter the mountain.
But they received nothing for the survey conducted across the property in February after an Augusta judge enforced a hotly disputed state law that allows natural gas pipeline companies onto private land to survey without the owner’s permission.
“It’s one thing when someone asks for something and is willing to negotiate with you, and treats you with some respect,” said Benjamin L. Perdue, an attorney with the Norfolk law firm that represents Palmer in her appeal, which the Supreme Court accepted late last month. “It’s another when they take something just because they can. That’s what the appeal is about.”
The appeal is also about the constitutional amendment approved by Virginia voters in 2012 to amend the state Bill of Rights to prevent eminent domain from being used to take private property for “private gain” by an entity other than a public service company, said Henry E. “Hank” Howell III, Perdue’s legal colleague and son of former Lt. Gov. Henry E. Howell Jr.
Howell contends — and pipeline company lawyers strongly disagree — that Atlantic Coast Pipeline is “a foreign LLC” that does not qualify as a public service company and does not enjoy constitutional protection to take private property, including the right to prevent uncompensated access.
“The right to exclude has value,” he said.
The pipeline company has fended off efforts by opponents in three state courts and one federal court to block the survey law as unconstitutional, as has the developer of the proposed Mountain Valley Pipeline through Giles County and the Roanoke Valley.
But Palmer’s case represents the first time the Supreme Court has agreed to hear an appeal of the survey statute, which is also subject to a hearing this month in the 4th U.S. Circuit Court of Appeals in a case involving landowners along the initial pipeline route proposed through Nelson near Afton.
Her land came into the path of the proposed 600-mile pipeline after the company shifted the route about 8 miles south last year to avoid having to ask Congress for permission to cross the Appalachian Trail on land managed by the National Park Service.
The new route instead would rely on “horizontal directional drilling” to extend the pipeline 4,639 feet through the mountain 600 to 800 feet beneath where the national scenic trail and the Blue Ridge Parkway cross U.S. Forest Service land.
“The reason we’re doing the (horizontal directional drilling) is to protect the Blue Ridge Parkway and the Appalachian Trail,” Ruby said. “Those are important cultural resources, too, and they need to be preserved for future generations.”
The new route is strongly opposed by Wintergreen and its property association, which owns land across from the resort entrance where the pipeline company proposes to set up its rig to drill a 52-inch-diameter tunnel through the mountain to Palmer’s land on the other side.
“We are against the pipeline coming on our land and would like it to be moved,” said John Claman, a member of the board of directors of the Wintergreen Property Owners Association, as well as Friends of Wintergreen.
The property owners association allowed the pipeline company onto the land to survey and to take soil samplings where the pipeline would tunnel beneath Beech Grove Road downhill from the Wintergreen entrance, but the company decided not to take core samplings at the entry point for drilling through the mountain because of the difficulty of clearing and preparing the site, Ruby said.
Instead, the company approached the owner of more accessible property near the Blue Ridge Parkway, but the landowner refused. Ruby said. The company decided it had enough information from the samples taken on Palmer’s land and the geophysical survey of the Wintergreen property.
In Palmer’s case, she had refused to allow the company onto the land to survey, and the company had filed suit to enforce the state survey law. Augusta Circuit Judge Charles L. Ricketts III ruled in November that the statute is constitutional and the surveys could proceed. After the order was entered in early February, the company conducted the survey.
But Palmer’s lawyers say she could still sue the company for trespass if the high court rules in her favor.
In March, the pipeline company approached Palmer and her family about allowing it to take the core samples necessary to test for horizontal directional drilling on her property. Palmer’s lawyers negotiated an agreement with the company that compensated her and her daughter but allowed them to retain the right to pursue the appeal of the survey case.
In May, the company drilled an 8-inch-diameter hole approximately 115 feet to test the underlying soil and rock, which it told federal regulators is suitable for the horizontal drilling project.
If approved by the Federal Energy Regulatory Commission in September, the company would clear and level a 200-by-250-foot site on each side of the mountain for drilling and assembling the pipe to be pulled through the mountain. It would have to negotiate agreements with landowners along the pipeline route to build through the properties, but would have the power of eminent domain to condemn property under federal law.
The initial plan is to drill through the mountain from Wintergreen and then assemble the pipe on Palmer’s land to pull through the approximately 52-inch-wide opening. The drilling contract has not been awarded, so the plan could change, subject to FERC approval, to also drill from Palmer’s property, the company said.
“All the stacking of pipe would be in Augusta County,” Claman said in Wintergreen. “The removal of dirt and debris would be in Nelson County.”
The drilling process is expected to take 12 to 14 months, operating 10 hours a day and six days a week, but the company said it could move to 24 hours a day, seven days a week to shorten the duration.
Pipeline engineer Ron Baker called the proposed time frame “a conservative number that gives us an opportunity to overcome any challenges we might encounter during the process.”
The pipeline’s path up and into the mountain would be clear to see from the deck of Everhart’s house, which also overlooks the house built by her great-grandfather, George W. Henderson, in 1908. She grew up in Lynchburg but spent much of her youth here, playing in the creek and woods.
“This was always my dream,” said Everhart, 53, who knew where the pipeline was proposed to go when she and her husband began building last year. “We just had to deal with what we had to deal with. We just prayed and hoped for the better.”
Palmer lives in Lynchburg but regards her property here as a self-sufficient sanctuary, as it was when she was a child, when she lived in her grandmother’s house with no indoor plumbing.
“I always tell people if the world gets too bad, I’ve got a place to go back to,” she said, looking at pictures of her ancestors laid out on a table in her daughter’s house. “Now, I’ve got a pipeline going through it.”
Ruby, the pipeline company spokesman, said the project is necessary to provide low-cost natural gas to generate electricity instead of coal and to heat homes and businesses in eastern Virginia and North Carolina.
“Providing electricity and home heating to millions of people is no easy task,” he said. “It requires a lot of infrastructure, and there’s just no way to build that infrastructure without having some impact on the environment and people. That’s just a reality of modern life.”
Still, the process does not seem fair to Palmer.
“To have someone to take something of yours, your parents, grandparents, great-grandparents, and you can’t do anything about it — it’s terrible,” she said.