Monroe County judge denies injunction to remove pipeline protesters from trees

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Contributed by Greenbrier River Watershed Association

(Courtesy of Appalachians Against Pipelines facebook page)

An attempt to flush pipeline protesters from their stands in trees atop Peters Mountain fell short during a hearing at the courthouse in Union on Mar. 20.

Monroe County Circuit Judge Robert Irons denied a preliminary injunction requested by Mountain Valley Pipeline, which sought the court’s intervention to remove the tree-sitters, in what has become a troublesome obstacle to its plans to build a natural gas pipeline through West Virginia and Southwest Virginia.

Although Irons said last week that he was inclined to grant the injunction, his view changed during the Tuesday hearing when William DePaulo, an attorney for the tree-sitters, argued that Mountain Valley has failed to prove they are actually in the route of the proposed pipeline. DePaulo repeatedly raised questions about the surveying, calculations and map drawing that Mountain Valley relied upon in asserting that the tree-sitters were blocking the pipeline’s path.

“Like so many things in life, the devil is in the details,” Irons said in announcing his decision. The surprise ruling came on the twenty-third day of the tree-sit protest, which shows no sign of ending. It was not clear after the hearing what step Mountain Valley would take next. The company has said the protesters – on two small wooden platforms suspended by ropes about 25 feet above the ground – are sitting in trees that need to be cut down before a Mar. 31 deadline imposed by federal wildlife protections.

“While we are disappointed with the Court’s decision, the MVP project team will continue to move forward with construction activities along other portions of the 303-mile route,” Mountain Valley spokeswoman Natalie Cox said in a statement. “As always, we respect the opinions of those who are opposed to the MVP project and we want to ensure everyone’s safety throughout the various phases of the construction process.” But in court Tuesday, an attorney for the company made it clear that it needs the protesters gone from two oak trees in the Jefferson National Forest, near the Virginia state line. The Monroe County trees are very close to where the company plans to bore a tunnel tor the 42-inch diameter steel pipe to pass under the Appalachian Trail before emerging on the Giles County side of the mountain. “They’re in the area that we need to fell trees, and they’re interfering with that,” attorney Scott Long said.

An earlier temporary restraining order against the tree-sitters reached the end of its 10-day lifespan on Sunday, Mar. 18. During that time, there was no attempt to extract the protesters by Mountain Valley or the U.S. Forest Service, which has imposed an emergency closure of the pipeline’s right-of-way through about 3.5 miles of public woodlands in Monroe, Giles and Montgomery counties.

The Forest Service has said it is monitoring the tree-sit protest but has declined to comment further on what it terms an ongoing investigation. As far as enforcing a court order is concerned, it became abundantly clear during the hearing on Tuesday that location matters – and that a precise location of the tree-sitters has yet to be established.

“You may guess, and you may guess right,” DePaulo told the judge in urging him not to accept the testimony of a Mountain Valley surveyor, who said he found the tree-sitters to be within a 125-foot right of way approved tor the pipeline’s construction. “But [Mountain Valley] shouldn’t put anyone in the position of guessing,” he said. In court papers, DePaulo has suggested that the tree-sitters are just outside of the pipeline right of way. That theory would place them within an area 300 feet from either side of the Appalachian Trail’s route along the ridge line – a zone in which tree cutting is prohibited.

But by Mountain Valley’s calculations, the tree sitters are a scant seven feet beyond the no-cut zone’s boundary.

“We’re talking about very small measurements,” Irons said during the hearing that at times came down to wrangling over a difference of one five-hundredths of a mile.

Drawing applause from a courtroom crowded with pipeline opponents, DePaulo turned to a broader issue: how public attention has been captured by young people willing to spend weeks in the wilderness, perched in trees through high winds, snow storms and freezing temperatures. “It makes people think about why are we undertaking this pipeline project at all,” he said. It’s unclear if the same two people have been occupying the tree stands throughout the operation. Mountain Valley has contended that at least seven people have been involved in the protest.

The tree-sitters and a network of supporters who are providing them with food and water have said they are trying to stop the environmental damage from a project driven by corporate greed.

Similar arguments – including concerns that sediment dislodged by digging trenches for the 303-mile pipeline will contaminate pristine streams that feed private wells and public water supplies – have been made over the past three years in regulatory proceedings, public hearings and lawsuits. Yet the $3.7 billion project has obtained nearly all of the permits it needs for construction to begin.

For some, the tree-sitters represent a final stand. “I look out over Peters Mountain from most of the windows in my home,” said Monroe County resident Laurie Ardison, who has followed the controversy closely. “I know it’s absolutely frigid where the sitters patiently wait, making the stand that few of us are capable of doing. The solidarity has been and is now, more than ever, as important as the air that we breathe. Words barely touch the feelings of concern and gratitude we hold for those who sit for us all.”