Litigation

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    Southwestern Appeals “Briggs” Trespass Case to PA Supreme Court

    Southwestern Energy has taken the next step of appealing the “Briggs” trespass case to the Pennsylvania Supreme Court–a case of tremendous importance. In April, MDN brought you the news that Pennsylvania Superior Court had handed down a decision (known as the “Briggs” case) that has the power to greatly restrict, perhaps even stop, Marcellus drilling in PA (see PA Superior Court Overturns “Rule of Capture” for Marcellus Well and PA “Rule of Capture” Case has Power to Limit Marcellus Drilling). The issue, in brief, is that the Superior Court decision disallows using an age-old principle called the “rule of capture” when it comes to shale drilling and fracking. It opens the door to a myriad of frivolous lawsuits claiming that a fracture, a crack created during fracking, is draining gas from a neighbor’s property without justly compensating the neighbor for the gas. Southwestern successfully argued in a lower court that the odd crack here and there that may slip under a neighbor’s property is permissible. The landowner appealed to Superior Court and three judges heard the case. Two of the three overturned the lower court and sided with the landowner. Southwestern, following the decision, petitioned the Superior Court to have all of the sitting justices (called en banc) hear the case. Sadly, in June the Superiors proved they aren’t so superior after all, declining to rehear the case (see PA Superior Court Rejects Southwestern “Briggs” Trespass Appeal). Southwestern promised to appeal this critically important case to the PA Supreme Court, and yesterday they did just that. We have a comment from Southwestern below, along with a copy of the brief they filed, and our own thoughts on where this may go after the Supreme Court…
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    Va. Supreme Court Upholds Pipeline Survey Law for 3rd Time

    In 2016 the Virginia Supreme Court accepted a case from an 83-year old granny who didn’t want surveyors working for Dominion’s Atlantic Coast Pipeline to enter her property to conduct a survey for a possible pipeline route (see A Supreme Court to Hear Atlantic Coast Pipe Survey Case). A 2004 Virginia law specifically allows surveyors to enter a property WITHOUT landowner permission, as long as the surveyors provide ample, advance notice of when they are coming. Granny’s case attempted to challenge and end that law. She failed. Last July the Supremes ruled against her (see Va. Supreme Court Rules Against Granny in Pipeline Survey Case). However, Dominion did get a slap on the wrist. The justices said notifications sent for when surveyors will arrive can no longer say the surveyors will arrive “on or after,” because “after” can mean years later. Instead, Dominion will have to give several potential, specific dates when surveyors will visit a property. Fair enough. Except yet another group of landowners sued attempting to overturn the same law–now for a third time. And this third case also ended up in state Supreme Court. Last Thursday the Supremes ruled 6-1 to uphold the existing law that grants pipelines permission to enter property with advance notice. Third time’s a charm?…
    Read More “Va. Supreme Court Upholds Pipeline Survey Law for 3rd Time”

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    Enviro Radicals Target ACP with Same Strategy that Shut Down MVP

    Believing they have a winning court strategy that has (temporarily) stopped the Mountain Valley Pipeline (MVP) in West Virginia (see Sierra Club Succeeds in Delaying MVP Project in WV via Court Order), Sierra Club lawyers set about to try and stop MVP in Virginia too (see Enviro Radicals Target MVP in Va. Following WV Court “Win”). But hey, why stop there? The Clubbers are now attempting to use the SAME legal argument to stop Dominion’s Atlantic Coast Pipeline (ACP) in WV, VA and NC. Their strategy was/is to bamboozle the U.S. Court of Appeals for the Fourth District into stopping construction at stream crossings (hundreds of them) by claiming the pipeline can’t complete required work at some of the crossings within the stated 72 hours called for in the original permit. Therefore, the court needs to reassess the umbrella permit issued for all crossings, stopping work at every single stream crossing–which effectively shuts down construction along the entire pipeline while judges dither around, go on summer vacation, then come back and dither some more before making a decision. The gajillion dollar question is, will the court fall for this sleazy legal trick again, and shut down ACP construction as they have MVP?…
    Read More “Enviro Radicals Target ACP with Same Strategy that Shut Down MVP”

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    Army Corps Engrs Reinstates MVP Permits for 4 WV River Crossings

    In May, the radical Sierra Club claimed a victory in temporarily stopping construction work of the Mountain Valley Pipeline (MVP) at four river crossings in West Virginia (see Army Corps Engineers Suspends MVP Permit for River Crossings). The Sierra Club and a mishmash of other radicalized green groups filed a motion asking the Fourth District U.S. Circuit Court of Appeals to suspend a permit issued by the U.S. Army Corps of Engineers that allows MVP to construct the pipeline across streams and rivers in the Mountain State. The Clubbers’ tortured logic was this: When constructing the pipeline across a river, the stated standard (according to the permit) is that construction can take no longer than 72 hours. MVP says it will need longer when constructing the pipeline across four rivers–Elk, Gauley, Greenbrier and Meadow. Therefore (say the Clubbers), MVP is in violation of the general permit issued by the Corps and that means ALL (not just those four rivers) construction should be stopped, immediately. The Corps said they had reviewed the standards and at that point (in May) rescinded the permit as it applies ONLY to those four rivers, NOT to any locations. The Corps has just reissued the permit in question, tweaked to allow MVP more time. That’s the new news and the good news. However, in June the Fourth District Court agreed with the Clubbers and for now, has stopped construction at all 591 stream crossings the pipeline traverses in WV (see Sierra Club Succeeds in Delaying MVP Project in WV via Court Order). So even though the underlying reason the case was brought in the first place, that construction will take longer at four crossings (out of 591) is now resolved, the court order is still in place preventing work at any of the crossings in WV…
    Read More “Army Corps Engrs Reinstates MVP Permits for 4 WV River Crossings”

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    Major Federal Court Decision Opens Door to Stop DRBC Frack Ban

    A lawsuit that began in 2016 is finally bearing fruit, and may lead to blocking efforts by the rogue Delaware River Basin Commission (DRBC) to block fracking in Wayne and Pike counties in Pennsylvania. In May 2016, a landowner in Wayne County filed a lawsuit against the DRBC asking a judge to declare that the DRBC does not have jurisdiction to prevent construction of a natural gas well (see Wayne County, PA Landowner Sues DRBC Over Fracking Ban). The Wayne landowner argued in U.S. District Court that oil and gas wells, under the DRBC’s charter, do not constitute a “project” that is regulated by the DRBC and therefore are exempt from oversight from the DRBC. The way the DRBC so broadly reinterprets the word “project” in the original charter, it allows them to regulate anything and everything. In March 2016, MDN reported that U.S. District Judge Robert Mariani ruled against the landowner (see Judge Tosses Wayne County, PA Landowner Lawsuit Against DRBC). At first blush it seemed like a setback for landowners in Wayne and Pike counties. But looks can be deceiving. As we pointed out, when you read the judge’s decision, he harpoons all of the DRBC’s legal arguments, but in the end rules against the landowner. Why? Because the judge wanted to send the case to a higher court for an ultimate decision–the 3rd Circuit Court of Appeals. Which is precisely where the case ended up. Last November oral arguments were heard in the appealed case. The DRBC’s lawyer conveniently had a couple of fainting spells that delayed the proceedings when tough questioning didn’t go his way (see DRBC Lawyer Nearly Faints 2nd Time When Questioned by Fed Judges). On Tuesday, July 3rd, the 3rd Circuit Court of Appeals ruled, sending the case back down to U.S. District Court with orders to more fully consider what is, and what is not, meant by the word “project” in the original DRBC charter. Interpretation: This is a MAJOR victory for the landowner, and a MAJOR defeat of the DRBC. No, the case isn’t over yet, but now the full case will get heard. The legal arguments in the case clearly support the landowner. The rogue DRBC is very nervous, as evidenced by reaction from their proxy mouthpiece, THE Delaware Riverkeeper…
    Read More “Major Federal Court Decision Opens Door to Stop DRBC Frack Ban”

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    Enviro Radicals Target MVP in Va. Following WV Court “Win”

    The lawyers that infest the Sierra Club are still celebrating a temporary court victory last week that essentially stops construction of the Mountain Valley Pipeline (MVP) in West Virginia (see Sierra Club Succeeds in Delaying MVP Project in WV via Court Order). Their strategy was/is to bamboozle a court into stopping construction at stream crossings (hundreds of them) by using a technical loophole that MVP can’t complete required work at four of the crossings within the stated 72 hours, therefore the court needs to reassess the umbrella permit issued for all crossings. So the court is doing that, temporarily suspending work at all 591 streams MVP plans to cross in WV. The Sierra Clubbers think that because they won that temporary court victory in WV, maybe they can get lightening to strike twice, convincing the court to pull the permit in Virginia too…
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    Anti Group Sues WVU to Disclose Details of $83.7B China Deal

    Appalachian Mountain Advocates, a far-left, radical anti-drilling organization that some media outlets refer to as a simple “nonprofit law firm,” has filed a lawsuit against West Virginia University to force the university to hand over privileged and secret communications concerning the deal WV struck with China to invest $83.7 billion in the state, in the shale and petrochemical industries. As you may recall, that deal was announced last November (see China Agrees to Invest Amazing $83.7 BILLION in WV Shale, Petchem). The particulars of the “deal” have never been announced–other than the top line number of $83.7 billion in investments. In fact, the “deal” was called a “memorandum of understanding” (MOU), which we said at the time: “[the deal] signed in China yesterday is a Memorandum Of Understanding (MOU). It’s a handshake–a gentleman’s agreement. And sometimes those agreements disappear. So this is far from a done deal.” In early December, following calls to disclose the deal, WV Gov. Jim Justice said the specifics are confidential (see WV Gov Justice Says China Investment Specifics are “Confidential”). So now, here comes a Big Green group trawling for trash–attempting to use (abuse) anything they can to make trouble for the shale industry. They hope if they can get their hot red hands on emails to and from the Red Chinese, they can fabricate a mountain out of a mole hill…
    Read More “Anti Group Sues WVU to Disclose Details of $83.7B China Deal”

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    Sierra Club Succeeds in Delaying MVP Project in WV via Court Order

    The insidious and well-funded Sierra Club has scored another temporary legal victory in stopping Mountain Valley Pipeline (MVP) construction throughout West Virginia. One month ago we reported that the Clubbers had claimed a temporary victory in stopping construction work of MVP at four river crossings in WV. At that time (in May), the Clubbers and a mishmash of other radicalized groups filed a motion asking the Fourth District U.S. Circuit Court of Appeals to suspend a permit issued by the U.S. Army Corps of Engineers that allows MVP to construct the pipeline across streams and rivers in the Mountain State (see Army Corps Engineers Suspends MVP Permit for River Crossings). The Clubbers’ tortured logic was this: When constructing the pipeline across a river, the stated government standard is that construction can take no longer than 72 hours. MVP says it will need longer when constructing the pipeline across four rivers–Elk, Gauley, Greenbrier and Meadow. Therefore (say the Clubbers), MVP is in violation of the general permit issued by the Corps and that means ALL (not just those four rivers) construction should be stopped, immediately. The Corps said they had reviewed the standards and have (for now) rescinded the permit as it applies ONLY to those four rivers, NOT to any other locations. However, the Fourth District Court ruled late last week that construction at all 591 stream crossings the pipeline traverses must now be immediately stopped until the court farts around and considers the full lawsuit brought by the radicalized Clubbers. Enough of this nonsense!…
    Read More “Sierra Club Succeeds in Delaying MVP Project in WV via Court Order”

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    PUC Says PA Strippers Reduced 2017 Impact Fee by $6.1 Million

    Once again we’re talking about strippers. Uh, stripper *wells* that is. In 2012 Pennsylvania passed the Act 13 drilling law that includes an impact fee on wells targeting shale layers, including the Marcellus. Snyder Brothers, headquartered in PA, drills mostly conventional (vertical only) wells in southwestern PA. In 2011-2012 they drilled 45 vertical-only wells targeting the Marcellus. All 45 of the vertical-only wells were fracked. Initially those wells produced more than 90 thousand cubic feet per day (Mcf/day), but by December of the year in which they were drilled, the wells produced less than 90 Mcf/day. The way the 2012 Act 13 law is written, if a well produces less than 90 Mcf/day during “any” month it is considered a stripper well and exempt from paying the impact fee. The state’s Public Utility Commission (PUC) assessed the fee anyway because for 11 months the wells produced more than 90 Mcf/day, arguing the word “any” is not a get-out-tax-jail-free card. Snyder Bros. sued and after an appeal of the case, Snyder Bros. won the case in March 2017, exempting those wells from paying impact fees (see PA Court Says Snyder Bros Wells are Strippers, No Impact Fees Due). That sent the state Public Utility Commission (PUC) into a tizzy with claims the Act 13 impact fees are now in jeopardy. So the PUC appealed the case to the PA Supreme Court. The Supremes heard arguments in the case in April (see PA Supreme Court Takes a Close Look at Strippers…as in Wells). The PUC released its full impact fee revenue generated and disbursed report yesterday (see today’s lead story). The PUC reports that not only are the fees from the Snyder wells missing from the total, but fees for some wells from other drillers as well–some 318 wells in all. Those other drillers cite the Snyder Bros. case as evidence they don’t owe money on what they consider to be stripper wells. In fact, when you total it all up, the PUC says the impact fee revenue for 2017 would have been ~$6.1 million higher if the “missing” fees from those 318 wells were part of the mix…
    Read More “PUC Says PA Strippers Reduced 2017 Impact Fee by $6.1 Million”

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    NY Landowner Who Sued for “Takings” re Frack Ban Loses Fed Case

    Is this the sad end to a noble cause? In 2015 MDN told you about an Allegany County, NY attorney/landowner who filed a lawsuit against the New York Dept. of Environmental Conservation (DEC) over their infamous and politically-motivated ban on fracking (see 1st Lawsuit Filed Against NY Cuomo Frack Ban – in Allegany County). The lawsuit was filed in state Supreme Court in Allegany County. Don’t be fooled by the Supreme Court label. In NY, Supreme Court is one level up from county court. The Supreme Court judge tossed the case saying the attorney/landowner didn’t have standing to file the lawsuit in the first place because he never had a permit to drill on his property. The Appellate Division later upheld the decision. The attorney/landowner then filed the same lawsuit in federal court–bypassing Cuomo-appointed state judges–in federal court last December (see NY Resident (& Lawyer) Sues DEC in Federal Court re Frack Ban). On Monday U.S. District Judge Michael Telesca ruled in that case–against the attorney/landowner, on what amounts to a technicality, saying the case violates the 11th Amendment of the U.S. Constitution which protects states from being sued for money in a federal court. Is this now the end? Does our intrepid attorney/landowner, have anything else up his legal sleeve?…
    Read More “NY Landowner Who Sued for “Takings” re Frack Ban Loses Fed Case”

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    Dela. Riverkeeper Pressures DRBC to Revoke ME2 Pipe Permit

    Here’s the latest strategy in THE Delaware Riverkeeper’s ongoing war against fossil fuels, and against natural gas pipelines in particular: Pressure the Delaware River Basin Commission (DRBC) to revoke a permit granted by the agency to the Mariner East 2 (ME2) pipeline project on the flimsy basis that ME2 has “violated” the conditions of the permit. Frankly, we didn’t even know the DRBC had issued a permit for ME2. After all, ME2 is a state-permitted project and does not come under federal authority. We doubt the DRBC has legal authority to issue a permit for the project–but if no one challenges them, their authority stands. ME2 probably thought it easier to just get the permit and not squabble over it. According to Big Green mouthpiece PBS StateImpact Pennsylvania, the DRBC is actually considering Riverkeeper’s request. The problem with this latest strategy by Riverkeeper is that DRBC’s executive director, Steve Tambini, is so weak, he may fold like a cheap deck of cards and actually do it. Tambini, who has been a major disappointment since taking over from the ultra-leftist Carol Collier, seems happy to take his marching orders from Riverkeeper. We have to wonder if this latest strategy will bear fruit. A scary proposition. But Riverkeeper isn’t content to try and scuttle ME2 by pressuring the weak DRBC as its only strategy. Last week the DRBC filed a “groundbreaking” lawsuit against the ME2 project in U.S. District Court for the Eastern District of Pennsylvania, meant to stop the project by court order…
    Read More “Dela. Riverkeeper Pressures DRBC to Revoke ME2 Pipe Permit”

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    PA PUC Overrules Lib Judge – Mariner East 1 Returns to Service

    As MDN predicted, yesterday the Pennsylvania Public Utility Commission (PUC) voted to overturn a previous action by liberal administrative law judge, Elizabeth Barnes, to shut down the Mariner East 1 (ME1) pipeline (see Antis Get Lib Judge to Shut Down All Mariner East Pipes, Dems Rejoice). ME1 is back up and running. All five PUC members supported returning ME1 back to service. However, three of the five PUC members agreed with Judge Barnes’ decision to temporarily shut down work on the Mariner East 2 pipeline project in West Whiteland Township (Chester County). Two of the five PUC members wanted all of Barnes’ ruling to be overturned. The reporting on this is somewhat confusing. PUC Chairwoman Gladys Brown put forward a motion to (a) turn ME1 back on, and (b) keep ME2 in West Whiteland stopped, for now, pending more information from Sunoco Logistics. The vote was 3-2 in favor of Brown’s motion. The 2 voting against it did so because it didn’t go far enough (they wanted ME2 construction to resume). So although the vote was 3-2, all 5 of the members wanted ME1 back on. That’s the real nub of the news–the subtlety that’s missed in most media reports. The 3-2 “split decision” that’s being reported is the decision to overrule Barnes on ME1, but keep her ruling intact (for now) on ME2. The PUC has ordered Sunoco to provide more information in the next 20 days: inspection and testing protocols, emergency response plans, and copies of safety training curriculum for employees and contractors. The PUC will then reconsider whether or not to allow ME2 work to resume in West Whiteland. But here’s the thing: Work on the rest of the 300+ mile pipeline continues everywhere else in the state–everywhere but West Whiteland. Overall, yesterday’s PUC action was a crushing defeat for PA State Sen. Andy “Tony Soprano” Dinniman (Democrat) and his Big Green cronies who want to assassinate the entire ME1 & ME2 projects by focusing on one small area…
    Read More “PA PUC Overrules Lib Judge – Mariner East 1 Returns to Service”

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    Federal Court Upholds Ohio Forced Pooling Law in Chesapeake Case

    In 2015, landowners in Harrison County, OH who own 127 acres (the Kerns) filed a lawsuit alleging their property rights were about to be violated because Chesapeake Energy had filed a pooling request with the Ohio Dept. of Natural Resources (ODNR) to pool (combine) the Kerns property with surrounding properties for shale drilling. The Kerns had not signed and do not want drilling under their land. Their neighbors do. Ohio has a law on the books that allows for “forced pooling” in cases when a majority of the surrounding land is leased but landowners with small positions refuse to sign. The Kerns resisted and fought the case all the way to Ohio Supreme Court, which rejected their claims. Chesapeake drilled and fracked three wells (on a neighboring property), which included drilling under the Kerns’ property. So the Kerns filed a new lawsuit in 2016, in federal court, claiming a “taking” of their property had occurred. The federal court has just ruled–against the Kerns. This was the first time a court case dealt directly with the constitutionality of Ohio’s unitization (forced pooling) law. The upshot: Ohio’s forced pooling law remains intact and in force…
    Read More “Federal Court Upholds Ohio Forced Pooling Law in Chesapeake Case”

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    Despite Court Ruling, Atlantic Coast Pipeline Continues Construction

    In May MDN told you that the U.S. Fourth Circuit Court of Appeals had invalidated (vacated) a permit issued by the U.S. Fish and Wildlife Service that allows Dominion Energy’s Atlantic Coast Pipeline (ACP) to accidentally kill a few bats and bumble bees (classified as endangered) as it builds the massive $6.5 billion, 600-mile project from West Virginia to North Carolina (see U.S. Fourth Circuit Court Vacates Key Permit for Atlantic Coast Pipe). The Sierra Club and several other radical, far-left groups were behind the court case that led to the decision. However, as it turns out, the decision doesn’t really hurt the project all that much. The vacated permit isn’t so “key” after all. Of the 600 or so miles of pipeline getting built, the vacated permit from Fish and Wildlife only affects about 10 miles of pipeline (see Only 10 Miles of Atlantic Coast Pipeline Affected by Court Ruling). The radicals are back, not happy that only 10 miles of pipeline is idled for now. In a “but, but, but, but, but” request to the Federal Energy Regulatory Commission (FERC), the antis argue FERC should shut down the whole enchilada–because they don’t like having just 10 miles shut down. Meanwhile, Dominion keeps up steady-and-sure construction of the project. It’s getting built, even as you read this…
    Read More “Despite Court Ruling, Atlantic Coast Pipeline Continues Construction”

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    PA Superior Court Rejects Southwestern “Briggs” Trespass Appeal

    An unwelcome and troubling development in the Southwestern Energy “Briggs” court case. MDN brought you important news in April that the Pennsylvania Superior Court had handed down a decision (known as the “Briggs” case) that has the power to greatly restrict, perhaps even stop, Marcellus drilling in PA (see PA Superior Court Overturns “Rule of Capture” for Marcellus Well and PA “Rule of Capture” Case has Power to Limit Marcellus Drilling). The issue, in brief, is that the Superior Court decision disallows using an age-old principle called the “rule of capture” when it comes to shale drilling and fracking. It opens the door to a myriad of frivolous lawsuits claiming that a fracture, a crack created during fracking, is draining gas from a neighbor’s property without justly compensating the neighbor for the gas. Southwestern successfully argued in a lower court that the odd crack here and there that may slip under a neighbor’s property is permissible. The landowner appealed to Superior Court and three judges heard the case. Two of the three overturned the lower court and sided with the landowner. Southwestern, following the decision, petitioned the Superior Court to have all of the sitting justices (called en banc) hear the case (see Southwestern Appeals “Trespass” Case to Entire PA Superior Court). Sadly, on Friday, the Superiors declined to rehear the case. The next step? Southwestern has appealed the case directly to the PA Supreme Court…
    Read More “PA Superior Court Rejects Southwestern “Briggs” Trespass Appeal”

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    Columbia Sues WV Landowners for Delaying Mountaineer XPress Work

    It’s one thing for a landowner (or Big Green supporter, sometimes one and the same) to oppose a pipeline project by protesting, asking politicians to get involved, writing to regulatory agencies, etc. We have a great American tradition of free speech. Go for it. But it’s quite another thing to “harass, intimidate and interfere” with work crews in an area by screaming at them and shooting your “large caliber gun” near where they’re working. Columbia Gas Transmission is currently building the Mountaineer XPress Pipeline, a $2 billion, 170-mile pipeline that will flow 2.7 billion cubic feet (Bcf) per day of natural gas from existing and future points of receipt along or near the Columbia pipeline system–most of it located in West Virginia (see Details on Columbia Pipeline Mountaineer XPress Pipeline Project). At 2.7 Bcf/d, Mountaineer XPress is the second largest (by volume) new pipeline project for the Marcellus/Utica region–second only to Rover’s 3.25 Bcf/d pipeline. It is a big and important project. And yet, a single couple whose land the pipeline does NOT cross can delay the entire project with threats and intimidation and interference. That’s the charge Columbia has made in court. On April 30, Columbia sued a couple in Doddridge County who live near an active construction site for Mountaineer XPress, claiming their hostile actions toward workers have caused a delay for the entire project–and that’s costing Columbia big bucks. Columbia wants to ask a jury to extract some of that lost revenue from the hostile couple as compensation. Lesson: Your (hostile, threatening) actions have consequences, and may cost you money…
    Read More “Columbia Sues WV Landowners for Delaying Mountaineer XPress Work”