UPDATE (5:55 p.m., 1/4/2019): A federal judge said Friday that she would take MVP’s latest court case under advisement, delaying a number of decisions that would impact both the Elliston tree-sitters and the roughly dozen supporters camping below.
Attorneys debated what parts of the case had been covered in past hearings, what the protesters had cost MVP, and who, legally, could be considered a defendant.
“We’ll see what happens. I’m not going to say specifically what I’ll do, but I will say in general we’ll continue to resist the pipeline regardless of what the courts say,” said tree-sitter Phillip Flagg.
Hours before the announcement, he said he would pay it little attention either way, and added that he was “absolutely” prepared to be arrested if necessary.
He said that he would stay as long as needed in the fight to have the pipeline’s construction permanently stopped, and that MVP’s round-the-clock security did not phase him.
“If you want the pipeline to be stopped, you have to do something yourself and not wait for someone else to do it for you,” he said.
Defense attorney Carrol Ching says she looks forward to the judge’s decision.
The judge did specify when she would make a decision, but said she would work quickly despite a busy schedule. MVP has not yet responded to WFXR’s request for comment.
In an effort to get two tree-sitters out of their way in Elliston, Mountain Valley Pipeline officials have filed a motion in court that would force the protestors to move out of the path of the pipeline through a preliminary injunction.
A preliminary injunction is a court order that occurs before trial that keeps someone from continuing an action that threatens the legal right of another. Judges must consider the extent of irreparable harm by the action.
In a court document filed on December 28, counsel for MVP states that on December 6 the court granted the company the land in Elliston for the pipeline. They state that the tree-sitters are keeping the company from clearing trees and “from using and enjoying the easements on the property.”
The court documents filed by MVP state the “express purpose of the tree-sitters is to impede construction of the pipeline by MVP”. They also go on to explain other people are also camping on or near the easements because they are supporting and supplying the tree-sitters with aid and assistance.
MVP believes they are likely to “succeed on merits” because the court has already ruled that MVP is entitled to the immediate possession of the land.
They argue they will suffer “irreparable harm in the absence of injunctive relief” because the tree-sitters are blocking access to the easements needed to build the pipeline.
The company also said in their motion that the tree-sitters “have no legal right to occupy the easements, and they will sustain no legal injury if they are removed.”
Their final argument to the court is that making the tree-sitters move is in the public interest. “FERC has determined that the pipeline will serve a public convenience and necessity, and it is in the interest of the public that construction proceed.”
They want the court to stop the tree-sitters from occupying the land and interfering with MVP’s work, directing the tree-sitters to vacate the tree-stands, and imposing fines against the tree-sitters for each day they fail to comply with the court’s order, according to the court document.
The company also wants the order to not just be for the tree sitters, but also for the “agents, servants, employees, and attorneys of the tree-sitters” and anybody else who may be supporting them. They want the United States Marshal Service to take action to enforce the court’s order.
In response, an attorney representing the tree sitters filed a motion on January 4 in opposition to the preliminary injunction against the tree-sitters.
They believe that MVP’s request in their motion is “overreaching and overbroad” that it goes as far as asking for the “arrest of any attorney who represents or merely consults with tree-sitters or of any person who provides support of any kind, moral or otherwise, to the tree-sitters.”
They believe if MVP’s request is granted, it would infringe on the tree-sitters’ right to counsel and in turn violate their due process rights.
The tree-sitters feel that if the court approves MVP’s request to apply the injunction to anybody who supports the tree-sitters it will limit free speech.
The following is an excerpt from the court document:
Such language is incredibly broad and undefined, however, and would directly impact the rights of the citizens of this Commonwealth and nation to freely speak out against the pipeline and to support the positions and actions taken by those who directly oppose the activities of MVP, even threatening such attorneys and supporters with the possibility of arrest by United States Marshals.
The court date for a judge to hear both of these motions is set for January 4 at 2 p.m. However, the counsel for the tree-sitters is requesting the hearing be rescheduled to January 11.
WFXR will have a reporter in the courtroom and will provide updates.