Landowners in Virginia fighting for private property rights file Appeal with United States Supreme Court

Orus Ashby Berkley, et al. v. Federal Energy Regulatory Commission, et al. (FERC)


Mia Yugo,, 540.983.9444
Thomas J. Bondurant, Jr.,, 540.983.9389

ROANOKE, Va. (October 24, 2018): Landowners in Virginia and West Virginia filed a Petition for a Writ of Certiorari to the United States Supreme Court. The Petition seeks to appeal the judgment of the Fourth Circuit Court of Appeals. It seeks reversal by the nation’s highest Court on the lower courts’ subject matter jurisdiction to hear Petitioners’ constitutional challenges.

According to Mia Yugo, Gentry Locke attorney for the Landowners, “This case is about individual liberty, the separation of powers doctrine that secures that liberty, and the Constitution that dictates that separation. The right to private property secures our freedom from government overreach. It is not a ‘left’ issue or a ‘right’ issue. It is an American issue. And, the constitutional issues here affect the private property rights of all Americans—those who own property and those wish to own property.”

The two core constitutional issues here are (1) the separation of powers doctrine—which places restrictions on both Congress and administrative regulatory agencies like FERC—and (2) the right to private property, both of which, Yugo said, “are essential to the preservation of individual liberty.”

Petitioners in the action are individual landowners who challenged the constitutionality of the Congressional delegation of eminent domain power to the Federal Energy Regulatory Commission (“FERC”) under the Natural Gas Act, 15 U.S.C. § 717f(h). Petitioners alleged at the lower court level that Congress improperly delegated away its legislative power to FERC, a federal regulatory agency, and ultimately, to Mountain Valley Pipeline (MVP), a private entity, in violation of the federal non-delegation doctrine. As a result of that improper delegation of power, Petitioners alleged that the agency was permitted to create its own administrative test for determining “public use,” a test that Petitioners argue violates the Fifth Amendment, particularly in light of the U.S. Supreme Court’s interpretations of “public use” in Kelo v. City of New London, 545 U.S. 469 (2005).

Because the Fourth Circuit affirmed dismissal of the Petitioners’ constitutional challenges, Landowners are appealing to the United States Supreme Court for a Writ of Certiorari to reverse the judgment of the lower court. Certiorari is rarely granted, as the Supreme Court takes very few cases each year. “We are hopeful,” Yugo says, “because of the gravity of the issues involved, both with respect to the separation of powers doctrine and the right to private property, that the United States Supreme Court will take the case.”

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