Over the last year or so, anti-pipeline forces have increasingly used “tree sitting” to obstruct natural gas infrastructure projects. The tactic involves individuals who climb trees slated for removal in a proposed pipeline project and stay there—sometimes for months and often aided by family, friends or others—forcing project developers to take various countermeasures.
Earlier this month a Virginia federal district judge rejected a novel effort by Mountain Valley Pipeline, LLC (MVP) to join certain unnamed tree sitters (“Tree Sitter 1” and “Tree Sitter 2”) as defendants in a pending Natural Gas Act (NGA) eminent domain action to condemn easements over land in southwestern Virginia for construction of the Mountain Valley Pipeline. In addition to interfering with its use of the easements being condemned, MVP alleged that the “tree sitters” or their supporters had assaulted a security officer who was part of a tree clearing crew on the project. Notably, though it declined to join the “tree sitters” as parties, the court observed that MVP still had other available remedies against them.
“Tree Sitters” have no property interest in the land, barring joinder under Fed. R. Civ. P. 71.1.
The court first found the tree sitters were third parties who had no property interest in the land or legal claim of entitlement to occupy the trees. Accordingly, they were not proper parties under Federal Rule 71.1 (the Federal Rule governing eminent domain proceedings in federal court), which permits joinder of persons “who have or claim an interest in the property” at issue. The court noted that the tree sitters could potentially obtain an interest in the land through adverse possession by remaining in place for the statutory 15-year period under Virginia law. That remote possibility, however, was simply too tenuous to satisfy the standard for joinder under Rule 71.1.
Nor can tree sitters be permissively joined under Fed. R. Civ. P. 20.
The court also rebuffed MVP’s effort to join the tree sitters under the permissive joinder provisions of Federal Rule 20. To satisfy that rule, the relief sought against a defendant to be joined must relate to the same transactions or occurrences involved in the pending action and involve a question of law or fact common to all defendants in the case. The court assumed without deciding that the specific joinder provisions of Federal Rule 71.1 didn’t preclude permissive joinder under Federal Rule 20, and the potential claims against the tree sitters related to the same transactions or occurrences at issue in the pending condemnation action. Yet, because of the procedural posture of the case, the potential claims against the tree sitters would not implicate any questions of law or fact common to the defendant landowners—the second element required for permissive joinder. The court had already granted summary judgment on MVP’s right to condemn the property, so the only legal issue remaining in the case was the amount of just compensation to be awarded to the landowners. Accordingly, that issue, the court explained, was unrelated to any claims against the tree sitters, who, having no interest in the property, had no right to any compensation award.
MVP can seek several other remedies against the tree sitters.
Despite its refusal to allow joinder of the tree sitters, the court observed that MVP still “has other options for relief—under both state and federal law—that it can pursue.” These other options include actions for trespass and/or interference with easements in Virginia state court, seeking criminal charges for assault and battery, or seeking contempt sanctions, as MVP previously has.
It appears that MVP’s attempt to join the tree sitters as defendants in a pending NGA condemnation action was the first time such an effort has been tried. Although the court rejected that attempt, the ruling is unlikely to be a setback for MVP or the pipeline industry in general. To the contrary, the court’s acknowledgement that other remedies exist means that pipeline companies should have a number of viable options at their disposal for addressing tree sitter obstruction of pipeline infrastructure projects.
 Memorandum Opinion, Mountain Valley Pipeline, LLC v. Easements to Construct and Maintain A Natural Gas Pipeline Over Tracts of Land in Giles County, Craig County, Montgomery County, Roanoke County, Franklin County, and Pittsylvania County, Virginia, et al., Civ. Action No. 7:17-cv-492-EKD (W.D. Va. August 2, 2019) (“MVP Mem. Op.”), available at http://www.vawd.uscourts.gov/OPINIONS/DILLON/7.17cv492mvpveasement8.2.19.pdf.
 Mem Op. at 8-10.
 Fed. R. Civ. P. 71.1(c)(3).
 Mem Op. at 7-8.
 Id., 10-13.
 Fed. R. Civ. P. 20(a)(2).
 Mem Op. at 12.
 Id., 13.
 Id., 13, n.3.