Tuesday, February 23, 2016
Landowners Contest Motion to Dismiss
By Walter F. Roche
Charging that the state has turned the case into a three ringed circus, landowners have asked a judge to reject a motion seeking the dismissal of a suit challenging the legality of a permit for a 12-mile Greene County pipeline.
In a 14-page response filed this week in Davidson Chancery Court in Nashville, the attorney for the landowners is charging that the state is using procedural challenges to prevent the court from ever reaching the central legal issue, the legality of the pipeline permit.
"According to the defendant, no matter how illegal the permit, no matter how open the disregard for the law, there is no way to challenge the permit from the Tennessee Department of Transportation," the filing by Nashville attorney Elizabeth Murphy states.
The filing comes just before a scheduled Friday hearing in the case filed by landowners challenging a permit that allowed construction of the pipeline to the Nolichucky River. The pipeline, already installed, will serve US Nitrogen, the company that plans to pump millions of gallons of water per day for use in the production of ammonium nitrate.
The Tennessee Attorney General, along with attorneys for US Nitrogen and the Industrial Development Authority of Greeneville and Greene County, have asked for the suit to be dismissed citing the state's sovereign immunity. They also contend the plaintiffs, who own land along the Nolichucky, lack the legal standing to even make such a challenge.
The suit charges that TDOT exceeded its legal authority when it reversed course and granted the permit to the IDB.
The landowners latest filing charges that TDOT's reversal was based on "a mumble of clarified intentions" and represented a clear overreach of its authority. The law, the landowners contend, only allows TDOT to issue such permits to public utilities.
"The court has the duty to correct this overreach by TDOT," the filing states.
The motion also charges that US Nitrogen was "playing a price game" by abandoning plans to purchase needed water from local utilities.
"The local utilities had the capacity; they are using half of the 16 million gallons per day," the motion states.
As for standing, the landowners' motion states that construction and operation of the pipeline will cause direct injury "to their land, title and money."
"The state contends not only does it have immunity, but can break the law with impunity," the motion concludes.
Arguments on the motion to dismiss are scheduled to be heard Friday before Chancery Judge Claudia Bonnyman.