Standing Tall for Landowner Rights

by Walter Brasch

    Julia Trigg Crawford of Direct, Texas, is the manager of a 650-acre farm that her grandfather first bought in 1948. The farm produces mostly corn, wheat, and soy. On its north border is the Red River; to the west is the Bois d’Arc Creek.

    TransCanada is an Alberta-based corporation that is building the controversial Keystone Pipeline that will carry bitumen—thicker, more corrosive and toxic, than crude oil—through 36-inch diameter pipes from the Alberta tar sands to refineries on the Gulf Coast, mostly to be exported. The $2.3 billion southern segment, about 485 miles from Cushing, Okla., to the Gulf Coast is nearly complete. With the exception of a 300-mile extension between Cushing and Steele City, Neb., the rest of the $7 billion 1,959 mile pipeline is being held up until President Obama either succumbs to corporate and business pressures or blocks the construction because of environmental and health concerns.

    When TransCanada first approached Crawford’s father in 2008, and offered to pay about $7,000 for easement rights, he refused, telling the company, “We don’t want you here.” He said the corporation could reroute the line, just as other pipeline companies in oil-rich Texas had done for decades. TransCanada increased the offer in the following years, but the family still refused. In August 2012, with Dick Crawford’s daughter, Julia, now managing the farm, TransCanada offered $21,626 for an easement—and a threat. “We were given three days to accept their offer,” she says, “and if we didn’t, they would condemn the land and seize it anyway.” She still refused.

    And so, TransCanada, a foreign corporation exercised the right of eminent domain to seize two acres of the farm so it could build a pipeline.

    Governments may seize private property if that property must be taken for public use and the owner is given fair compensation. Although the exercise of eminent domain to seize land for the public good is commonly believed to be restricted to the government, federal law permits natural gas companies to use it. To get that “right,” all TransCanada had to do was fill out a one-page form and check a box that the corporation to declare itself to be a “common carrier.” The Railroad Commission, which regulates oil and gas in Texas, merely processes the paper, rather than investigates the claim; it has admitted it has never denied “common carrier” status. In the contorted logic that is often spun by corporations, TransCanada then declared itself to be a common carrier because the Railroad Commission said it was, even though the Commission’s jurisdiction applies only to intrastate, not interstate, carriers.

    On Aug. 21, 2012, the day before Judge Bill Harris of Lamar County rendered his decision on Crawford’s complaint, the sheriff, with the judge’s signature, issued a writ of possession giving TransCanada the right to seize the land. The next day, Harris issued a 15-word decision, transmitted by his iPhone, that upheld TransCanada’s rights. In Texas, as in most states, the landowner can only challenge the settlement not the action.

    Crawford’s refusal to sell is based upon a mixture of reasons. The Crawford Farm is home to one of the most recognized Caddo Nation Indian burial sites in Texas, and the 30 acre pasture that TransCanada wants to trench represents the southern most boundary of this archaeological site. Both the Texas Historical Commission and TransCanada’s archaeological firm concur that the vast majority of this 30 acre pasture in question qualifies for the National Registry of Historic Places. An archaeological dig undertaken after TransCanada showed up to seize the land recovered 145 artifacts in just a 1,200 foot by 20 foot section, and three feet deep. But the executive director of the Texas Historical Commission recently sent a letter stating that no new artifacts had been found in the slice of land TransCanada planned to build.

    Another reason Crawford refused to be bought out was that she didn’t want TransCanada to drill under the Bois d’Arc Creek “where we have state-given water rights.” That creek irrigates about 400 acres of her land. “Any leak, she says, “would contaminate our equipment, and then our crops in minutes.” It isn’t unreasonable to expect there will be an incident that could pollute the water, air, and soil for several miles.

    During the past decade, there were 6,367 pipeline incidents, resulting in 154 deaths, 540 injuries, and $4.7 billion in property damage, according to the federal Pipeline and Hazardous Materials Safety Administration. A report released a year ago by Cornell University’s Global Labor Institute concludes that economic damage caused by potential spills from the Keystone pipeline could outweigh the benefits of jobs created by the project. In the past three years, there have already been 14 spills on the operational parts of the Keystone Pipeline.

    Crawford and her attorney, Wendi Hammond, have challenged TransCanada’s right to seize public property, arguing not only is TransCanada, which had net earnings of $1.3 billion last year, a foreign corporation, but it also doesn’t qualify as a “common carrier” since the benefit is primarily to itself. However, the Texas Court of Appeals may not rule until after the pipeline is laid down and covered. And even if it does rule for Crawford, TransCanada is likely to appeal. “They have far more lawyers and funds than we have,” says Crawford, who held a music festival last month to help raise funds. Additional donations have come from around the world, many from those who aren’t immediately affected by oil and gas exploration, transportation, and processing, but who understand the need to fight a battle that could, at some time, affect them.

    “The company basically goes to court, files condemnation petitions, says, ‘We are common carrier, have the power of eminent domain, we are taking this property.’ And that’s all there is to it,” says Debra Medina, of WeTexans, a grassroots organization opposed to the seizure of private land by private companies.

    At least 89 Texas landowners have had their properties condemned and then seized by TransCanada. Eleanor Fairchild, a 78-year-old great-grandmother living on a 300-acre farm near Winnsboro, Texas, also protested the seizure of her land. She and her husband, a retired oil company geologist now deceased, bought the land in 1983. TransCanada planned to bisected her farm, which includes wetlands, natural springs, and woods.

    In October, Fairchild and activist/actor Darryl Hannah raised their arms and stood before bulldozers and heavy equipment that were about to dig up the farm. Both women were arrested and charged with criminal trespass. Hannah was also charged with resisting arrest.

    TransCanada isn’t the only oil and gas company that uses and bends eminent domain laws.

    Chuck Paul, who lost about 30 of his 64 acre horse farm because of required easements by the natural gas industry, told the Fort Worth Weekly, “The gas companies pay a one-time fee for your land, but you lose the right to utilize it as anything more than grassland forever. . . . You can never build on those easements. They took my retirement away by eminent domain.”

    In Arlington, Texas, Ranjana Bhandari and her husband, Kaushik De, refused to grant Chesapeake Energy the right to take gas beneath their home, although Chesapeake promised several thousand dollars in payments. “We decided not to sign because we didn’t think it was safe, but the Railroad Commission doesn’t seem to care about whose property is taken,” Bhandari told Reuters. Chesapeake seized the mineral rights and will capture natural gas beneath the family’s homes. Between January 2005 and October 2012, the Railroad Commission approved all but five of Chesapeake’s 1,628 requests to seize mineral rights, according to the Reuters investigation.

    The Texas Supreme Court, in Texas Rice Land Partners and Mike Latta v. Denbury Green Pipeline–Texas (2012), had previously ruled, “Even when the Legislature grants certain private entities ‘the right and power of eminent domain,’ the overarching constitutional rule controls: no taking of property for private use.” In that same opinion, the Court also ruled, “A private enterprise cannot acquire unchallenged-able condemnation power . . .  merely by checking boxes on a one-page form and self-declaring its common-carrier status.” However, Texas has no public agency to set standards for seizing property by eminent domain.

    Texas isn’t the only state that has a broad eminent domain policy that allows Big Energy to seize private property.

    Most states’ new laws that “regulate” fracking were written by conservatives who traditionally object to “Big Government” and say they are the defenders of individual property rights. But, these laws allow oil and gas corporations to use the power of eminent domain to seize private property if the corporations can’t get the landowner to agree to an easement, lease, or sale. In Pennsylvania, Act 13 allows the natural gas industry to “appropriate an interest in real property [for] injection, storage and removal” of natural gas.

    Sandra McDaniel, of Clearville, Pa., was forced to lease five of her 154 acres to Spectra Energy Corp., which planned to build a drilling pad. The government, says McDaniel, “took it away, and they have destroyed it.” According to Reuters, “McDaniel watched from the perimeter of the installation as three pipes spewed metallic gray water into plastic-lined pits, one of which was partially covered in a gray crust. As a sulfurous smell wafted from the rig, two tanker trucks marked ‘residual waste’ drove from the site.”

    In Tyrone Twp., Mich., Debora Hense returned from work in August 2012 to find that Enbridge workers had created a 200 yard path on her property and destroyed 80 trees in order to run a pipeline. Because of an easement created in 1968 next to Hense’s property, Joe Martucci of Enbridge Energy Partners said his company had a legal right to “to use property adjacent to the pipeline.” Martucci says his company offered Hense $40,000 prior to tearing up her land, but she refused. Hense says she had a legal document to prevent Enbridge from destroying her property; Enbridge says it had permission from the Michigan Public Service Commission.

    This week, heavy machinery rolled onto Julia Trigg Crawford’s farm. Crossing an easement and past a barbed wire enclosure that separates the land TransCanada seized from the rest of the farm, the bulldozers and graders are peeling away the topsoil of a 1,200 foot strip. Hundreds of wooden ties, now stacked like matchsticks a story high, brought by 18-wheelers crossing the agricultural land that Crawford and her family work, will be placed as tracks for more equipment.

    On the farm is an old and creaky windmill, ravaged by time and a few shotgun shells. “But it’s still standing there,” says Crawford who may be a bit like that windmill. She’s a 6-foot tall former star basketball player for Texas A&M who is now standing tall and proud in a fight she says “began as a fight for my family,” but has now become one “for the people, for the landowners who wanted to stand up and fight for their rights but didn’t think they could.”

          [Dr. Brasch is an award-winning syndicated columnist and professor emeritus of mass communications and journalism. Some of the information in this column appears in Fracking Pennsylvania, an in-depth overview of the effects of the fracking process upon health, the environment, agriculture, and worker safety; the book also has a broad discussion of the collusion between the energy industry and politics, and presents the truth about the economic effects.]