Standing tall for landowner rights
Julia Trigg Crawford of Direct, Texas, is the manager of a 650-acre farm that her grandfather 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 later offered $10,395. The family still refused. In August 2012, with Dick Crawford's daughter, Julia Trigg Crawford, now managing the farm, TransCanada offered $21,626 - 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. To get that "right," all TransCanada had to do was fill out a one-page form and check a box that declared itself to be a "common carrier." The Railroad Commission merely processes the paper, rather than investigate the claim; it has rarely 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, which overseas oil and gas in Texas, said it was, even though the commission's jurisdiction applies only to intrastate, not interstate, carriers.
On Aug. 21, the day before Judge Bill Harris of Lamar County was to hear her complaint, the sheriff, with the judge's signature, issued a writ of possession to allow TransCanada 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. About 30 acres of the land houses Native American artifacts from the Craddo nation, and qualifies for the National Registry of Historic Places. An archeological dig undertaken after TransCanada showed up to seize the land recovered 145 artifacts in just a 1,200-foot by 20-foot section, and just three feet deep. But the Texas Historical Commission ruled there were, miraculously, absolutely no artifacts 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 be drilling 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 affect Crawford's farm, pollute the water, air, and soil for several miles. There were 244 significant incidents last year involving pipelines that resulted in more than $183 million in damage. A report from Cornell University concludes that economic damage of spills from the Keystone Pipeline could be far greater than any benefits of job creation. 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 that not only is TransCanada, which had $1.3 billion of net earnings last year, a foreign corporation, but that it doesn't qualify as a "common carrier" since the benefit is primarily to itself. However, the Texas Court of Appeals isn't likely to 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 throughout the country, 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.
Fifty-five other landowners in Texas and South Dakota have had parts of 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 bisect 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 jailed for 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.
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," Bhandari said. Chesapeake seized the mineral rights and will capture natural gas beneath the family's home.
In Tyrone Township, 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 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.
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 News, "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."
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 corporations involved in the natural gas industry to "appropriate an interest in real property (for) injection, storage and removal" of natural gas.
This week, heavy machinery rolled onto the Crawford farm.
Crossing an easement and into 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. Thousands of wooden ties, now stacked like matchsticks a story high, brought by 18-wheelers crossing the agricultural land that Crawford and her family work up to 17 hours a day, 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."
(Walter Brasch, an author and retired university professor from Bloomsburg, writes "Wanderings" for each Sunday edition.)