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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 Trigg Crawford 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 archeological site. Both the Texas Historical Commission and TransCanada’s archeological firm concur that the vast majority of this 30 acres pasture in question 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 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 more than 56 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 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. 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.]

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Comment Preferences

  •  I hope your headline doesn't turn people away. (4+ / 0-)
    Recommended by:
    GoGoGoEverton, salmo, DRo, BlackSheep1

    The term 'landowner rights' can be mistaken for the special interests of a privileged few.  You have a compelling story and I hope it is noticed.  I wouldn't want that pipeline of my property either.  It's a risk to everybody and everything in proximity to it without a corresponding reward.  I'm not one for vandalism but it was all I could think of as I read your story.

    There is no existence without doubt.

    by Mark Lippman on Sun May 19, 2013 at 05:41:28 AM PDT

    •  I thought the same thing. (5+ / 0-)

      You're right about what it has meant in the past.  I think that the left needs to start talking about  "landowner rights" where things like this pipeline, water rights, and fracking are concerned.

      "Even a man who is pure in heart and says his prayers by night may become a wolf when the wolfbane blooms and the autumn moon is bright" Curt Siodmak

      by Wisdumb on Sun May 19, 2013 at 05:50:30 AM PDT

      [ Parent ]

      •  I don't believe that anyone has ever demonstrated (3+ / 0-)
        Recommended by:
        Red Bean, flowerfarmer, BlackSheep1

        a benefit that can be derived from piping the filthy tar sands across US territory. It won't create significant employment.  It won't improve the US energy position.  It makes no sense except for the greed of the few people who will profit.

        There is no existence without doubt.

        by Mark Lippman on Sun May 19, 2013 at 06:32:14 AM PDT

        [ Parent ]

      •  maybe a different term? (0+ / 0-)

        at one time, "small holder" differentiated the small homesteader from the larger "landowner"  At the very least the title should state that a family farm is in danger as family farms are more kosher on the left than landowners. (who frequently don't work the land and may not have ever seen the property)

      •  That's a double-edged sword. (0+ / 0-)

        The same appeal to landowner rights that is being used to justify resistance against the Keystone XL pipeline here, can also be used to justify mountaintop removal somewhere else.

        If the landowner's "rights" are the paramount concern of law, then a mining company that buys a mountain in West Virginia will be able to use this rhetoric to defend the "right" to level the thing to get the coal inside.

        "When I give food to the poor, they call me a saint. When I ask why the poor have no food, they call me a communist." --Dom Helder Camara, archbishop of Recife

        by JamesGG on Sun May 19, 2013 at 09:23:38 AM PDT

        [ Parent ]

        •  An interest (0+ / 0-)

          in the right of the people to survive on a livable planet would thwart TransCanada and MTR without resorting to an overriding appeal a landowners' rights to do anything they want.

          •  Well, yes. That's my point. (1+ / 0-)
            Recommended by:
            Red Bean

            Let's use rhetorical frameworks that can't be turned around and used against us in other situations, particularly when the number of cases in which they can be used against us is significantly larger than the number of cases in which we can use them.

            "When I give food to the poor, they call me a saint. When I ask why the poor have no food, they call me a communist." --Dom Helder Camara, archbishop of Recife

            by JamesGG on Sun May 19, 2013 at 10:06:36 AM PDT

            [ Parent ]

  •  Let me get this straight... (8+ / 0-)

    A private company from a foreign country (Canada), can take US citizens' lands so the foreign company can bypass US oil refineries and ship their oil to refineries in other foreign countries.

    And the flag waving, freedom loving Republicans demand this. Am I missing something?

    If you are smart enough to positively know the climate is not being affected by humans, then you are also smart enough to develop a fusion reactor which runs solely from water and air….so get your ass moving!

    by quiet in NC on Sun May 19, 2013 at 05:46:28 AM PDT

    •  What you are missing and what is missing (3+ / 0-)
      Recommended by:
      salmo, mint julep, oldpotsmuggler

      from the post is that our legislative bodies have been in the business of doling out property rights to individuals and corporate bodies for centuries. It is a continuation of the expropriation and exploitation that was started by the granting of "titles" to land in the Americas by the crowned heads of Europe, who backed up their gifts with military might.
      What is happening to present-day landowners is a continuation of the original sin -- the substitution of property rights, which legislative bodies can give and take, for individual human rights. The God-given rights get lip service, but property rights win out every time. How else would slave traders have been able to sell humans?

      Anyway, the solution to this injustice lies in our legislative bodies. That these bodies are not particularly responsive to the electorate can be traced to the fact that until the latter part of the 20th Century, most people were precluded from participating in the selection of our law makers. Then too, there's a perception, assiduously promoted, that the law is an autonomous entity with which legislators have little contact. Precedent reinforces that perception in the courts. The tyranny of the law is hardly addressed. But, that's exactly why the "rule of law" is so popular with dictators and authoritarians.

      We organize governments to deliver services and prevent abuse.

      by hannah on Sun May 19, 2013 at 06:00:59 AM PDT

      [ Parent ]

    •  you have this right (2+ / 0-)
      Recommended by:
      Pinto Pony, BlackSheep1

      private corporations may now function as de facto governments in some cases

  •  Even if the procedure were different, the (0+ / 0-)

    end result would be essentially the same.  The government can always use eminent domain to seize private property to build a pipeline.  I understand that in this case it is being done by private business, but if the state were so inclined, it could accomplish exactly the same thing (and I imagine it would if the current procedures were eliminated).

    •  however you can divert a pipeline for example (2+ / 0-)
      Recommended by:
      misslegalbeagle, BlackSheep1

      to your neighbors.  I have done this since there are federal protections for endangered species and historic structures.  I know of one case where Honda was prevented from siting a plant because the property they proposed to condemn was deemed historical by the feds and Honda did not want the PR battle

  •  sadly, some years ago, the courts held that (1+ / 0-)
    Recommended by:
    Red Bean

    governments could condemn land for private projects with the fig leaf that there was public benefit in certain projects, though the projects were solely for the enrichment of developers.  In the ensuing years some governments have gone farther, omitting their role altogether and allowing corporations to act de facto as a government and to condemn land themselves, so long as they pay fair market value (which they determine themselves and usually use the value of the land as raw farm land and value the whole property per acre)

    Defense against this?  About the best would be to have your property listed in the National Register or have it designated historical for some reason by the state or feds or find threatened species on the property or find some reason your property is special for some reason.

    You will give up some control but it will at least represent a poison pill against seizure.  I note that the vaunted "fence" GWB was building to block illegal immigration had various jogs and dodges in it when it threatened various FGWB but in the meantime still cut a historical farm in half, rendering it no longer a viable economic unit (from memory)

    Point is old adage that you can't fight City Hall can now be amended to include you can't fight international corporations  

  •  Here's what Julia Crawford (2+ / 0-)
    Recommended by:
    flowerfarmer, BlackSheep1

    herself has to say about what's now taking place on her farm. Somehow this diary manages to dull the shock of this bitter outrage. A Canadian corporation can check a box on a form and be granted eminent domain over a family farm even though the Texas Railroad Commission has itself acknowledged it doesn't have the right to make judgments in intrastate or international matters. TransCanada demonstrates how deep its "fuck everybody" attitude goes by sending in the earth moving equipment while a court case is pending.

    TransCanada/Michels/Universal Field Services and others I don’t recognize started arriving yesterday in preparation for the destruction on our place. Within hours of their arrival the pasture inside “their” fenced in area was shredded, road signs designating “work area” went up, hundred of timbers used to support heavy machinery were unloaded from 18 wheelers and stacked, and most gut wrenching was the “blading” of our land by a trackhoe in preparation for even more heavy equipment. I’ve attached a photo of my land a few months ago and what I witnessed yesterday. I intend to share as much of this process with you as I can.

    But just as the workers were really getting going, yesterday afternoon a monstrous wind and thunderstorm blew in, forcing all the men off their equipment, scurrying for cover in their nearby pickups. A sign perhaps?

    I was told our place is the final link, the last piece of property needed to complete TransCanada’s conveniently uncoupled and renamed Gulf Coast Segment of their Keystone Project. Furthermore, they will work 7 days a week if needed to overcome any delays, weather or otherwise. All eyes are on us folks, we really are The Last Stand.

    All this while our appeal is freshly delivered and active at the 6th Circuit Court of Appeals in Texarkana. Unbelievable. TransCanada’s decision to move forward and initiate construction during our legal case just strengthens my family’s resolve to continue fighting. We maintain, now more than ever, that they never had the right to take our land in the first place. Their claimed Common Carrier status? A rubber stamp handed out by the embattled Texas Railroad Commission. This pipeline? An interstate project, even the Railroad Commission says it is out of their jurisdiction. The product to be carried? Tarsands, a product mined in Canada, and one of the most toxic and destructive products borne by Mother Earth. Just ask the residents in Kalamazoo and Mayflower what it did to their communities and waterways when it could not be contained. And sadly ask the First Nations in Alberta how is is destroying their lands and lives.

    I hear the beeping of heavy equipment being moved, I guess they’re back at it already today, so I’m headed out to watch and take more photos. If you thought I was a mad and motivated landowner before, well, you’re about to see me hit a new gear. Stay tuned.
  •  Our president blessed (1+ / 0-)
    Recommended by:
    mint julep

    this project a year ago. What's happening now in Texas is a result of his decision to expedite permitting by the Army Corps of Engineers to move construction of the Southern portion of the Keystone Pipeline into higher gear.

  •  this sounds more like home-owner's rights (0+ / 0-)

    to me, and I'm IN Texas.
    The damn RRC is a crookedly GOP-managed farce...

    LBJ, Lady Bird, Van Cliburn, Ike, Ann Richards, Barbara Jordan, Molly Ivins, Sully Sullenburger, Drew Brees: Texas is NO Bush League!

    by BlackSheep1 on Sun May 19, 2013 at 10:33:10 AM PDT

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