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TransCanada Seizes Land In Texas By Eminent Domain by Walter Brasch

kxl pipeline photos

Image by 350.org via Flickr

by Walter Brasch
Writer, Dandelion Salad
www.walterbrasch.com
May 19, 2013

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 journalist and professor emeritus of mass communications. His latest book is Fracking Pennsylvania, an in-depth analysis of the effects of fracking upon public health, the environment, worker safety, and agriculture. Dr. Brasch also investigates the history of energy policies in the U.S. and the relationships between the energy companies and politicians at local, state, and federal levels. The book is available at amazon.com, http://www.greeleyandstone.com, or local bookstores.

see

Only You Can Prevent Fracking by Peter Rugh + Frack Fact by Walter Brasch

Media Grounded: No-fly zone over Arkansas oil spill to censor news coverage?

For Sale, Habitable Planet, Too Late by Guy McPherson + Into Eternity: A Film for the Future (must-see)

Koch Brothers Driving Keystone XL Pipeline from Canada to Cut Out Venezuelan Oil by Greg Palast

Tar Sands Exposed + Garth Lenz: The True Cost of Oil

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17 Responses

  1. […] TransCanada Seizes Land In Texas By Eminent Domain by Walter Brasch […]

  2. […] TransCanada Seizes Land In Texas By Eminent Domain by Walter Brasch […]

  3. […] TransCanada Seizes Land In Texas By Eminent Domain by Walter Brasch […]

  4. In this article about tar sands & bitumen why did you link to a webpage about the Natural Gas Act, which addresses only the legalities of natural gas pipelines?

  5. […] TransCanada Seizes Land In Texas By Eminent Domain by Walter Brasch […]

  6. TransCanada is a CANADIAN corp., registered in Canada as such. It was founded in 1951 in Calgary. It is on NYSE AND Canadian. The chair and CEO of TransCanada are BOTH Canadians, as are the bd. of directors. The bylaws are those written in, and approved, by Canada. There may be US investment money, but it is NOT a US company–which is why the State Dept. is involved in approval of the XL pipeline.

    Sources:

    Board of directors: http://www.transcanada.com/2991.html
    Corp. structure: http://www.transcanada.com/corporate-governance.html
    Bylaws: http://www.transcanada.com/docs/About_Us/BylawNo1_TransCanada_Corporation.pdf

    • Registering a company in a country is a legal technicality (kind of like semantic when playing on words)… technicality which they did to ease the opposition to them being part of the original canadian pipeline project in the 50’s… it was a tactical move and a very profitable one…

      American registering a company in Canada does NOT make that company a Canadian company… no more than Canadians registering a company in the USA would make that company an American company… to say that is highly misleading…

      Registration/incorporation and Ownership are two totally different issues… anyone can register a company anywhere in the world, that means absolutely NOTHING, it’s technical paperwork that may or may not give specific financial advantages depending on the case, though there usually are some advantages specially for big corporations…
      What counts is to follow the trail of true ownership…

      TransCanada PipeLines is American owned and has been from day one… those info are of public domain…

      Unless you can magically change the ownership of the company, it is and remain an American owned company registered in Canada… period… people may try to sugar coat it anyway they want, it will not change the facts…

      I worked for years in “forensic accounting”, so I know the difference… people would be surprise if they knew the number of companies registered in Canada that are NOT really Canadian companies, but foreign owned companies…

      PS… you should have taken the time to check the people on the board of directors before saying they are all Canadians… at least 4 of them are American… I have to say that checking them out was an interesting read… specially looking at all the inter-related connections with various businesses, mostly petroleum and energy industries…

      As for Corporate Governance and Bylaws they are always subject to the laws of the country where a company has been registered, regardless of ownership…

      There are some very real financial and tactical advantages in owning or partly owning multiple companies registered/incorporated in various different countries, even though it can complicate the paperwork… plus it is a very good way to protect their assets even in a worst case scenario of major global economic collapse, at least in theory since this kind of scenario has never occurred and no one know for sure how it would play out if and when it will happen…

  7. If the evil Koch’s ever go visit Gran’ma Eleanor Fairchild to commiserate over “TransCanada’s” disgraceful and abusive criminal deceits, let’s hope she has the good sense to serve them water hemlock tea.

    There is no word, in the lexicon of depravity, adequately severe, to truly depict the depth of such loathsome, unconscionable, ugliness and despicable dishonesty.

    Has it occurred to any well-heeled, deep pocketed legal eagles, that since these fascist corporations are held to be “persons,” that by the very same logic their fiendish goons are the culpable agents of an even more criminally liable entity who is unequivocally a blatant perpetrator of criminal trespass, toxic insult, property theft, predatory threat and intimidation, animal cruelty and abuse, premeditated homicide, ecocide, First Nations’ sacrilege and wanton vandalism?

    Is that not worthy of a full life-time in solitary without parole in the Peltier and Abu-Jamal Memorial House of Correction and Penal Servitude?

  8. Landowners are being fairly compensated for development ! What is this biased reporting all about? A pipeline made with made in USA required materials and labour is way safer than the current shipping of the needed oil bitumen, from a very friendly Canadian Country, via truck and railwy cars.

    • Biased? A rather strong word.

    • Rosencrentz ~ why does the US need this heavy bitumen in the first place and are you sure the Koch brothers won’t be exporting it to the Caribbean and elsewhere?

      Sounds to me like you’ve bought the company line (or more accurately, their bare-faced lie) hook, line and proverbial sinker.

      A very friendly Canadian country? have you ever been to Alberta? have you any idea of how much opposition there is to the tar sands? have you not heard that ecocide has been tabled as the 4th international crime against the peace of humanity and the tar sands were the first project held indictable in the high profile mock trial that was held in the UK?

      Have you even discussed this issue with any representative of Canada’s First Nations? did you know the ethical UK Cooperative Bank deems it an utterly reprehensible criminal investment they refuse to have anything to do with and proactively campaign against it?

  9. Correction… do not let the name fool you… TransCanada PipeLines is NOT a Canadian company, never has been, it is a USA company, has been since day one in the mid 1950’s…!!!

    “the U.S. participants–who had formed a company called TransCanada Pipelines”
    Company history is available online as it is part of publicaly available information… having their presumed official headquarters in Alberta does NOT make it a Canadian company, it just makes the American owners very damn clever in fooling people…. and if memory serves me right that company is the brain child of a rich Texan man… but I can no longer find the other page that gave financial detailed information…

    http://www.fundinguniverse.com/company-histories/transcanada-pipelines-limited-history/

    • Thanks for the additional info, JohanR.

      Here’s the link to their website: http://www.tcpipelineslp.com/

      “TC PipeLines, LP is a United States limited partnership with a long history of stable and growing cash distributions which has delivered value to its investors while maintaining a solid cash distribution coverage ratio.”

      • Yes I have been on their website…. if you notice on their website, the history of the company is nowhere to be found… but is available on other websites, including one educational archive and they have the same info in regard to TransCanada being 100% USA owned from day one…
        This quote you have put is about the LP being a partnership, and TransCanada being part of that partnership… has nothing to do with who owns TransCanada as such…

        The name TransCanada for this American company was specifically chosen to get by the increasing opposition of the Canadian population to the US involvement and ownership of Canadian natural resources which in the 50’s was already way above 50% and was perceived as a threat to Canada’s autonomy… and their strategy worked very very well…!!!

        • Thanks again, Johan.

          I thought “a United States limited partnership” would mean that it is a US company/corporation.

          • I’m french so when I read it, the word that jumped at me was “limited” in a different meaning than what you were thinking about…lol… plus there is so much confusion in people’s mind when it comes to the country in which a company is registered/incorporated versus the true ownership of the company… too many people do not understand the difference and even less why those playing in the big league of business and finance are doing it…

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