Texans rally against Keystone XL oil pipeline easement

By Kim Murphy

Feb. 17, 2012 12 AM PT

President Obama may have nixed a permit for the Keystone XL tar sands oil pipeline, but that hasn’t stopped the Canadian company that wants to build the 1,660-mile structure from going to court to force the cooperation of landowners who don’t want it crossing their land.

The issue erupted into a noisy protest Friday in Paris, Texas, where farm manager Julia Trigg Crawford has sought a temporary restraining order to prevent the company, TransCanada, from beginning any construction or digging on her property until issues of legal jurisdiction are decided.

TransCanada has sought to dissolve a restraining order granted a week ago, saying it is legally entitled to pursue eminent domain proceedings along the proposed pipeline route under existing state and federal laws—though it says it has no plans to begin any construction.

The issue has brought conservative tea party groups out rallying alongside environmentalists opposed to tar sands oil production, united behind Crawford’s attempt to keep the pipeline from crossing her 600-acre farm in the town of Direct, near Paris, where she fears it could contaminate the creek that irrigates her fields and damage Native American burial artifacts.

“Protect Texas landowners over foreign tar sands pipelines,” said many of the signs being marched around outside the Lamar County Courthouse. At least 75 citizens — conservative property rights advocates, gray-haired landowners, environmental activists and even some Occupy protesters — filled the small courtroom.

“I never got a chance to go before a judge and say, ‘Judge, I don’t want to give them my land,’ ” Crawford said in an interview. “Not only do I think the landowners are being bullied, but now they’re saying they want to have the right to be able to start construction. And they don’t even have a permit!”

Despite TransCanada’s assertion that it does not intend to start construction or trenching while Congress and the Obama administration make a final decision on its international permit to ship oil into the U.S., the company has quietly continued acquiring easements for the $7-billion project with landowners such as Crawford, who are challenging them.

In Texas, the company already has easement agreements with 99% of the landowners along the pipeline route, TransCanada spokesman Terry Cunha said in an email to The Times.

“The eminent domain process is well established, and we follow the process that is set out by law in each state,” he said, adding that the company was committed to treating landowners “with honesty, fairness and respect, to work with them and come up with the best possible solution.”

The issue of condemning land for easements along pipeline routes has been thrown topsy-turvy in Texas by a 2011 state Supreme Court decision that raised serious questions about whether energy companies can declare themselves “common carriers” providing a public benefit—and thus entitled to obtain easements through condemnation proceedings—rather than operators of a private pipeline, who would not have the power of eminent domain.

Until that decision, companies such as TransCanada merely had to check a box on a form filed with the Texas Railroad Commission to declare itself a common carrier, and thus gain the ability to pursue eminent domain actions against unwilling landowners through the courts.

But the high court declared that practice, in at least some cases, unconstitutional. As energy companies petition for a rehearing, the process for siting the growing number of pipelines under consideration as new Texas shale fields come under production — not to mention the Keystone XL pipeline -- has become contentious and confused.

The Texas Supreme Court is considering requests to rehear the case.

“It just kind of shuts down the pipeline business if they don’t have the right of eminent domain,” Austin attorney John McFarland, who wrote a recent analysis of the Supreme Court case, said in an interview.

“I generally represent landowners. I hear this all the time from landowners that they don’t want the pipeline on their property. I usually tell them you don’t have any choice. But now this gives them a little bit of bargaining power, if nothing else,” he said.

Crawford, who is managing a farm her grandfather bought in 1948, is challenging TransCanada’s legal entitlement to declare itself a common carrier and also is seeking relief from the courts under state laws that protect Native American antiquities, of which she said there are many on her property.

But the case has become a rallying point for Texans of various stripes who are concerned over what they say has been TransCanada’s heavy-handed approach toward acquiring pipeline easements from recalcitrant landowners.

“There were people of all political persuasions outside the courthouse today saying, that’s enough,” said Rita Beving, who helped organize the rally. “There are a lot of pipelines in Texas. We have landowners that have pipelines already on their property, and they will tell you they have never been treated or bullied the way TransCanada has treated them.”

Crawford said the condemnation proceedings to acquire an easement over her family’s farm were filed in August, and they were served with the papers in October.

“It was done. We had an opportunity to go sit with three locally appointed citizens to determine how much we got. Basically, it was a real estate hearing,” she said.

When Crawford filed suit challenging TransCanada’s status as a common carrier under the terms of the Supreme Court decision, TransCanada offered to settle, Crawford said. But the talks stalled and threw the case back into court when TransCanada lawyers would not agree to sign a “standstill” agreement to prohibit any pipeline work on the property until at least March 1.

“We cannot agree to any standstill agreement that includes construction activity,” TransCanada lawyer Amy Burgert said in an email to Crawford’s attorney, which was included in the court file.

“So they want to start construction? And their permit’s been denied?” Crawford said.

Lamar County Court-at-Law Judge Bill Harris granted a temporary restraining order this month prohibiting TransCanada from making any use of Crawford’s land until the issue can be decided. TransCanada went to court Friday to have the restraining order dissolved, and the judge said he would take the issue under advisement, setting another hearing for next week.

“In the meantime, the [temporary restraining order] still holds,” Crawford’s attorney, John Pieratt, said in an interview.

TransCanada spokesman Shawn Howard said the company had no intention of starting construction on Crawford’s property until its international permit is granted, but said the company was seeking to preserve its legal right to pursue easements for the pipeline.

“There’s no construction, so I’m not sure what the panic would be,” he said. “She could have contacted TransCanada and confirmed that, and maybe saved herself some legal fees.”

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