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Some Landowners Mount Legal Bid to Deny Right-of-Way to Keystone Pipeline

TransCanada has gathered easements to use the property of 5,354 landowners along the oil pipeline's route. Some in Oklahoma are among the last holdouts

By Elizabeth McGowan

Feb 28, 2011

Editor's Note: In this three-part series, SolveClimate News examines how landowners along the six-state route for TransCanada's controversial Keystone XL pipeline are dealing with potential property condemnation. Part I: Holding Out in Oklahoma

WASHINGTON—As the youngest of eight siblings, Doris Lynn knows firsthand how diligently her family members labored on their 180-acre crop and livestock farm to fill their stomachs and their bank account.

So it's little wonder the 61-year-old is now reluctant to give up even a square inch of her inheritance in far southeastern Oklahoma's Bryan County, near the Texas border.

That pride in ownership — and a pursuit of fairness — have prompted two generations of her family to hire an attorney to counter a Canadian oil pipeline company's attempt to deploy eminent domain to condemn about an acre at one corner of the family farm where three natural gas pipelines are already buried.

It's within a half-mile from the house Lynn shares with her husband, Cecil, and that proximity makes both of them nervous when it comes to the possibility of a leak or other emergency.

Calgary-based is seeking right-of-way from thousands of landowners in six states along a 1,375-mile U.S. route stretching from the Montana/Saskatchewan border all the way through Texas.

The proposed 36-inch-diameter pipeline, the controversial Keystone XL, is part of an infrastructure designed to pump up to 900,000 barrels per day of heavy crude oil from the tar sands mines in the province of Alberta to refineries along the Gulf Coast.

"They came out here with an offer and we said no," Lynn told SolveClimate News in an interview about TransCanada's quest for the legal right to cross part of her property, known as an easement. "This land was left to us kids. When somebody comes in and tells us they're going to take our land, well they're barking up the wrong tree."

Oklahoma attorney Harlan Hentges filed the legal challenge on behalf of Lynn and the other children and grandchildren of the late A.L. and Dollie White at the state district court in Durant.

"The prospect of a foreign company using the U.S. law to take land from U.S. citizens, this is problematic," he said in an interview.

"I think we have a strong case but the deck is stacked against the individual and in favor of the fossil fuels industry," continued Hentges, a lawyer since 1992. "That industry has invested a lot into making sure things are in their favor since the beginning of statehood."

Where Land Transactions Stand

About 90 percent of the 5,354 U.S. landowners along the route have completed negotiations on easements, according to mid-February figures released to SolveClimate News by TransCanada. That translates to 4,750 property owners with 6,744 tracts of land who seem resigned to the arrival of the $7 billion Keystone XL.

The remaining 604 are either in settlement negotiations on their 1,116 parcels or — like Doris Lynn's family in Oklahoma and other holdouts in Montana, South Dakota, Kansas, Nebraska and Texas — are optimistic that their challenges could reverberate at the state or federal level.

Initially, some property owners were under the impression that if a presidential permit were issued by the , that would give TransCanada carte blanche to proceed with construction. But outreach by advocacy organizations has helped them to understand that handfuls of Davids joining together might have a chance at stopping Goliath — or at least altering his initial plans.

When Will State Department Act?

Due to the international nature of the Keystone XL, Secretary of State Hillary Clinton's team is tasked with granting a thumbs up or down to TransCanada's request for a presidential permit to build and operate the U.S. portion of the pipeline infrastructure. The its 327-mile section in March 2010.

The State Department is in the midst of updating a draft environmental impact statement for the project. Any day now, department officials could address how they plan on addressing the shortcomings in that initial draft. A final decision on the multi-billion dollar pipeline proposal is expected sometime this year.

Though TransCanada had been expecting approval in the first half of 2011, a the company released in mid-February on its predicted a decision would be more likely to come after June. TransCanada also expects the price tag to rise because of currency swings, evolving regulatory requirements and permitting delays.

How TransCanada Does Business

While a presidential permit is a significant part of the construction equation, TransCanada still is responsible for gathering the appropriate permits required by different state agencies and complying with state statutes.

TransCanada spokesman Terry Cunha emphasized that the number of easements procured via mutual agreement thus far indicates how successful his company's policies are.

"States permit pipeline [companies] to use eminent domain to obtain easements to build their pipelines," Cunha told SolveClimate News. "If we cannot reach a reasonable agreement with a landowner when a project is in the public good, then the eminent domain process ensures that the pipeline can be built ... and that landowners are appropriately compensated for any loss in value to their land."

TransCanada pays full market value for any easement and does not assume ownership rights to the land, Cunha stressed, adding that the landowner maintains economic rights and use of the land.

"A project like a pipeline that provides oil to American consumers and refiners provides a public benefit," Cunha said about the justification for pursuing eminent domain as a last resort.

Traction for Lawsuits?

Doug Hayes, a project attorney with the in Boulder, Colo., has been tracking the Keystone XL saga since its inception.

Although it's likely a long shot for landowners to win condemnation cases by claiming that a pipeline pumping oil from tar sands exclusively is not benefiting their states, but Hayes said he thinks "it's a pretty good argument."

His conjecture is that if a court ruling that TransCanada couldn't use eminent domain to condemn land were based on state statute, the Canadian behemoth would use its clout to change that measure. However, he added that TransCanada's powers might be more limited if the ruling is based on a state's constitution because an amendment to such a document is more difficult to finagle.

"These court challenges are not a slam dunk by any means," Hayes said. "But I don't want to give the impression that landowners are wasting their time and that they are never going to win."

A court ruling halting TransCanada's use of eminent domain could force the company to change its route, he said. Or, if property owners put up enough of a stink, state and/or congressional legislators might be able to intervene to stop Keystone XL.

Tomorrow: Part II, "Defining Good Faith"

The Way of the Right

Yea, yea. That's the way we have it. Right of way for coal mining. Right of way for foreign oil. Right of way for conventional domestic oil. Right of way for off shore oil extraction and blowout. Right of way for uranium mining and meltdown. Right of way for hydraulic fracturing for methane and poisoned drinking water. Right of way for conventional methane gas mining. Right of way for the Interstate Military Highway and demise of rail and urban architectural heritage. Right of way for coal burners. Right of way for atomic fission reactors. Right of way for Climate Cataclysm.

Boy, you sure are Right of Way, Mr. Patriot. (or foreign corporate mouthpiece)

I wonder if TansCanada agents are having drugs and sex with the State Dept. like oil companies did with US Minerals Management Service (now Dept. of Ocean Energy)? After all, we are the land of addicts (per G.W.Bush) and corruption runs supreme (including the Koch Supremes).

Turn off everything that

Turn off everything that someone, somewhere, has given right of way for so you could have,  and see what you have left. I hope you have a candle to light, but without someones right of way YOU WOULDN'T EVEN HAVE THAT or a match to light it. There wowld be no phone service so you could call someone and bitch, and no road to go on to complain. You sound like another whineing liberal dumbocrap to me.

BTW, I am none of what you mentioned. I live within two miles of where I was born. Farmed and operated repair and service businesses all my life. Never had to advertize for work.There was always more then I could keep up with. I only have an 8th grade education and wouldn't trade it for any collage degree out there.

I was asked to work as a supervisor on the 3O" Buffalo Pieline that went from Gillette, Wyo. to Glen Ulin, ND this summer. I declined only because I am 75 years old and really don't need any more expreience.

They can talk all they want about unemployment but there is no such thing if one is WILLING TO WORK.

Right of way

I am a landowner in North Dakota. When I am asked for an easement to cross my property I always ask myself why should I give it. Then I realize how many hundreds of people if not thousands, have given right of way easements so I can have roads to drive on wherever I go.  So there is gasoline at the station when I fill my tank. So I can have electricity when I turn the lights on. So I can have telephone service to anywhere in the world.

Think about it. Where would you be and what would you do if NOBODY upstream of the services you take for granted had allowed them right of way? There would be NONE OF WHAT'S LISTED ABOVE!!!!

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