Life on the Line: Landowners Fight Keystone XL and Eminent Domain

• Terrence Henry
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High on that list is David Daniel, a carpenter in Winnsboro, north of Tyler. He bought twenty acres of land here about six years ago and moved out with his wife and daughter. Their land is lush with hundred year old-hardwoods, and lots of fresh water that bubbles up in springs and seeps.

But pretty soon a liquid of a very different type could be making its way through his property. Heavy oil harvested from sand pits in Canada, carried by the Keystone XL pipeline. And part of what makes Daniel bitter is how he found out about it.

Unwelcome Guests

“Yeah, these are their survey stakes,” he says, pointing to orange and white slim planks coming out of the ground. “Four years ago my neighbor called me and said that people had been trespassing our property. I come out and walk the property and find that it had been fully surveyed and staked.”

The stakes belong to TransCanada, a pipeline company from Calgary.

Not long after finding the stakes, David Daniel got a letter TransCanada. They said they wanted to survey his land for the pipeline. He told them they already had, but TransCanada claimed that was a mistake. (A spokesperson for the pipeline, Jim Prescott, told StateImpact Texas that they had inadvertently surveyed Daniel’s land based on old property records.)

“I didn’t buy that,” Daniel recalls. “So, you have trespassing and just lying right off the bat. We weren’t off to a good start.”

So Daniel decided not to allow TransCanada to survey his land, and a few months later, he got another letter. It was from one of the pipeline company’s attorneys. They said he should let them survey his land, because they had power of eminent domain.

That didn’t make a lot of sense to Daniel, so he decided to give the company’s attorney a call.

“And he said, well, I’ve got only one question for you,” Daniel remembers. “I just need to know which pile to put you in. The cooperative pile or the [expletive]-ing uncooperative pile,” Daniels recalls the attorney saying, referring to what kind of landowner he was going to be in regards to the pipeline.

Not surprisingly, this intimidated Daniel. So he set up an arrangement with TransCanada. They could come survey his land, provided they gave him 24 hours notice and he was present when they entered his property. He says he’s counted at least ten times since then that TransCanada has failed to honor that agreement.

Why Does Keystone XL Have Eminent Domain?

“Well, we follow the law. It’s very simple,” Jim Prescott, the project representative for the Keystone XL pipeline, tells StateImpact Texas of the company’s dealings with landowners. He says they’re allowed to use eminent domain to build across private property. Why? Because that oil will end up being available to the public.

“Under the law, a pipeline like this, qualifies like a utility service qualifies as serving the public good,” he says, just like a telephone line or water pipe.

So even if a landowner like David Daniel refuses to sign an agreement, TransCanada can still build the pipeline on his land. 

The company initially offered Daniel over two thousand dollars to build the pipeline across an acre and a half of his land. He turned that down. Over the course of a few years, they gradually increased their offer, finally coming in at a little over thirteen thousand dollars.

“They said, this is the best you’re gonna get,” Daniel remembers. “If you don’t take this offer, we’re going to take you to court. And you’ll start at zero.”

So, as many Texans have done, he signed an agreement. TransCanada says they have easements signed with 99 percent of the Texas landowners on the pipeline’s route. And some of them are perfectly happy with it, like Marshall Treadwell, a retired teacher who owns a family farm in Rusk County, where they grow pine trees and hunt. “I can’t imagine getting a fairer price,” he says of TransCanada’s offer for an easement on his land. “They were as straightforward and easy to talk to as anybody I’ve ever dealt with.” But he says that if he didn’t want the pipeline on his land, he wouldn’t want the company to use eminent domain against him.

Over a Hundred Claims By TransCanada

If you look at a map of pipelines in Texas, they form an intricate spiderweb across the state. Most of them are dug underground and can be nearly forgotten once completed. But restrictions remain on building or digging in the easements, which are indefinite. It’s no surprise that some private property owners don’t want a pipeline going through their land, particularly one with the safety concerns of the Keystone XL.

And when they don’t want to sign, TransCanada uses eminent domain. They say they do so in a “rare” and “limited” manner. “We prefer not to, quite frankly,” says TransCanada’s Jim Prescott. “It’s costly. It’s time consuming. It generates, I think, ill will.” 

But in a review of court records, StateImpact Texas found over a hundred different eminent domain claims by TransCanada. That’s over ten percent of the landowners involved. Fifty of those ended up as judgements, while several others were dissolved after landowners settled with TransCanada. It’s easy to understand why. It’s expensive for landowners to fight back. Taking a company like TransCanada to court is a process that could take years and tens of thousands of dollars. And landowners who fight eminent domain claims may end up getting paid less as a result.

The Farmer vs. the Pipeline

“You know, first off, a Canadian company saying they want to take your land, that makes you start thinking,” says Julia Trigg Crawford, a Lamar County farmer who has garnered attention for her efforts to refuse the pipeline access to her land. “And as I did my research, this was not just your mom’s every day pipeline you’re talking about.”

TransCanada wants to route the pipeline through a hay patch on Crawford’s land, through Caddo Indian lands and an adjacent creek that she has water rights to. But she’s refused, and even went so far as to take out a restraining order against a company that was later dissolved. Now she’s taking TransCanada to court.

“The issue, when you boil it down, is property rights,” Crawford says. “A foreign company’s ability to come in and take you land, that’s a property rights issue. And it doesn’t matter what political bent you are. Nobody – in Texas, especially – wants to be told someone’s going to come in and take your land.”

And there are three other landowners who still haven’t signed an agreement with the company, some of whom are also taking the fight to court. They may ultimately lose. But it could be their last stand. TransCanada says they’ll start building the pipeline this summer.

Tomorrow our series will look in-depth at the history of eminent domain law in Texas, and how some of the cases surrounding the pipeline could change private property rights in a lasting way.

*Editor’s note: the on-air audio version of this story originally stated that TransCanada is based in Vancouver. The company is headquartered in Calgary. We regret the error.