Tarred and Feathered

The 11 Nebraskans who trekked to our nation’s capital felt a surge of hope when, within a week of their session with Clune, the State Department announced it would prepare a draft supplemental environmental impact statement. “They listened to us,” Myers effused on April 8. But a week later she was feeling “deflated and angry.” The State Department had just hatched its supplement, a 320-page report that appears to clear the way for Keystone XL. I got this appraisal from Senator Johanns: “The State Department still thinks the best route goes through the Sandhills, and I think that’s wrong.”

Johanns is livid about how TransCanada has been threatening landowners with eminent domain in order to frighten them into selling it right-of-way easements. On August 11, 2010, he wrote the company as follows: “I have had multiple conversations with Nebraskans who have indicated that TransCanada representatives have established hard deadlines for landowner responses to offers of easement payments within as little as two weeks, I am told. Nebraska landowners are being told in addition that the use of eminent domain authority will be triggered if they do not accept the offers extended by TransCanada within the arbitrary deadlines. The establishment of such deadlines is especially troubling because TransCanada does not possess the presidential permit required for the project.”

Twelve days later TransCanada responded voluminously, circuitously, but with a promise to remind its agents “not to use the right of eminent domain as a threat.” But the threats continue.

Some landowners simply cannot afford the time to defend their property in court. Two such are Teri and Dennis Taylor, whose cattle ranch, one of the biggest in Nebraska, will be sliced by the pipeline in three counties. When I stopped by their house near Newport they were busy branding, but Teri agreed to knock off for an interview.

“There’s a bull’s-eye on our back,” she said. “This couldn’t have hit us worse. The pipeline crosses [under] our three sections corner to corner for nearly six miles. You saw those big rolling hills on the left as you came in. That’s the path of the pipeline, and it’s the most fragile area on our ranch. TransCanada doesn’t have a permit, and yet they’re threatening us. To me this pipeline is the worst thing that has ever happened to our ranch and the state. It’s a tremendous grab. The route they have chosen is absurd. They just want the shortest one.”

The Taylors think they may have no choice but to sell an easement. “This eminent domain thing frightens us,” continued Teri. “All we want to do is ranch. We spend 100 percent of our time ranching. We have to be on site every single day; we have no hired help. We can’t be distracted by anything.”

She went on to say that a few days after she and her husband had encountered TransCanada surveyors on their property and politely asked them to leave, rumors circulated that the Taylors had chased them off with a pickup truck and then pulled up all their survey stakes. “Those were lies,” she said.

TransCanada proclaims it’s not “bullying” or “threatening” anyone. But back in Lincoln I met rancher Randy Thompson, who made the trip to D.C. with Myers, Paine, and the others. He showed me a letter from TransCanada threatening to condemn his family ranch beside the Platte River. It reads in part: “While we hope to acquire this property through negotiation, if we are unable to do so, we will be forced to invoke the power of eminent domain and will initiate condemnation proceedings.”

“This pipeline would be submerged in water,” said Thompson. “That’s my concern. Being close to the river, we have undercurrents. A leak could be carried who knows where.” When I asked if he’d sell a right-of-way easement if the company gets a permit, he said: “I don’t think so. It’s a family decision, and there are four of us, but we’re all pretty much on the same page. If we voluntarily sell, I feel we could be liable if a spill damaged other property. Our neighbor sold an easement a couple years ago. Like most people he thought it was a hopeless situation.”

In its letter to the Thompsons, TransCanada also stated that it was making its “final offer,” one that would “remain open for one month.” The letter was dated July 21, 2010. But TransCanada’s “final offers” come and go, giving the distinct impression that the company is bluffing. At least one other “final offer” followed in February 2011, says Susan Luebbe of Stuart, Nebraska. Then, on April 7, a third final offer imposed yet another monthlong deadline. Holdouts, TransCanada again warned, will face “litigation.”

Can a foreign company really show up in the United States and invoke eminent domain against U.S. citizens before it gets permission for a project it hopes to construct? TransCanada says yes.

But Nebraska law says that no company can invoke eminent domain without all its permits: “A petition filed pursuant to [the eminent domain] section 76-704 shall include a statement of the authority for the acquisition.” At this writing TransCanada has no such authority, and the State Department isn’t expected to issue a presidential permit until the end of the year.

It’s by no means clear that a foreign entity can invoke eminent domain against Americans even after it gets a federal permit for a project. A lawsuit by Oklahoma landowners against TransCanada for eminent domain threats may partially settle that issue.