ET Rover Forcing Survey, Eminent Domain Threats on the Horizon

So, ET Rover's here today "forcing" the survey of our property.  We are glad we did not consent to this and forced the company to invoke its legal right to survey.  Ohio's Jefferson County judge has not and will not side in favor of the landowner when it comes to surveying, so we stopped short of forcing them to take us to court, but still did not consent to the survey.  The next step is for them to tell us they want/need to put their 36" pipeline where we don't want it---in our backyard forest where we are constructing summer cabins for our children and future grandchildren.  (And they've already shown us this on their map.)  Our answer will be "no thank you," again.  Then they'll threaten us with eminent domain.  And that's fine.  

If a pipeline company is forced to take a landowner to court to claim eminent domain, there are incredibly strict limitations on what they can force a landowner to do.  For example, the court's eminent domain decision applies to one pipeline and one pipeline only; so the pipeline company must compensate the landowner for a one-time use of the easement; and the company must take the landowner to court and go through the entire process all over again if it desires to put in an additional pipeline.  I thoroughly researched pipelines and pipelines easement laws the last time a company wanted to put a pipeline in our backyard (a company that couldn't claim eminent domain under Ohio law, by the way, because it was an intrastate pipeline, not interstate), and I learned quite a few things--especially from Texan attorneys.  The standard easement contract presented to a landowner by a pipeline company is lacking at least 30, yes, 30 clauses that are needed to protect the landowner from abuse by the company.  And that same pipeline-company version of the contract contains multiple, intentionally vague and broad sweeping statements that, if signed by the landowner, would give the company the right to do just about anything it darn well pleases on and to the land for the next hundred years or so----not the least of which things would be to lay additional pipelines without compensating the landowner; and even worse, gain so much power over the easement that the original pipeline company could negotiate an easement within the easement with a second company and receive compensation for it.  This latter point absolutely blew my mind when I found out about it.  

My advice is this, not that anyone asked for it, but here it is:  DO NOT sign a contract with a pipeline company without hiring an attorney who has YEARS of experience negotiating pipeline easements, even if you have no problem with having a pipeline run through your property.  And if you don't want a pipeline, don't fear eminent domain.  If it really comes down to it, if a company really can force you to let them use your property because they're putting in an interstate pipeline (as ET Rover will end up being able to do if they gain approval from the FERC), eminent domain could wind up protecting you from being snookered into voluntarily signing away many rights over your land that you could've and should've retained.

Side note:  In Michigan, township residents are banding together in their fight against the ET Rover pipeline.  At least one township and/or county has already raised such a ruckus that ET Rover has decided to go around them.  Another side note:  In Michigan, on land that already had pipelines/easements wherein the landowners refused to consent to surveys because they're sick of pipelines, ET Rover approached and obtained permission to survey from the previous pipeline company.

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Permalink Reply by D.C. Harris on September 23, 2014 at 6:40am

I just caught four ET Rover engineers/surveyors trespassing on the 10-acre parcel of land on which our home sits, a parcel that has absolutely nothing to do with the surveying they're forcing upon us today.  I asked them, in as polite a tone as I could muster considering the circumstances, why they were "coming through here?"  They told me they were just on their way to their cars, which they had parked on or near the end of our very long private driveway (out of eyeshot from the house), which also has nothing to do with the surveying they're supposed to be doing today.  I reminded them that there is a legal/separate access to the parcels of our land that they actually surveyed, namely, an old township/county road one half mile from our home on the opposite end of the property, and that if they would like to access the surveyed parcels again, they need to do it through the township/county road that connects with downtown Richmond [not by coming down our private driveway and traipsing through our yard--I didn't say that last part--was just thinking it].

Permalink Reply by D.C. Harris on September 23, 2014 at 6:57am

They did not give notice that they were going to survey our 10-acre parcel, nor our 3-acre private drive--just the back parcels on which they actually want to put the pipeline; therefore, legally, they had no right to enter our property today by using our drive or walking through our yard.  

Permalink Reply by D.C. Harris on September 23, 2014 at 7:10am

Sadly, Ohio law does not give a landowner any legal recourse when it comes to first-time trespassing.  All the trespassers need do is apologize and move on.  But, if they come through our yard a second time instead of using the access route they're supposed to be using, that's another story. 

Permalink Reply by skittles on September 23, 2014 at 11:37am

Thanks for your advice, I may be needing this

Permalink Reply by evan on September 23, 2014 at 11:47am
Good advice. I have talked to a person that was forced by eminant domain. He says your a lot better off to make them take you to court. More money. Better agreements And somewhat on your terms he said.
Permalink Reply by D.C. Harris on September 23, 2014 at 12:08pm

Thanks for the info., Evan.  I believe we are handling this the right way, and it's also always good to hear the stories of people who've already gone through this.  It's very encouraging.

Permalink Reply by Finnbear on September 23, 2014 at 1:31pm

The standard easement contract presented to a landowner by a pipeline company is lacking at least 30, yes, 30 clauses that are needed to protect the landowner from abuse by the company.

Can you post this information? Many of us are now beginning to deal with the pipeline contracts that inevitably follow leasing activity and would benefit greatly from having a "laundry list" of items we need to consider before negotiating a pipeline contract. In my opinion, pipelines are far more damaging to property value than well pad sites because they often take/restrict use on more land than a well pad.

Permalink Reply by D.C. Harris on September 23, 2014 at 2:01pm

I'll work on it tomorrow.  But here's a link I found on this website to a document written by an attorney.  I've only read page one, but it seems very promising:

http://www.wvsoro.org/resources/advice/Pipelines_What_Surface_Owner...

Permalink Reply by D.C. Harris on February 9, 2015 at 5:47am

I'm sorry this took so long.  A relative called me this morning about this very issue, so I located the document for him and remembered I needed to get a copy to you.  Many of the negotiation points are taken from attorneys in Texas.  I'm pasting the document below and uploading a copy in case anyone wants to download the list to his/her computer:

Below is sampling of considerations for a pipeline agreement:

  • Establish a signing bonus
  • Establish a price per linear foot of pipeline.
  • Determine whether a secrecy agreement would be mutually beneficial.
  • Establish the width of the permanent easement and timeline for completion of construction.
  • Define the nature and exact width of the temporary construction easement.
  • Require identification of any independent and sub-contractors that the pipeline company will use and make the pipeline company responsible and liable for all acts on your property by independent and sub-contractors.
  • Require the pipeline company to indemnify the landowner from the acts and omissions of the independent and sub-contractors.
  • Define and limit access to both permanent and temporary easements.
  • Specify payments for trees, crops, and other plants damaged during the installation of the pipeline, including damages to the root systems of trees located outside the easement area.
  • Specify re-seeding requirements of easements, such as the types of grasses and other improvements.
  • State the amount of time following completion of construction for surface restoration to be completed.
  • Identify all stream crossings, state methods of stream crossings, and require restoration of stream crossings after construction.
  • Require the landowner be provided an “as constructed” survey of the easement with an official seal by the surveyor within a stated period of time following completion of construction.
  • Specify replacement or installation of fencing and gates, stating which gates will have locks and nature of the locks.
  • Limit number of keys or number of persons with lock combinations.
  • Identify the named person at the pipeline company who will be the landowner’s contact. Require the pipeline company to give 30 days prior notice to landowner of any change in contact person or contact information.
  • Define access post-construction to the easement with specific method and location of all access roads and methods.
  • Prohibit or limit surface accessories to the pipeline.
  • Require minimum depth to top of buried pipeline and require that this minimum depth be maintained at all times.
  • Terminate the lease by stated number of days of no use of the pipeline.
  • Define “abandonment” of the pipeline as a termination of easement event and require the pipeline company to remove all abandoned pipeline.
  • Require prior landowner consent for any assignment of the easement to another party.
  • Limit the easement to one pipeline of a stated diameter, with no right to install additional pipelines and no right to increase the diameter of the pipeline.
  • Restrict pipeline use/flow to gas and oil.
  • Require the same post-construction restoration of surface for pipeline repairs as for original construction.
  • Reserve the right to seek surface damages for pipeline repairs as for the initial installation.
  • Confirm whether gas to be transported will be scented or unscented.
  • Ensure that the permanent and temporary easements are by metes and bounds descriptions and with official surveys – pre-construction and post-construction (as-built survey).
  • Restrict all employee activities to the easement area and require express written condition before employees can go outside that area.
  • Consider what surface uses by the landowner will be prohibited, if any, on the easement.
  • Require the pipeline company to comply with all local, state, and federal environmental laws.
  • Require the pipeline company to indemnify and hold harmless the landowner from any and all environmental damages caused by the pipeline or its operation; and require the pipeline company to pay the costs of all environmental remediation.
  • Require the pipeline company to indemnify the landowner from any future lawsuits in any way related to the pipeline or other facilities.
  • Include a provision stating that the landowner can grant any and all other easements across the property and easement area that do not unreasonably interfere with the pipeline company’s use and enjoyment of its easement.
  • Restrict the pipeline company’s ability to grant other easements within the easement area.  If another company or utility wants to use the easement, it must negotiate with and compensate the landowner, not the pipeline company.
  • Require the pipeline company to warrant title, not the landowner.
  • Hold the pipeline company liable for potential payment of damages for up to three (3) years after completion of work.
  • Hold the pipeline company liable for any for the payment of survey, filing, and attorneys’ fees incurred incidental to the easement.
  • Require that payments be apportioned for the actual easement and damages for tax purposes.  Either the easement agreement or an itemized statement from the pipeline company should clearly state how the parties apportioned the compensation.
  • Choose an alternative dispute resolution method that makes it the cheapest, quickest, and least burdensome way to resolve conflicts between the landowner and the pipeline company.

 

Attachments:
Permalink Reply by Jonathan H on February 10, 2015 at 11:26am

Thanks for the listing - many of those points I would not have thought to make sure were in writing.

Permalink Reply by K2 on August 25, 2016 at 6:25am

Thanks for posting these pipeline negotiation points.

0ym9x5ag7ury2Permalink Reply by 0ym9x5ag7ury2 on August 25, 2016 at 12:02pm

DC,

     Nice summary from the Pipeline Document.

Some of you may not own your right of way if you signed Cardinals ROW contract.

I have a lawyer looking at this case for a Class Action since laws were broken when Fraud was used to get your signature.

Hopefully I'll know within a few weeks who will be taking on this Class Action Suit for Ohioans.

Keep in touch.

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