hearts and minds

August 6, 2006

WE the people v. THEM the power company

Filed under: Conversations with Sid D. Complex,Courts and Justice,eminent domain — Hearts & Minds @ 5:34 pm

In the midst of another dry and dusty growing season, my ol’ buddy, Sid D. Complex, dropped by looking like he needed something wet and frosty. “I haven’t talked with you about that big new gas pipeline since gun deer season a couple years ago”, said Sid. “The power company put the pipeline across your place. How’d it go? I recollect you didn’t like that easement they were pushing.”

“No, I sure didn’t, Sid, and a lot of other designated victims didn’t, either. Nobody was trying to stop the pipeline. Let’s be clear about that. But there were problems before construction even began. One was with the compensation they were offering and the fact that the appraisals done by the utility did not even comply with state law that’s meant to protect your rights when your property is taken by eminent domain.

“Another problem was with the terms of the easement document. You won’t believe the scam they’re trying to pull, and how they’re doing it.

“The PSC granted THEM-the Power Company a 30 foot wide perpetual easement for their 2 foot diameter, 1000 psi pipeline. But the easement document they wanted us to sign, and the language applied to their condemnation Jurisdictional Offer, gave the corporation the right to access and use, not only the 30 foot strip, but also ALL of your adjacent land. That right was explicitly not even limited to any time or purpose. And the utility could sell, rent, or transfer that right to anyone else, forever, in the future.

“On top of that, the easement wasn’t limited to the specific purpose approved by the PSC. So if you signed it, you were granting THEM other future uses of all of your property, which had nothing to do with the pipeline.

“During ‘negotiations’ they refused to include language to indemnify those of us along the route from liability for damages that were a consequence of that high volume, high-pressure natural gas pipeline. And they refused to include language that required them to clean up after themselves when that steel pipe is inevitably abandoned, corrodes and collapses. When that happens, you can bet there will be toxic solvents, lubricants, cleaning agents, and undefined condensates contaminating the ground and the water table. Is it possible the landowner victim will be forced to pay for future cleanup? You betcha. It’s sure happened before.

“I couldn’t sign that document, Sid. At one point, worn and exasperated, I said to THEM, ‘Look, you’ve said you’ll pay us what you assert the strip of land is worth in exchange for signing the easement. But we can’t sign this. So just pay us what you’ve already agreed to pay, and we’ll hand you a deed, free and clear, to that strip. Then you can do whatever you please and whatever the law allows with that land, now and in the future, and neither you nor we need to worry about easement language.’

“They rejected that offer, Sid, and wouldn’t say why. Sign the paper or you’re going to condemnation, they said. It can’t be because they don’t want to pay property taxes. They own lots of land in the state, here and there, in your town and mine, and they pay no property tax on it. Only thing I can figure is that when they hold an easement, rather than a title, it obligates us property owners to be their unpaid caretakers and legally liable guardians of the corporation’s profitable pipeline route, in perpetuity.

“We took the only legal recourse available. We challenged in court their right to condemn our property using that excessively broad easement language. Rather than change their tune, they filed an action in Ozaukee Circuit Court to get immediate access to our property. And they asserted that a specific Wisconsin law granted THEM authority for immediate access, despite the unresolved challenge action.

“But the law THEM-the Power Company claimed gave them that right, was not created for that purpose. More importantly, the Wisconsin State Supreme Court had ruled that very statute was unconstitutional years ago. That ruling has never been overturned and the defect never remedied. The power company could NOT legally take immediate possession using that statute. This was pointed out verbally and in a legal brief to the court prior to the ruling by the judge. The power company’s attorney made no rebuttal of the citations and legal precedents presented, and neither did the judge. What do you think the judge did, Sid? Surprise. He ruled in favor of THEM, the company.”

“Let me get this straight”, said Sid. D. Complex. “The judge ruled that the power company could enter private property and do as they wish under color of a law he knew to be unconstitutional? You gotta appeal that ruling.”

“It would cost tens of thousands of dollars to appeal, Sid. Maybe lots more. You can’t get reimbursed for those costs even if you win. An individual citizen can’t afford to appeal against the power company, and they and the judge know that. As a result of the judge’s ruling, we citizens have lost the only leverage provided to us under the law to prevent THEM-the Power company from forcing unreasonable terms on the easement.”

“Where’s this judge from?” asked Sid. “Probably some federal judge from the left coast, appointed by some pinko politician, ain’a? Or maybe he’s an exchange judge from the corrupt kingdom of Dunundastan. Don’t these judges take an oath to uphold the law and the Constitution? He oughta be impeached.”

“You’re partly right there, big guy. Lately, people clamor to impeach judges simply because the judge makes a ruling on some wedge issue that is different than the one their favorite talk show host is ranting and raving in favor of. However, this is pretty cut and dried. This isn’t a matter of uninformed speculation whether the judge’s interpretation and application of the law is unconstitutional. That particular law was ruled unconstitutional by our state Supreme Court, and the judge is obliged to follow precedent and is sworn to uphold the Constitution. The judge, in effect, overruled the Wisconsin Supreme Court. But he’s not a judge from far away, Sid. He’s Judge Paul V. Malloy, one of our three local Ozaukee County Circuit Court judges.”

“Well”, declared Sid, “it’s up to We, the People of Ozaukee County, not THEM, the Power Company, whether Judge Malloy stays a judge.”

“Have a cold one, Sid”, I said.

June 23, 2005 (see “Appraising our Pipeline Futures” for part 1)

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