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Eminent Domain – or Imminent Domination?

“No person shall be deprived of life, liberty or property without due process of law.” — U.S. Constitution, 5th Amendment
“Nor shall any State deprive any person of life, liberty or property without due process of law.” — U.S. Constitution, 14th Amendment

You have ownership in a piece of land, along with dozens of your cousins. Your great-grandparents and grandparents used to live there, until a flood of epic proportions forced them out.

It’s a precious place – to your personal history, your family history, in the history of your home state.

It’s isolated, accessible only by boat. The waters around it still rise annually, making it unsafe for continued human habitation. But because of its isolation, Mother Nature’s community has thrived: deer, raccoons and squirrels, egrets and herons, woodpeckers and cardinals – all living in and beneath the shade of ancient oak trees. Bald cypress stretch their knobby knees far and deep, providing perches for sunning turtles above the swamp surface, and shelter for sac-a-lait and crawfish flourishing in the rich waters and mud beneath.

Photo courtesy: L’Eau Est La Vie on Facebook

But…

Since you’re not “using” this land (and even if you were), a for-profit company is demanding that you give it up to them, so they can bring bulldozers through it, remove the trees, dig a trench and lay a pipeline to transport their oil from thousands of miles away.

They’ll give you and your dozens of cousins each a dollar or two, so the company’s owners and shareholders can continue to make and divvy up the profits, like the nearly $9-billion they made in 2017.

No? You say no to this “deal” they’re offering? They’ll take all of y’all to court, and force you to give up the land, because it’s for the “common good.”

But before they file their lawsuit to take that land through eminent domain, they’ll come onto your land and start bulldozing and trenching.

You invite friends to come onto your land, to protest and document the land’s destruction, while this company pays off-duty police officers to come in and arrest your friends, charging your guests with felony trespassing on their worksite.

Wait a minute, you say. This is Louisiana, and my property rights are constitutionally protected! In fact, in 2006, we the people voted to add additional protections to our state constitution, and specifically prohibit the abuse of expropriation for private gain.

On Tuesday, Nov. 27th, in St. Martinville, the owners of a 38-acre parcel of land in the Atchafalaya Swamp will face off with Energy Transfer Partners, the builders and operators of the Bayou Bridge Pipeline, over these very issues. In next week’s trial, State District Judge Keith Comeaux will attempt to sort out the issues of eminent domain, property ownership, trespassing, destruction of property, and constitutionality of the competing laws and interests.

Photo courtesy: L’Eau Est La Vie on Facebook

“Here, Bayou Bridge Pipeline decided on its route, began approaching landowners along that route for easements or rights of way, and began constructing its 162.5-mile pipeline, before all the necessary easements or expropriation judgments for property all along the route had been obtained. (And in fact, it constructed the pipeline on the property at issue in this matter before obtaining necessary agreements and expropriation judgments; and before permits have been finalized).” – from the landowners’ pre-trial memo

Louisiana Department of Environmental Quality and the state’s Department of Natural Resources, along with the U.S. Army Corps of Engineers, all held hearings prior to the start of the Bayou Bridge Pipeline Project.

“They received over 23,000 comments against the project,” says Ann Rolfes, with the Louisiana Bucket Brigade.

“Yet before they trespassed on our property, there was no legal action we could take,” explains Peter Aaslestad, a historic preservation consultant and one of the landowners in the lawsuit against ETP and BPP. “We refused their offer of money for the easement, so they came on our property without our permission, destroyed it, then filed for eminent domain.

“I don’t believe there should be any eminent domain for private gain,” he adds.

Louisiana lawmakers felt the same way in 2006. That year, 14 separate proposed constitutional amendments were filed for legislative consideration – each to restrict the purposes for which property could be expropriated.

It was a reaction to the 2005 U.S. Supreme Court decision in Kelo v New London, in which the Connecticut city had used eminent domain to condemn privately-owned and occupied homes to make way for a private developer to build a shopping mall. The question was whether that “public purpose” qualified as a constitutional “public use” under the “takings clause” of the Fifth Amendment. In a 5-4 decision, SCOTUS said it did.

At that time, state and local officials in Louisiana were also grappling with how to best handle property damaged and destroyed by Katrina and Rita. SB1, which was CA No.5 (of 13 on that ballot), said government takings of property for a “public purpose” would be limited to a “general public right to a definite use of the property”; publicly-owned property dedicated to specific uses; or the removal of a threat to public health or safety. Nearly 55% of all votes cast in the September 30, 2006 election were to approve that constitutional amendment, which was described on the ballot as “providing home and business owners with increased protection against eminent domain abuse.”

Yetjust as state legislators in 2007 and 2008 disassembled the provisions of 2002’s voter-approved CA No.2 (also known as the Stelly Plan) via statute, in 2012, lawmakers pulled a fast one on the people’s stated intent regarding the use of expropriation. The legislature passed HB 274 by Rep. Franklin Foil (R-Baton Rouge), a statute (meaning it didn’t require voter approval) that added pipelines to the allowable “public purpose” for exercising eminent domain.

That law also designated pipelines as “common carriers”, like trucking firms, and put them under the regulation of the Louisiana Public Service Commission. Yet legislators never authorized the PSC to promulgate rules and establish a permission process for pipelines.

Bill Quigley.  photo courtesy: law.loyno.edu

“That results in essentially a ‘blank check’ for the oil and gas companies,” says Loyola law professor Bill Quigley. He, along with attorneys from the Center for Constitutional Rights, is representing the landowners in this case.

“There is no state or federal governmental oversight,” Quigley explains. “Private oil pipeline companies can unilaterally decide on their own routes, and begin taking private property without any certification or oversight. In many instances, they can even construct their pipelines without having to obtain any approval, certification, or authorization from any state or federal agency before doing so.”

Along the 162.5-mile Bayou Bridge Pipeline route, running from Calcasieu Parish to St. James Parish, quite a few property owners initially said no to ETP building across their land. The company told them, “We’ll see you in court.” Unable to afford a legal battle with a multi-billion-dollar corporation, most gave in. About two dozen went to court, and although they ended up getting higher compensation for their land, all – but the owners of this parcel – surrendered their property.

“My great grandfather Carl Larson came to this country from Sweden,” says Theda Larson-Wright, one of the landowners engaged in this lawsuit. “First he went to Salt Lake City, and while there he became a naturalized U.S. citizen. Not long after that, he took a scouting trip to Louisiana, to Bayou Chene.

“He fell in love with it, and with the woman who would become my great grandmother. He stayed stayed, bought a farm, built a store, and ultimately served as a St. Martin Parish police juror from 1900 to his death.

“My grandfather lived on the property until the 1927 flood,” Larson-Wright continues. “After that, when the U.S. Army Corps of Engineers created the spillway, they told residents to leave, but gave them little compensation and no aid to relocate. My grandfather held onto the land, even though it was no longer safe to live there. My ancestors are buried there.”

“Louisiana is my home,” says Katherine Aaslestad, a history professor at WVU. “Our parents met at LSU, and although dad’s job took us elsewhere, we always came home to Louisiana. We are grounded here, and my brother and I see ourselves as stewards of this land.”

“Bayou Bridge has been trying to paint a picture of us as ‘outsiders’ – because we object to and reject what they’re doing. They are the outsiders,” Peter Aaslestad says. “Ninety percent of the pipeline construction workers are from out of state and the profits from Bayou Bridge will go to shareholders outside of Louisiana. In addition, they claim this pipeline is in the public interest, because it is ‘necessary for America’s energy security,’ yet all the oil it transports is going to be exported.”

Photo courtesy: L’Eau Est La Vie on Facebook

The trial will examine the legality of ETP’s Bayou Bridge construction crews going onto the property and starting work without having first secured the legal authority to do so. It will also review the constitutionality of the pipeline company using eminent domain to expropriate private property, and – the landowners hope – address the lack of any regulatory authority overseeing the pipeline building process or its operational safety.

“Wetlands, with all their fragility and vulnerability, are important to the past, present and future of this state,” says Katherine Aaslestad. “We have to protect them from devastation, and from companies like Energy Transfer Partners and Bayou Bridge, who trespass and destroy them.”

“This is a sloppy company. With them it’s not a question of ‘if’ there’s a leak – it’s ‘when’ there’s a leak,” Peter Aaslestad says. “They have a terrible record, and we want this land to be forever beyond risk, instead of an environmental waste zone.”

That’s the family’s idealistic hope for their land. Yet, in view of the clear-cutting, bulldozing, and trenching already done, they are also realists.

“We don’t think any one can stop this pipeline,” Peter says.

“We’re asking that they return the land to owners, and remove the pipeline, and remediate the land,” Quigley says. “If that is not possible, we expect them to pay damages for having taken the property without permission.

“Additionally, we believe this violates federal ‘due process” protections, and the burden of proof is on them to show the ‘public purpose’. We would like the suit to result in Louisiana’s unregulated permissiveness to the oil and gas industry being stricken.”

Quigley adds, “At the very least, we hope to prevent a next time.”

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