Finding Middle Ground

Several years ago I spoke at the International Legislators Forum, which is an annual meeting of legislators from Manitoba, Minnesota, and North and South Dakota put on by the Consensus Council.  The forum “provides an opportunity for delegates to share information, understand problems, build relationships, and develop collaborative agreements on a wide variety of issues….”

I spoke on a panel about landowner perspectives related to pipeline easements and damage to the land from energy development.  I found it very encouraging that an industry representative and I agreed on a majority of issues regarding landowner concerns.  He understood that rocks turned up in a disturbed right-of-way, and poor topsoil separation and seeding practices can have a huge impact on the operation. 

In my own experience negotiating agreements for landowners, I have found that it is rarely money that is the issue; it is the land, and how it’s treated.  It is very seldom that a landowner is not willing to grant an easement upon reasonable terms, but unfortunately, there are times when pipeline developers simply refuse to negotiate terms.  Just days ago I was informed by a pipeline developer that they were simply unwilling to even review the edits I made to an easement to address the landowner’s concerns about liability and reclamation.

I have mentioned before that there is a new push by industry to expand its ability to use eminent domain powers to take land.  I have spoken about this to landowners around the Midwest, and recently at a landowner forum in McKenzie County, North Dakota.  The sentiment is clear:  Landowners will not stand for it.

I was encouraged by questions from legislators at the forum I attended, however.  A very small number of landowners sometimes refuse to grant easements; typically because they have been treated poorly in the past, or have un-reclaimed damaged land, and will not grant another easement until past damage is repaired.  At the forum, I offered some alternative ways to address industry’s need to acquire easements for development.

For example, in Manitoba, when a landowner and operator enter into a surface agreement, the operator sends the agreement to the Board of Surface Rights, and the agreement and compensation become public documents searchable by landowners.  This is beneficial to both landowners and industry.  Landowners can acquire information about common provisions and compensation.  If a landowner is making unreasonable demands, a developer can simply point to the public documents and show that the terms or compensation being sought are unreasonable.  I have heard some say that we cannot do this in the States because of anti-trust laws, but without getting into legalese, I’ll just say that the lawyers I have talked to agree that that is just plain wrong.

Additionally, North Dakota has exemplary regulations related to reclamation of coal mines.  These regulations were developed by soil experts with an eye to ensuring the successful reclamation of agricultural land.  There is no reason we should not be using these same laws, as they are applicable, when reclaiming oil and gas wells and pipeline right-of-ways.  This would alleviate a lot of landowner concerns about reclamation during the easement negotiation process.

An insightful legislator from northern Minnesota also had the idea of requiring bonding for pipelines crossing Minnesota, which in turn could help address the concerns of organizations concerned about potential contamination of sensitive areas.

There are ways to address the need of developers to obtain easements, but expanding eminent domain powers for energy developers is an exceptional blow to landowner rights.  I am confident we can develop more reasonable solutions that address the needs of developers and landowners alike.

(Posted by Derrick Braaten)

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