Buffalo | In the last few weeks up in windswept Harding County, the sheriff has driven down long, dirt roads to serve court papers to landowners, announcing whether they like it or not, TransCanada would be running an oil pipeline onto their land.
But at least one South Dakota landowner isn't relenting yet.
"I'm ready to take this all the way to court," said Jeffrey Jensen, of rural Harding County, by phone on Thursday. "I got nothing to lose. Wouldn't bother me in the least."
Last month, in the courthouse in this remote northwest corner of the state just east of Montana, separate verified petitions for condemnation were filed in South Dakota's 4th Judicial Circuit against parcels of land owned by two Harding County families, including Jensen's.
It's the latest baby step in the decade-long journey to build the nearly 1,200 miles of three-foot pipe proposed to run as the crow flies between Hardisty, Alberta, Canada, and Steele City, Neb. The pipeline, the energy company says, ensures a more direct and wider transfer of crude than the current Keystone line running south through the eastern edge of the plains states down to Texas refineries in the Gulf of Mexico. In 2017, days into his administration, President Trump issued an executive order giving a green-light to Keystone XL, reversing an order by the Obama Administration. In November, the stand-off in Nebraska over the pipeline's route through the sensitive Sand Hills regions seemingly ended when Nebraska Public Service Commission voted 3-2 for an alternative route for the long-pending pipeline.
However, the July 25 petition shows the pipeline company still has some work to do before boring pipe.
"Keystone was unable to acquire the necessary easements by agreement with Jeffrey and Christina Jensen," reads the petition, "and therefore seeks by this Verified Petition to exercise its right of eminent domain."
TransCanada says in its latest quarterly report filed with the South Dakota PUC that is has 94 percent ownership of easements on private property. The pipeline would cross over 300 landowners' turf from northwest Harding County to south-central Tripp County. The company states it has not secured easements on state land.
The petition filed against Jensen, his wife, and a bank requests the right to cut across Jensen's land with two, 50-foot wide permanent easements, covering nearly 8 acres. TransCanada also asks to condemn temporary easements for the pipeline and workspaces and insists it will pay for damage from construction or pipeline maintenance. Attorneys for the company even make one last offer of $21,000 for "compensation for all of the property taken or damaged."
Jensen signed eight years ago, but doesn't plan on doing so this time. "I think we were darn foolish to sign the way we did the first time."
The pipeline, under state and federal law, is considered a "common carrier." Like a telephone line and or highway, it enjoys broad authority as a public interest. Legal experts say landowners have few options.
"What's happening up there shouldn't be a surprise to anybody," said Mark Meierhenry, a Sioux Falls attorney and former state attorney general. "When the pipeline decides to take your property, all it has to do is file a lawsuit that says so."
On the last page of the court filing, attorneys for Keystone request a jury trial if Jensen refuses. Meierhenry said that final step is merely for a jury of the landowners' peers to decide what they should get paid.
Harding County has seen a condemnation trial before. In 2012, according to documents filed with the Harding County Clerk of Courts, TransCanada had offered more than $6,000 to run a pipeline on a section of land approximately 120 acres large on land owned by a number of absentee landlords, including members of the Szabo family. The agreement contained provisions allowing the energy company access to the pipeline, but the landowners declined the offer. At trial, no attorney was made available for the family. The spoils of the verdict, awarded by the jury, were marginal.
"As just compensation for the easement," wrote Judge John Bastian, "judgment is entered in favor of the defendants against TransCanada Keystone Pipeline LP, in the amount of $780."
Jensen, the landowner being sued, knows the deck is stacked against him. When TransCanada first made the rounds securing easements in Harding County for the pipeline, he was one of the many ranchers who signed on, figuring they would get better terms with the company than in court. However, TransCanada's contract for easement on his land lasted only five years. When the Obama Administration denied Keystone the proper permitting for the pipeline to pass the international border — a decision reversed in the early days of the Trump Administration by executive order — the clock ran out on land deals, including Jensen's. Now, TransCanada needs to get him to re-sign or get a court order.
"They (TransCanada) actually want to give less than they did before on my first easement, and there's no sunset clause," said Jensen. "And I guess I don't agree with a foreign country being able to condemn your land."
Since Trump reignited the pipeline, many hurdles before the pipeline 10-years-in-the-making have been cleared. In June, the South Dakota Supreme Court dismissed appeals by a local citizens' rights group and two Native American tribes to the South Dakota Public Utilities Commission's 2010 permitting of the part of the project running through the state. A month later, TransCanada, the billion-dollar, Calgary-based energy company overseeing the project, sent a letter telling the Cheyenne River Sioux Tribe the company was entering the "pre-construction" phase and to expect truck traffic and staging area preparation soon.
An appeal by environmental groups, tribes and landowners to the November decision by the Nebraska utilities board is being expedited.