WHO’S IN CHARGE?
70,000 MILES OF PROPOSED
PIPELINES IN OHIO?
AN INFORMATION SESSION
Pipeline Impact on Ohio Landowners
Michael M. Hollingsworth, Attorney
Shostak & Hollingsworth Co. LPA
Athens, Ohio
Clear as Mud
SHOULD LANDOWNERS GRANT
ACCESS FOR THE INITIAL SURVEYS?
§ 1723.01. Power to enter upon and appropriate land
If a company is organized . . . for transporting natural or
artificial gas, petroleum . . . through tubing, pipes, or conduits . .
.; for storing, transporting, or transmitting . . . natural or
artificial gas, petroleum . . .; then such company may enter upon
any private land to examine or survey lines for its tubing, pipes,
conduits . . ., and may appropriate so much of such land, or any
right or interest therein, as is deemed necessary for the laying
down or building of such tubing, conduits, pipes . . ., receiving and
delivery structures or facilities, pumping stations, and any other
buildings, structures, appliances, or facilities necessary to the
purposes of such companies, as well as the land overflowed . . ..
HISTORY:
RS § 3878; 69 v 194, § 3; 72 v 151, §§ 1, 2; 85 v 115; 94 v 382; 97
v 300; GC § 10128; 112 v 143; 124 v 166; Bureau of Code
Revision. Eff 10-1-53.
§ 163.03. Entry upon real property; notice; damages
Any agency may, upon the notice prescribed in this section, prior to or subsequent
to the filing of a petition pursuant to section 163.05 of the Revised Code, enter upon
any lands, waters, and premises for the purpose of making such surveys, soundings,
drillings, appraisals, and examinations . . ., and such entry shall not constitute a
trespass. Notice of such proposed entry shall be given to the owner . . . not less than
forty-eight hours nor more than thirty days prior to the date of such entry.
The agency shall make restitution or reimbursement for any actual damage, resulting
to such lands, waters, and premises and to improvements or personal property . . ..
HISTORY: 131 v 180. Eff 1-1-66.
§ 163.01 (B) "Private agency" means any corporation, firm, partnership, voluntary
association, joint-stock association, or company that is not a public agency and
that is authorized by law to appropriate property in the courts of this state.
WHEN CAN EMINENT DOMAIN
BE USED?
You will see the King and Queen (that is,
the State of Ohio) have a greater right to
your private property than do you if a
taking is Necessary and for a Public Use.
OHIO CONSTITUTION, ARTICLE I, SECTION 19. INVIOLABILITY
OF PRIVATE PROPERTY.
Private property shall ever be held inviolate, but subservient
to the public welfare. . . . [W]here private property shall be
taken for public use, a compensation therefor shall first be
made in money, or first secured by a deposit of money; and
such compensation shall be assessed by a jury, without
deduction for benefits to any property of the owner.
UNITED STATES CONSTITUTION, AMENDMENT XIV, SECTION 1.
[N]or shall any state deprive any person of . . . property,
without due process of law . . ..
BUT, WHERE IS THE STATE ACTION?????????????
ASSUMING THERE IS STATE ACTION
THE CONCEPT OF CONSTITUTIONAL INJURY
(A Taking Is Not a Deprivation of Constitutional Rights)
When a taking of real property occurs, there is no
violation of federal constitutional procedural due
process rights pursuant to Amendment XIV until the
state-supplied remedy has been pursued without
success. The same rule probably applies to Ohio
procedural due process constitutional rights.
If the pipeline company fails to pursue the remedy
(unlikely), the landowner must file a mandamus action
to force the pipeline company to do so.
However, in Ohio, the use of your property for a
pipeline might not be a taking entitling you to
compensation.
REVISED CODE CHAPTER 163
APPROPRIATION OF PROPERTY
OHIO’S EMINENT DOMAIN PROCEDURE
§ 1723.02. Acquiring right to appropriate
The appropriation referred to in section 1723.01 of the
Revised Code shall be made in accordance with sections
163.01 to 163.22 of the Revised Code.
Pursuant to § 163.04, before the appropriations action is filed
in court, the agency must do the following:
(A)
(B)
(C)
(D)
Give notice 30 or more days in advance.
Submit a good faith written offer to the landowner.
Submit an appraisal to the landowner.
Attempt to negotiate a conveyance without success.
“NECESSARY” & “PUBLIC USE”
Without Regulatory Oversight: Generally, in Ohio, an oil and gas
pipeline qualifies as a “Public Use.” Landowners may have more
success arguing the pipeline is not “Necessary.”
PRIOR REGULATORY RULINGS: ARE THESE BINDING IN
COURT?
Intrastate Pipelines. The Ohio Power Siting Board will make a
prior determination “[t]hat the facility will serve the public
interest, convenience, and necessity . . ..” § 4906.10(A)(6).
Interstate Pipelines. After notice and opportunity for hearing, the
Federal Energy Regulatory Commission (FERC) may issue a
“certificate of public convenience and necessity” if it finds the
proposed “action necessary or desirable in the public interest.” 15
U.S.C. § 717f(a).
PIPELINE RIGHTS/
RIGHT OF WAY AGREEMENTS
A landowner’s rights with respect to approved
pipelines depend almost entirely upon the
landowner’s willingness and ability to
NEGOTIATE, NEGOTIATE, NEGOTIATE.
Consider the following issues, to name a few:
- Location & width
- Burial of pipeline
- Emergency shutoff
- Reasonableness and advance notice of time of
inspection
- Compensation
- Removal of pipe when abandoned
- Reclamation beyond the minimum
WHERE CAN LANDOWNERS GO
FOR MORE INFORMATION AND
RESOURCES?
WHEN SHOULD
LANDOWNERS
ENGAGE AN ATTORNEY?
IMMEDIATELY!
Here are some guidelines:
-
-
-
An experienced, knowledgeable attorney.
Join together with as many landowners as is possible.
The process is long and expensive.
You start at a disadvantage using the pipeline
company’s form agreement.
A short pipeline right-of-way agreement is a bad
agreement for you!
You cannot trust the outgoing, likable woman or man
who contacts you about the right-of-way agreement
or easement and sits with you in your living room.
The Chapter 163 eminent domain court case may be
your best friend. Use it for negotiating leverage.
Thank you!