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Eminent domain takes more than just land


By Jennifer Dorsett

The land lies dormant, waiting for the promise of spring. Stalks from last year’s cotton crop bend slightly in the breeze. In the heart of the Jim Ned Valley, just outside Abilene, all is well on this chilly day. Except one thing.

A huge swath of land has been ripped apart. The rich red dirt looks almost like a wound in the landscape. When viewed from above, it appears to be a wide dirt road.

But this road doesn’t lead anywhere except heartache and frustration. Three different pipeline companies have claimed eminent domain and wreaked havoc on Bill and Lynne Keys’ land for the past two years.

And there’s no foreseeable end in the future.

Bill trekked across the muddy, rutted path, stooping to pick up construction trash as he talked.

“We have four lines coming across our property,” he said. “It’s just been a real source of frustration. We know we’ve been taken advantage of.”

When Bill and his wife, Lynne, bought her grandmother’s property in Tuscola 21 years ago, they never imagined they’d be in this situation. Instead, they dreamed of gathering families and preserving memories.

The property has been in Lynne’s family for three generations and is fast approaching the century mark. Her grandparents raised cotton, wheat, cattle, pigs, chickens and seven children on the 157-acre farm.

“They settled here in 1924,” Lynne said. “There was no electricity, no running water. It was a dryland farm, and my mom was the baby of the seven children. They’d pick cotton, do whatever it took.”

Lynne and her twin sister, Gwynne, grew up helping on the farm.

Fond memories of family, hard work and comradery abound for both women.

Now, the Keys enjoy having the next generations visit the farm. Bill and Lynne have a daughter, son-in-law and two grandchildren. Sharing the land and her own childhood memories with them is special, Lynne said.

But in 2016, that all changed.

An old pipeline delivers new troubles

It started when Atmos Energy approached the Keys. A landman representing the company said the Texas Railroad Commission had ordered Atmos to restore an old natural gas pipeline because it was too corroded.

Lynne knew her uncles negotiated a pipeline easement sometime in the ‘70s. What she didn’t know is how badly her farm was about to be damaged.

The landman told the Keys that Atmos just needed to fix about 50 to 75 feet of pipe. But an inspection revealed three miles would have to be completely replaced.

“They did a little check to see if they could just seal it,” Lynne said. “Well, that didn’t work for them, so they came back in 2017, and they told us, ‘We’re coming. We’re going to put in a new pipeline. Sit back and take it.’”

The company asked to use more land than the original easement allowed. It was explained to the Keys as temporary workspace to build a bore hole and assemble pipe. They were told by the landman that boring the new pipeline section would be beneficial because it would keep their pasture in the same condition and would not damage or kill trees.

“We dealt with about three landmen. Then one finally scribbled something on a Google map,” Lynne said. “That’s all we’ve had to hold them to.”

The “temporary workspace” effectively became a highway for the bore project. Heavy machinery crossed their property daily. And the equipment operators, Lynne said, seemed to be oblivious to the fact that it was private property, excavating and dumping debris wherever it was convenient.

And the pasture and trees the company was supposed to preserve? Destroyed.

“Unfortunately, they utilized both of the wetland areas in our pasture, and proceeded to abuse the property, severely contaminate some areas, do things without our permission,” Lynne said. “Totally misrepresenting what they were going to do, and then doing whatever they wanted to do based on their needs of the day.”

The company dumped 21 truckloads of bore mud containing bentonite and other chemicals into a small stock tank on the east side of their property. They also blocked the Keys’ tenant farmer access to his fields, causing a complete wheat crop loss in 2017 and a partial cotton crop loss in 2018.

“What we were told was one thing, and what actually happened was another thing,” Bill said.

It has now been a year-and-a-half since Atmos began construction, and the Keys were only recently paid for the offer from that scribbled-on map. They haven’t been compensated for any of the other damages their land sustained, including crop losses or tank contamination.

New pipelines, same woes

The next year, two more pipeline companies, Grand Prix and Breviloba, came to town. Registered letters appeared in the mailbox, informing the Keys their property was in the planned path of new pipelines. Surveys were conducted, and initial easement offers were made.

“The initial offers were terribly low,” Bill said. “We would meet up on the porch with the landman and we’d say, ‘Do you have the right of eminent domain?’ ‘Well, we do, but we don’t want to use it. We want to negotiate a fair deal.’ And what we found out is that they want to negotiate a fair deal for them and not necessarily a good deal for you.”

Initial offers are based on the lowest use of the land, according to the Keys, and the “standardized” agreements sent are one-sided in favor of the company issuing the contract.

“They have low-balled us with a letter each time, just embarrassing almost. We knew we could not tolerate the initial letters they threw at us,” Lynne said.

After some discussion and regular calls from the landman, he came back with what the Keys said they called a “final offer.” This letter, too, was sent via registered mail.

“It says you have so many days to accept this, or we’re taking you to court. And it says the maximum will be $100,000,” Bill said. “It makes it look like they’re suing you for $100,000. That’s not the case, but that’s the way the verbiage looks. It scares you.”

The Keys hired a lawyer. Despite the fact that no easement had been finalized, construction began on both pipelines.

“They have no desire to bring forth an easement that we would be willing to sign, with nomenclature that we feel will protect our family,” Lynne said.

To date, negotiations are still ongoing. It’s been a drawn-out and frustrating process. The family feels as though they’ve been taken advantage of, and there is no legislation protecting them from this unfair treatment.

“The whole deal to us is the unfairness and the disregard. Once we signed off and said, ‘We know you’ve got the power of eminent domain,’ here they came, and there was no communication after that,” Bill said. “To us, it’s kind of like, ‘Don’t ask permission, just do it. And if we have to compensate them later, we’ll let them worry about it. We’re just going to get this job done.’”

Multiple property abuses and damages have occurred since construction began in 2018. The Keys are not able to access most of their land with a vehicle. Dirt from the construction sites is piled up as high as seven feet in some places, creating an impassible barrier. They park their truck near the easements and walk to the large tank on the back side of the property.

“Basically, our property is cut in half. Before this year, I would go down to the tank sometimes a couple times a week, late in the evening and enjoy the fishing and nature,” Bill said. “It’s a beautiful tank. It’s almost like you get a double sunset.”

But right now, it’s a pretty far walk.

And the tank closer to their home—the one Atmos dumped bentonite and drilling mud in—hasn’t fared so well.

The Keys say Grand Prix employees told them they were going to come around the side of the stock tank, which is close to the county road, as part of their easement. But the next day, they began constructing a path directly through the middle of the tank.

“When I asked them the day before they built it, the landman denied how they were going to do it, but he knew what they were going to do,” Bill said. “He was just going to do it and not ask permission.”

The small tank is about 150 yards from their house. It was a favorite play site for Lynne, her sister and their cousins growing up.

Gwynne said there used to be a natural rock ledge that served as a sort of dam. The company broke the rocks up with bulldozers and piled dirt across the middle of the tank to make an earthen path for their machinery to come across.

“Breviloba also did a bore site and proceeded to pump water from the bore site into that stock pond,” Lynne said. “So it’s been contaminated by three different entities.”

Heavy rains in September and October flooded the huge trenches dug by both companies. To rid the project of standing water, the Keys said Breviloba also pumped storm water onto their cotton crop and into the small tank.

But the final indignity was yet to come.

The pumped storm water caused tank levels to rise to the point that the dirt causeway built by Grand Prix was submerged, rendering it useless.

Today, Lynne said, you can still see that dirt road lurking just below the surface, making the water as murky as these companies’ intentions.

Grand Prix and Breviloba both left the Keys’ property abruptly in November. The pipelines have been buried, but a trail of torn earth, standing water, trash and damage still remains.

“They haven’t repaired and fixed all of the damage that was caused, and we don’t have a clue when there will be a resolution to that,” Lynne said as she surveyed the damage.

Hope for a better process

Deals with private companies using eminent domain authority shouldn’t be so complicated and opaque, Bill said. He and Lynne have spent two years attempting to negotiate a fair offer while company employees abuse and damage their property.

The Keys are pro-growth and understand the needs of a growing state like Texas. Lynne’s father was a pipeliner, and Bill said they have many friends in the oil and gas industry. They understand everyone is just trying to make a living.

“We are West Texans. We love energy, and we love that we have a chance to be one of the largest producers of energy in the nation,” Lynne said. “Give us a chance to be your partner in this effort. We’re standing here on our farm for our reasons, and you’re standing there with your production for your reasons. Let’s work together. It’s exciting to be part of that. Just give us a chance to be treated fairly.”

Legislation to make the process more transparent and fair would go a long way in healing, Bill said.

“Requiring the entities to have public hearings…to me, that would be a great step in the right direction,” he said. “There’s a right-of-way here for a highline, and they had a public hearing at the school. We looked at it, that’s going right by our house. So that at least let us know ahead of time what it was, when it was coming, what their plans were.”

And if a public meeting is held, then neighbors have a chance to educate neighbors. Bill said it’s easier to negotiate when you know what your neighbors are being offered, as well.

“We just think it needs to be open and aboveboard,” he said. “The government is required to have these public hearings and to communicate to the people about what’s going to happen. They do have the right to take your land, but they don’t have the right to take advantage of you.”

Taking care of the land that has taken care of her family for nearly a century is important, Lynne said. And so is negotiating an agreement that will not harm future generations.

“I know Texas is better than that. We should not be the victims. We should be partners in these issues,” she said.

Nearby, a patch of unharvested cotton sat forlornly, bolls trailing out onto the ground. Tall piles of dirt made that part of the field inaccessible. Bill put his arm around Lynne as they gazed out over the damaged landscape. It’s all a bit hard to take.

“Why doesn’t a farmer have a right to go condemn a pipeline and say, ‘We want to farm out there. Get your pipeline. We want to farm over here, and we want you to move over there,’” he said. “There needs to be some equal rules. Like I say, we’re all for the energy industry, but they have to be more fair to the landowners.”

Lynne agreed.

“This farm has been in our family 95 years, and I’m trying to be a good steward. And I feel like I’ve failed,” she said tearfully. “And there’s hundreds and thousands like us all the way across the state. They might think that this is just an old red dirt farm. But this is our property, and it’s valuable to us.”