WINNER, S.D. — John Harter stood on his ranch in the flat sun, a stiff breeze muffling the sound of his voice. Small sandy mounds rose behind him. In front, lay pasture and grazing cattle. At an old well, he stopped to point to water just five or six feet below the surface. Now he looked back at the row of tall cottonwood trees where his pickup truck was parked.
Keystone XL pipeline is issue of property rights for some ranchers
He doesn’t want it to, and he’s even fought to stop it. It’s not a question of how much TransCanada pays him. He just doesn’t want strangers and heavy equipment tearing a 110-foot-wide gash through his land, cutting down trees and burrowing under the sand hills and pasture.
He worries that it could take years for the land to recover. And the pipeline, buried four or five feet deep, will be sitting in water, the same water that is part of the vast Ogallala aquifer and which lies so close to the surface that his pasture does not need to be irrigated. He worries that a spill or leak will spread because the soil is so porous.
“I worry about what they will do to the tall cottonwoods and what they will do to this view,” he said, “and the beauty of it is irreplaceable.”
But Harter, like thousands of other landowners, doesn’t have much choice. Two days earlier, Harter had been in court trying to stop TransCanada, which had asked a judge to let it exercise eminent domain and force Harter to give it access to his land.
The Keystone XL pipeline has reignited the emotional issue of eminent domain — the taking of private property for public use — all along its proposed route. The vast majority of landowners have signed agreements with TransCanada, the pipeline owner. But where necessary, the Calgary, Alberta-based company is busy going to state courts to exercise eminent domain and lining up rights to cross properties throughout the Great Plains — even though the State Department and Obama administration still are weighing whether to give TransCanada’s Keystone XL pipeline a permit to cross the U.S.-Canadian border.
The reason: The company has warehoused nearly $2 billion worth of steel pipe and other supplies. If the Obama administration gives it the nod, TransCanada wants to get to work quickly. Now Harter has a warehouse’s worth of anger and despondency.
“I found out that they have more rights to my property than I do,” he said. “It makes me very angry when I paid for it, paid the mortgage on it and take care of it.”
Fight over rights
People across the United States have been forced to make way for power lines, sidewalks, telephone poles, pipelines and other projects. In a 2005 case, the Supreme Court in a 5-to-4 ruling said that local governments could even force property owners to sell out to make way for private economic developments if officials felt that it would benefit the public.
The case, Kelo v. City of New London, became a rallying point for conservatives and others who said the ruling violated the Fifth Amendment prohibition against the taking of property except for “public use.” In a dissenting opinion, then-Justice Sandra Day O’Connor wrote the ruling meant that the “specter of condemnation hangs over all property.”