A NEXUS attorney fought in Fulton County Common Pleas Court on Tuesday for a temporary restraining order against local property owners refusing to allow pipeline surveys on their property. But the immediate decision he sought wasn’t forthcoming.
Instead, Judge James Barber announced that he would continue to review the voluminous request for an injunction given to him only 2 1/2 hours earlier, and consider the facts before giving his verdict.
The 1 p.m. court hearing was hastily scheduled after Columbus attorneys Daniel Gerken and Kara Herrnstein requested the temporary restraining order (TRO) against 15 county residents of southern and east-central Fulton County at 10:36 that morning. The attorneys, who represent NEXUS, are members of Bricker and Eckler LLP.
Last week, Gerken sent a letter to Terry Lodge, an attorney representing the property owners in question, announcing his intention to sue them to obtain immediate clearance to survey. The letter said the lawsuit was in response to “your clients (refusing) to permit access for NEXUS to conduct survey activities.”
Due to the advanced notice, the court’s gallery was nearly filled with opponents of the proposed NEXUS Gas Transmission pipeline. Earlier, they made their presence known with signs and banners in the front and rear of the county courthouse.
Facing off with Lodge before Judge Barber, Gerken said NEXUS’s authority to access private property for surveys comes directly from the Ohio Revised Code, specifically Section 1723.01 and Chapter 163. According to Gerken, the section expressly and independently authorizes survey access; the chapter authorizes the appropriation of property expressly subject to important conditions.
He said NEXUS identified 92 land parcels in the county the partnership of Spectra Energy and DTE Energy needed to survey for the pipeline project. The only refusals came from the 15 residents being sued.
NEXUS has a statutory right to access the properties for the limited purpose of conducting surveys of an environmental, cultural historical, and civil nature, Gerken asserted. He said they were also necessary to gather geologic information “in order to minimize the impact of any future pipelines on Fulton County properties.”
The lawsuit was not to appropriate the property for NEXUS, but to gain a TRO to conduct the surveys, he said.
Gerken also cited Ohio Civil Rule 65, which allows a party to request from courts restrictive activity “or that certain activities be engaged in.”
He told the court the defendants’ argument that NEXUS has no surveyor rights until it’s granted a certificate from the Federal Energy Regulatory Commission (FERC) is illogical. He said, in fact, survey activities for the pipeline must be completed in order to obtain FERC approval for the project.
“The surveys must take place before NEXUS’s application to FERC can even be compiled and completed, let alone submitted and approved,” Gerken said.
He added, “The defendants admit in a brief that NEXUS is ‘generally empowered with eminent domain authority.’”
Lodge told Judge Barber, “This is a rather more complicated question than the pipeline company would have you believe.”
He said many of those attending the hearing are farmers attempting to improve their business circumstances by maintaining topsoil and other farming assets. He said they could potentially face thousands of feet of easement acquisition if FERC gives NEXUS the nod.
“My clients generally believe there is a great deal at stake because they are within a very narrow…study corridor,” Lodge said. “This has caused a great many people a great deal of worry and stress.”
He claimed NEXUS has created a self-made emergency, in which surveys must be completed to honor binding contracts with providers and potential gas customers that lock the project into a November 2017 service date. But Lodge said they’ve offered no proof these contracts exist.
“We’re in this ‘trust us’ circumstance today. It’s a hearsay problem that could be perhaps remedied, and I also wonder as to how binding the contracts are, whether or not they have escape clauses,” he said. “What we’re talking about is a self-induced claim of irreparable harm.”
He requested an evidentiary hearing to address several issues including the necessity of civil surveys during the present stage of the pipeline project, NEXUS’ claim that delaying surveys will result in significant cost, and conditions he believes should be set for surveyors if property access is granted.
Thus far, temporary restraining orders have been granted in Lucas, Sandusky, and Columbiana counties. Decisions are pending in Wood and Erie counties.
Gerken said the bottom line is that no testimony or argument from opponents changes the legal authority the ORC gives NEXUS.
“NEXUS has as a matter of business practice gone through the process of getting permission from land owners when not required by law to do that. The Revised Code permits on its face the right to enter properties to conduct surveys,” he said.
The surveys must be completed soon because all of the information gathered has to be processed before FERC would approve the pipeline, Gerken said. He told Judge Barber, “It requires a lot of data. The data needs to be gathered right away.”
After the hearing, Lodge said he’s concerned that if NEXUS gains access the surveyors will damage crops in the midst of growing season. He’s also worried that the sustained 90- to 125-degree temperature of the pipeline will alter the growing process of crops.
Gerken declined to comment on the proceedings.
Paul Wohlfarth was one of dozens of NEXUS opponents taking a stand around the courthouse steps through Tuesday morning. He said the community should have a say in where the pipeline will be installed.
“These people pay their mortgages, they bought this private property. This is a for-profit venture, this is not for the public good, and it doesn’t benefit any one in Fulton County. How they can force their way onto private property is beyond me,” he said.
Frank Brewster lives within the pipeline study corridor in the county. He is named in the NEXUS lawsuit.
“I’ve been woke up by the pipeline companies, and I think the country needs to be woke up. This really isn’t just about our backyard,” he said. “I think the whole country is being destroyed for a reason that’s not valid. It’s not for the good of the people, it’s for private profit.”
The project would cut through the middle of Don Dickerson’s property in Metamora, where he has farmed for 67 years. It would also cut off 50 to 60 strings of tile beneath his fields. He wants the pipeline stopped completely.
“If you get it rerouted all you’re doing is shoving it off on somebody else,” he said.
David J. Coehrs can be reached at 419-335-2010.