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?

§ 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

§ 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 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 § (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 § Acquiring right to appropriate The appropriation referred to in section of the Revised Code shall be made in accordance with sections to of the Revised Code. Pursuant to § , before the appropriations action is filed in court, the agency must do the following: (A) Give notice 30 or more days in advance. (B) Submit a good faith written offer to the landowner. (C) Submit an appraisal to the landowner. (D) 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....” § (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!