By Charlie Barber
Part 2 of a series. Republished by permission of the author and the High Plains Reader
It is very lonely sometimes, trying to play God.”
– U.S. Supreme Court Justice Oliver Wendell Holmes
“Compassion is not weakness, and concern for the unfortunate is not socialism.”
– Hubert Humphrey
“Trust everyone, but cut the cards.”
– Finley Peter Dunne
In Part One (PI, April, 2012), our North Dakota heroine, “Carrie,” was served with a condemnation action on her property by Williston Basin Interstate Pipeline Company [WBI] on December 22, 2011, three days before Christmas, and her resolve and resourcefulness in fighting it was detailed.
In Part Two, we see that her willingness to fight paid off…sort of.
Although her expectations were not high, Carrie showed up in Federal Court
in Bismarck, ND on January 20, 2012, not really knowing what would happen.
What happened was unexpected, but delightful for Carrie, her lawyer, and the three men who accompanied her to the courtroom in the lawsuit forced on her by Williston Basin Interstate Pipeline [WBI] and their parent company, MDU Resources [MDU].
An equal footing between a single woman and a giant corporate conglomerate. The kind of justice that confounds the cynical, but which Americans like Carrie still believe in.
Carrie’s case was presented before the Honorable Daniel L. Hovland, U.S. District Court Judge, 8th Circuit.
While Judge Hovland likely assumed on January 20 that he was just doing his duty as a member of the judicial branch of our federal government, to Carrie he appeared as a knight in shining armor.
The transcript of the proceeding shows that Judge Hovland had clearly read Carrie’s affidavit, as well as relevant case law from other circuits.
Those of us in attendance could tell as well from his demeanor that the Judge had spent a great deal of time and thought going over the issues involved, and from every angle, including the one of the individual citizen faced by representatives of a powerful corporation. He advised WBI that their strategy of foreclosing on citizens around Christmas time might not be the best of ways to secure a signature.
For the benefit of both counsels, Judge Hovland explained that the other three circuits which had ruled in Eminent Domain issues were not clear at all in their judgments. He knew for certain that the Natural Gas Act of 2005 did not contain explicit provision that allowed for immediate possession as sought by counsel for WBI, but he was reluctant to make a ruling as in other districts, because “no matter what I do, somebody is going to be unhappy… if the parties can enter into negotiations or renegotiations in this case and reach a resolution of this dispute, it saves everybody a lot of time and money.”
A wise man.
Judge Hovland was offering the option of arbitration over litigation.
Carrie was torn. She was really angry at WBI and their representatives, and wanted to hurt them as much as they had hurt her. But she also knew that she was up against some really powerful forces that might wear her down.
If WBI continued down the path they were headed, they faced an evidentiary hearing, and, perhaps, a year’s delay in laying a natural gas pipeline badly needed for the marketplace, as well as their own bottom line.
Carrie had all the time in the world, but if she persisted, she faced huge legal expenses and continuing stress coming from people she considered loathsome.
Both sides decided to heed Judge Hovland’s advice, and the limited time frame he hung over their heads before facing an evidentiary hearing, and presented themselves on February 3, 2012 before Judge Charles Miller.
The arbitration process is no more fun than litigation. Ask any member of
the National Basketball Association or the National Football League. If you can’t find one of those elite athletes, try asking anyone who has been through divorce. I’ll be happy to tell you how much fun it is.
The arbitration process requires each party to sit in separate rooms, the arbitrator points out to each one the options that they have, separately, and over the time allotted for the process. Although the proceedings, unlike a court hearing, are not made public, a successful arbitrator like Charles Miller is able to point out to each side the weaknesses in their
positions, lest they think they can hold out indefinitely.
Carrie, of course, was only made aware of the weaknesses in her side of the case, but she was a skilled negotiator and arbitrator herself, and was able to let that knowledge overcome her fury by lunchtime that WBI had not made any real attempt to erase the $45 per rod gap between their offer and the fair market price of a neighboring pipeline company, which had not had the weapon of Eminent Domain at its disposal.
She almost left in disgust at noon, but her neighbor and fellow litigant was adamant that, “It’s not about the money,” and they decided to stick it out all night if necessary.
“All night,” of course, meant well past cocktail and dinner hour for the WBI lawyers, and by 5 pm their tune had changed to the point of an offered settlement. This included a dollar figure per rod and payment of Carrie’s legal fees that took her to within one dollar per rod of what the fairer minded pipeline company had offered other landowners west of Williston.
There was a gap of a few weeks between the agreement of February 3 and when both sides were obliged to sign, which Carrie eventually did, with great reluctance. Meanwhile, Carrie found out from those who had settled for the lower price, that Richard Melvin of WBI was running around handing them checks that greatly increased their settlement in the direction of what WBI
had agreed to pay Carrie.
It seems there is a North Dakota law that allows any five landowning parties to a settlement [in Carrie’s case there were eleven] with an oil or gas pipeline company to file suit against said company, if they are dissatisfied with the amount of settlement they had agreed to in writing.
Americans need to be reminded every now and then by citizens like Carrie, that our rights under the Constitution are a kind of power, but they are of little use if we do not use them.
It is true that time and money are expended when a large corporation like MDU tries to get its way through bullying tactics. However, all those signs that say “freedom isn’t free,” are just meaningless slogans, unless people understand that time and money are the coin of us all, not just the other guy.
Legal issues of Eminent Domain are daunting as well. While it is clear to some that private oil and gas corporations are abusing government power, most of us have little initial defense prepared when a representative from WBI walks into our living room waving legal documents and ranting about their power to condemn land.
But our common sense, and what they used to teach in High School Civics 101, tells us differently. We are not owned by anybody, certainly not by a corporation. Our rights, according to Thomas Jefferson and the Founding Fathers, are inalienable.
All that is necessary to maintain these rights is the courage of one’s convictions.
That’s the hard part.
Just ask Carrie.