Through its rigorous review and lengthy negotiations to build in protections for landowners and the local communities, the processes insisted upon by the Department go well beyond the provisions established by Congress in Section 1222.
The reality is that the DOE is planning to coerce landowners to sign survey and easement agreements under threat of condemnation and taking of their land by the Federal government. It's all there in the "Participation Agreement" signed by the DOE and Clean Line. Every affected landowner should take a look. No landowners were party to the "lengthy negotiations" that took place at the DOE to "build in protections for landowners," so you may question whether anything in this agreement actually protects your interests. DOE doesn't even know what your interests are!
Earlier this week, Clean Line stated that it wanted to "share its revenues" with landowners.
Clean Line Energy executive vice president Mario Hurtado, said via email. “We have created a market-leading compensation package that allows landowners to share in the revenues earned by the project and an easement acquisition process that provides important protections so that landowners are treated fairly.”
The Participation Agreement states,
No Clean Line Entity shall engage in any coercive action with respect to any Landowner, Curative Party or tenant in respect of the undertakings required hereby.
The practice of persuading someone to do something by using force or threats.
Don't be afraid of scary words like "condemnation," or "eminent domain." The DOE doesn't want to engage in it anymore than you do. It's costly and time consuming. Once, a government wanted to take my land to build a gated community and high-end shops. They offered a pittance. I refused. The closer and closer we got to a condemnation hearing, the higher the offers from the government became. The offer made to my attorney, literally on the steps of the court house just before the condemnation hearing, was six times the original offer. I'm not an attorney, and none of this is intended as legal advice. It's just a sharing my own personal experiences, and it's been my experience that the first landowners to sign get the least amount of money. There's always more money available and a "final offer" is often not final. I received much more than the other landowners because I was the last one to sign, not the first one.
Get yourself a competent, local attorney. Beware large out-of-state "eminent domain specialists" whose payday is dependent upon you signing an agreement with the company. You'd get better advice from an attorney who is billing you by the hour. His payday isn't dependent upon you signing an easement agreement.
So, what's in the Participation Agreement "protecting" landowners from Clean Line's easement acquisition actions?
First of all, Clean Line needs to "locate the landowner." They can do so by "using a private investigator to conduct a search for such Landowner, inquiries with
relatives, neighbors or other individuals that could reasonably be likely to know the location of
such Landowner." This is "protection?" Sounds like intimidation to me.
Next, Clean Line is supposed to give the landowner an "initial notice and landowner materials," consisting of:
(i) a proposed form of easement and/or other applicable documentation relating to the conveyance of the proposed Project Real Estate Right;
(ii) a payment calculation sheet or other documentation in respect of any compensation proposed to be paid to such Landowner in connection with the applicable Project Real Estate Right; provided, however, that with respect to any parcel that is not a Waiver Parcel, such payment calculation sheet or other documentation shall only be provided after the appraisal has been performed;
(iii) a sketch identifying the boundaries and the nature of the applicable Project Real Estate Right;
(iv) a construction questionnaire designed to gather necessary information in respect of conditions at the location of the applicable Project Real Estate Right;
(v) a copy of the Clean Line Entities’ Codes of Conduct for acquisitions of Project Real Estate Rights (which is attached as Schedule 12 to
(vi) a request for permission to conduct a survey of the applicable Project Real Estate Right; and
(vii) in respect of any Project Real Estate Right located in Oklahoma, a copy of the Private Rights Settlement Agreement, dated January 14, 2011 (the “Private Rights Settlement Agreement”), and the Order from the OCC, dated October 28, 2011, approving the PECL OK’s application to conduct business as a
public utility in Oklahoma.
Although samples of many of the documents are included as attachments to the Participation Agreement, the easement agreement is not one of them. What's in the easement agreement that can't stand public scrutiny? Doesn't sound like a "protection" for landowners to keep the easement agreement hidden until presented to the landowner in person by Clean Line, and urging him to sign immediately, without advice of counsel.
A "payment calculation sheet" prepared by Clean Line's property value appraisers "protects" you from receiving an offer below market value. The payment calculation sheet becomes part of your easement agreement, once you sign. Whatever is on this paper is a legal part of your easement agreement. Clean Line's "market values" are determined by a company located in another state that uses prior sales in your county to calculate a value for your particular property. It's all very high level, and prior sales can be cherry picked to come up with the value the company wants to assign to your property. No appraiser may visit your property to discover its unique features. Clean Line, at its own discretion, may deem your parcel a "waiver parcel," meaning it will refuse to have your property individually appraised before determining a value. Even if Clean Line offers to have your property appraised, the appraisal shall be performed by Clean Line's contracted appraiser. This appraiser performs all Clean Line's appraisals in your area under a contract. You are not allowed to have your own appraisal performed by an appraiser of your choosing. Or, better yet, to have the value determined by averaging the values determined by three appraisals -- one performed by Clean Line's appraiser, one performed by the landowner's appraiser, and one performed by an appraiser agreed to by both parties. This may be small "protection" but it is the kind of value determination required by a state PSC approval of a transmission line. DOE's "protections" don't even go that far. And, one more thing about appraisals... if Clean Line doesn't like the appraisal its contractor produces, it can act as follows:
(a) The Appraisal will be sent back to the original Appraiser for revisions based on the appraisal review and then resubmitted through the review process as outlined
(b) A meeting will be held between the Appraiser and Review Appraiser to gather more facts regarding the subject parcel to formalize a joint appraisal analysis.
Clean Line's contracted appraiser had better toe the "clean" line or risk having their arm twisted. But you can trust this appraiser because it's one of DOE's "protections" for landowners!
A sample of the Payment (or Easement) Calculation Sheet is included as an appendix to the Participation Agreement. As you can see from this sample, your total easement consideration (payment) consists of the value of your land. There's no line item for "revenue sharing," structure payments, damages or anything else. It's a straight up calculation of the value of your acreage. Also take note that this is more aptly considered an Option for easement, because you're not getting your payment all at once. You'll get 30% of the agreed value when you sign. You'll get the balance when they show up with the bulldozer. If that doesn't happen before December 31, 2017, then Clean Line can pay you another 10% of the agreed price to extend the contract for another year. If the bulldozer still hasn't shown up by December 31, 2018, then Clean Line will dispense another 10%. At this point, you'll have 50% of the agreed upon value in your pocket. And guess what? Clean Line can back out of this easement agreement at any time it likes by failing to pay you the additional amounts. You can never back out of this easement agreement. It's permanent. And remember, any percentage of value payments made along the way are deducted from the final amount you will receive. They are NOT in addition to the value determined.
Although the Participation Agreement requires Clean Line to pay for: (iii) any damage to any crops, timber, livestock, structures or improvements of the Landowner that are reasonably likely to arise as a result of the conveyance of the applicable Project Real Estate Right and the Project...
There's no line item for this on the Payment Calculation Sheet. How is the landowner "protected" here? Is the landowner supposed to hope that Clean Line pays whatever they request after the damages have occurred? Or does the landowner have to go through the courts to be reimbursed if they don't agree with Clean Line's assessment of the damages? Determine damages, and a method for fairly assessing their cost, in advance and add it to your Payment Calculation Sheet and/or easement agreement. Don't get stuck taking a pittance from Clean Line, or spending years in court, for the damages it caused.
And now let's talk about Clean Line's "Code of Conduct" for acquisition of your real estate. As I've written before, this "code" was plagiarized from another transmission project where land agents actually did the things set out as prohibited by the "code." These prohibited actions are standard operating procedures for land agents. They actually happened. The problem with this "code," is that there is no enforcement mechanism. There are no penalties for violation. There are no "code police" to call when a violation occurs. Is DOE going to enforce this "code?" There's nothing in the Participation Agreement about enforcement of this "code" or how a landowner shall report infractions. This "code" doesn't protect landowners. It's only so much window dressing. Landowners should document all contact with land agents. Record all meetings and telephone conversations with land agents. If a land agent is abiding by the code, they should have no problem with you recording the meeting. If they object, however, you can decide if their intentions are genuine, and whether to meet with them at all.
Regarding "Construction Questionnaire" or "Survey Permission" forms -- you don't have to fill these out or sign them. Clean Line has no authority to make you do so. You participate in these activities of your own free will in order to help Clean Line with engineering of its transmission line. A survey could damage your property. There is no compensation offered by the company in exchange for allowing a survey. In fact, the "Survey Permission" and "Construction Questionnaire" forms are not included as examples in the Participation Agreement. Who knows what's in them, or whether there is adequate protection for the landowner? Have your own counsel review them, if you're considering signing them.
Another point in the Participation Agreement... at the landowner's request, Clean Line must "submit" to "binding arbitration" if the landowner and Clean Line cannot agree to a price. Arbitration is a quasi-legal process intended to settle disputes through the decision of an impartial third party. Binding arbitration means you give up your right to disagree with the decision made. You don't have to submit to arbitration. If you do, you give up your rights to have the form of your easement agreement and the value you receive for your land reviewed by a court. Arbitration is a cheaper process that strips you of your due process rights. I would much rather have my issues decided by a court, where I may appeal a verdict I didn't agree with. Arbitration is giving up your legal rights.
In addition, the Participation Agreement stipulates:
The Clean Line Entities shall develop a standard script of talking points (subject to DOE’s approval) describing DOE’s participation in the Project and DOE’s obligations in connection with any acquisition of Project Real Estate Rights, which standard script shall be applied and followed by each Clean Line Entity and its contractors in material respects in all communications and correspondence with any Landowner, Curative Party or tenant.
The Participation Agreement also provides a mechanism whereby Clean Line "assigns" acquiring a particular easement to DOE. That's because Clean Line does not have the ability to condemn any property and take it by eminent domain. Only the DOE can do this. Don't be afraid of any threats from Clean Line that their offer is "final" and if you don't accept it they will turn your case over to DOE. Once DOE gets your case from Clean Line, it, too, must attempt to engage and negotiate with you before condemning the property. Only DOE can proceed with condemnation.
Do yourself a favor and read the Participation Agreement in its entirety. It's long, but not nearly as long as "perpetuity" will be if you sign something that doesn't protect your interests. The DOE isn't looking out for you here, they only negotiated with Clean Line to come up with this agreement. Protect yourself.