Caveat Venditor, Missouri!

Seller beware!

Landowners along the proposed GBE route have found it necessary to file two separate complaints at the Missouri Public Service Commission regarding the behavior of GBE and its land agents as they bombard landowners with requests to "negotiate."  Grain Belt Express seems to be in a great big hurry but perhaps the landowners aren't buying the slick, carnival spiel.  You've got to get up pretty early in the morning to fool a farmer!  Perhaps Invenergy missed all the earlier Mayberry lessons?

The first complaint, filed on June 22, reveals that a GBE land agent calling a landowner on the phone stated,

“Grain Belt is no longer involved with this business” (or possibly, that “Grain Belt is no longer involved with the business.”)

It was a strange one-off until a second landowner got a similar call from the same GBE agent who made similar statements.

Based on statements made during those telephone conversations by the two CLS agents, Mr. Daniel was also led to believe that Grain Belt was no longer associated with the proposed transmission line project.

Now it's a pattern involving one particular land agent.  Was lying to landowners about who owns GBE, or possibly the name of the project, working for this land agent?  Was it getting his figurative foot in the door?  But it's dishonest!  It's against the GBE Code of Conduct for Land Agents that's on file at the PSC. 

However, Invenergy's attorneys denied it ever happened and filed an affidavit from the land agent denying ever saying anything like that.  Who believes a liar?  The landowner reported that the land agent told him a lie... so why wouldn't the land agent tell the PSC another lie?  You know what happens when you lie... one little lie leads to other lies to cover up the original lie, and the next thing you know everything is a lie... and then you're just a liar.

What a coincidence -- a land agent is accused of saying something that dovetails nicely with Invenergy's current attempt to publicly wash its hands of the GBE name and make landowners believe it's something different.  Why else would Invenergy use door hangers that say "under new ownership"?  And why would they be purchasing country hams in the name of "Invenergy Transmission" instead of Grain Belt Express?  Invenergy's efforts to shed GBE's bad juju have been numerous.  Lying to landowners could be just one more manifestation. 

Landowners aren't falling for this crap, are they?

So, the PSC will investigate.  Or something.

A second landowner complaint was filed just this week.  This complaint comes from a landowner who noticed differences between the standard easement that Clean Line used that was approved by the PSC, and a new standard easement sent to him by a new GBE land agent.  This new easement form has NOT been approved by the PSC and may not be in the landowner's best interest.  Items that changed:

• Section 26 of the revised easement introduces an entirely new provision, titled “Waiver of Jury Trial”. Printed in all caps, so as to highlight its obvious importance, this section essentially provides that if there is any unresolved dispute regarding any provision of the easement agreement, the parties automatically forfeit their right to settle the issue in a jury trial.
• Section 21 of the revised easement includes another new concept, under the heading of “Severability.” It essentially states that if any provision of the easement is found to be invalid, the remaining provisions of the document shall remain in full force and effect. There was no similar language in the original easement.
• Section 23 of the revised easement, mentioned in the preceding subsection, attempts to protect Grain Belt from legal defects in a document which was drafted (or at least approved) by the Respondents themselves. It would force the landowner to join with Grain Belt in correcting such defects by either amending the easement or signing a new easement in a form reasonably requested by Grain Belt.
• Section 2.e of the revised easement, titled “Site Plan”, could seemingly have the landowner signing the easement as tendered without even knowing the type and number of support structures, if any, which would be installed on his or her property. The “approximate location” of the structures, as referred to in Section 2.e, may or may not mean that those structures will eventually be built on any particular parcel of land. And without that information, the landowner cannot determine what the total easement payment will be, and thus cannot logically decide whether or not the proposed easement is in their best interest.
• Section 8 of the revised easement, titled “Cooperation”, seemingly gives Grain Belt the right to sign documents in the landowner’s name, without the landowner even knowing the specific language in the document being signed.
• Section 22 of the revised easement is also new. It provides that the activities of both parties shall be controlled by the Missouri Landowner Protocol, Missouri Agricultural Impact Mitigation Protocol, and the Code of Conduct -- “as may be amended, supplemented or replaced from time to time....” Based on this quoted language, Grain Belt has apparently given itself the unilateral right at any point in time to revise or replace any of the documents in question. And those revisions would presumably constitute binding provisions of the easement.
• Under Section 10 of the original easement agreement, Grain Belt was generally given 30 days to cure any monetary breach of the agreement before it could be terminated by the property owner. Under Section 12 of the revised agreement, that period has been extended to 60 days. This change is significant, in that it could allow Grain Belt to salvage an easement which could otherwise be terminated. If 30 days was sufficient during the entire course of the CCN proceedings, there is no reason to believe that is still not the case.
• In Exhibit C to the new agreement, Grain Belt grants itself a three year Easement Agreement Extension, as opposed to the two years specified in the original easement.  Again, this is simply another example of Grain Belt’s attempt to unilaterally modify the terms of this important document to its own advantage.
  
• The Missouri Landowner Protocol, compliance with which is mandatory on Grain Belt’s part, provides in part as follows:  Grain Belt Express will pay landowners for any agricultural-related impacts (“Agricultural Impact Payments”) resulting from the construction, maintenance or operation of the Project, regardless of when they occur and without any cap on the amount of such damages. For example, if the landowner experiences a loss in crop yields that is attributed to the operation of the Project, then Grain Belt Express will pay the value of such loss in yield for so long as such losses occur. In other words, the intent is that the landowner be made whole for any damages or losses that occur as a result of the Project for so long as the Project is in operation.  This language clearly means, for example, that Grain Belt would be responsible for crop damages resulting from soil compaction anywhere on the property for as many years as those damages continue. The same would be true for crop losses resulting from damages to drainage systems.  Crop damages are addressed in Section 3 of the revised easement agreement, which is at best confusing. It first echoes the general principles quoted above from the Landowner Protocol. However, it goes on to state that the compensation as computed in Exhibit E to the revised easement “is in satisfaction of all loss in crop yields attributed to construction of the Facilities ... throughout the Term of this Agreement and Grantor [the landowner] waives all additional claims for loss in crop yields associated with such construction ....”  So one must look to Exhibit E to determine if it preserves all of the rights to compensation provided for in the Landowner Protocol. At best the answer is unclear. At worst, the revised easement can be read as eliminating a potentially significant portion of the compensation for crop damage required under the Landowner Protocol.
• As is apparent, Section 3 and Exhibit E of the revised easement either totally confuse the issue of crop compensation, or more likely, they would act to reduce by potentially significant amounts the actual compensation to which landowners are entitled under the provisions of the Landowner Protocol. In either case, those provisions of the revised easement agreement should be eliminated.
• Section 6 of the original easement states that if the easement is terminated by Grain Belt, it must remove its facilities within 180 days of the termination. Under Section 11 of the revised agreement, Grain Belt would only be required to remove the facilities “as soon as practicable”.
• Section 13a requires that if someone purchases the land on which an easement has been granted, the new owner is required to notify Grain Belt in a specific, detailed manner before Grain Belt is required to make any payments to the new property owner. No such provision was included in the original easement, and nothing has occurred in the interim which would warrant this more stringent notification process.
• Section 2 of the original easement refers to the grant as being “a perpetual exclusive agreement.” The comparable section in the revised easement does not specify that the easement is to be “perpetual”. This change could cause needless confusion not only on the part of landowners, but potentially in any future litigation related to the term of the easement. The original language should be reinstated.
• Finally, Paragraph 2.d of the revised easement gives Grain Belt the right to use the property in question “for installation, operation, and maintenance of fiber optic cable ....” The problem here is that the CCN does not authorize the installation of fiber optic cable as part of the Grain Belt project. 

That's a lot of changes.  Looks like Invenergy just did a wholesale re-writing of the easement agreement.  I'm pretty sure they didn't do it for the benefit of the seller.  Invenergy's lawyers work for Invenergy, not you.  Never sign anything without the advice of a lawyer who works for you!  The second complaint is the reason why.

Invenergy has reneged on a lot of Clean Line's promises about GBE, and not for the better.  Remember the monopoles?  Yup, gone.  All towers will be lattice.  They're cheaper to build, you know.  Spare no expense for the landowner who will be looking at it in perpetuity.  As well, the name "Grain Belt Express" has become a dirty word best not mentioned in the hope that the landowner will forget to pick up all the old GBE baggage before negotiating.  Now the easement and other documents that the PSC thought provided a measure of safety to landowners have been tossed out the window and replaced with documents that give Invenergy more rights and landowners less compensation.

What else has changed?  Don't you think it's time for Invenergy to come clean about exactly what it thinks it's building now?  It's not Clean Line's Grain Belt Express.  What if landowners refuse to negotiate until they have answers?

Caveat Venditor, Missouri!