Eminent Domain

01 Dec

You may not have noticed, but we are losing a lot of property – both public and private – to both the military and to private corporations.  Cities are selling what used to be public resources to private companies for what amounts at times to pennies on the dollar.  The private corporations then make profits for themselves at the expense of the taxpayers, who also lose along the way the right to any discussion on the amount of fees collected or the intended usage and management of the resource.  Banks collect foreclosed homes daily, although what they will do with all these properties is an interesting question.  Right now, millions of them sit growing mold from lack of electricity and upkeep after the homeowners have been forced out.  Perhaps they will be left to crumble to the ground – ground the banks now also own and which will perhaps eventually sold to Saudi Arabia or China.  The government takes over more and more property to use as military sites, as they did recently in Hawaii, forever altering the sacred site at Mauna Kea. (Mauna Kea, the most sacred site to the native Hawaiians, has largely been turned into an air base with Osprey and Chinook helicopters constantly zooming in and out, and a live firing range located on its flanks.)  Our national parks and wild lands, which are supposedly held in trust for the people by the government, are instead being leased out to oil and gas companies who tear up the land, poison the water with their mining procedures and pollute the air at alarming rates.  I am pretty sure the Native Americans glommed onto all this quite some time ago, and luckily for us white people, they still lead the fight on the issue of land grab.  As I noted in an earlier post, the US military would like a piece of land larger than some of our states for a drone base.

Now, Congress would like to take over public and private land to create a massive, state-sized drone base and training/testing area in Colorado.  Air space above the land base would bleed out to include 60 million acres of airspace over both Colorado and New Mexico.

…Under this plan, 7 million acres (or 11,000 square miles) of land in the southeast corner of Colorado, and 60 million acres of air space (or 94,000 square miles) over Colorado and New Mexico would be given over to special forces testing and training in the use of remote-controlled flying murder machines. The full state of Colorado is itself 104,000 square miles. Rhode Island is 1,000 square miles.

The U.S. military (including Army, Navy, Air Force, and Marines) is proceeding with this plan in violation of the public will, new state legislation on private property rights, an exceptionally strong federal court order, and a funding ban passed by the United States Congress, and in the absence of any approved Environmental Impact Statement. Public pressure has successfully put the law on the right side of this issue, and the military is disregarding the law….

Not1moreacre is sistered with the Purgatoire, Apishapa, and Comanche Grasslands Trust to work on this specific issue.  They have managed to hold the hostile take-over of these lands at bay for now, but the plans to commandeer this land have been in the works for a long time, most vigorously pursued since 9/11…

The definition of eminent domain is given as:
“eminent domain n. the power of a governmental entity (Federal, state, county or city government, school district, hospital district or other agencies) to take private real estate for public use, with or without the permission of the owner. The Fifth Amendment to the Constitution provides that ‘private property [may not] be taken for public use without just compensation.’ The Fourteenth Amendment added the requirement of just compensation to state and local government takings. The usual process includes passage of a resolution by the acquiring agency to take the property (condemnation), including a declaration of public need, followed by an appraisal, an offer, and then negotiation. If the owner is not satisfied, he/she may sue the governmental agency for a court’s determination of just compensation. The government, however, becomes owner while a trial is pending, if the amount of the offer is deposited in a trust account. Public uses include schools, streets and highways, parks, airports, dams, reservoirs, redevelopment, public housing, hospitals and public buildings.”  – from

George W. Bush set some limits on the taking of private property.

On June 23, 2006, President George W. Bush issued Executive Order 13406 which stated in Section I that the federal government must limit its use of taking private property for “public use” with “just compensation”, which is also stated in the constitution, for the “purpose of benefiting the general public.” The order limits this use by stating that it may not be used “for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken“. However, eminent domain is more often exercised by local and state governments, albeit often with funds obtained from the federal government.

– wikipedia, on eminent domain

President Obama recently declared he would wait until 2012 to decide on the fate of the Keystone XL pipeline, which will come from Canada, cross the US, and end up at the Gulf of Mexico.  For some reason, his announcement that he would postpone the decision was heralded as a “victory” by many liberals and progressives.  Strange sort of victory.  He isn’t making any concrete statements one way or another right now and there is no reason to think he will oppose the pipeline a year from now.  Let’s remember that this is the same guy who fast-tracked new deepwater drilling operations in the Gulf after the BP oil spill and did the same for new nuclear facilities here in the US while the Fukushima disaster still continues to unfold.  He may be forced by Republicans into promising opposition to the pipeline during the primary season, but I am hard pressed to think of any promise he has kept to date.  If he wins the next election, he’ll simply renege on the “promise”.  If he loses, the decision is up to whatever Republican wins – and that person will approve the pipeline as quickly as possible.  It is interesting how the politicians who want this pipeline talk about how it will “secure our energy independence”.  They know, although most of your average American citizens seem not to, that the pipeline merely carries the crude down to the Texas refineries for the private companies to sell on the open market.  It won’t end up in your car unless the US bids highest on it.  The oil does not belong to the US just because we are willing to tear up our land and risk poisoning our waterways to build the damn pipeline.

In the meantime, TransCanada, the owner of the proposed pipeline (not an American company, as you might surmise by the name) is already trying to force landowners into giving up their properties by threatening the force of “eminent domain”.

NYT, 17 Oct, 2011:

A Canadian company has been threatening to confiscate private land from South Dakota to the Gulf of Mexico, and is already suing many who have refused to allow the Keystone XL pipeline on their property even though the controversial project has yet to receive federal approval.

By its own count, the company currently has 34 eminent domain actions against landowners in Texas and an additional 22 in South Dakota.

In addition to enraging those along the proposed pipeline’s 1,700-mile path, the tactics have many people questioning whether a foreign company can pressure landowners without a permit from the State Department — the agency charged with determining whether the project is in the “national interest.” …

Eminent domain laws generally allow for the confiscation of private property if taking it is judged to serve a larger public good. These kinds of laws differ slightly from state to state as do the processes by which pipelines are approved and licensed. As a result, there is both debate and confusion over whether TransCanada has the right to use the courts to demand easements from property owners in advance of final approval for the project…

While it is impossible to say how many cases are working their way through the legal system, in addition to the 56 Texas and South Dakota cases, TransCanada acknowledges it has sent “Dear Owner” letters to dozens of families in Nebraska.  Timothy Sandefur, a lawyer with the Pacific Legal Foundation, a nonprofit advocate for property rights issues, said that if the project is approved, the company will be on firmer ground. As unfair as the laws might seem, he said, the right of way of pipelines and railroads as public goods has been well established, regardless of whether they are foreign-owned. “Property owners almost never win these suits,” he said…

Supporters of Keystone XL argue it will help bolster domestic energy security and spur job growth. But many politicians, particularly in Nebraska, oppose much of the pipeline’s route because they say it poses a danger to the Ogallala Aquifer, which provides more than a quarter of the water for the country’s agricultural crops.Environmental groups argue that extracting and burning the heavy crude drawn from Alberta’s oil sands will increase greenhouse gas emissions. They also warn that if there is a spill or a leak, it would cause severe environmental damage and be extremely hard to clean up.

James Camaron, maker of the movie “Avatar”, was recently taken on an aerial tour of the Alberta tar sands area in Canada.

From Time magazine 22 Nov, 2011:

…Alberta’s oil sands…represent an enormously valuable resource for Canada and the U.S. Canada is already the biggest exporter of oil to the U.S., and the nearly 200 billion bbl. of oil available in the Albertan sands could make Canada richer and help shift the U.S. away from its politically problematic dependence on Middle Eastern oil. But nothing comes easy, and oil-sands development can be devastating to the environment, leading to water and air pollution and scarring the land for decades…

Cameron, a native of Ontario, had an opportunity to get both sides of the story. Accompanied by a few nervous energy executives, he toured a handful of the major oil-sands sites near the Albertan boomtown of Fort McMurray. Even with friendly experts touting all that the energy companies had done to clean up the oil-sands developments, there’s no avoiding just how extensively industry has altered the land. The first generation of Albertan oil-sands development involved open-pit mining, and there are still vast chunks carved out of what was once forest, though some exhausted sites are being reclaimed. The story was a little different at newer developments that employed a process called in situ mining. Instead of digging the sands from the surface, in situ involves injecting steam deep into the ground, which heats the sands into a viscous liquid and allows them to be pumped to the surface like conventional oil. The result is cleaner on the surface — less deforestation, less pollution…But in situ has its own drawbacks. Lots of natural gas is needed to generate all that steam, and the carbon footprint from a barrelful of oil sands can be significantly higher than with conventional oil. That worries Cameron. “We’re not talking about a millennial scale for climate change now,” he says. “We’re talking decades” — and oil sands might speed up that catastrophe…

For the indigenous people of Alberta, the catastrophe is hitting now. In the tiny, isolated village of Fort Chipewyan, downstream from the massive oil-sands mines, community members packed a town hall to see Cameron. They told stories of water pollution from the mines’ tailings ponds, higher cancer rates and early deaths… But the oil sands aren’t going away. There are plans to build a huge new pipeline to the U.S., cementing the oil sands’ role in American energy. In Alberta, for now at least, the machines will keep rolling, the oil will keep flowing, and not even the creator of the Terminator is likely to stop it.
Read more:,9171,2030904,00.html#ixzz1fHgL91qv

Tomorrow, Friday Dec. 2, tribal leaders from the US and Canada have a meeting with Obama.  They will discuss the pipeline and present him with the Mother Earth Accord.

“This Friday, tribal leaders from across the continent will meet for their third summit with the president in Washington, and one of the prime items on the agenda will be the fight against the Keystone Pipeline. They’ll talk about the way both the pipeline and the process of approving it have violated treaties, and they’ll present the president with a copy of the Mother Earth Accord adopted in a special meeting at the Rosebud reservation a few weeks ago. It’s a strong document, full of details about the impacts of tar sands mining and pipeline leaks and carbon emissions — but it also speaks with the real power of the people who’ve lived longest and best on this continent. Indeed, it begins by affirming that ‘the earth is our true mother, our grandmother who gives birth to us and maintains all life.’ ”    –

The Mother Earth Accord, in full.  I realize that this is rather long, but the whole paper should be read:

Mother Earth Accord
September 2011

Tribal Government Chairs and Presidents, Traditional Treaty Councils, and US property owners, with First Nation Chiefs of Canada, impacted by TransCanada’s proposed Keystone XL tar sands pipeline and tar sands development present at the Rosebud Sioux Tribe Emergency Summit, September 15-16, 2011, on the protection of Mother Earth and Treaty Territories:

Recognizing that TransCanada’s proposed Keystone XL pipeline would stretch 1,980 miles, from Hardisty, Alberta, Canada to Nederland, Texas, carrying up to 900,000 barrels per day of tar sands crude oil, which would drive additional tar sands production;

Recognizing the existing resolutions and letters in opposition to the Keystone XL pipeline;

Guided by the principles of traditional indigenous knowledge, spiritual values, and respectful use of the land;

Affirming our responsibility to protect and preserve for our descendants, the inherent sovereign rights of our Indigenous Nations, the rights of property owners, and all inherent human rights;

Affirming our Indigenous view that the Earth is our true mother, our grandmother who gives birth to us and maintains all life;

Recognizing that the tar sands in northern Alberta, Canada is one of the largest remaining deposits of unconventional oil in the world, containing approximately 2 trillion barrels, and there are plans for a massive expansion of development that would ultimately destroy an area larger than the state of Florida;

Recognizing that tar sand development has devastating impacts to Mother Earth and her inhabitants and perpetuates the crippling addiction to oil of the United States and Canada;

Recalling in September 2010, the Assembly of First Nations of Canada called on the United States government to take into account the environmental impacts of tar sands production on First Nations in its energy policy, citing the high rates of cancer in the downstream Fort Chipewyan community, which prominent scientists say are potentially linked to petroleum products;

Recognizing the findings published in the Proceedings of the National Academy of Sciences that tar sands production releases 13 elements considered priority pollutants under the U.S. Clean Water Act, including lead, mercury, and arsenic into the Athabasca River in northern Alberta, which flows 3,000 miles downstream to the Arctic Ocean;

Recognizing that tar sands production produces three times the greenhouse gas emissions of conventional oil and NASA climate scientist James Hansen has said that if the tar sands are fully developed, it will be “essentially game over” for the climate;

Recognizing that Canada’s greenhouse gas emissions from tar sands development have more than doubled since 1990, which is the main reason Canada is failing to meet its greenhouse gas emissions reduction targets under the Kyoto Protocol;

Concerned that Indigenous people are most vulnerable to the social, cultural, spiritual, and environmental impacts of climate change;

Recognizing that Exxon-Imperial and ConocoPhillips Heavy Haul shipments are attempting to haul more than 200 oversized loads of heavy oil machinery from the Port of Lewiston, Idaho along Highway 12 into Montana, then north to the tar sands project in Alberta, Canada;

Concerned that tar sands crude oil is more toxic, corrosive, and abrasive than conventional crude oil and poses additional pipeline safety risks that have not been fully assessed by the U.S. Department of State in its final Environmental Impact Statement for the Keystone XL pipeline, issued August 26, 2011;

Recalling that TransCanada’s year-old Keystone pipeline, from Manitoba, Canada to Patoka, Illinois and Cushing Oklahoma, has had 14 spills in the U.S. portion since it started operation in June 2010, and was temporarily shut down by regulators in late May, 2011;

Recognizing TransCanada’s extremely poor safety record for the Keystone pipeline, it is probable that the Keystone XL pipeline will have frequent spills because it will have similar design specifications;

Concerned that oil spills from the Keystone XL pipeline would destroy live-sustaining water resources, including the Ogallala Aquifer, which provides drinking water for millions of people and farmland irrigation throughout the Midwestern United States;

Concerned that construction of the Keystone XL pipeline will impact sacred sites and ancestral burial grounds, and treaty rights throughout traditional territories, without adequate consultation on these impacts;

Concerned that the Keystone XL pipeline would increase air pollution in the communities surrounding the refineries that the pipeline would service where people of color, Indigenous peoples, and poor people are already experiencing high rates of cancer and respiratory illness;

Recalling that TransCanada’s permit application to the Canadian government for the Keystone XL pipeline said it will increase oil prices in the United States by $4 billion per year;

Acknowledging that the Keystone XL pipeline is not designed to provide the United States with energy security and that industry documents indicate Gulf Coast refineries operate in a free trade zone and plan to refine tar sands oil into petroleum products that are intended for export overseas;

Therefore, we are united on this Mother Earth Accord, which is effective immediately, that it be resolved as follows:

We support and encourage a moratorium on tar sands development;

We insist on full consultation under the principles of “free, prior and informed consent,” from the United Nations Declaration on the Rights of Indigenous Peoples both in the United States and Canada;

We urge regional authorities to halt the Exxon-Imperial and ConocoPhillips Heavy Haul shipments of tar sands equipment through the United States and Canada;

We urge the United States and Canada to reduce their reliance on oil, including tar sands, and invest in the research and development of cleaner, safer forms of sustainable energy and transportation solutions, including smart growth, fuel efficiency, next-generation biofuels and electric vehicles powered by solar and wind energy.

We strongly believe that the proposed Keystone XL tar sands pipeline is not in the national interest of the United States or Canada; and

We urge President Obama and Secretary of State Clinton to reject the Presidential Permit for the Keystone XL pipeline.

I will offer this quote (again):
“They made us many promises, more than I can remember, but they never kept but one; they promised to take our land, and they took it.” 

– Red Cloud (Mahpiya Luta), Oglala Lakota Chief


Update:  Received from CredoAction Sat., 3 Dec.:

President Obama may have delayed his decision on the pipeline, but Republicans have redoubled their efforts, and could be dangerously close to forcing its approval.
House Republicans said Friday that they are planning to push a bill to force a decision on the pipeline and strip the President’s authority to make that decision. Worse, they will attach this bill to the President’s payroll-tax and unemployment benefit extension package — considered a must-pass piece of legislation that contains crucial help for our long-term unemployed.
According to Politico’s reporting of the closed-door meeting of House Republicans:
Speaker John Boehner referred to the package he’s putting forward as turning “chicken-sh — into chicken salad,” according to people who attended the meeting in the Capitol basement.
Translation: He’s going to pass President Barack Obama’s preferred tax cut, but he wants some skin from Democrats for it.
That skin is the Keystone XL pipeline. The House bill would take Keystone XL decision making authority away from the President and State Department and force the Federal Energy Regulatory Commission (FERC) to make a decision in 30 days, substantially restricting FERC’s discretion to reject the project in the process.
The current review process by the State Department has been restarted to evaluate a new route in Nebraska, and unlike FERC, will notably consider the climate change impacts of the project, an area that wasn’t taken into account in the State Department’s initial sham process.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: