Atlas Twp.- If at first you don’t succeed, try, try again.
ET Rover, the company that is proposing a natural gas pipeline currently slated to go through this township, took this popular proverb two steps further and after failing to gain permission for a land survey not once, not twice, but four times, finally succeeded in getting what they wanted? without permission.
Tammy and Bryan Merkel were both at work around 10 a.m., Sept. 29 when neighbors contacted them to let them know that surveyors were trespassing on their Gale Road property. The Merkels left work and on the way to their property, Tammy called the police. She arrived in 10 minutes to find survey trucks and private vehicles parked on the shoulder of Gale Road. She walked up to an individual in the truck and asked him if he and the other individuals had been out on her property. He had been. She asked if he surveyed the land, and he responded that he had surveyed the perimeter. She then informed him she had told ET Rover both by phone and by mail that they were not allowed to survey her property. He claimed he didn’t know and thought he was allowed to be on the property. He also said he believed the Merkels were aware that he was coming to survey.
This behavior, said Merkel, is typical of what she and her husband have seen from the land survey assessors Rover has sent repeatedly during the past month after the Rover route shifted to the north following opposition from residents and officials in Brandon Township, where the route was originally planned to follow the Enbridge oil pipeline.
‘I asked them to give me the material they collected on my property and they said they had already digitally sent it by e-mail, so now Rover has it,? said Merkel. ‘They ask your permission, you tell them no, they do it anyway and then apologize. I am working with a lawyer and continuing to communicate with FERC and it is still in process. Land owners have very little rights in this process and ET Rover has mastered how to manipulate the rules in their favor.?
While the Genesee County Sheriff’s Office deputies took a trespassing report, they did not issue a ticket because they were unable to prove the ET Rover contractor had knowledge he was not supposed to be on the property.
ET Rover announced plans earlier this year for an 800 mile pipeline ranging in size from 36 to 42 inches in diameter, transporting up to 3.25 million cubic feet of natural gas from the Marcellus and Utica shale production areas in Pennsylvania, West Virginia and Ohio.
Vicki Granado, a public relations spokesperson for ET Rover, has called the proposed route ‘a work in progress? during the pre-application filing process currently underway with the Federal Energy Regulatory Commission, which has final authority on approval or denial of the pipeline.
On Tuesday, she said potentially affected landowners have been notified several times about survey and the survey process. She also claimed that according to Michigan Compiled Law 213.54(3), the Rover survey team is permitted to go on property ‘where notification has been provided and conduct surveys under Michigan statute.?
MCL 213.54(3) states, ‘An agency or an agent or employee of an agency may enter upon property before filing an action for the purpose of making surveys, measurements, examinations, tests, soundings, and borings; taking photographs or samplings; appraising the property; conducting an environmental inspection; conducting archaeological studies pursuant to section 106 of title I of the national historic preservation act, Public Law 89-665, 16 U.S.C. 470f; or determining whether the property is suitable to take for public purposes. The entry may be made upon reasonable notice to the owner and at reasonable hours. An entry made pursuant to this subsection shall not be construed as a taking. The owner or his or her representative shall be given a reasonable opportunity to accompany the agency’s agent or employee during the entry upon the property.?
‘We have consulted with many attorneys and many sided with Rover in this particular process,? said Granado. ‘We have the right to conduct surveys and have given proper notification to landowners we are needing to survey. We would much rather do it in cooperation, that is our goal, but we do have permission from the state. They are not trespassing.?
David Lattie, attorney for Atlas Township, interprets the law differently, particularly when section four is included, which states:
?(4) If reasonable efforts to enter under subsection (3) have been obstructed or denied, the agency may commence a civil action in the circuit court in the county in which the property or any part of the property is located for an order permitting entry. The complaint shall state the facts making the entry necessary, the date on which entry is sought, and the duration and the method proposed for protecting the defendant against damage.?
‘My interpretation is that if the company has provided reasonable notice and proposed inspection at reasonable hours, but the property owner denied access in writing or in person to the company, then the company must seek a court order,? Lattie said. ‘If they sent correspondence and didn’t get a response, it seems they would be able to go on the property. If they take the position no response is not a denial, it’s a risk you run as a property owner. You should send a response denying them the opportunity…If they just show up and you don’t want them there, you can tell them no and they have to get a court order. If the company goes to court to seek an order allowing them to do a survey, I think under most circumstances that request would be granted. But it is the property owner’s right to insist on that judicial review.?
Merkel was never shown a court order by the surveyors, they just showed up to the property where she and her husband were planning to have their dream home built this fall.
Now they are hoping others will join them in the fight against the pipeline in this community. The Atlas Township Board unanimously passed on Sept. 15 two resolutions opposing the pipeline, citing various safety and environmental concerns; a decrease in property values; lack of benefit to Michigan residents; and lack of necessity for the pipeline based on abandonment of another pipeline just seven months prior to applying for a new one (the old one was sold to Enbridge for a petroleum pipeline). Township Supervisor Shirley Kautman-Jones said she is trying to organize opposition, but no meeting date has been set.
‘It’s very difficult for any one individual person to fight Rover,? noted Merkel. ‘At the end of the day, if we don’t rally together as a community, it will be hard to move this proposed route. I know Shirley is working on getting experts to give guidance. We have to get organized, it’s difficult for any one person to do something against a company manipulating the game in their favor. They have a lot of practice and none of us do.?
Comments opposing Rover’s proposed pipeline can be filed at ferc.org, search docket PF14-14.