Then the TransCanada Corporation came calling.
TransCanada wanted to build part of its Keystone XL pipeline across her property and offered her $7,000 for an easement. She talked it over with the family and they agreed to turn down the offer, just as they had turned down offers from other pipeline companies over the years. The other companies simply found more willing neighbors, but TransCanada, after making a final offer to the Crawford family of $21,626, threatened to take the land under the law of eminent domain if the Crawfords didn't agree.
“I panicked a little bit,” Crawford said. “I really didn't know what it meant. I talked it over with the family and we decided we better sell it or else they would just take it and we wouldn't get anything. We didn't know. They told us the wheels were already in motion for condemnation.”
Crawford was told by TransCanada to get in touch with their “land man” and work out the terms of the easement. She wanted the company to haul away the construction debris, bury the pipe deeper and install its own gates instead of using hers. She didn't expect to get everything she asked for, but she got nothing. The next time she heard from TransCanada it was in the form of a Condemnation Petition; TransCanada was going to take the land under the law of eminent domain.
Earlier this month, after years of contentious court battles, the Texas Supreme Court gave Crawford and her small army of supporters a glimmer of renewed hope when it ordered TransCanada to respond to Crawford's appeal of the condemnation by Feb. 6. This came after a series of setbacks. The court in Lamar County ruled against the Crawford family and in August the 6th Court of Appeals in Texarkana likewise rejected the appeal.
“It doesn't mean the Supreme Court will hear the case, but it does mean that at least one justice thinks the appeal has enough merit to warrant a response from the company,” Crawford said. “The company told the court, 'We don't intend to respond unless you require us to.' The Supreme Court said, 'No, you have to turn in your homework.'”
Crawford's contention has always been that TransCanada, as a foreign company, doesn't have the right to use eminent domain as a common carrier because the pipeline transports 90 percent Canadian tar sands from Alberta and 10 percent oil from North Dakota. Since Texas oil is not part of the deal, Crawford and her lawyers contend that the pipeline violates the state's definition of a common carrier.
Under eminent domain law, the government or a corporation can take private land, even if the landowner is not willing to sell it, if the project is deemed to be for the public good or if it is made available to businesses for a fee. The company applies as a “common carrier” with the Texas Railroad Commission and is thereby granted authority to take land through eminent domain.
“A foreign corporation pumping foreign oil simply does not qualify as a common carrier under Texas law,” Crawford said. “TransCanada does not get to write its own rules.”
The U.S. Supreme Court made using eminent domain to purchase private land easier by ruling in favor of the City of New London, Conn., in a 2005 case that pitted a landowner whose land was seized (and later abandoned) against the city. The court ruled that the city had a right to take the land under the Takings Clause of the Fifth Amendment.
The northern portion of the Keystone XL pipeline is in legal limbo while the State Department mulls whether or not to grant TransCanada a permit for that leg of the pipeline. The southern portion, which has already been completed, does not cross an international border and requires no such permit. The company began work on the portion it intends to build on Crawford's property in May, finished in November and plans to start pumping oil on Jan. 22, two weeks before its response to Crawford's appeal is due at the Supreme Court.
“Ninety percent of what will eventually be coming through the pipeline is not even oil,” Crawford said. “It's diluted bitumen. It's the consistency of peanut butter and it has to be pumped at a much higher pressure. The pipeline runs under Bois D'Arc creek, which I use for irrigation. My crop insurance agent has told me I wouldn't be covered if the water got contaminated and I lost my crops ... There's a lot at stake here.”
Crawford's story has drawn attention from property rights advocates, environmentalists and others across a broad political spectrum. It's a classic David and Goliath story, and supporters across the country and some from other countries have chipped in with contributions totaling nearly $100,000. That, she said, is the only way she has been able to pursue the appeal.
“I'm humbled by all the folks who stand beside me,” she said. “I have an unbelievable reminder of the people, besides myself, who have skin in this game.”
Crawford said he has recalibrated how she thinks of winning in this case. Even if the Supreme Court refuses to hear the case or if it rules against her, she is glad the matter has been taken seriously enough to at least start the conversation about what's at stake, not just for her but for landowners who may face a similar situation in the future.
“A foreign company shouldn't be able to come in and take a Texan's land just because it wants to with no benefit to the state,” she said. “It's not an issue that's going to go away even if we don't win this case.”