North Dakota holdout landowner refusing to sell rights for Sandpiper oil pipeline

The calls often came around dinner time. James and Krista Botsford were typically sitting down to eat in their Wausau, Wis., home when someone representing the proposed Sandpiper oil pipeline would ring with offers to buy rights to a swath of the Botsfords' farmland west of Grand Forks, N.D.

The calls were usually followed by a written offer delivered to their door.

North Dakota Pipeline Co., a joint venture between Enbridge Energy and a subsidiary of Marathon Petroleum Corp., wants to run the proposed $2.6 billion line through the Botsfords' land to deliver oil from the Bakken to Superior, Wis., where it will be shipped to points east.

With each phone call, the amount of money offered escalated, from about $25,000 to about $50,000, James Botsford said.

But the Botsfords decided long ago that society should move away from oil dependency and toward renewable resources. It didn't matter how much the company would offer; in their minds, no money was enough to compromise those values.

"I said, 'Look, we're just not going to sign, so why don't you just go around us?' " James Botsford recalled.

Instead, the company sued, citing its rights to the land under North Dakota's eminent domain law, giving them power to condemn land for a right of way.

Of 799 landowners in the state, the Botsfords' case is the only one the company expects to go to court, Enbridge spokeswoman Lorraine Little said.

"Using eminent domain is always a last resort," Little said. "We strive to reach amicable agreements with all of the landowners along our pipelines."

She declined to comment on specific litigation.

The Botsfords hope to not only stop the pipeline from crossing the Grand Forks County land inherited from his father, but also to raise the issue of whether eminent domain should be used for what they view as private wealth, not public good. They are gearing up for an August court battle, with well-known pipeline opponents including some American Indian activists expected to show their support, James Botsford said.

"We're not zealots. We drive cars and so forth," he said. "But when life presents you with an opportunity to take a stand, we felt compelled to take that stand."

Pipeline advocates argue that transporting oil underground is safer than shipping by rail, which is how North Dakota now moves most of its crude oil, including through highly populated areas. About 75 percent of the proposed Sandpiper route will follow existing pipelines and other utility rights of way.

Opponents argue that pipelines can still pose environmental hazards with leaks and spills. Last week, a pipeline run by Plains All American Pipeline ruptured in California, spilling up to 101,000 gallons of oil.

Enbridge, which will operate Sandpiper, had a pipeline rupture in Michigan in 2010 that spilled 840,000 gallons of crude oil into waterways. The company has invested $4 billion in pipeline safety since then, its chief executive said earlier this year.

Little said the company has completed more than 95 percent of the easement agreements it needs with private landowners along the 610-mile Sandpiper route through North Dakota and Minnesota.

Typically, they seek a 25-foot buffer on each side of the pipeline, she said. Farmers would still be able to farm the land over the pipeline, but wouldn't be allowed to build structures or plant trees on the right of way. "We're basically purchasing an agreement to cross that property," Little said.

A spokeswoman at the North Dakota attorney general's office said officials there are prohibited from interpreting the state's eminent domain statute for members of the public or private businesses. A pamphlet on the office website says that eminent domain — also called "condemnation proceedings" — can be used only for projects that have a public use or public purpose, though the law does not require the project be for actual use by the general public.

Private property cannot be taken for economic development projects nor "for the benefit of a private individual or entity except as necessary for conducting a common carrier (such as telecommunications) or utility business," the pamphlet says.

James Botsford said North Dakota officials are giving Enbridge condemnation power by viewing the pipeline as a public utility.

The company claims in its lawsuit that, "the Sandpiper Pipeline will provide a substantial and direct advantage and benefit to the state of North Dakota and its citizens."

But the Botsfords argue that an oil pipeline to move a private company's product shouldn't qualify for eminent domain.

"Unlike a rural water line system or a rural electrification project that would provide services to the properties it traverses, in this case there would be no service provided to any property owners," James Botsford wrote in an essay about the case. The couple is also questioning the market's need for additional pipelines at all.

The regulatory process on the proposed Sandpiper line isn't as far along in Minnesota, where an administrative law judge in April endorsed the line's proposed route through the northern part of the state, including through a region covered with wetlands and lakes. The judge concluded that the proposed route "does the best job of minimizing potential impacts to human populations and environmental resources." The project still faces a separate Minnesota Public Utilities Commission review, however, a process expected to take months.

In North Dakota, the pipeline company filed six condemnation cases, but is negotiating with the landowners and expects to resolve all but the Botsfords' case, Little said.

Botsford, a retired Indian law attorney, wants his 160-acre parcel of land to be passed down as a legacy through generations in his family.

He has fond memories of childhood days spent in the area learning to drive trucks and tractors, he said. Now he rents part of the land to a local farmer; part of it is in a federal conservation program.

There is an old natural gas line through the adjacent property, which he also owns, he said. He and his wife see no need to keep "trying to suck the last oil out of the Earth" when people could work instead toward more sustainable energy.

"I don't want [it] on my conscience that I rolled over and took Enbridge's money and gave them permission to run this pipeline across our land when I feel it's a mistake," James Botsford said.

The pipeline company filed the suit last July. The case is scheduled for trial in Grand Forks County on Aug. 11. James Botsford said he will not settle.

"It's rather daunting and it's most certainly expensive and it's quite time consuming, too," he said. "But … I don't feel I have an alternative I could live with."

Pam Louwagie • 612-673-7102