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Judge rules no eminent domain for pipeline

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By Forrest Berkshire, Landmark News Service

The Bluegrass Pipeline does not have standing to take property owners’ land, nor can it or its land agents threaten landowners with eminent domain, according to a ruling in Franklin Circuit Court Tuesday.

“Bluegrass cannot invoke the soverign power of eminent domain to threaten or intimidate, or even suggest to landowners who have no desire to sell, that Bluegrass has the right to take their property without their consent,” Franklin Circuit Court Judge Phillip J. Shepherd wrote in his summary judgment against the pipeline.

Shepherd rendered his summary judgment Tuesday in the case Kentuckians United to Restrain Eminent Domain Inc. vs. Bluegrass Pipeline Company LLC, which was filed Dec. 5 in Frankfort.

Tom FizGerald, director of the Kentucky Resources Council, who represented KURED in its case, said Tuesday’s decision was a victory for more than just the plaintiffs.

“It’s a good day for the Kentucky Constitution,” he said. “It’s a good day for Kentucky landowners.”

FitzGerald said the ruling levels the playing field for the little guy.

“The ruling ends a significant amount of uncertainty that put landowners at a real disadvantage,” he said.

FitzGerald said he had heard from many landowners who were concerned that if they did not accept the company’s terms, they would have their land taken through eminent domain.

Some landowners have claimed land agents have used that threat to coerce them into selling, claims the company denies.

Shepherd’s ruling alluded to one such claim by Penny Greathouse, who is also on the board of KURED.

“Ms. Greathouse has been approached on four separate occasions by representatives from Bluegrass attempting to obtain voluntary easement through her property for the proposed pipeline,” he wrote. “She has been told by the company that it possesses the power of eminent domain under Kentucky law but prefers not to exercise it.”

Bluegrass Pipeline released a short statement after Wednesday’s ruling vowing to appeal the case.

“While we disagree with today’s ruling by the Franklin Circuit Court and plan to immediately appeal the decision, we continue to purchase easements through face-to-face negotiations with individual landowners, a successful process whereby we’ve acquired nearly 70 percent of the route needed in Kentucky,” Bluegrass spokesman Tom Droege wrote in a statement to the Standard.

The basis of Shepherd’s ruling was that the pipeline was not in the interest of the common good, a key requirement for the exercise of condemnation through eminent domain to take someone’s property.

Shepherd ruled the company was attempting to “circumvent the statutory protections for landowners” while at the same time not “subjecting itself to the responsibilities, duties and regulatory oversight” utilities must abide by.

“Bluegrass is a private, for-profit, unregulated entity engaging in the interstate transport of (natural gas liquids),” Shepherd wrote. “It is not acting ‘in the public service.’ ”

FitzGerald said Tuesday’s ruling showed the power of movements against moneyed interests, and credited activists for their hard work.

“I’m very proud of our grassroots citizens who have been working on this,” FitzGerald said.