Nora G. Hertel

USA TODAY NETWORK-Wisconsin

WAUSAU - James Botsford got his first call from Enbridge Energy Co. around dinner time in April 2013, when a company representative announced "great news" — Botsford's property in North Dakota was in the proposed path of an oil pipeline.

Botsford and his wife Krista Botsford, who have lived in Wausau for 25 years, did not welcome the news. They don't want the so-called Sandpiper Pipeline running through their land, no matter the compensation, because they're concerned about climate change and the impact of fossil fuel use on the environment.

Fights over oil pipelines have become a locus of environmental activism, seen nationally in the debate over the Keystone XL pipeline, which was designed to stretch from Canada to Texas and was nixed by Pres. Barack Obama last year. Smaller lines in the Midwest, like the Sandpiper, have stirred opposition in the Dakotas, Minnesota and Wisconsin.

After that first phone call in 2013, Enbridge mailed increasingly higher offers to pass through the Botsford's North Dakota land. The final offer was near $50,000 and Enbridge wanted the agreement to last 99 years, James Botsford said. But the couple kept refusing.

So Enbridge's subsidiary, North Dakota Pipeline Co., sued them, saying the state had granted the company eminent domain for the pipeline, which is slated to extend 616 miles from western North Dakota to western Wisconsin. Eminent domain allows governments to take private land for public use, so long as the land owner is fairly compensated.

That kicked off a legal battle that pits the Wausau couple against the corporate giant in a case already headed to the North Dakota Supreme Court and perhaps beyond. It has attracted environmentalists and lawmakers interested in what the case could mean for the oil industry and our natural resources.

"We don't intend to give up," Botsford said. "Enbridge has tried to intimidate us. Those intimidation efforts have had the opposite effect."

The Botsfords' property is on the eastern edge of North Dakota and possibly the last the company needs to secure that state's portion of the Sandpiper line.

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Enbridge, a gas and oil transportation company based in Canada with 11,000 employees throughout the U.S. and Canada, won the first legal dispute with some concessions, James Botsford said. But both sides appealed that decision and the North Dakota Supreme Court will take up the case later this month.

Supporters of Enbridge pipelines say they create jobs and transport oil more safely than railroads. The Sandpiper Pipeline is intended to transport North Dakota oil, according to court records.

"The pipeline will provide substantial and direct benefits to North Dakota residents," those records say. "North Dakota residents have a legally guaranteed right to conduct oil in the pipeline."

But the Botsfords are not alone in their opposition to new pipelines and expansions. Environmental advocates and Native American tribes throughout the Midwest have been rallying against the Sandpiper Pipeline and others proposed in the region.

During the statewide debate on a proposed iron ore mine in northern Wisconsin, the Botsfords hosted a meeting for anti-mine activists in their Wausau cabin. The couple live in a stretch of land in the town of Wausau with sheep, a creek, a lush garden and a log cabin beyond their house.

James Botsford is a retired Indian rights attorney. He serves as a Winnebago Tribe of Nebraska Supreme Court judge and is writing his fourth book. Krista Botsford was a physician assistant in the Marshfield Clinic system. She's retired and weaves and makes pottery. They're both 67.

The Botsfords hope others who share their green philosophy will jump into the fray. They are raising funds for their legal costs this weekend in Wausau, costs that could reach $125,000 by the time they're done in the state Supreme Court and would keep increasing if the case moved on to the U.S. Supreme Court.

'Good stewards of the land'

The legal battle revolves around about a square half mile of land near Grand Forks, N.D. It's been in the Botsford family since roughly 1980, and it's currently leased to a neighboring farmer. It's home to some wetlands too.

"We do feel a responsibility to be good stewards of this land," James Botsford said. He and Krista Botsford exclude oil companies from their stock portfolios and support a move to more sustainable energy sources.

"We're not zealots. We drive cars and tractors," James Botsford said. "We didn't want to contribute to the extreme extraction of the last drops of fossil fuel."

Most of the landowners in the North Dakota portion of the Sandpiper Pipeline agreed to let Enbridge through. The company has negotiated easements with 95 percent of the landowners on the Sandpiper route, said Lorraine Little, senior manager of U.S. public affairs, liquids operations and projects for Enbridge.

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"Enbridge has built relationships with thousands of landowners during our 65-year history," Little wrote in an email. "Our goal is to make every reasonable attempt to work with landowners."

The Botsfords don't want to work with Enbridge. They want the pipeline to circumvent their land. They're concerned about oil spills such as when an Enbridge line ruptured in Marshall, Mich., in 2010, spilling into the Kalamazoo River and connected wetlands.

The company has since spent $5 billion to make its lines more reliable and tripled its safety-related staffing, Little said.

"Since the Marshall incident, Enbridge has made foundational changes that make our operations safer and better," Little told USA TODAY NETWORK-Wisconsin. "Our company undertook a massive effort to inspect all of our pipeline systems enterprise-wide, not just those in Michigan."

The legal battle

Spills and climate change will not come up in the Enbridge-Botsford legal dispute. The Botsfords' appeal will revolve around the limits of eminent domain — governments' right to take private land for public use.

A 2005 U.S. Supreme Court decision ruled 5 to 4 that governments can extend the right of eminent domain to private redevelopment efforts.

"Occasionally, private property must be acquired for projects that benefit the community as a whole, such as the construction of roads or public utilities," states a 2015 fact sheet from the North Dakota attorney general. "When a landowner refuses to sell property needed to allow the project to proceed, the eminent domain process may be initiated."

Botsford believes the North Dakota officials exceeded the Supreme Court's intentions by granting use of eminent domain entirely to a private company. His North Dakota-based attorney has made that argument in legal briefs.

North Dakota Pipeline Co., on the other hand, argues that the Sandpiper project meets the requirements for eminent domain and wants the court to reconsider the amount the oil distributor has to pay the Botsfords for attorney fees.

The judge ruled Enbridge owed the Botsfords about $12,000 for use of their land and about $45,000 for attorney costs and fees.

On Thursday Enbridge announced it will delay Sandpiper Pipeline plans until 2019. Enbridge is also pursing the Bakken Pipeline System that includes the Dakota Access Pipeline, running from North Dakota to South Dakota, Iowa and Illinois.

Environmentalists, farmers and state regulators in Minnesota have complicated Enbridge's establishment of the Sandpiper Pipeline in that state, Botsford said.

That type of opposition doesn't exist in North Dakota, which experienced an oil boom that has only recently begun to wane as global oil prices have fallen.

"It's really lonely fighting this in North Dakota," Botsford said. "The deck is really stacked against us over there. Everyone is really pro-oil."

The results of the case could ripple out to be referenced in similar turf wars in other states. It could return to a lower court in South Dakota or head to the U.S. Supreme Court.

Before this all began, the couple was looking forward to their retirements. He's been writing a book of "essays with attitude," and she has her art projects, Botsford said.

He would like to focus on his book. But the two will continue to fight until they've exhausted every legal option.

Nora G. Hertel: nora.hertel@gannettwisconsin.com or 715-845-0665; on Twitter @nghertel.

Raising funds

The Botsfords are holding their legal defense fundraiser at Basil restaurant at 2106 Schofield Ave. in Weston this weekend. Speakers will talk about pipelines in Wisconsin.

The event runs from 1:30 to 3 p.m. Sunday. It's open to the public.

In the last year the Botsfords have raised more than $8,000 toward their legal bills through Go Fund Me: https://www.gofundme.com/enbridge-sued-us.