Theresa Red Terry, Washington Post Picture

Theresa Red Terry and her adult daughter have lived on platforms thirty-two feet up in trees on their property for the past three weeks. They have faced rough late spring weather, and a rapidly diminishing food supply, in an attempt to stop the Mountain Valley Pipeline from destroying their land on Bent Mountain in Roanoke County, Virginia. Virginia law enforcement waits at the base of the trees to make sure sympathizers don’t re-supply them. At night the base of the trees are lit up with spotlights. Their efforts have held off construction and caused the pipeline unwanted local and national publicity and embarrassment.

The most important asset the gas companies have in dealing with these situations is what I call the “This is America argument.” Most people who read about these cases may feel an emotional tug for Red and the Terry family but will assume the easements for the gas line were obtained through due process with all reasonable environmental considerations, and the affected landowners will be paid for their losses.

I’ve personally dealt with Eminent Domain quite a bit — Fox News called my property the most condemned in the country — and I’ve had neighbors tell me how lucky I was, assuming I’m going to be paid far more for the land than it could ever be worth. I saw the cost projections for the gas line going through my farm buried in piles of meaningless documents used to conceal the important information at the local public library, a depository the gas company used to meet their legal obligations for disclosure. Their intention was to pay more for surveying than damage to landowners.

Due process for practical purposes doesn’t exist. The possibility of opposing or appealing a Federal Energy Regulatory Commission (FERC) decision to permit a pipeline is illusion. The project doesn’t have to be fair or make economic or environmental sense. The gas company asks for a permit. It’s granted. A position at FERC is a plum for energy company insiders. Their practical role is that of apologists and publicists for the oil companies. FERC refuses to act on documented violations of state and environmental law, and the Commonwealth of Virginia is no better.

Where the gas line crossed my farm it went under the New River, they had a massive spill of pollutants in the New River. The Director of Natural Resources for the state went on television to deny it happened. I was right behind him with proof it did. A massive fish kill was always a possibility. In the pile of papers in the public library, I found an agreement between Tennessee Natural Gas and the Virginia Game & Inland fisheries which stated that in the event of a fish kill the gas company would count the fish and pay the VDG&IF a dollar a fish.

An appeal to stop a project through the Federal Court system is prohibitively expensive for a landowner and futile as well. The 4th DC Circuit has a history of refusing to hear the cases, despite massive documentation of activity outside of the realm of the issued permits and the law. The Federal Courts have seen it as their duty to shield the gas companies.

Based on the 1938 Gas Act, which first gave the gas companies the privilege of Eminent Domain, there should be no standoff between the Terry family and the gas companies. According to that law, the land had to be legally acquired and all claims settled in court before the gas companies could proceed. Entities like the highway departments by statue have what is called Quick Take. In other words, the project proceeds even through the land acquisition cases may linger for years in the courts. If the U.S. Congress believed the gas companies deserved Quick Take, it would have been written into the act.

The courts decided the gas companies needed Quick Take and gave it to them, which is not their proper function. Their only role in changing a law is whether a law meets a Constitutional test, not whether they decide unilaterally one party needs something the legislature didn’t see fit to give them. In a famous exchange between the 9th Federal Circuit and Property Rights Attorney Leo Canter, the Court told him, “The Fifth Amendment” — which has the Taking clause that demands fair compensation to property owners — “speaks to our idealism. We wouldn’t dream of actually upholding it.”

What’s going to happen to Red Terry and her daughter? The Commonwealth of Virginia is going to go as far as they dare to make an example of them. Aside from the health risks from exposure to the elements, they face prosecution for trespassing. In Virginia, that doesn’t necessarily mean a token fine. It can be a year in jail and a $2500 fine. There is also the strong possibility the gas company will sue for the cost of the delay. If that suit is successful, the Terry family will almost certainly lose all of their property. Even if they successfully defend against it, legal expenses could be enough to cause them to lose their property anyway. In a war of attrition and resources between a giant corporate and a family, the family will lose.

You may say, “the law is the law. They violated it.” The hard lesson I had to learn when dealing with condemning authorities is that there is no obligation on the executive branch of the government, which constitutes the Governor, the environmental agencies, the Virginia State Police, and the local Sheriff’s department to enforce the law. I’ve presented enormous evidence, mostly photographic, to FERC, state government, and local law enforcement officials of violations of the law, everything from trespassing to minor and major property damage, or even life-threatening situations. Several times, I’ve had rocks big enough to kill me fall around me from the unrestrained blasting. The state and federal agencies refused to investigate, accepting the gas line’s assertion it didn’t happen.

Gas lines are a federal project and enforcement of the laws concerning them a matter for the federal courts and their agents. The Virginia State Police on the Terry property are there strictly at the courtesy of the Governor of Virginia, and the local Sheriff’s department is present at the option of the local sheriff. A Federal agency cannot direct them to enforce those laws. The problem is that no one can sit in the Governor’s mansion without oil company money. If the Governor ignores the gas companies in their time of need, his political career is over. Lest someone read this and think I’m advocating partisan politics, Republicans in the Governor’s office have always used the resources of the state government just as rigorously to support the interests of the gas companies.

It’s time to pay our debt to the Terry family. They’ve put the light on injustices most people don’t know about. The average Virginian doesn’t know that over two hundred agencies in the state hold the power of Eminent Domain — and most other states aren’t that much better. Every act of condemnation doesn’t occur only because your property is in line with a power line or a highway. Property can be seized merely to teach a citizen a lesson. The only stricture being that an agency wants it. A mayor of Pittsburgh once called Eminent Domain the great equalizer.

Most people believe that in Virginia you have the right to own property. That belief is why our property has value. A square foot of land in Virginia won’t inherently produce more than an equal square foot in Russia or China or Argentina, it’s only worth more because of the traditions of freedom the people believe its ownership conveys. For practical purposes, those freedoms are not nearly so protected as most of us imagine. Your property or your rights within that property are subject to government whim, and when the government takes or restricts those rights, and refuses to pay the value of what they take, how much security does your property offer then?

Condemning authorities believe they have the right to define fair and what they want to pay. Looked at this way, you’re not a property owner. You’re a squatter. You can lose your property for something that’s not fair without appeal, and you will never recover its true worth. Even if you win in court, you still lose the lawyer’s share.

The only thing stopping the law enforcement officers on the scene from physically removing Mrs. Terry and her daughter from that tree is the potential public reaction. The state has always succeeded in selective enforcement of the law with regard to property rights. How many surveyors were prosecuted when they crossed the Terry’s or any other landowner’s property before the gas line had a permit to begin the project? Once the project begins the law enforcement agencies won’t prosecute gas line employees from doing damage off the easement.

In the end, the most likely outcome will be that Red’s trees will be cut and burned. The fires will burn through many nights. No fire marshal or any other law enforcement officer will dare force the gas line company to go to the expense of monitoring the fires at night to make sure what’s left of their land won’t be burned. The bulldozers will come.

Before anyone gets the wrong impression, I’m not against the development of energy, or even Eminent Domain, although it’s cost me so much in this life. I believe energy can be developed, but under law. The energy companies should operate under law rather than creating it as they go. As it stands now, for applicable purposes our energy and property laws are no more than the immediate will of the corporations that benefit from them.

Red has given us an education in courage and put the light on a dark side of our government. As a people, we probably lack the practical power to hold this gas line company to the law, but we can see that she isn’t put into jail or destroyed financially by placing pressure on the Governor of the state.

We need to look to Red as an example of what we all might be had we the courage. A word from our Governor could do it. What’s he got to lose? The two Senate seats in Virginia are already held by members of his own party. Maybe he could do what’s right rather than what’s profitable, break the old habit that put him, and too many others like him, where he is. Most young men, or women, at the beginning of their political careers give at least some consideration to their responsibilities to the people, at some point they read the Constitution. Before the need to raise campaign money eroded that idealism, they believed in something, believed that right meant more than profit. By now even the Governor probably couldn’t stop the pipeline, or even hold them to the letter of the law, except as a career ending last hurrah. His agencies, like the Attorney General’s Office and the Department of Environmental Quality, and the Water Control Board, would be in open revolt, if he tried.

But we’ve had Governors before of that stature. Maybe that’s why my love of Virginia is because of what it was, what its memory represents, and not what it is now.

Update: The Roanoke County Police are giving these women food.www.roanoke.com/news/local/roanoke_county/roanoke-county-police-deliver-pizza-sandwiches-to-pipeline-protesters-in/article_7286e82d-4f99-5b92-9fb2-b1c6b

For those of you interested in reading further about Red and Minor, I have two more essays on Medium.