Negotiating and re-seeding right-of-ways

Right-of-ways have become almost routine in many farms in the country, especially in eastern Ohio. Right-of-ways, sometimes called easements, are legal interests that allow someone the right to use another’s property for a certain purpose agreement. Many times, the purpose is a utility (like pipelines, powerlines or water lines).

Many farmers negotiate the contract thinking about a profit from the easement. If not done properly, fixing it, or litigating the unexpected issues, can easily eat up the profits and leave you with a new problem on your hands.

The two major points to consider when facing a decision like this are land usage and eminent domain.

Eminent domain

To start with the latter, eminent domain, the company must justify that the landowner was not able to reach an agreement about granting a pipeline easement and that the taking of the pipeline easement is “necessary.” The company must follow the procedures for eminent domain laid out in Ohio Revised Code Chapter 163.

This is one of the underlining reasons why a landowner that is approached should not dismiss a landman and should obtain legal counsel. This is also a very important time to layout all future plans for the property in order to negotiate with the company, and at times mitigate the pipeline issues.

For an interstate pipeline that runs between Ohio and another state, federal law could allow a company to use eminent domain to obtain land from unwilling landowners. Once eminent domain has been evaluated, the most important factor to consider is land use.

Land use

A typical pipeline ROW can be anywhere from 50-100 feet. This can easily take up an acre of ground in a quick 450-foot stretch if the width is a hundred feet. The ground can be substantial depending on how your farm is laid out.

So, you need to ask yourself, “what do I use it for?” Hay, pasture, grain or a combination?

Another essential piece is, “what time of the year is it?” The key to a “successful” reseeding is to make it as simple and straightforward as possible to the pipeline company doing the seeding. With this in mind, expect to see them once for the job (that’s not always the case, but it very well could be).

As an example, it is easier and better for the farmer to ask for the soil to be amended to the specifications of the soil test rather than “as it was before.” Work with your county extension on this if necessary. They can even calculate NPK with local products available from the agricultural co-op in your area.

Things can sometimes be too different for your animals. In one case, a farmer had a heavy seeding of alfalfa that dominated the ROW. His animals were not used to this type of diet and he had several cases of severe bloat to deal with.

Mitigation

There will also be times when what you want is not possible to seed at the time of ROW completion. These are the times you need to mitigate, instead of improving the area.

For example, a beef producer wanted to re-seed cool season grasses through a 100-foot ROW. A perfectly reasonable thing, except that it was late June.

The final goal is cool season grasses, but this farmer was faced with bare soils in June. A cool season grass seeding would most likely fail, and he would have ended up with warm season annual weeds. Chances are that bare, disturbed ground will grow Foxtail, Crabgrass and Stiltgrass. All are far from nutritious manageable feed.

He was advised to seed Teff grass and Pearl Millet in combination with novel endophyte fescue and late maturing orchardgrass. This combination will provide better competition for July weeds.

In this case, if it was hot and dry, there were warm season grass annuals, but the cool season grasses are there in case it turned out cooler and wetter than expected. If it was hot and dry, peal millet and teff would be better grasses to manage, but he might still have to reseed in mid to late August.

Results

In the example from above, the ROW was of poor quality when it was seeded in late June. What came up was the Pearl Millet. Pearl Millet is a small grain that can be used for grazing. It does well in poor soils and can grow when it’s hot and dry.

The Pearl Millet germinated well and, during this hot-dry month, was one of the few things growing in this farm. In areas of poor drainage, the Pearl Millet did not germinate well, but overall, the seeding dominated the ROW.

Obviously, the cool season grasses did not germinate in the hot dry month. The Teff grass did not germinate either, Teff requires a bit more care. It is a very small seed and sometimes, seed to soil contact is difficult to obtain and usually requires a cultipacker. The seed also has a very shallow planting depth so balancing seed depth and soil contact can be tricky.

Adapt

The take-home message is to make a seed mixture that accommodates various environmental factors. Think about your operation and your needs. A pipeline schedule in the example used was seeded in June. This is not when a farmer would usually renovate a pasture, and this farm had to adapt.

Be simple and creative, and give yourself the best chance of success when facing a re-seeding decision. Your local extension office can help you devise a good plan no matter what time of the year it is.