Hearings begin in case pitting Columbia Gas pipeline vs. preserved farmland

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Don Bailey, Charles Renner and Patrick Bailey are opposing construction of a Columbia Gas pipeline across their land in Union County. Their land is bound by an agricultural easement held by the Ohio Department of Agriculture. The ODA has not opposed construction of the natural gas pipeline. (Gail C. Keck photo)

MARYSVILLE, Ohio — The Union County Common Pleas Court had half a day scheduled for a hearing on whether Columbia Gas can put a pipeline through preserved farmland.

But even before the Nov. 17 hearing got started, it became clear a half a day would not be enough time. Instead of a straightforward case to establish the need for a pipeline and determine fair compensation for landowners, the case involves land already bound by an agricultural easement and landowners who have no interest in negotiating a price.

Judge Mark O’Connor and attorneys for both sides started the day by agreeing to continue the hearing on Jan. 7.

In the time available Nov. 17, the court heard testimony from two witnesses called by attorneys representing Columbia Gas. Attorneys representing the farm family had lined up six witnesses to help fight the eminent domain proceedings, but they won’t be called to testify until the hearing is reconvened.

The case

The dispute between Columbia Gas of Ohio and the farm owners began in December of 2019 when Columbia Gas notified them of plans to build a natural gas pipeline across their land.

The land, situated just south of Marysville in Union County, is protected from non-farm development with an agricultural easement. The previous landowner, Arno Renner, donated the easement to the Ohio Department of Agriculture in 2003, giving up development rights worth more than $1 million. Renner died in 2007 and, now, part of the land is held in a family trust, with Arno’s nephew, Don Bailey, as trustee.

Two other parcels of the preserved farm are now owned by Charles Renner, who is also Arno’s nephew, and Patrick Bailey, Don’s son.

The ODA, which holds the agricultural easement, has not opposed construction of the pipeline through the preserved farmland. The Ohio Power Siting Board approved the pipeline project in August of 2020, but construction cannot proceed until Columbia Gas secures easements for the entire route. To acquire the easements for the pipeline, Columbia Gas filed appropriation — eminent domain — lawsuits against the owners of the preserved farmland.

The hearing that began Nov. 17 is for the court to determine if Columbia Gas has the right to appropriate easements for its pipeline and whether there is a necessity. Before the Columbia Gas appropriation cases were filed, the landowners filed a mandamus case against the ODA. That case asks the court to order the ODA to do its duty and enforce the terms of the agricultural easement.

The case was filed in Union County but has been transferred to the Franklin County Common Pleas Court. The landowners had also filed a case in Union County seeking an injunction to prevent Columbia Gas from constructing the pipeline on their property.

That case was dismissed by the landowners, although it could be filed again. The judge excused ODA from the proceedings Nov. 17. Fred Dailey, former ODA director, however, was on hand waiting to be called as a witness. During his time as director, he oversaw the creation of the farmland preservation office and the agricultural easement program. He also defended the Renner/Bailey farm’s agricultural easement in 2005 when the city of Marysville proposed putting a sewer line across the protected farmland.

Land trusts are watching

The hearing attracted a variety of spectators interested in the outcome of the case, including area farmers and representatives of land trusts around the state.

Bob Stoll, president of the Logan County Land Trust, told Farm and Dairy he came to the hearing because the outcome will affect other agricultural easements.

“We represent the landowners out there,” he said, “the families that live and work on these farms.”

The ODA and local land trusts depend on one another to hold and monitor agricultural easements, Stoll added. He wants to see that cooperative relationship continue, but he also wants a better understanding of why the ODA has not pushed back against this pipeline proposal when the department did oppose previous pipelines.

“I’m interested to know why,” he said. “What changed? The language in the easement didn’t change.”

Jonathan Ferbrache, resource specialist with the Fairfield Soil and Water Conservation District, is the local sponsor liaison for the Fairfield County Board of Commissioners and the 30 Clean Ohio Ag Easements they co-hold with the ODA.

He also attended the hearing to understand the implications for other ag easement holders.

“This is a fundamental challenge to the interpretation and understanding of terms of the agriculture easements that we have known for almost two decades in Ohio,” he told Farm and Dairy. “These easements are the core of Ohio’s nearly quarter-century effort to protect the best of the best soil from nonagricultural development and the outside forces that impact the business and profitability of agribusiness.”

Opening arguments

During opening arguments at the hearing, attorneys representing Columbia Gas reviewed Ohio laws that allow a public utility to acquire utility easements using eminent domain and outlined the necessity for the pipeline.

Attorneys representing the farm owners argued that the ag easement on the farmland establishes a prior public use that takes priority. They also argued Columbia Gas is asking for an easement that is larger than necessary and that crossing the preserved farm is not necessary because the pipeline could follow a different route.

The first witness called was Melissa Thompson, director of regulatory policy for Columbia Gas. After reviewing the documents and procedures required to get project approval from the Ohio Power Siting Board, she testified about correspondence she’d had with ODA regarding the project. The letter was a follow-up to a conversation she’d had with the ODA’s farmland preservation office.

In it, she states that Columbia Gas understands the ODA’s acquisition of agricultural easements is to preserve Ohio land to remain predominantly agricultural. The letter also states that the company’s intended use of the property is consistent with that purpose.

The court also reviewed an affidavit, provided by Sarah Huffman, farmland preservation office executive director. It states that the ODA determined the proposed Columbia Gas utility easement does not violate the terms of the agricultural easement. The affidavit goes on to say, “This is based on correspondence from Melissa Thompson, director of regulatory policy at Columbia Gas …”

Attorney David Watkins, who represents the Renner/Bailey family, questioned Thompson about her agricultural experience and she responded that she has never been a farmer.

“I’m not an expert on crop planting, but I’m generally aware of what agricultural use is,” she said.

The second witness called was Matthew Opfer, manager of major projects for NiSource (the parent company of Columbia Gas).

His testimony included an explanation of pipeline installation, operation and maintenance procedures. During construction, topsoil is stored separately from subsoil, he explained. “We will make every effort to make sure mixing does not occur.”

During cross-examination, Watkins challenged Opfer’s understanding of agricultural concepts. Watkins pointed out that pipeline construction crews will continue working in wet weather, but that farmers will stay out of the field when conditions are wet to avoid damaging the soils.

“If that’s the case, I did not know that,” Opfer said.

Encouraging words

After the proceedings Nov. 17, Don Bailey said he felt encouraged by an inscription on the courtroom wall above the judge’s bench: a quote from Martin Luther King, Jr., that reads, “Injustice anywhere is a threat to justice everywhere.”

The threat to his protected farm is a threat to other farms protected by ag easements, Bailey said.

Laura Curtiss, one of the attorneys representing the Renner/Bailey family, said farm families should not have to bear the entire cost of defending their ag easements.

“That’s the sad part. The landowner has to do this without the support of the ODA,” Curtiss said. “This is the first director of ag that has neglected to do that.”

Both the ODA and Columbia Gas declined requests for comments on the hearing.

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