July 16, 2020, Lake Charles, LA – Today, the Third Circuit Court of Appeal for the State of Louisiana ruled that the Bayou Bridge Pipeline Company (BBP) violated the due process rights of landowners when it constructed an oil pipeline across their property before acquiring the legal rights to do so. The construction – including clearing trees, trenching, and laying pipe – took place across privately owned land in the ecologically sensitive Atchafalaya Basin.
The court awarded each of the property owners $10,000 and legal fees. In its decision, the court wrote: When BBP consciously ordered construction to begin on this property prior to obtaining a judicial determination of the public and necessary purpose for that taking, it not only trampled Defendants’ due process rights as landowners, it eviscerated the constitutional protections laid out to specifically protect those property rights. BBP is a joint venture of Energy Transfer Partners (ETP), the company behind the controversial Dakota Access Pipeline (DAPL) in North Dakota, and Phillips 66. Both companies have a lengthy record of leaks and spills.
The Bayou Bridge Pipeline is the tail end of the network of pipelines that includes the DAPL, spanning 162.5 miles across southern Louisiana, including wetlands and the Atchafalaya Basin, the country’s largest river swamp, containing old growth trees and many endangered species. The Louisiana court’s decision follows in the wake of a recent federal court ruling requiring ETP to empty the DAPL while the U.S. Army Corps of Engineers conducts a full environmental impact assessment of the project. "When we first considered taking on BBP, it was conventional wisdom that you couldn't win against a pipeline company in Louisiana, but we wanted to do what was right regardless," said landowner Peter Aaslestad.
"For others out there thinking they can't win, I hope this victory shows that they can, and that these companies cannot simply do what they want, run roughshod over people's rights, and get away with a small fine as the cost of doing business." “The court’s decision rightly takes BBP to task for its blatant disregard and abuse of the law and landowners in Louisiana,” said Pam Spees, senior staff attorney at the Center for Constitutional Rights and one of the attorneys for the landowners.
“BBP made a calculated decision that violating the law was cheaper than following it, and the lower court’s ruling let them get away with it. This decision is an important reminder to companies like BBP, and more importantly to small landowners, that these rights mean something.” During a three-day trial, landowner Theda Larson Wright described her experience of the construction on her land, as quoted in today’s decision, “[T]hat bit of land means a lot to our family...our roots are there. [When BBP began construction] my family [felt] violated.” BPP ultimately began eminent domain proceedings, but only after the landowners sought an injunction to stop the company from trespassing on the land.
“But for the pipeline monitoring efforts of Atchafalaya Basinkeeper and Healthy Gulf, and Peter Aaslestad’s initial willingness to stick his neck out to protect landowner rights, we may not have made it this far,” said Misha Mitchell, attorney with Atchafalaya Basinkeeper and co-counsel for the landowners who worked with Peter Aaslestad to enjoin unlawful construction on the property prior to the expropriation filing. The landowners opposed the expropriation and filed counterclaims for trespass and violations of their constitutional rights.
In reversing the trial court and finding that BBP violated the land owners’ rights to due process, the Court of Appeal noted that “BBP’s conduct clearly shows no fear of the consequences of trampling on property owner’s constitutionally protected due process rights.” In awarding the landowners $10,000 each, the court noted the damages award must communicate that BBP did not have the “unrestrained ability to decide whether another citizen’s property rights can be restricted.” The lower court had previously awarded landowners only $75 in damages for BBP’s trespass.
"This is a victory not only for us but for all landowners," said Theda Larson Wright. "All over the country, pipeline companies have destroyed people's land, often without even attempting to get permission, and dared the landowners to speak up. Well we did. I hope this victory will encourage many others to as well." While lauding the ruling and award of damages and fees for the violations of landowners’ rights, attorneys expressed disappointment that today’s decision allowed the expropriation of the land to stand and held Louisiana’s delegation of the power of eminent domain to private oil pipeline companies was constitutional.
“The rights of landowners are important, so I applaud this ruling," said landowner Katherine Aaslestad. "But this is also about the abuse of eminent domain by private companies, and we need to keep our attention on that.” The landowners,Theda Larson Wright and Peter and Katherine Aaslestad, are represented by Pam Spees and Astha Sharma Pokharel at the Center for Constitutional Rights, Misha Mitchell at Atchafalaya Basinkeeper, and Bill Quigley. For more information, visit the Center for Constitutional Rights’ case page.