Let's Talk About Giving Permission to Kinder Morgan to Survey Your Land

If you are an abutter to the route proposed for the Kinder Morgan pipeline, you will receive a letter asking for permission to survey your land stating that “TGP/KM (Tennessee Gas Pipeline/Kinder Morgan) wants access to your land to move forward with the NED (Northeast Energy Direct) project.”

While many towns and property owners have denied permission to survey, the town of Merrimack, as advised by legal representation, has decided to allow Kinder Morgan permission to survey as long as they follow documented guidelines (only 4 people, the land cannot be substantially changed, no heavy machinery, etc.) What Merrimack, however, neglected to include in the draft of their document are any penalties should Kinder Morgan not comply with the town’s survey stipulations.

Right now, it is a garden-slug of a document, completely without spine or teeth.

Obviously there are differences of opinion on this, but an attorney representing a citizen’s group in Mass, agrees with the approach of saying no to surveying: even if a time were to arise to provide information or access, the time is not now.

The reason given for Merrimack allowing KM to go ahead with the survey of public land, is that the town mistakenly believes this will then enable the town to participate in the process as an “intervenor.” However, this is simply not the case.

Prior to the FERC (Federal Energy Regulatory Commission) certificate being granted, *anyone* (property owner, resident or business) has the ability “intervene” regardless of whether you grant permission to survey or not. If you are an intervenor, you will:
• Receive documents by other intervenors
• Participate in hearings before FERC
• File briefs
• File for rehearing of a decision
• Have legal standing to be heard by the Court of Appeals if you object to FERC’s final order

If you don’t intervene, you can still make comments to FERC.

If you allow Kinder Morgan to survey your property

If you sign permission to allow Kinder Morgan onto your land, workers will arrive with equipment for digging and/or boring holes in order to take measurements and samples. Although they may clean up after themselves, there is no guarantee that your property will remain or look the same as it did prior to the survey. Posts identifying the pipeline pathway will be left on your property.

If you do not allow Kinder Morgan to survey your property

If you do not want Kinder Morgan to survey your land, you need to deny survey permission in writing to TGP/KM and the FERC. Be sure to keep a copy of the letter at your house.

You should also consider posting No Trespassing signs on your property.

Trespass is based on the idea that someone knowingly traversed another’s property without permission. A trespasser is not likely to be prosecuted if the land is open and the trespasser’s conduct did not substantially interfere with the owner’s use of the property. There is an implied consent law in NH but appears to be narrowly focused on drugs and alcohol: http://www.gencourt.state.nh.us/rsa/html/XXI/265-A/265-A-4.htm.

If you do nothing about the survey of your property

Depending on your response to the request to survey document, TGP/KM may reference the percentage of survey permissions received in their filings with the FERC as a sign of public acceptance of the NED project. FERC tracks the number of survey permissions every month through KM’s monthly status report.

Sadly “no response” to a survey request letter could be counted as acceptance rather than opposition

The existence of consent may be implied by the landowner’s conduct, such as not responding to a request to survey. Kinder Morgan might argue that there is a “custom” of replying to formal requests to survey and that not responding implied either your consent or your indifference.

If KM surveyors assume there is implied consent from your non-response and the land is open, unposted, unfenced, the landowner is unavailable at the time of their trespass, or if the land owner is available and takes no action to deny consent, the trespasser can argue that the circumstances were reasonable to assume there was consent.

Just to be clear, this is what you need to do if you DO NOT want Kinder Morgan to survey your property

If you do not want Kinder Morgan to survey your property:
• respond to survey requests with your denial
• clearly post “no trespassing” signs along your perimeter
• verbally refuse surveyors onto your property when they arrive. These would constitute trespass because the violation would have occurred knowingly.

The bottom line is this: if you don’t want a pipeline through your property, then don’t tell Kinder Morgan the best place to put one.

Actions you can take as a property owner:

Whether you give consent or not, you would be wise to compile information about your property, so that you are prepared to use it as appropriate. A useful guide to the kind of information people should be compiling is:
• FERC’s guidance for applicants (i.e., Kinder Morgan) in preparing environmental reports

Lastly, if you deny permission to survey, you are not alone. Two of the largest, oldest conservation organizations in Massachusetts have denied Kinder Morgan survey permission:

• Notchview Reservation
• Mass Audubon

Wendy Thomas can be reached at wethomas@gmail.com