Skills of Right of Way Acquisition
The pipeline industry as we know it today began around 1900 when Teamsters began charging too much to transport barrels of crude by wagon, the oil industry rebelled and the pipeline industry was born. Railroads got into the act by not allowing pipelines to cross their tracks when they lost revenues due to these alternative methods of transport. The issues were resolved by economic necessity and all parties learned to prosper by working together. With the oil pipelines emerging to transport the crude to new markets and refineries prior to 1920, the war time needs had dictated even more miles of pipeline as more boom areas sprouted across the Southwest U. S.
Probably the urgency of the World War I effort and the post war prosperity of the 1920's gave birth to the right of way profession. Those early right of way contracts are like masterpieces of contractual law and favored the pipeline companies. Many of these agreements were written in perpetuity as far as time and space is not delineated at all. Basically, many of these agreements are in force forever and cover an entire lease even if it contains thousands of acres. One contract in written for Humble Oil and Refining Company in 1928 states that any pipeline can be laid anywhere in the leagues of land owned in Brazoria County, Texas by a particularly large landowner.
A Successful Right of Way Agent
The best right of way agent knows how to build rapport and listen to the needs of the people he is interviewing. The impressions made at the initial meetings set the tone for most future relationships. He should be a skilled negotiator and analytical in his approach while being cognizant of the desires of the landowner whose property he needs to access. He is well educated in his profession.
There is not a landowner on the planet that would opt to have a pipeline easement traversing his property. From that perspective is where the right of way agent begins his process of negotiation. He must build a partnership that will endure and be able to compensate with words and deeds. He must be able to back up and keep his promises.
Today's right of way agents operate by different standards due to education, and the sophistication of landowners, ethics guidelines and voluntary associations such as the International Right of Way Association and it's extensive education and certification program.
The courses offered are designed to educate the practitioner and prospective right of way agent to be more attentive to landowner needs as well as the needs of the pipeline company. The educated, qualified and certified agent in today's profession brings the two sides together as economic circumstances brought the railroads and pipeline companies together one hundred years ago. The right of way agent of today should be especially well prepared, open minded and candid. He must be equipped to look and plan ahead for the good of his employer and the landowner. The two should have the same concerns. He should be a skilled negotiator. The outcome should be a win win outcome.
Three Miles of Eight Inch
Christopher Morgan is president of CM Solutions of Bryan, Texas and a member of the International Right of Way Association. He is a veteran of many projects in acquiring right of way and provides this perspective.
Below I've outlined a project I worked in Robertson County, Texas to acquire 3 miles of right of way for an 8" natural gas line.
On this particular project I was afforded the opportunity to be involved in the planning and selection of the pipeline route. I was able to collaborate and give my input to the engineers, construction managers, and surveyors. Of course the ideal pipeline route would be a straight line from point A to point B, with no bores, no trees, and no landowners; the reality is all these things and more had to be considered. After collaboration we proposed to follow an existing electric line and PI twice to follow fence lines to our tie-in point. Although the footage and intersections increased we eliminated two long creek bores. Also, by following fence lines and an existing right of way, we proposed the least impact on the landowners, a very good negotiation tool.
With a route on paper, I went to the county appraisal district to research ownership and prepare a preliminary line list. Some appraisal districts make this way too easy with updated ownership and aerial photography, while others make it way too hard with no maps at all. Robertson County had good maps that allowed me to easily transcribe the proposed route, identify the affected landowners, and gather names, addresses, and phone numbers for each.
Gaining access for along our proposed route for survey was my next step. Calling for survey permission is very important because this is usually first introduction with the landowner. When calling the landowners, I simply introduced myself, told them we were looking at the feasibility of a pipeline in the area, and asked permission for our surveyors to be on their property. I tried to keep the details of the project at a minimum with a goal to acquire the basic information to get safely on the properties, and leave the landowners comfortable with what we were doing.
Getting surveyors out to stake the route and see the lay of the land helped us to confirm that the route was a good one, but also allowed us to start putting together some alternative options. In preparing for negotiation and acquisition I wanted to have a plan B at various stages of the route. During negotiation, the option to get on the opposite side of a fence and avoid a particular landowner could be very beneficial.
Next was the important task of confirming ownership of each tract by running the deed records at the County Clerk's office. This project offered a little bit of everything as far as ownership goes; community property, family trusts, undivided interests, etc. Sometimes this stage seems to be the biggest delay in getting the pipe in the ground, but identifying 100% of the ownership interests upfront, saves headaches down the road. After several days of searching the records, the ownership finally came together, with only a couple of tracts having multiple ownership interests.
After confirming the ownership along the route, my next step was to get in front of the landowners. Although I had a brief conversation with the landowners during survey permission, this was the first time I let them know we were seeking to lay the pipeline on their property specifically. Setting up appointments I found that most of the landowners were open to at least talking with me about the project, which is always a good sign. The fact that we had chosen a route that was the least intrusive on each property helped move negotiations along. Of course the real issue at hand was money. Negotiations in small rural communities such as this one can be tough, as everyone hears exactly what others have been offered, or an exaggeration of what they've been offered. Talks with the landowners went for the most part smoothly, and I was able to keep the acquisitions under $100 per rod. There was only one landowner who held out for more, but eventually he came around and all the needed right of way had been bought.
I was relieved after the right of way had been acquired, but at this point it was very important to make sure the things agreed upon would be followed through. Not only because of ramifications for not adhering to the contractual agreements, but I did not want any of my promises to the landowners forgotten or broken. I performed my due diligence and noted all restrictions and agreements made with each landowner, then presented this in a release for construction to begin. My final steps on this project were to make frequent visits to the construction sites and frequent follow-ups with the landowners, assuring and keeping them up to date of progress.
No two acquisitions are ever the same, but this particular project encountered many of the typical scenarios one would expect to see. Although the same process is usually followed, the details will vary; and it is important to have an experienced and educated right of way professional to minimize the speed bumps. From planning to construction a good right of way agent will add helpful insight, input, and unmistakable value to any project.
The value of good work on the acquisition phase in critical. When the construction phase ends and throughput begins, there are continued maintenance and repairs to contend with. At each juncture there is another contact with the landowner. Better relationship from the beginning foster better and time and money savings over the fifty years life of the pipeline.
The industry is changing. More and more landowners are not satisfied in allowing abandoned, uneconomic, and out of use pipelines to sit on their properties unattended. On one hand, pipeline companies are not wanting to remove the lines as they might need the right of way in the future or they perceive environmental problems if the old lines are disturbed. In other cases, abandoned lines are sold and recovered to reuse the steel or the pipe itself. These same landowners are becoming more sophisticated and answers to their queries about the old lines and old contracts are just a google away. We continue to hear of coming legislation and regulation to make abandoning pipelines in place much more difficult.
David Howell, Senior Right of Way Agent
Chris Morgan, CM Land Solutions