Family Farmers Slay Oil Giant in Property Rights Case in Colorado

Eugene “Gene” Kammerzell and his wife Janet have been “harassed and bullied” for seven straight years by Suncor Energy Pipeline Co., a major petroleum products producer here in Colorado.

Now, after a stunning victory at the Weld County Courthouse over Suncor, the Kammerzells are a bit more at peace when it comes to their 121-acre piece of property near Miliken, and their ongoing easement deal with the oil and gas giant.

A court late last week awarded the Kammerzells a total of $999,392 in their lawsuit against Suncor. “We’re relieved,” said Gene Kammerzell, co-owner of the Arborland Nursery, in an interview with LandAndWaterUSA.

A spokeswoman for Suncor vows the company will appeal the nearly $1 million damages verdict. In a trial presided over by Weld County Judge Todd Taylor, which lasted five days, the farming family successfully protected their property from illegal encroachment by Suncor.

Illegal Expansion Plan

The oil producer had acquired easement rights through which it ran an oil pipeline. But, without the Kammerzell’s permission, Suncor single handedly expanded the pipeline beyond its original scope.

This infringed on the property rights of the tree farming family, and also was a breach of the agreement between Suncor and the Kammerzells, the jury found.

The story begins 11 years ago, when Suncor purchased a refinery, just north of Denver, from Conoco. Crude oil is safely carried to the refinery from several sources, in a network of pipelines, around the state, and is transformed into jet fuel, as well as conventional gas, and diesel gas, as well as chemicals for the road construction industry, the spokeswoman for Suncor said.

In an effort to stop potential crude oil leaks, the company seven years ago, expanded its access to the portion of the pipeline, which starts in Cheyenne, Wyo., and runs through the Kammerzell’s property, cutting down trees, and causing other damage, in the process.

Ultimately, the oil company wants every inch of the pipeline in the region to be 16 inches in diameter, substantially larger than its current size, to smooth the process of delivery of crude oil to the refinery in Commerce City, the spokeswoman said.

Suncor is apparently hedging a bit on its promise to appeal the recent court loss, and perhaps is hoping to repair its damaged relationships with the farming families in Colorado, like the Kammerzells, if one takes its public statements at face value.
“We’re committed to treating landowners with which we have easement agreements respectfully,” the spokeswoman said. “While following the laws, and the terms of the agreements, in order to maintain and protect the pipeline.”

Unauthorized Clearings

The latest controversy began years ago, when Suncor started removing 160 trees from the Kammerzell’s nursery, without notice. This insult was followed by further injury – additional, unauthorized clearings on the South Platte River borderline of the Kammerzell’s property. The company said that it needed to create the extra breathing room in the space to ease surveillance, on the ground and in the air, of the pipeline. The pipeline currently runs along the eastern border of the Kammerzell’s tree farm, near Route 60.
Though the oil and gas maker denied that it owed any damages to the family farmers in written legal briefs and in oral arguments, the court found that the illegal removal of the tress resulted in a loss of profit and other costs.
In some ways, the oil giant acted as if it was at war with the Kammerzells.

“They would just show up unannounced and start chopping down our trees,” said Gene Kammerzell. “Our neighbors have been bullied too.”

Though this particular case did not hinge on the issue of eminent domain, Kammerzell said that his neighbors have been told by officials on behalf of the oil company that they could invoke eminent domain in order to seize the property. This kind of policy move has been undertaken in urban areas of the U.S., where a local government takes over property in, say, a slum, and through eminent domain, and pays the owner a low fee, per acre, for the land. Then the government turns a profit and sells the land to the private firm that it had intended sell it to all along. Essentially, this is a course of conduct in which the government acts as an agent for a large firm against smaller, family owned businesses. But Suncor seems to have thought it had the power of the government on its side already – and acted as if it did when dealing with the Kammerzells much like the Louis, the Sun King of France, who said, famously, or, infamously, “le e’tat se moi,” or, in English, “I am the state.” The court, sagely, agreed that Suncor was in the wrong here.

Retaliation is a worry, given the company’s track record over the last decade. Nothing has happened so far. Mr. Kammerzell has been described as “brilliant” by observers of the case, and he is definitely that, as well as persistent, for seeing this through and getting a just outcome from the court.

Life Savings Tapped

Gene, age 68, and Jan, age 66, had to take $200,000 from their life savings to finance the lawsuit to protect their property from the oil company’s expansion. Suncor was represented by the firm Holland & Hart in the lawsuit; the Kammerzells were represented by attorney Randall Weiner and co-counsel Matthew Osofsky.

Tragically, hotheads seemed to have prevailed, earlier, at Suncor. The Kammerzells had offered to coordinate the tree removal with the company, but the company decided it did not need to cooperate with the family farmers.

Earlier oil companies had successfully worked with the Kammerzells, since reaching a right-of-way contract with the family during the Great Depression in 1938. That deal established common ownership of a corridor of land between Carl Kammerzell and Rocky Mountain Pipe Line. This is what is called in the law an easement agreement.

The original, 1938 agreement provided the company the right to “lay, maintain, inspect, alter, repair, operate, remove and relay a pipe line, or pipe lines,” under the condition the grantee would “pay any damages which may arise to crops, pasturage, fences or buildings.”

The contract has since that time been acquired by several other energy companies, and is now between with the current landowners, and current pipeline owner, Suncor. “I’m now able to get back of a normal life,” said Gene Kammerzall, in an interview with LandAndWaterUSA, on Thursday, October 16, 2014.”I’ve got a farm bureau meeting tonight and other meetings in the morning.” His wife, Jan, added, that since the verdict, the couple has had “work/life” balance restored. Court statistics show that generally 95 percent of cases which are determined by a judge and jury are upheld by an appeals court, and appeals courts only overturn cases where laws were ignored by a lower court. So the family farmers, the Kammerzalls, will most likely continue to win in this case, as they did initially some years ago when an arbitrator found in their behalf against Suncor. Suncor ignored the arbitration award, and went to court, and then lost again there late last week