Energy pipeline company to pay nearly $1 million in Milliken nursery dispute | TheFencePost.com

Energy pipeline company to pay nearly $1 million in Milliken nursery dispute

Kayla Young
Fence post editorial director

The Weld County District Court has settled a property dispute and a Wyoming energy company must pay nearly $1 million in damages to a Milliken, Colo., nursery.

Eugene and Janet Kammerzell, owners of Milliken's Arborland Nursery, began battling Suncor Energy Pipeline Co. in 2009 after it removed 160 trees from the farm, followed by additional clearings along the property's South Platte River area, to bolster aerial surveillance of its pipeline.

The Suncor pipeline runs beneath the eastern portion the Kammerzell's property along Colo. 60, en route to the company's Commerce City refinery.

Although Suncor initially argued it did not owe damages to the Kammerzells, the court last Friday ordered payment of $866,654 for lost profits and restoration costs.

The jury ruling followed a 2012 arbitration award that ordered $132,738 in payment to the Kammerzells from Suncor for the cost of the removed trees.

If the Weld verdict stands, Suncor's damages to the property will cost the company $999,392, or more than $6,000 per commercial tree removed.

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Eugene Kammerzell said the verdict offered him peace of mind he and his wife had not had since the legal battle began.

"Now I can go to bed at night and sleep. Before they would show up unannounced and start chopping down our property," Kammerzell said. "The reason I bring this forward is that I know our neighbors have been victimized by them, too, and have been threatened with eminent domain to take their land. They (the companies) don't have that power."

Although the Kammerzells' situation was not a case of eminent domain, the couple voiced fear of such appropriations by private entities in Colorado.

For a self-described "ma-and-pa" operation like Arborland, Kammerzell said the claims against Suncor required substantial personal investment.

In order to bring the case to fruition, Kammerzell said he and his wife, ages 68 and 66, paid out their life savings to cover an estimated $200,000 in legal costs.

Suncor said it would appeal the Weld verdict.

"Suncor is disappointed with the decision and will be appealing. We are committed to treating landowners with which we have easement agreements with respectfully, while following the laws and terms of the agreements in order to maintain and protect the pipeline," said Suncor Energy Inc. spokeswoman Nicole Fisher in a prepared statement. "Given that this is an ongoing legal matter, we are unable to provide further details on the case."

Suncor's legal team from Holland & Hart did not respond to a request for comment.

The Kammerzells' representatives, headed by attorney Randall Weiner and co-council Matthew Osofsky, described the case as symbolic of the Kammerzells' overall well-being.

"The Kammerzells have been fighting since 2007 to preserve their property," Weiner said, referring to the pressure the Kammerzells had felt from Suncor before the 2009 incident.

Eugene Kammerzell said he had previously attempted to negotiate with Suncor to coordinate removal of the trees with his summer cropping schedule and avoid interference with irrigation.

"We had been trying to negotiate with them since 2007. I would give them price quotations and talk to their land people," Kammerzell said. "We would have worked with them."

The origin of the Kammerzell-Suncor dispute goes back far before the talks that began in 2007.

The factors behind the clash date back to a 1938 right-of-way contract that established common ownership of the corridor between Carl Kammerzell and Rocky Mountain Pipe Line. The contract has since passed through several energy companies, ending with the current grantee and pipeline owner, Suncor.

The 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."

Kammerzell said the contract was honored for seven decades, leading up to the current dispute with Suncor.

"From 2007 until (Friday) afternoon, we've been roughshod over by Suncor Energy trying to claim our property for their pipeline without compensation," Kammerzell said following Friday's verdict.

"There have been three previous predecessors to the property with whom we've had no trouble. It's when they tried to get exclusive control and use of our property to push us off of it that we started to have grief."

With the current boom in the oil and gas industry, Weiner anticipated more cases to come like the Kammerzells', which he described as an "inevitable conflict between property owners and oil company easement holders." ❖

The verdict

Suncor’s damages to the Kammerzells:

» Restoring right of way for replanting — $58,900

» Replanting riverside area — $218,763

» Lost profits from trees that could have been planted between 2009-2014 — $276,805

» Lost profits from trees that could have been planted from 2014 on — $312,186

» 2012 arbitration award — $132,738

Total: $999,392