[Watchdogs] My Guest Column as It Appeared in the Marble Falls Highlander Last Tuesday

[Milton Hawkins]

[If any of you has land in the PEC service area, I encourage you to read
this and to act.  Call your PEC district director.  Call Larry Landaker.
Call your attorney and ask him or her to write a letter of concern for you.
(I have.)  Do something!]

 

Guest column, Milton Hawkins

 

Has issue with easement provision of PEC bylaws

 

This is an open letter sent to the Texas & Southwestern Cattle Raisers
Association and the Texas Farm Bureau concerning the new Pedernales Electric
Cooperative bylaws provision concerning easements. I am hoping that some
further reflection will lead to a modification that will give property
owners in our service area more confidence that their property rights are
respected and that they can continue to expect fair and reasonable treatment
from their cooperative.

Gentlemen: I am a member of both your organizations, and I am asking for
your help.  I have been a member of the TSCRA since 1993, and I have been a
member of the TFB since 1999.  In fact, I served as a director of the Blanco
County Farm Bureau several years ago. 

I need your help with an issue involving my electric cooperative's adoption
of a new bylaws provision that deals with easements, rights-of-way, and
licenses. If I read the new provision correctly, it could have a negative
impact not just on me and my property but on all landowners and their
property in the area served by the cooperative, Pedernales Electric
Cooperative (PEC), which as you may know covers a large number of counties
in this part of the state. 

Here's the troubling provision from the bylaws passed: 

Section 9. Grant of Easements, Rights-of-Way or Licenses. In consideration
of the furnishing of Electric Service, upon request of the Cooperative, a
Member shall: (1) provide the Cooperative access to or use of real property
in which the Member holds an interest sufficient to grant such use ("Member
Property"); and (2) pursuant to the law and any terms and conditions
specified by the Cooperative, and without compensation from the Cooperative,
grant or convey to the Cooperative a written easement, right-of-way or
license for use of Member Property as specified by the Cooperative for the
purpose of providing Electric Service to the Member or one or more other
Members. 

 

Reducing this provision to the language raising the issue at hand, I find
this: 

If a member has service from the cooperative, he must, upon request, and
pursuant to any terms and conditions specified by the cooperative, grant or
convey to the cooperative a written easement, right-of-way, or license for
the use of his property as specified by the cooperative to provide service
to one or more other members. 

The plain sense of this, to me, is that, so long as it is intended to
provide electric service to one or more other members, PEC can now demand an
easement of any width across my land, starting from a point on the line
already providing my service, and extending in any direction, for any
length.   

Worse yet, provided again that the intention is to provide service to one or
more other members, PEC can demand one or more additional easements totally
unrelated to the easement allowing the line already bringing my service.
Each new line might take an entirely different path across my property. The
worst feature of the new provision is that there is no reasonableness
standard, no requirement for negotiation, no allowance for compromise. 

Prior to (this) adoption of the new Bylaws, which included this entirely new
provision, we had some protection from arbitrary demands in the existing
Tariff and Business Rules, which have a provision that requires applicants
for service to obtain from neighboring landowners the easements necessary
for service lines. Here is that provision: 

The Cooperative will provide electric service to all applicants within its
service area, provided the following conditions are met: 

The applicant grants the Cooperative easement rights and "acquires all
necessary easements from adjacent landowners on a form acceptable to the
Cooperative for its facilities." All costs and expenses, if any, related to
the acquisition of easements to serve the applicant shall be the
responsibility of the applicant, including the Cooperative's costs and
expenses if the Cooperative participates in the acquisition of the easements
through condemnation proceedings. 

And in fact this provision served my brother and me well several years ago
when the owner of a nearby subdivision wanted to connect two area service
lines in order to obtain additional service for his subdivision.  Connecting
the two lines meant running the connecting line through, around, or under
our two adjacent properties. 

Because the subdivision owner had to negotiate with us for the easement, we
were able, with adjoining landowners who were also affected, to get the
connecting line run outside our property line, and along a county road,
except for the final five feet or so, and the entire line was buried
underground. 

Had we not had the protection of that provision, the cooperative would have
taken the shortest and least expensive route, coming overhead straight
across our property.  I am assuming that this provision of the Tariff and
Business Rules will now be changed to conform to the new provision of the
Bylaws. 

While I do not attribute improper motivation to the originators of this new
provision, or to those who approved it, I will say that my plea for revision
at the Board meeting in Johnson City fell on deaf ears.   

I suspect that many of the people involved have had little experience with
unwelcome encroachments of one kind or another, or the loss of the
unrestricted use of or pleasure in rural property. I suspect that few have
seen their own property devalued by the imposition of power lines strung to
serve others at distant locations. 

I might point out, too, that other cooperatives have managed to obtain the
necessary easements and access to provide electric service without raising
the possibility of excessive intrusion.  I asked the directors to consider
this simple and direct provision from the Cass County Electric Cooperative: 

The Applicant will grant to the Corporation at its request the necessary
easements to serve and supply electric power to the Applicant.  The
Applicant grants to the Corporation the right of access to the Applicant's
property for purposes of service, installation, and repair of electrical
facilities.  

I was not successful in my own efforts. But I trust that this is not a new
issue for you and our organizations. I know that your missions have been, as
TSCRA director Arthur Uhl recently put it, to protect the stewards of land
and livestock in Texas and the Southwest.  I know, too, that many of us here
in the Hill Country are especially sensitive right now to issues involving
property rights and eminent domain. 

May I ask that you have appropriate people on your staff examine the
language of this provision and the issue I raise. The proposed new Bylaws,
including this section of Article I, can be found on page 228 (Board Packet
Pg 287) of the Nov. 15 Board Meeting Notice, Agenda, and Supporting
Materials (REVISED).
[https://www.pec.coop/Documents/11_15_10%20Board%20Agenda.pdf ].  If my
concerns are valid, perhaps you might ask, on behalf of your members in the
PEC service area, that the PEC Board of Directors reconsider this provision
and limit further the grant, conveyance, or license that can be required of
the landowner. 

Thank you for your consideration. 

Milton Hawkins of Johnson City is the owner of Hawkins Creek Ranch.

 

 

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