Trespass Claim for Pesticide Drift

Click on the following link for an article from the official blog of the Association of American Law Schools - Agricultural Law Section about a significant pesticide drift ruling from the Minnesota Court of Appeals: Johnson et al. v. Paynesville Farmers Union Cooperative Oil Co.  The Johnsons, organic farmers, sued the PFUC over allegations that pesticide and herbicide spray had drifted onto their organic crops and caused crop damage (including the alleged loss of organic certification). 

PFUC applied for summary judgment to have the claim thrown out on the basis that there was no "trespass by particulate matter".  A lower court judge agreed with the PFUC, but the appeal court ruled that pesticide overspray could constitute an unlawful entry (trespass).  The AALS article notes that most jurisdictions now recognize agricultural chemical drift as sufficient grounds for a claim in trespass.

Court prepared to determine what is "normal farm practice"

Madam Justice Stewart of the Ontario Superior Court of Justice says the Court is prepared, in the case of Rausch v. Pickering (City), to decide whether raising wild boars constitutes a "normal farm practice" for the purpose of the Farming and Food Protection Act, 1998.  In a decision released June 28, she declined to strike out James Rausch's claim that enforcement by the City of Pickering under its Exotic Animal By-law was an abuse of process or malicious prosecution (and that entry onto his property for the purpose of enforcement was a trespass).  Rausch had amended his claim to include a pleading that his raising of wild boars is a "normal farm practice" and is exempt from the By-law (essentially asserting a new claim that the City was negligent in breaching the Farming and Food Protection Act, 1998).

Justice Stewart found that it was not plain and obvious that Rausch's claim was doomed to fail.  Also, she ruled that it was not necessary for the parties to go to the Normal Farm Practices Protection Board to have the issue decided.  The Court could make a determination under the Act for the purposes of the litigation - it would serve no goal of fairness or economy to refer the issue to the Board for preliminary determination, given how intertwined the issue was with the other issues to be determined by the Court.

Read the decision at: James Rausch v. Corporation of the City of Pickering.

Pipeline landowner who sold land for highway not in breach of Statutory Right-of-Way

Terasen Gas Inc. (now FortisBC Energy Inc.) has lost its attempt to draw one of its pipeline landowners into a legal battle with the City of Surrey.  The dispute between Terasen and Surrey relates to Surrey's project to widen a portion of the Fraser Highway.  The highway crosses a Terasen high-pressure gas pipeline, which will require upgrades to permit the widening. 

Terasen expects to be on the hook for at least part of the cost of the upgrades, but contends that the City of Surrey should be responsible.  In addition, as part of an ongoing court case, Terasen claimed damages from Angus Properties Ltd.  Terasen says that Angus, which agreed to sell certain lands to Surrey for the road widening project, breached the terms of the 1957 Statutory Right-of-Way ("SRW") that applied to the lands in favour of Terasen:

In its Amended Statement of Claim filed March 30, 2010, Terasen alleges that Angus was aware of, consented to and cooperated in Surrey’s conduct of the highway project on the Additional Lands, and that Angus was aware of Terasen’s position that the project would interfere with the safe and efficient operation of the pipeline. It says that Angus nevertheless entered into the Purchase Agreement and granted Surrey a licence to enter the Additional Lands to prepare the site, in breach of the SRW. It claims that Angus breached the SRW by permitting Surrey to proceed with the highway project. It says that Terasen has suffered damage as a result, including the pipeline upgrade costs.

Angus brought a motion for summary judgment to strike out Terasen's claim against it.  The Court allowed the motion, finding:

Terasen says that Angus breached the SRW simply by entering into the Purchase Agreement with Surrey, since that agreement removed Angus’s ability to prevent Surrey from doing work on the Additional Lands which would endanger the integrity of the pipeline.
Counsel for Terasen placed some reliance on Terasen v. Utzig, a case with very different circumstances from those here. Angus agreed to sell the Additional Lands to Surrey and to facilitate Surrey’s highway widening project by permitting it to enter the lands for preliminary preparatory work prior to transfer. It did not agree to permit, and there is no evidence that it ever permitted, activities that would reasonably be seen to endanger the pipeline. In contrast, that is what the defendant in Terasen v. Utzig was found to have done.

I agree with counsel for Angus that Terasen v. Utzig, and the other cases upon which Terasen relies, are distinguishable.

I further agree that, as a general proposition, it cannot be the case that the owner of land breaches a statutory right of way simply by granting an interest in the land to another party, unless the terms of the particular statutory right of way so prohibit. The SRW here does not prohibit sale or other transfer of interests in the land. [emphasis added]

I find that Angus did not breach the SRW by entering into the Purchase Agreement.

Did Angus breach the SRW by permitting Surrey to perform its work on the Additional Lands? Angus had granted Surrey a licence to “access, use and enter” the Additional Lands to facilitate “preliminary site preparation, pre-engineering and highway construction” and to “perform such tests as the City deems appropriate, including soil tests”. However, no work was done on the Additional Lands in connection with the highway widening project, by Surrey or any other party, until after the Consent Order of June 30, 2008 had been made. The work was done only after Terasen had prepared the pipeline so that it would not be endangered, and had given permission, in the Consent Order, for Surrey to proceed with the preloading.

Thus, when Surrey actually came onto the Additional Lands and performed the work, it was with Terasen’s consent and it was in circumstances in which the integrity of the pipeline was not endangered. Angus’s failure to prevent Surrey from doing the work, in these circumstances, did not in itself constitute a breach of the SRW.

I find that Angus did not breach the terms of the SRW either by entering into the Purchase Agreement or by failing to prevent Surrey from performing the work on the Additional Lands.

The Court found nothing wrong with Angus' agreement to sell its land to Surrey.  Implied in the Court's ruling, however, is that Angus may have been in breach of the SRW by allowing the preliminary work for the road widening to take place on its lands.  But for the consent for that work already granted to Surrey by Terasen, it is possible that the Court would not have granted the summary judgment motion, leaving the issue of whether or not Angus breached the SRW by allowing for the endangerment of the pipeline to be decided at trial.  That said, the Court found in any event that the damages sought by Terasen were not recoverable in any event because they did not "flow naturally from the breach" of contract alleged by Terasen:

The damages sought by Terasen do not flow naturally from the breach it alleges (Angus’s entering into the Purchase Agreement and removing its own ability to prevent Surrey from doing work on the Additional Lands). If Terasen in the end is found responsible for the costs of the pipeline upgrade, or for more of those costs than Terasen thinks it should bear, that will be a result of the legal framework governing pipeline operators and municipalities, and of the legal relationship between Terasen and Surrey, and not a result of Angus’s entering into the Purchase Agreement.

Read the decision at: Terasen Gas Inc. v. Surrey (City).

Joint Review Panel has asked Enbridge to provide preliminary abandonment plan for Northern Gateway project

The Joint Review Panel (NEB and CEAA) considering the application by Enbridge for the Northern Gateway pipeline project has requested the following information from the proponent on the issue of pipeline abandonment:

Request: a) Please provide a preliminary abandonment plan for the Northern
Gateway Project, including:

a.1) a description of what pipeline components would be removed,
reused or left in place and provide the rationale for doing so. Where site specific situations require special methodology, then details should be provided;

a.2) the reclamation objectives or principles to be applied to abandonment; and

a.3) sufficient information to demonstrate that abandonment of the project will return the right of way to a state comparable with the surrounding environment.

b) Regarding consultation on eventual abandonment with stakeholders including potentially affected landowners and aboriginal groups, and other authorities and agencies, provide:

b.1) a summary of the consultation that has occurred, and

b.2) the strategy and processes for future consultation as the abandonment plan is refined.

c) Provide an estimate in 2010 dollars of the total cost to abandon the system, using Base Case components (as described in reference iv), or other better information available to Northern Gateway. If information other than Base Case components is relied on, provide an explanation as to why that information was used.

d) Explain the source of revenue that Northern Gateway will use to fund this liability. If the source is shipper tolls, provide an estimate of the impact on revenue requirement.

More information on the Northern Gateway Project Joint Review Panel is available at: Review Panel.

National Energy Board surveying pipeline landowners again

The National Energy Board (NEB) is once again conducting a telephone survey of pipeline landowners and tenants to seek their views on "their experiences with companies that operate pipelines which cross their property" and "their experiences with the NEB".  The NEB hopes to compare the 2011 results with those of surveys done in 2001 and 2004 to "determine how key indicators have changed over time".  The choice of landowners is to be random, says the NEB:

Ipsos Reid, a nationally-recognized research firm, will conduct the telephone survey on behalf of the NEB. It is important to note that not all landowners will be contacted for the survey. Ipsos Reid will select a random sample of landowners, using landowner lists provided to it by NEB-regulated pipeline companies. The randomly-selected landowners will be contacted by telephone in late summer 2011.

A letter was sent by the NEB to all of its regulated pipeline companies on May 17, 2011 asking the companies to submit landowner contact information to Ipsos Reid.  The NEB noted in the letter that the Office of Privacy Commissioner indicated that the companies "should obtain" landowner consent before releasing their contact information to the Board for purposes of conducting the survey.  This privacy issue and the need to seek landowner consent in order to conduct the survey would tend to diminish the randomness of the survey group selection.  Any landowner who chooses not to allow the release of his or her personal information would not be eligible to take part in the survey.

Enbridge spill into Kalamazoo River showing added risks of tar sands oil

One year ago on July 26, 2010, Enbridge Pipelines Inc. spilled more than 3.8 million litres of oil in Michigan after one of its pipelines ruptured.  More than 1.5 million litres ended up in Michigan waterways, including the Kalamazoo River.  Enbridge says that 3.48 million litres have been recovered.  News stories in the past couple of days are revealing the difficulties faced by clean up crews in recovering the last few hundred thousand litres.  The problem is the nature of the product spilled - bitumen from the Alberta tar sands mixed with "light hydrocarbons" refined in the U.S.  The heavy bitumen component is proving difficult to collect. 

The spill affected a 65-kilometre stretch of the Kalamazoo River.  The river has been closed off to recreational paddlers, fishermen and any other users since the spill.

Read the Financial Post article "Enbridge cleanup: Aftermath of a spill" by Sheldon Alberts at this link.

Meanwhile, Enbridge's latest newsletter called "eBridge", Volume 70, doesn't mention the Michigan spill (or the Norman Wells spill for that matter), but does celebrate Enbridge's ranking as #10 out of the Best 50 Corporate Citizens in Canada by "Corporation Knights" ("The Magazine for Clean Capitalism").

Appeal Tribunal rules Ontario vet resigned, not suspended

Dr. Ken Allan, of Perth, Ontario, was a licensed practising veterinarian from 1963 until September 19, 2009. In early January 2010, he applied for a Class 1 Licence under the Livestock Medicines Act (the Act) and was issued a licence on January 8, 2010. On May 14, 2010, the Director appointed under the Act issued a letter to Dr. Allan provisionally suspending his Class 1 Licence and advising that a hearing would be scheduled to determine whether his licence would be further suspended or revoked. On July 7, 2010, the Director appointed under the Act held a hearing to consider whether to further suspend or revoke Dr. Allan's licence.  Following a hearing in Dr. Allan's absence, the Director made various findings including a finding that Dr. Allan had sold livestock medicines other than from his place of business and had obstructed Ministry inspectors in the performance of their duties.

On the basis of those findings, the Director revoked Dr. Allan's licence under the Act.  He appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal, which held a hearing de novo (meaning that the Appeal Tribunal heard all of the evidence as if it were the Director hearing the case fresh).  The Tribunal found that Dr. Allan had actually given up his licence before he received notice of it having been revoked by the Director.  Further, the Tribunal found that the Ministry had failed to provide Dr. Allan with a warning letter in accordance with its policy in advance of seeking the revocation of his licence.  For that and other related reasons, the Tribunal ruled that the original hearing by the Director should not have taken place and the findings made there must be overruled.

After considering the evidence before it, the Tribunal ruled as follows:

1. That Tribunal accepts the evidence of Dr. Allan's voluntary resignation from the licensing system, therefore the Tribunal will not order the reinstatement of his licence.
2. That all prescription and livestock medicines seized shall be returned to Dr. Allan; and, if they are expired, have been destroyed, or disposed of, then he shall be compensated for all said livestock medicines and prescription medicines.
3. That Dr. Allan's personal items and written records removed during the execution of the search warrant be returned forthwith.
4. That the Tribunal accepts the evidence that Dr. Allan voluntarily resigned from the licensing system before his licence was suspended or revoked, and therefore the Ministry shall not consider Dr. Allan's voluntary resignation from the licensing
   system negatively, should he reapply for a licence under the Act.

Read the decision at: Ken Allan vs. Director.

Want to know what safety standards apply to the pipelines through your property? - The new CSA standard is yours for only $765!

The Canadian Standards Association (CSA) is releasing its updated Z662 Standard for Oil and Gas Pipeline Systems.  The National Energy Board (NEB) incorporates these standards by reference into its regulations, meaning that the CSA standards are the rules by which federally-regulated pipeline companies must operate.  The catch is that the standards themselves are protected by copyright.  The NEB doesn't reproduce the standards in its regulations.  If a landowner wants to know exactly what the rules are that apply to the pipelines on his or her land, it's a matter of purchasing the Standard directly from CSA at a cost of $765. 

The NEB sent a letter out to the pipeline industry on July 14, 2011 putting it on notice of the coming changes.  Of course, the information bulletin enclosed with the letter advises that the CSA changes took place as of July 8, 2011 - "the date of publication and release to the general public".  The NEB must have meant "release to the general public at a cost of $765".