The dentist who is fighting a massive water pipeline that will run from Kaw Lake to the City of Enid will have to post a $500,000 bond if he wants to stop construction while he appeals a ruling from Osage County District Court.
James Merrifield had claimed, among other charges, that Enid illegally exercised its power to condemn land to benefit the Osage Nation. Enid paid the Nation $1 million to avoid litigation over the pipeline and the Nation’s assertion that it owns rights to water from the Arkansas River. The city also paid to have two access points installed on Kaw Lake from which the Nation will be able to draw up to 8 million gallons of water a day, should it desire to do so.
The case was decided in Enid’s favor on Feb. 7 of this year, when Osage County District Court Judge Stuart Tate found little merit to Merrifield’s arguments that:
- His land was on the Osage Reservation and thus condemnation should transpire in federal court – a novel spin by a non-Native based on the U.S. Supreme Court’s McGirt v. Oklahoma decision that reaffirmed the reservations of the Five Civilized Tribes (but so far not that of the Osage Nation);
- The pipeline required a mining permit from the Osage Minerals Council;
- A city in Garfield County cannot constitutionally flex its muscles over land three counties away in the Osage; and
- Enid is building the pipeline not for the benefit of the public but for benefit of the Osage Nation and Koch Industries, which operates a fertilizer plant on the city’s water system.
Once Tate’s decision was issued it meant that an order stopping pipeline work on Merrifield’s land was lifted, even though Merrifield announced he would appeal to the Oklahoma Supreme Court.
Merrifield’s attorney, Brad Hilton, wanted the order barring construction to be continued without Merrifield having to post a bond at all, while Enid’s attorney, Danny Williams, argued that Merrifield should have to post nearly $7 million, an amount the pipeline contractor would have to pay at $4,790 a day for a two-year delay in the construction.
On April 5, Tate heard arguments from both lawyers on the issue then issued a judgment: That an appeal bond was, in fact, legally required, but that $7 million was a prohibitive amount. He then set the bond at $500,000. The order barring construction will only be in effect after the bond is posted – and Enid can come back and ask that it be increased.
Hilton argued that only Merrifield faced the risk of damages as an appeal, which could take two years, unfolded.
“The real question here is the potential damage to Mr. Merrifield’s property,” Hilton said, noting that the pipeline is at a higher elevation than “Merrifield Lake” and that should the pipeline fail, it would funnel into said lake.
“If there’s a problem, the lake is going to be contaminated,” Hilton said.
The pipeline is going to carry untreated fresh water so it was unclear what contaminants would be released.
Hilton also said that Enid has 70 miles of pipeline to build: “They can certainly stay busy and not be on this small piece of land.
“The suggested size of the bond: One, it’s prohibitive; Two, it’s punitive; and Three, it’s ridiculous.
“There’s absolutely no evidence of financial damages. That’s just attorneys talking.”
Williams begged to differ, of course.
“This is not a small piece of property,” he said. (Merrifield owns 198 acres but the 36-inch pipeline would lie deep under a linear easement that totals about three acres; he was awarded $47,700 for that loss but because of ongoing litigation has yet to receive the money.)
“We have an absolute right to go on that property today, right now,” Williams said. He also said that Merrifield was trying to dictate the terms of a government project that is in the public interest, and that any further delay would be costly. The pipeline is supposed to be completed in 2023.
“I’ve been advised by the lead engineer that … we need to do some clearing on the Merrifield property,” Williams told Tate. “We actually need to go on there as soon as possible.”
