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Police Powers and Red Terry

Theresa Red Terry

Theresa Red Terry and her daughter are still up in their trees, blocking the Mountain Valley Pipeline that will destroy their mountain if it ever goes through. They are still surrounded by the State Police, the Roanoke County Police, and Mountain Valley Pipeline Security agents. The police wait at the bottom of the tree either to arrest them when they finally come down, or to go up into the trees and get them when they are too weak to resist.

It appears that the Roanoke County Police broke their strict food blockade and gave Red and her daughter pizza and bologna sandwiches. My assumption is that relenting the food blockade was a decision of the highest ranking officer in the Roanoke County Police Department or perhaps even the Governor’s office because nothing has filtered out about individual officers being disciplined or relieved.

I think it’s time to examine the role the police assume when they go to extremes to protect the interests of a private corporation.

First, we need to look at the Terry’s position. When an action infringes upon your rights in America, your recourse should be to go through the due process any American citizen has a right to. By law, before land is destroyed for a pipeline there has to be environmental impact studies. The way this is done Mountain Valley Pipeline will pay contractors to do these studies. These studies are owned by Mountain Valley Pipeline. If they don’t like what one says, it disappears.

When they gather the requisite number of studies, they submit them to The Federal Energy Regulatory Commission (FERC) who approves them Pro forma. It’s unknown how many unfavorable studies are buried. My assessment is not many. A man doing an environmental study on my farm for the Virginia Department of Highways said, “When you’re being paid this much, you want to try to kind of find out what the people hiring you want. You might want to work for them again.”

For practical purposes, FERC denied the Terry family the due process any American is entitled to.

When an American police officer arrests someone, he may know very little about the particulars of the case. He is willing to make the arrest only because he assumes the person being arrested will receive due process. In this instance he can’t. We demand more of our law enforcement officers than any other country in the world. Simply parroting, “I was only following orders” was never enough.

In the Terry family case, our police powers are being wielded as a special favor to the Mountain Valley Pipeline. An ordinary citizen would not be able to get constant police presence. The police would not give around the clock protection to a battered woman no matter how legitimate her need or fear.

The way to determine the proper role of the police in a dispute of this nature is to begin with who owns what. Mountain Valley Pipeline has been awarded an easement through the Terry’s property, not complete ownership. The land is dually held. The only near exception might be had the Terry family signed what is known in the trade as the sucker contract. Under the sucker contract, the phrase “this property “— which would include everything the Terry family owned — “is to be used for the complete enjoyment of Mountain Valley Pipeline” — or some such similar phrase. Under that contract the limits have not been tested in a court of law. They could destroy, use, or alter anything even on land outside the formal easement.

If they came to the landowner’s house, even one off the easement, and demanded, “Get out now. We’re using it for an office and to house workers,” they’d still be within the technical confines supported by the language of the contract. The vast majority of people facing Eminent Domain are not well educated, easily intimidated, and they do sign this contract. The Terry family is a minority exception.

This dual nature of the ownership of the easement puts the Terry family in an entirely different situation from a simple trespass case. They can enter and leave the easement with complete legal right. They can also invite whomever they choose.

The easement itself is restricted. Mountain Valley Pipeline is suing for the right to build and maintain a pipeline only. They have no right to deny anyone access. A FERC permit doesn’t convey the right to have armed security personnel or employees whose role it is to intimidate anyone who comes into that easement for the purpose of observation or humanitarian aide.

Mountain Valley Pipeline cannot be said to have a need for security to protect anything physical. Pipelines are a business fraught with liability. They blow up. They leak. They pollute air and the water. To avoid being caught in a liability suit, these companies are structured like Chinese boxes. You keep opening the next box until you come to the last one and find it empty. Every piece of equipment on site will be rented. Every employee works for a subcontractor. The corporation is an empty shell. The Terry family will never put a name or a face to the person who drew a line on a map and determined it would be their land, their hopes, their dreams, their future destroyed.

Police powers are intentionally limited. To access private property requires the permission of all landowners in a contested case. Strictly speaking the Terry family is the only landowner. Without permission, the police can enter when in hot pursuit of a criminal or by a search warrant. None of these elements have been met. It’s not as if the Terry family is going to run away. The whole point is their intention to stay.

My experience with police behavior in these incidents has led me to certain conclusions. Police officers generally make the assumption that the will of the condemning authority and the law are the same. They’re not. Police officers are generally available when the pipeline company wants to make a show of force. When the pipeline was being built through my farm, State Police Officers or County deputies in their patrol cars often escorted their heavy trucks of the contractors. These were off-duty officers. It was good duty. They didn’t have to deal with criminals, and they were paid much more than the State or County would. Such a perk bought loyalty. If once in a while they had to shake up a landowner, it was a small price to pay.

A Virginia State Policeman forced a neighbor’s wife to move her car out of her own driveway because the pipeline company meant to use it. The driveway was off the easement, and they had no right to it. When I found the pipeline company equipment using parts of my farm off the easement, I confronted the State Police Sergeant doing escort service, and his response was to challenge my ownership of the property.

It’s not a pleasant feeling to approach a State Police Officer, armed and in full uniform, and tell him he no right to be on my property. Without a camera to document where he was, I risked serious trouble. It happened often enough that I developed a standard approach to dealing with angry and aggressive police officers. First, I photographed them, then I told them, “Officer, you’re on my property without permission. Please call your Captain for instructions.”

They always moved.

In the early going, I dealt with State Police Officers and County deputies. Then the deputies dropped out. Only later did I get the story. At that time, Doug King was the Chief Deputy in Wythe County. Later, he became Sheriff. Duke Energy had made a huge mess with mud eroding into the Patterson Road several miles from where I live. As Chief Deputy he didn’t have the authority to stop the escorts. Only the sheriff could do that, but he did make them clean up their mess. After that, all escort duty went to the State Police.

A sworn Virginia Law Officer should never owe financial loyalty to anybody.

It gets worse.

Right off the corner of the farm where I grew up, the Major Graham Road meets Route 52. Longtime residents know there’s a bend in the road that conceals traffic coming from the east. The Duke Energy truck pulled out without checking the blind spot and killed Martha Wade Neese. The truck driver was negligent. He didn’t wait long enough to see if there was anything concealed in that bend.

When the State Police investigated the accident, their conclusion based upon the skid marks was that Martha Wade was speeding and the truck driver or his company was not liable.

We all knew Martha Wade, especially my Mother who taught in the same school with her. Martha Wade never drove with excess speed. She drove so slowly it was painful. Mother used to say to her, “Martha Wade, if you don’t speed up, I’m going to get out and walk.”

Do I have courtroom quality evidence that on this one day of her life Martha Wade wasn’t speeding? I’d feel a lot better if the State Police officer who investigated the accident didn’t have a financial investment in the outcome.

Anyone who believes that law and morality are parallel lines is naïve. Law and the people who enforce and interpret it have a tendency to veer off into the tangent necessary to protect the powerful and the connected. Once in a while it takes people like Theresa Red Terry and her daughter to remind us that the lines need to be set right. It’s so rare to find people who value conscience and what’s right over personal interest. When we find that rare person, we as a people need to protect them.

If you’ll look to the U.S. Constitution as a guide, you won’t find Red Terry and her daughter out of step. She only runs afoul of later regulations pushed through the legislatures in the dark by lesser men.