The $640,000 consent decree will be reviewed in Berkshire Superior Court on Feb. 6.
PITTSFIELD -- Not everybody is board with an eminent domain agreement that would give Tennessee Gas Pipeline a two-mile easement through the Otis State Forest in exchange for $640,000.
The Berkshire Environmental Action Team and Pipe Line Awareness Network of the Northeast on Monday bitterly criticized the proposed consent decree, negotiated between state officials and the pipeline company, saying they have "grave concerns" about the level of compensation that the state would receive for conveying its land.
After failing on Monday in an attempt to deliver a letter to Berkshire Superior Court judge John Agostini, the two emailed their message to Attorney General Maura Healey and Energy and Environment secretary Matthew Beaton instead.
They listed a number of potential issues with implementation, and said the deal was brokered without public involvement. They charged that the Department of Conservation and Recreation has a "conflict of interest" because the agency will benefit from timber profits when trees are cut for the pipeline. And despite a court ruling to the contrary, they continue to assert that the land-taking would violate the state's constitution.
Kinder Morgan sued the state in March after members of the state legislature buried a bill that would have voluntarily conveyed the natural gas pipeline easement in exchange for negotiated compensation.
Assistant Attorney General Matthew Ireland argued in April before Agostini that Article 97 of the Massachusetts Constitution, which requires legislative approval for the conveyance of conservation land, trumps the U.S. Natural Gas Act, and that the state didn't have to convey the land.
Agostini ruled for Kinder Morgan in May, saying the federal statute preempts the state Constitution and gives the pipeline company power to take the land.
The consent decree, announced in December, was heralded as a mutually-beneficial means to cap the fractious legal battle. Healey at the time said the agreement "sets a very high bar" for the value of conservation land takings in Massachusetts.
Beaton said the deal "represents the tireless work of the state" and will allow for the purchase of conservation land "that will truly benefit generations of people within the Berkshire County region and beyond."
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Under the agreement, $300,000 would let the state's Department of Conservation and Recreation acquire additional conservation land of an "equal value" so as to ensure "no net loss." Another $300,000 would go toward environmental mitigation and facilities improvements at Otis State Forest. The remaining $40,000 represents the fair market value of pipeline easements.
The deal must still be approved by Agostini, and a Feb. 6 court hearing is scheduled in Pittsfield.
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Berkshire Environmental Action Team leader Jane Winn tried to deliver a letter to Agostini asking him to reject the deal, but was told by officials at Berkshire Superior Court she could not do so because BEAT was not a party to the eminent domain lawsuit, according to Pipe Line Awareness Network president Kathryn Eiseman.
Winn and Eiseman then emailed their letter to Healey, Beaton, DCR chief Leo Roy, and to Ireland, Eiseman said.
Besides its central objection, the letter asks for more involvement from the state's Division of Fisheries and Wildlife, asserts that the Narragansett Indian Tribe has an interest in protecting ceremonial stone landscapes, and asks that an environmental monitor be selected to oversee construction.
Eiseman and Winn are among those who say the Otis State Forest is ecologically significant, and can not be replaced. They note that Tennessee plans to withdraw one million gallons from the pristine Spectacle Pond to test the pipeline, and say the environmental damage will be profound.
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A large portion of the 3,800-acre forest, with its 400-year-old hemlocks and 62-acre pond, was preserved in 2007 in a collaboration between the state and Mass Audubon at a cost of $5.2 million, one of the biggest conservation land deals in Massachusetts history.
Kinder Morgan points out that there is an existing pipeline easement through the land, and that the new pipeline would widen an already-cleared corridor and parallel existing infrastructure.
"For more than 30 years, Tennessee Gas has safely and responsibly operated two underground natural gas pipelines that traverse a section of the Tolland/Otis State Forest," wrote Richard Wheatley, Kinder Morgan's public affairs director, in an email.
Wheatley said part of the money will refurbish a boat ramp at the state-owned Lower Spectacle Pond, and make other recreational improvements at the Tolland and Otis State Forests.
If approved, the agreement would pave the way for the Connecticut Expansion, with its 14 miles in Massachusetts, Connecticut, and New York, including the portion through the state forest. The pipeline project is designed to serve three natural gas utilities in Connecticut.
The project gained major state and federal approvals in 2016, including a certificate from the Federal Energy Regulatory Commission.