Cindy and Jerry Baker
8561 Moore rd.
Traders Point
Subject: Letter to the Att’y Gen’l
Hi folks
Attached is the final draft of the letter we hope will confirm our feeling that IP&L cannot legally cut or remove trees inside the Right-of-Way.
If you want to be a signator, fax me your signature—at least 1/2 inch tall—and address and you will be included. Fax to: 293-2567
The more signatures, the more seriously the letter will be taken.
THIS LETTER AND THE RESPONSE IS VERY IMPORTANT! A POSITIVE RESPONSE WILL BE OF MAJOR IMPORTANCE!
PLEASE RESPOND AS QUICKLY AS YOU CAN…293-2805
Regards
Jerry Baker
November 21, 2008

November 21, 2008

The Honorable Steve Carter
Attorney General of Indiana
Indiana Government Center South
302 West Washington Street
Indianapolis, IN 46204

Dear Attorney General Carter:

Throughout Indiana there has been an outcry over the perceived abusive tree-trimming practices used by local utilities. The utilities maintain that they are required to use aggressive practices to prevent outages caused by falling and overhanging tree limbs and would face severe fines by the Federal Government if they fail to maintain control over vegetation overgrowth.

While it is certainly true that trees need to be kept clear of power lines, the utilities fail to mention that this potential Federal penalty applies only to the National Grid System and certain in-state high voltage lines which are a part of the Grid System. It does not apply to the majority of in-state distribution system lines. The vast majority of complaints made to the local utilities deal with the in-state distribution system.

At the heart of these complaints is a perceived attitude coming from the utilities that, “We can do whatever we feel is necessary to trim or remove trees to cut costs and insure the distribution system reliability.” The utilities have used an Indiana Utility Regulatory Commission (IURC) Tariff Code E-16,15.2 (attached) as their legal authority to do whatever they feel best.

It is extremely interesting to note that E-16,15.2 is a tariff which was included in a package drafted by Indianapolis Power & Light (IPL) and submitted to the IURC for their approval.
Tariffs receive much less scrutiny than other IURC rules and are also not subject to the extensive approval process required for a review by the Indiana Attorney General’s Office. Tariffs also receive less scrutiny than laws enacted by the State Legislature which go through public review and debate and subsequent vote by the 150 members of the Indiana General Assembly.

This tariff continues today to be the legal foundation used by IPL and other utilities to install low voltage and high voltage lines wherever they choose, even without adequate pre-existing easement rights; and to take personal property (trees and shrubs) without prior approval of property owners and without due process and compensation.

No other Indiana company or unit of government has such unlimited power. This ability to bypass routine reviews of the Attorney General’s Office may explain how abuses could have escaped a governmental agency’s oversight for so long. In our estimation, the entire approval process is seriously flawed.

For many years, Indiana property owners and the utilities have worked in harmony by each respecting the other’s needs and the impact of utility work on neighborhoods. To reduce outages and cut costs, policies by utilities have changed dramatically in recent years. Due to these utility policy changes, the peaceful coexistence which lasted for decades has given way to hundreds of complaints and many lawsuits. Most of the lawsuits, if not all, were settled out of court, thereby avoiding precedent-setting case law.

This interpretation of E-16,15.2 has raised the question in our minds as to whether 15.2 is unconstitutional or is simply being abused. As property owners, we believe that going onto private property to trim or remove trees without due process or compensation is unconstitutional. We do not believe any other business entity or unit of government has such broad authority. The taking of personal property without due process and compensation is not acceptable. Perhaps when originally drafted, the authors of 15.2 meant that a utility can go onto personal property to access trees in the right-of-way or easements, or to be able to connect their equipment to customers’ buildings or to read meters. However, the utilities seem to have interpreted 15.2 as the LEGAL basis to trim or remove any trees which they feel necessary for distribution system reliability. Currently this includes trees on private property. In effect, the utilities are taking a property owner’s personal property without due process and compensation, and without any prior approval by the property owner. The actual motivation can be found in statements made by utilities in which costs can be reduced by cutting larger portions of vegetation. This allows trimming cycles to be stretched out.

As an example, an urgent and serious situation has developed on the Indianapolis northwest side involving the south side of West 86th Street from Lafayette Road to I-465, and Lafayette Road from 86th Street south (Trader’s Point), affecting numerous property owners and miles of land. IPL chose to use an existing route for lower voltage lines on which to piggyback high voltage lines. The poles were placed as close to the private property boundaries-Right of Way Lines-(ROW) as possible which seems to be their standard practice. This placement obligates the utility to trim or remove trees from private property extending inside the ROW. Due to the higher voltage, clearances of 30 to 35 feet or more are now needed. This only increased the amount of damage already made necessary by the pole placement practice. In effect, hundreds of old-growth trees are in danger of removal or severe trimming, in addition to those already damaged in a prior cutting of 2005.

By virtue of the permanent need to keep these areas clear of threats to power lines please recognize that, in addition to this type of removal, all property owners adjacent to power lines, whether there are trees already planted or not, have had their rights to free use of their property restricted. There are no “low growing” evergreen trees (conifers). Therefore, no year-round privacy barrier can be planted within the areas we believe have been unlawfully taken and no “tall growing” species of deciduous trees can be planted. Damage to private property already done and what may occur in the future, based on this example, certainly can be estimated in the millions of dollars.

Recently a major natural gas pipeline was being built across several Midwest states, including Indiana. Before construction was even begun, easement rights had to be obtained and compensation paid to property owners.
In IPL’s case, no such prior easement rights were obtained or compensation made for any additional easement beyond the ROW. This reflects, in our view, IPL’s attitude in regard to their interpretation of 15.2: “We can do whatever we want.” Remember, they wrote the tariff language. As a result of these actions by IPL, the question surfaces, “Is E-16,15.2 unconstitutional or simply being abused in its interpretation?”

As the IURC is a governmental agency, we feel it is proper and right to seek your opinion as Attorney General on the constitutionality of E-16, 15.2 and its interpretation by IPL. We would appreciate as prompt a review as possible.

Thank you for your time and careful attention to our concerns.

Sincerely,

Gerald and Cindy Baker

cc: The Honorable Greg Zoeller
Attorney General Elect of Indiana