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    Default Man arrested for trespassing on his own land

    When corporatism meets private citizen, this often happens. Property rights get blurred. Government officials bend to the will of their corporate masters. One private company tramples the rights of private citizen property owners. Wal Mart has been doing this for years. Corporations like Wal Mart use the power of eminent domain to seize private property from individual citizens and often against the will of the communuty at large. Energy companies trample property owners rights just like Wal Mart, as in the case below. Seems like the energy company in question could have simply paid this property owner a little more money for using his land. Note that the government authorities in this, and many cases, tend to side with the corporations. Like GMWise has been saying for some time now, America is not a capitalist society, it is a Corporatist society. Government will trample your rights on behalf of big business if the price is right. Follow the money.

    Superior man arrested for trespassing on his own land

    The latest chapter in a saga over an easement for a pipeline ended with Jeremy Engelking going to jail.






    Fox 21 New: Property dispute
    Jeremy Engelking will appear in Douglas County court this afternoon to face a trespassing charge. But here’s the kicker: The Superior man allegedly trespassed on his own property.


    Engelking, 27, aimed to hunt deer Wednesday morning when he noticed a pipeline crew on his land. He hopped on his ATV and told workers they had no right to be on his property because he had received no compensation from Enbridge Energy Partners L.P. for an easement.

    Engelking said workers told him he was in an unsafe place and asked him to come to an equipment staging area, where he continued to argue his case.

    But just as he was turning to leave, Engelking said an officer from the Douglas County Sheriff’s Department arrived on the scene and approached with a Taser drawn.

    “He ordered me to 'get down on the ground now!' And he said that I was being arrested for trespassing,” Engelking said.

    When Engelking protested, pointing out that he was on his own property, he said Sgt. Robert Smith told him: “It doesn’t matter. You’re going to jail. You can tell it to a judge tomorrow.”

    Engelking offered no resistance, but Smith placed him in handcuffs then transported him to the Douglas County Jail. After posting a $200 bail bond, Engelking was released that afternoon. He also had to pay about another $100 to recover his impounded ATV.

    The incident report says Engelking parked his ATV in front of pipeline equipment, stopping workers. Engelking said it wasn’t his intention to physically block work.

    Lorraine Grymala, a community affairs manager for Enbridge, said access to work sites is restricted in the interest of safety.

    "We can't have people in the right of way without an escort and the proper gear," she said. "People could get hurt."

    Engelking’s arrest Wednesday is the latest episode in a long disagreement he and his father, Jerry Engelking, have had with Enbridge, dating to the company’s last pipeline expansion in 2002.

    Jerry Engelking, who owns 200 acres next to his son, said he refused to sign off on changes proposed to the original 1949 easement across his property because he felt the revisions put too many restrictions on how he could use his property. That original easement said future pipes laid along the same route would require payments in advance.

    According to court documents, Enbridge sent a $15,000 check to Jerry Engelking and also tried to hand-deliver payments, but Engelking refused to accept them.

    Engelking said that to claim the money he would have had to broaden the scope of the existing easement across his property, so he turned the checks down. When the latest pipeline project came along, the Engelkings again refused to modify the original 1949 right-of-way agreement.

    The family sought a restraining order against Enbridge on Sept. 24, arguing the company intended to use the pipeline for transporting petroleum products other than those originally allowed, protesting that they had not been paid and citing damage to property.

    Douglas County Circuit Court Judge George Glonek granted a temporary injunction but lifted it the following day, saying the company’s plans for the pipeline were appropriate and efforts had been made to pay the Engelkings.

    Jerry Engelking said the fight’s not finished yet.

    Officers reported no similar incidents along the path of the Enbridge pipeline construction in Douglas County, said Lt. Gerald Moe of the Douglas County Sheriff’s Department.

    Grymala said that Enbridge has worked with about 1,500 landowners as part of the pipeline project.

    “We recognize construction is an inconvenience to people; people want access to their land,” she said. “We strive to be respectful of that, to have a good working relationship.”

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    Default Re: Man arrested for trespassing on his own land

    Pretty simple really.. if there's an easement, the utility company is privileged to enter to maintain its pipeline. If you interfere with their use of the easement, that's trespassing (so long as the use conformed to the easement). It comes down to whether the utility company's actions were permissible under whatever sort of easement they had.

    As far as Wal-Mart using eminent domain, that might happen in other places, but not in Oklahoma. In Oklahoma, takings are extremely limited by the Oklahoma Constitution.

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    Default Re: Man arrested for trespassing on his own land

    Quote Originally Posted by Midtowner View Post
    As far as Wal-Mart using eminent domain, that might happen in other places, but not in Oklahoma. In Oklahoma, takings are extremely limited by the Oklahoma Constitution.
    Are you certian of that? Or is there currently a surplus of land where WalMart wants to build, hence no need to flex it's political financial muscle? Taking of private land for private business does happen here. How much has the law been tested? Put enough money at stake and greedy politicians might just push it.

    Oklahoma Senate task force studying eminent domain hears complaints

    Journal Record, The (Oklahoma City), Aug 24, 2005 by Janice Francis-Smith


    It's not about the money anymore, landowner Joe Heim told members of a state Senate task force assigned to study eminent domain issues on Tuesday. It's about everybody's Fifth Amendment rights.

    The question of whether or not the government has the right - or should have the right - to seize a citizen's property in order to make way for another private development really hinges on few key legal definitions, said a representative of the Oklahoma Municipal League.

    Heim is currently involved in a legal dispute with Western Farmers Electric Cooperative in Love County. Western Farmers has initiated eminent domain proceedings in order to claim enough of Heim's property to build out additional electricity generation capacity in the area. More capacity is needed to accommodate a new casino built by the Chickasaw Indian tribe.

    The Chickasaws built a $2 million substation and told Western Farmers to supply power to it, said Heim. Western Farmers has entered into a private agreement with the tribe, but is exercising its public powers in order to fulfill that agreement, said Heim's attorney, William Bailey Cook. There is an existing electrical right of way that could be enhanced that would not require the seizure of Heim's property, he said.

    That property is my retirement fund, said Heim, adding that he is self-employed and cannot look forward to much by way of Social Security payments in his later years. Heim said he had purchased the property due to its location, right off of a major highway, with the expectation that the value of the land would continue to rise until he decided to sell the property and retire.

    Heim said Western Farmers offered him $2,700 as compensation for a one-acre easement which would destroy 10 acres of my property, almost 20 percent of it, and refused to negotiate on the appraised value of the land, he said. Heim banded together with a group of property owners to pool their resources and hire an attorney.
    I don't think the court had enough law to do anything for us, said Heim, though he had produced an expert witness in court that testified the company had other viable alternatives for providing power to the new casino. Though Heim has appealed the court's decision, he said his fellow landowners have given up.

    In a telephone interview, Brian Hobbs, general manager of legal and administration for Western Farmers, said the project will primarily serve the casino, but there has been residential growth in the area as well.

    That substation and line, due to the growth in that area, is not providing the level of service from a reliability standpoint, and we're concerned that it's going to exceed its capacity, said Hobbs. The line will serve more than just the casino, but even if that were the case we take the position that casino, as a commercial customer, is part of the public.

    Just as if you were building a Wal-Mart distribution center or - if a local landowner was putting in a convenience store, they are part of the public that have rights to electric service like the rest of the public, said Hobbs. Western Farmers will speak to the eminent domain task force on Thursday.

    Western Farmers also requires a commercial entity demanding more power to front the cost of building out the local infrastructure, to reduce the financial risk borne by other ratepayers, said Hobbs. The cost is later credited to the commercial entity's electricity bill.

    Moshe Tal, who owns land in the Bricktown area of Oklahoma City, told the task force the city seized a valuable portion of his land using eminent domain proceedings, and paid him far less than market value for the land, only to sell the land to another developer at a higher price per foot.
    Though the transaction certainly raises some questions, Margaret McMorrow-Love, special counsel for the Oklahoma Municipal League, said she could not identify any areas where the city violated the law. That's partially because the law is so vague when it comes to eminent domain, she said.

    The U.S. Supreme Court ruled in the case Kelo vs. City of New London that the government could seize private property for economic development purposes, but the court was divided in its interpretation of what would qualify as a justifiable economic development project, said Love.

    They agree on traditional public use, she said. They also agree on public access, those facilities that are accessible to the public. But the area they could not agree on among themselves was the third component - that's what you define as economic development.

    However, defining the kinds of projects that would be acceptable can be tricky, she said.

    If too narrowly defined, it may have unintended consequences, said Love.
    Though the law does prohibit the government from abusing its discretion, the definition of such abuse is likewise vague.

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    Default Re: Man arrested for trespassing on his own land

    Here's more information. Some folks are concerned about it. Seems the date according to the documents properties is 2005. Has the Oklahoma conststution been amended since 2005?

    I doubt Oklahoma property owners are exempt from eminent domain abuse; unless there is a new law that specifically forbids it?


    http://thebasement.com/blojsom/resou...evelopment.pdf

    Eminent Domain for Private Business Development?!?!?

    I just read press releases from Rep. Liotta, Sen. Crain, and Sen. Jolley regarding the recent decision by the Supreme Court regarding use of eminent domain by local government. They intend to pursue legislation or studies to make sure your property and mine are protected from potential wrongful taking. I have mixed feelings of protecting my property vs. the good of the community. This message is not to debate that issue.

    I do think we have several statutes in place in Oklahoma to help prevent abuse of eminent domain. What would be far better is to lessen the impetus for using eminent domain for the purpose of private business development. That, I believe is a much more important issue.

    All you have to do is answer for yourself one simple question. Why would a City in Oklahoma want to exercise eminent domain and take personal property simply to build a major shopping mall? Cities in Oklahoma cannot collect ad valorem taxes for operating expense, so it must not be the increase in assessed valuation that they are after. Overall Oklahoma has a very low unemployment rate, so I don't think job creation is what they are after. However, the primary and largest source of operating revenue for Cities and Towns in Oklahoma is local sales tax! Aha! That must be why those cities are going after those development projects.

    If a city has 20,000 or 50,000 citizens to provide police, fire, streets, and other municipal services for, it must by necessity collect their local taxes. If the city doesn't have any retail stores (or only a few) inside the city limits there are no "local tax collectors". No collectors no local tax income. No local tax income – underfunded police, fire, streets, and other services. Citizens shop somewhere else and some other city gets the local taxes they could not pay at home. Oklahoma laws on local government finance are somewhat unique in this respect compared to the other 49 states. Until the State legislature is willing to tackle the job of repairing the outdated and broken system of inequitable distribution of local taxes in Oklahoma, you are putting more and more pressure on local governments to use whatever means available to get new tax collectors (malls and shopping centers) inside their city limits, and that includes eminent domain where necessary.

    I sincerely want to protect and preserve our rights to own property. You might think of governments taking private property for business development as a disease. We need to do something about the pathogen that is causing that disease. One of the pathogens in many cases may well be our statutory provisions for local government taxation. If the Legislature does not try to cure the disease, cities will continue to try to ease the symptoms by taking personal property and replacing it with retail business.

    Former Speaker Pro Tem of the Senate earlier this year, requested the Oklahoma Municipal League to form a task force or study group to address this issue and report back to the legislature. I am not sure as to the status of the study, but am looking forward to their report. Hopefully, it will facilitate the job ahead.

    All of us who value our right to own property should be asking our elected State Legislators to fix the local tax structure in Oklahoma, to help reduce the pressure which often leads to use of eminent domain.




    Dan Galloway, City Manager
    City of Bethany
    6700 NW 36th St.
    Bethany, OK 73008
    (405)7895005

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    Default Re: Man arrested for trespassing on his own land

    Quote Originally Posted by HVAC Instructor View Post
    Here's more information. Some folks are concerned about it. Seems the date according to the documents properties is 2005. Has the Oklahoma conststution been amended since 2005?

    I doubt Oklahoma property owners are exempt from eminent domain abuse; unless there is a new law that specifically forbids it?
    There's been a case since 2005, particularly, Board of County Commissioners of Muskogee County v. Lowery, 2006 OK 31, where the County, on behalf of Energetix, a utility company which wanted to build a private power plant, attempted to condemn a right of way for an easement for water pipelines across an individual's property. The Supreme Court held first that a taking for private use for a private party was unconstitutional and further held that "economic development alone (not in connection with the removal of blighted property) does not constitute a public use or public purpose to justify the exercise of eminent domain as a matter of Oklahoma constitutional law, nor does it satisfy the public purpose requirement of 27 O.S. 2001 § 5. . . ."

    http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=445996

    You may recall the national outrage in the wake of Kelo v. Rhode Island.

    http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London

    In that case, the United States Supreme Court held that takings for economic development actually did constitute a "public purpose" (and somewhere in this line of takings cases, the phrase "public use" became "public purpose" without explanation, but had some serious consequences, but I digress...

    The bottom line is that following the above case, Oklahomans enjoy more protections against takings for private use than are guaranteed under the U.S. Constitution because our Supreme Court says that our Constitution grants those rights.

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    Default Re: Man arrested for trespassing on his own land

    Quote Originally Posted by Midtowner View Post
    The bottom line is that following the above case, Oklahomans enjoy more protections against takings for private use than are guaranteed under the U.S. Constitution because our Supreme Court says that our Constitution grants those rights.
    I hope you are right, but I still contend we have not yet faced in a real challenge in Oklahoma. I found this on the internet, and I could have written it about myself except the part about property tax, mine being $4,000 per year, and the author's being less than $1,000 per year paid to Oklahoma county. There are about 12 property owners in my development. If a major retailer or big business would net Oklahoma county $480,000 per year, or even $4.8 Million with sales tax revenue, as opposed to $48,000 from the small land tract owners, would our properties be safe from confiscation from eminent domain? I would certainly hope so, but lawyers are paid to argue the big-box clients interpretation of the law. Add in massive tax revenue, and you can easily have accomplices within local government.

    I'm not suggesting we are in eminent danger (pun intended) of eminent domain abuse in Oklahoma, but wondering if we are as well protected as you suggest.

    The Vent #427: Masters of eminent domain


    Since it's going to come up sooner or later, here are the paragraphs of the Oklahoma Constitution pertinent to eminent domain:
    SECTION II-23
    Private property — Taking or damaging for private use.

    No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner, except for private ways of necessity, or for drains and ditches across lands of others for agricultural, mining, or sanitary purposes, in such manner as may be prescribed by law.

    SECTION II-24
    Private property — Public use — Character of use a judicial question.

    Private property shall not be taken or damaged for public use without just compensation. Just compensation shall mean the value of the property taken, and in addition, any injury to any part of the property not taken. Any special and direct benefits to the part of the property not taken may be offset only against any injury to the property not taken. Such compensation shall be ascertained by a board of commissioners of not less than three freeholders, in such manner as may be prescribed by law. Provided however, in no case shall the owner be required to make any payments should the benefits be judged to exceed damages. The commissioners shall not be appointed by any judge or court without reasonable notice having been served upon all parties in interest. The commissioners shall be selected from the regular jury list of names prepared and made as the Legislature shall provide. Any party aggrieved shall have the right of appeal, without bond, and trial by jury in a court of record. Until the compensation shall be paid to the owner, or into court for the owner, the property shall not be disturbed, or the proprietary rights of the owner divested. When possession is taken of property condemned for any public use, the owner shall be entitled to the immediate receipt of the compensation awarded, without prejudice to the right of either party to prosecute further proceedings for the judicial determination of the sufficiency or insufficiency of such compensation. The fee of land taken by common carriers for right of way, without the consent of the owner, shall remain in such owner subject only to the use for which it is taken. In all cases of condemnation of private property for public or private use, the determination of the character of the use shall be a judicial question.

    [Amended by State Question No. 624, Legislative Referendum No. 278, adopted at election held on Aug. 28, 1990; text shown is the amended text.]
    The current statute (27 O.S. 13) reads as follows:
    Any person, acquiring agency or other entity acquiring real property for any public project or program described in Section 9 of this title shall comply with the following policies:

    1. Every reasonable effort shall be made to acquire, expeditiously, real property by negotiation.
    2. Real property shall be appraised before the initiation of negotiations, and the owner or his designated representative shall be given an opportunity to accompany the appraiser during his inspection of the property, except that the head or governing body of the entity acquiring real property, if so mandated by federal law or regulation, may prescribe a procedure to waive the appraisal in cases involving the acquisition by sale or donation of property with a low fair market value as such value is defined by federal law or regulation.
    3. Before the initiation of negotiations for real property, an amount shall be established which is reasonably believed to be just compensation therefor and such amount shall be promptly offered for the property. In no event shall such amount be less than the approved appraisal of the fair market value of such real property. Any decrease or increase in the fair market value of real property prior to the date of valuation caused by the public improvement for which such property is acquired, or by the likelihood that the property would be acquired for such improvement, other than that due to physical deterioration within the reasonable control of the owner, will be disregarded in determining the compensation for the property. The owner of the real property to be acquired shall be provided with a written statement of, and summary of the basis for, the amount established as just compensation. Where appropriate, the just compensation for the real property acquired and for damages to remaining real property shall be separately stated.
    4. No owner shall be required to surrender possession of real property before the agreed purchase price is paid or deposited with the state court, in accordance with applicable law, for the benefit of the owner of an amount not less than the approved appraisal of the fair market value of such property, or the amount of the award of compensation in the condemnation proceeding of such property.
    5. The construction or development of a public improvement shall be so scheduled that, to the greatest extent practicable, no person lawfully occupying real property shall be required to move from a dwelling, assuming a replacement dwelling, as required by the Oklahoma Relocation Assistance Act, will be available, or to move his business or farm operation without at least ninety (90) days' written notice from the date by which such move is required.
    6. If any owner or tenant is permitted to occupy the real property acquired on a rental basis for a short term or for a period subject to termination on short notice, the amount of rent required shall not exceed the fair rental value of the property to a short-term occupier.
    7. In no event shall the time of condemnation be advanced, on negotiations or condemnation and the deposit of funds in court for the use of the owner be deferred, or any other coercive action be taken to compel an agreement on the price to be paid for the property.
    8. If an interest in real property is to be acquired by exercise of power of eminent domain, formal condemnation proceedings shall be instituted. The acquiring authority shall not intentionally make it necessary for an owner to institute legal proceedings to prove the fact of the taking of his real property.
    9. If the acquisition of only part of the property would leave its owner with an uneconomic remnant, an offer to acquire that remnant shall be made. For the purposes of this section, an uneconomic remnant is a parcel of real property in which the owner is left with an interest after the partial acquisition of the property of the owner which has little or no value or utility to the owner.
    10. A person whose real property is being acquired in accordance with this title may, after the person has been fully informed of his right to receive just compensation for such property, donate such property, any part thereof, any interest therein, or any compensation paid therefor, as such person shall determine.
    11. As used in this section:
      1. "Appraisal" means a written statement independently and impartially prepared by a qualified appraiser setting forth an opinion of defined value of an adequately described property as of a specific date, supported by the presentation and analysis of relevant market information; and
      2. "Acquiring agency" means:
        1. a state agency which has the authority to acquire property by eminent domain pursuant to state law, and
        2. a state agency or person which does not have such authority, to the extent provided by regulation.
    Now, of course, the big question: Are these laws sufficient to avoid a situation similar to Kelo v. City of New London, recently heard by the Supreme Court? Berman v. Parker (1954) seems worrisome in this context, but it pertains to the District of Columbia, which is not a state.

    As the owner of a small parcel of land with a house on it, I contribute a bit less than a thousand dollars a year to the local taxing authority (Oklahoma County). This parcel is not located on an arterial street, so it's unlikely that anyone would want to locate a business there. But there are plenty of residences on arterial streets in this area, and if I owned one of them, I'd be sweating Kelo right about now.

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    Default Re: Man arrested for trespassing on his own land

    Quote Originally Posted by HVAC Instructor View Post
    I hope you are right, but I still contend we have not yet faced in a real challenge in Oklahoma.
    Yes we have. The case is directly on point to the situation you described. Public use and public purpose in Oklahoma do not include private development. Heck, a power generation facility even has a quasi-public function, but even that didn't work. Believe me -- if these easements can't happen, no way in Hades can they take your home for private use. That is why all of the literature you're quoting is from 2005. The cited case settled this once and for all in 2006.

    The only end-around which exists is for blighted property. And the condemning authority can't just declare your land 'blighted,' it does actually have to be blighted, meaning that it can't make the determination in bad faith. That said, lots of things can be considered blighted, but your well-kept dwelling place in a nice neighborhood is likely safe.

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    mugofbeer is offline Participating Member
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    Default Re: Man arrested for trespassing on his own land

    One side note, the project in New London, CT that resulted in the Supreme Court decision that effectively tightened when communities could use eminent domain to seize private property suffered a huge blow a few weeks ago when the primary beneficiary of that project, Pfizer, announced they were moving out of the project to another location as part of a corporate restructuring.

    Now back to the original issue, I am not a lawyer but from what I have read in this article and then a couple of later ones, the arrest was justified because utilities have the right to create easements on private property for power lines, pipelines, etc. It appears the Engelking's lost a court judgement trying to block the pipeline company. The company has offered the Engelking's payment in excess of what they paid others but the Engelking's refuse to accept payment. What is in disupute now is that he was arrested for disorderly conduct when the pipeline workers felt threatened by Mr. Engelking's weapon on his ATV. Who knows what happened.

    Regarding Eminent Domain, many states have passed laws making it significantly harder to obtain land by this method. Texas, I believe, just passed such rules.

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    mugofbeer is offline Participating Member
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    Default Re: Man arrested for trespassing on his own land

    Quote Originally Posted by HVAC Instructor View Post
    When corporatism meets private citizen, this often happens. Property rights get blurred. Government officials bend to the will of their corporate masters. One private company tramples the rights of private citizen property owners. Wal Mart has been doing this for years. Corporations like Wal Mart use the power of eminent domain to seize private property from individual citizens and often against the will of the communuty at large. Energy companies trample property owners rights just like Wal Mart, as in the case below. Seems like the energy company in question could have simply paid this property owner a little more money for using his land. Note that the government authorities in this, and many cases, tend to side with the corporations. Like GMWise has been saying for some time now, America is not a capitalist society, it is a Corporatist society. Government will trample your rights on behalf of big business if the price is right. Follow the money.
    I gotta disagree with you on this one HVAC. I will agree that in the past, there have been cases of abuse when cities wanted some big new development project and a property owner refused to sell. If you read into this particular case, the property owner appears to have been offered money in excess of other owners but still refused. After a court upheld the pipeline companies right to establish an easement, they proceeded with construction.

    Law has specifically allowed utilities the right to establish reasonable easements for things like power lines and utility lines. Despite the Duluth paper's attempt to portray this as some sort of abomination, this one seems reasonable that the utility did what they had a right to do. If they didn't, the court wouldn't have ruled in their favor and the sherriff wouldn't have arrested the property owner. It appears the property owner was simply wrong.

    States across the country have recently been passing legislation that makes it more difficult for communities to use Eminent Domain because the Supreme Court's ruling a few years ago wasn't definitive.

    Your pointing out of Wal Mart is somewhat unfair to Wal Mart because there have been hundreds of examples across the country where local governments, hungry for the tax revenue from commercial developments, have taken land through eminent domain. It happened all the time in Texas when I lived there but I believe TX has just passed laws making that much harder to do when the eminent domain action is taken simply to enhance tax revenue.

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    Default Re: Man arrested for trespassing on his own land

    Moshe Tal, who owns land in the Bricktown area of Oklahoma City, told the task force the city seized a valuable portion of his land using eminent domain proceedings, and paid him far less than market value for the land, only to sell the land to another developer at a higher price per foot.
    LOL - there is a blast from the past. I know HVAC hasn't been around that long and this might even go back to "Oklahomas Own" days but quoting any article that cites Moshe Tal is a non-starter.

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    Default Re: Man arrested for trespassing on his own land

    Kerry, Moshe Tal will say anything about anything. You have to do better than that.

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    Default Re: Man arrested for trespassing on his own land

    Does Kerry even live here?

    Btw Thank you for the note HVAC...I feel special..lol

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    Default Re: Man arrested for trespassing on his own land

    Quote Originally Posted by gmwise View Post
    Does Kerry even live here?

    Btw Thank you for the note HVAC...I feel special..lol
    Why does that matter? I don't have to live there to know Moshe Tal is a nut job.

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