Fenn Church says utility claims sovereignty over the constitution
Alabama landowner Fenn Church won a significant victory in September when a Shelby County circuit judge temporarily barred Alabama Power Company (APCO) from entering his property to construct a high-voltage transmission line.
But on October 21, the Alabama Supreme Court stayed the preliminary injunction, allowing the company to proceed immediately, even though the court had not yet decided a condemnation dispute at the heart of the case or determined whether APCO had acted lawfully in selecting Church’s property.
The ruling was just one sentence long and didn’t explain the reasoning, and it didn’t take APCO long to take advantage of it. The company sent crews and equipment to Church’s property the next morning to begin removing trees.
But it also didn’t take Church long to try and mobilize his own resistance.
“Alabama tree cutting crews are coming to my front gate in the morning at 7 am,” Church wrote on X. “Appreciate any support that anyone can give me standing at my gate in the morning! They notified my attorney at 5:30 pm this afternoon!”
In an October 22 interview with AgWeb’s Farm Journal, Church said the power of eminent domain was an existential threat to constitutional rights.
“Think about where we are,” Church told the publication. “Openly and publicly, we are watching a utility company claim sovereignty over the Constitution and our God-given rights. They believe they can take the apple, leave behind a core, destroy value forever, and we’ll all go along and pretend it’s OK. I don’t and I won’t.”
The fight was about a lot more than just his property, Church said: “More of these power lines are coming, not only across Alabama but to every state in our nation. Maybe, across your land and home. It’s way past time for everyone to wake up.”
Before the Supreme Court’s action, John Rich, the United States special envoy for American landowners, had publicly rallied support for Church. Ahead of the September injunction hearing, Rich wrote on X: “Mr Fenn Church is pleading with folks in Alabama to support him this Wednesday, as a circuit judge will decide whether or not Alabama Power can take control of his land against his will. Mr. Fenn says it’s a violation of his 4th Amendment. I agree. Do you?”
A 74-Mile Transmission Line
Church owns approximately 416 acres of wooded property in Shelby County, near Calera, Alabama. The land includes his home, old-growth hardwoods, a 27-acre lake, wildlife habitat, and Buxahatchee Creek.
The transmission project is a 74-mile, 230-kilovolt line crossing four Alabama counties, with an estimated cost of $248 million.
In its court filing seeking to overturn the preliminary injunction, APCO said the transmission project would reduce strain on existing transmission facilities, increase operational flexibility, and strengthen the grid for 1.6 million customers. Alabama Power director Matt Hart also told the court in a supporting affidavit that the project could not be energized or deliver any of its intended benefits until it was completed end-to-end.
“Unlike some construction projects, it cannot be placed into service in disconnected segments or in phases,” Hart stated in an affidavit. “The project cannot be completed, energized, or placed into service while the preliminary injunction remains in effect. The entire 74-mile project is effectively in jeopardy by the inability to access 0.55 miles of the project located within the property.”
At the September injunction hearing, judge Jonathan Spann wasn’t buying any of it.
For one thing, Spann said APCO’s condemnation offers ranged from $80,000 in January 2025 to $132,000 in September 2025 to $194,000 in a final offer letter dated May 19, 2026. However, Spann observed, Church received the final letter on May 26, after APCO had filed its condemnation complaint.
“The final approved offer letters contained the first attempted breakdown of valuation for the property interests APCO sought to acquire,” the judge wrote in the decision. “Mr. Church testified that he wanted time to consult with his attorney and an appraiser regarding APCO’s final approved offer letters to formulate an appropriate response but did not have an opportunity to do so.”
In addition, Spann wrote that the court heard testimony from Richard Maloy, an Alabama-certified general real estate appraiser, regarding the elements of damage to Church’s property resulting from the condemnation.
“Mr. Maloy highlighted that the final approved offer letters did not contain any damage for the diminution in value to the remainder, did not mention the presence, nature, or scope of advanced communications rights being acquired, and did not contain specific terms on the other rights sought by APCO or the specific areas which would be affected,” the decision stated.
Those deficiencies alone could justify a conditional dismissal of the condemnation action, Spann found. The judge separately found that Church had demonstrated a likelihood of success in challenging the utility’s route selection, citing Joshua Phillips, a transmission line services supervisor for APCO who had testified about how the transmission line route was determined.
“The Autaugaville-East Pelham 230kV transmission line contains approximately sixty (60) bends in the line,” the decision stated. “Mr. Phillips also testified that the determination of the route was based on access, existing transmission corridors, construction, maintenance, terrain, and existing structures, with no consideration to existing zoning, the Shelby County Comprehensive Plan, the Future Land Use Map contained in the Shelby County Comprehensive Plan, and the development potential or suitability of any property within the proposed project, including the Church defendants’ property.”
Phillips testified that he had the discretion to create angle points or bends in the line but chose not to exercise any such discretion when routing the transmission line through Church’s property, Spann wrote.
“The Church defendants challenge APCO’s taking on the basis that the location of the transmission line and access roads across the Church defendants’ property are arbitrary and capricious and wantonly injurious,” the judge wrote. “The Church defendants need only show that the location of any one of these areas are either arbitrary and capricious or wantonly injurious to the property. The testimony provided demonstrates a likelihood of success on the merits that APCO’s location selection was arbitrary and capricious for its failure to consider injury to the land, development potential, future land use planning, and failure to exercise any discretion to shift the location of the line or create angles to avoid injury. Therefore, the Church defendants have demonstrated a likelihood of success on the merits of both their arbitrary and capricious and wantonly injurious claims.”
The court also found that clearing the property would cause immediate and irreparable harm, citing its old-growth trees, Buxahatchee Creek, Church’s home, and the proposed use of his driveway.
“The Church defendants’ property contains Mr. Church’s home,” the decision stated. “He expressed concerns about privacy, safety, and damage due to the scope of the rights sought by APCO. As a part of those rights, APCO seeks to use Mr. Church’s main driveway to his home for construction and maintenance of the transmission line. The Church defendants’ property contains unique characteristics, including the rock bottom Buxahatchee Creek and original old growth trees.”
They faced not just a distant threat, Spann wrote.
“APCO clearing crews were approaching the Church defendants’ property at the time this preliminary injunction was sought,” the judge wrote. “Clearing, entry upon, and other disturbances of the Church defendants’ property, inclusive of Mr. Church’s home, would certainly result in immediate and irreparable injury absent a preliminary injunction.”
The judge also observed that other portions of the transmission project remained available for construction while Church’s legal claims were adjudicated.
APCO Responds
Alabama Power responded on September 28 with an emergency motion asking Spann to reconsider, vacate his injunction, or to suspend it pending appeal.
Spann had committed reversible legal error by interfering with the company’s constitutional and statutory right to enter condemned property after depositing compensation and posting the required bond, the company contended.
The company subsequently appealed to the Alabama Supreme Court on October 1 and filed a separate emergency motion to stay the injunction on October 2.
In its September 28 motion, the utility said the judge exceeded his authority by interfering with a right of entry expressly protected by the Alabama Constitution and the state’s eminent domain statutes, which allow a condemning authority to enter property during an appeal when a condemnation award has been paid into court and the required bond has been posted.
Those conditions were satisfied, APCO argued. The utility had deposited the probate court’s $425,435 condemnation award and posted an $850,870 bond. APCO asserted, too, that Alabama courts had never granted such relief under comparable circumstances.
The judge’s finding of irreparable harm was flawed as well, APCO asserted, arguing that the condemnation award would compensate for any damage to Church’s property. It also disputed Spann’s assessment of the property, asserting that the proposed transmission corridor crossed undeveloped timberland more than half a mile from the residences and that the utility would use existing access roads only as necessary for construction and maintenance.
Finally, the utility challenged the finding that its route selection was arbitrary and capricious, arguing that Alabama law grants condemning authorities broad discretion in choosing transmission routes and that the availability of another possible route did not, by itself, establish an abuse of that discretion.
Ultimately, though, APCO’s motions asserted an immense power over private property, using language from a 1900 U.S. Supreme Court case.
“All private property is subject to condemnation for public use,” the motion stated. “[T]he sovereign power of eminent domain is inherent in government as such, requiring no constitutional recognition, and is as indestructible as the state itself; and ‘that all private property, tangible and intangible, is held subject to the exercise of the right by the sovereign power …. The power of eminent domain is limited only by the landowner’s right to ‘just compensation’ for the taking.”
After the court stayed the injunction, Rich wrote on X: “I did everything I could to defend Mr. Fenn, and he took this all the way to the Supreme Court of Alabama, but in the end? Alabama Power crushed him. My deepest apologies to Mr. Fenn for failing to secure his land. I’m sorry, Sir.”
