Eminent Domain

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Julia Trigg Crawford, Lamar County, Texas landowner standing tall against TransCanada's Keystone Pipeline

Julia Trigg Crawford, Lamar County, Texas landowner standing tall against TransCanada's Keystone Pipeline

The League's first project when we started in the fall of 2015 is one of the most pressing problems for Texas landowners, especially in East Texas. There are three dangerous pipelines traversing hundreds of water ways -- the Pegasus, Seaway and Keystone XL lines -- carrying diluted bitumen (aka "dilbit" or "tar sands"). Make no mistake, this is not your grandaddy's crude oil. It is hazardous to water, air, people and wildlife and has already wreaked havoc with the Kalamazoo River spill in Michigan in 2010 and in Mayflower, Arkansas in March of 2013.

Most towns and cities along the routes of these pipelines have little to no idea of the dangers of these substances. Moreover, landowner's rights to say no to having their land and water endangered are being trampled by abusive corporations who are gaming the state's broken eminent domain laws. These companies simply check a box on a form (called a "T4 form") and submit it to the Railroad Commission. With no review, companies are given the power to seize land for their pipelines and citizens have no right to challenge this until their land is actually condemned. In 2013, the Legislature failed to remedy this abuse in its regular session (and in no less than three special sessions), leaving landowners to fend for themselves.

A Texas Supreme Court ruling in Texas Riceland Partners v. Denbury Green Pipeline Company, rejected the notion that a company could simply check a box and receive the power to use eminent domain to seize private property. One case, brought by North Texas farmer, Julia Trigg Crawford, was recently denied a hearing by the Texas Supreme Court.

Many landowners, and their advocates, continue to argue that the courts should consider whether a pipeline (or any other facility in question) will actually benefit Texans. In the case of the dilbit pipelines and others, they are transporting these hazardous materials to refineries on the Gulf Coast for export out of the country. There are no on and off ramps for other producers to use these lines, as has been customary for common carriers. TransCanada has made claims that others will be using the Keystone XL pipeline, but has produced no firm evidence of such. Meanwhile, they built their pipeline well before the courts ruled in Julia Trigg Crawford's case.

It appears to landowners and East Texans that these pipelines are outliers and are really all about using eminent domain for private gain. (Note:  We could soon be seeing pipelines to transport water, now that Proposition 6, the water amendment, was passed in November 2013.)

BACKGROUND

In June 2013, this letter was sent to all legislators urging them to contact the Lt. Governor, David Dewhurst, and the Speaker of the Texas House, Joe Straus, from Debra Medina, Jim Hightower, Julia Trigg Crawford calling for public hearings throughout east Texas. Then, in August, a follow up letter from Independent Texans was set to Dewhurst and Straus, outlining the problem in more detail.

That letter is posted here:  http://www.indytexans.com/wp-content/uploads/Letter-Dewhurst-Straus.pdf

Here's some great video taken of Medina, Hightower and Crawford at the Capitol after Debra and Julia had delivered a similar letter signed by all three to all members of the Texas House and Senate: (click here to watch the video below)
Medina, Crawford & Hightower on Eminent Domain

 

What Eminent Domain Reforms Do We Need in Texas?

Let's start with these:

  1. Adequate Landowner and Community Notice: Any person living within 2 miles of pipelines, rail yards, storage facilities and business dealing with toxic or hazardous materials should have notice of the transport of these hazardous and toxic substances carried through their area. This must include diluted bitumen (tar sands) pipelines. There are three such lines which carry tar sands in Texas: Seaway, Keystone XL and Pegasus. The Pegasus pipeline is a repurposed 60-year old pipeline currently shut down due to a toxic spill in Arkansas. The Seaway is 37-years old and is adding an additional line to carry tar sands. Together the three lines would carry more than 1.7 million barrels per day (bpd).
  2. Landowners Rights Respected: A landowner must have the ability to know that an entity is indeed a common carrier or be able to contest such entities BEFORE their land is condemned for a pipeline! Companies claiming to be “common carrier” are immediately granted the power to seize land through eminent domain by the state, simply by signing a T-4 form at the Railroad Commission self-proclaiming they are common carriers. No one at the Railroad Commission verifies or makes these companies prove up that these entities qualify to be granted such power. A fair process needs to be implemented to allow landowners to go to the State Office of Administrative Hearings (SOAH) to challenge pipeline companies’ common carrier status claims.
  3. De Novo Review: The Legislature should require that district courts be given the power to review all the evidence related to an eminent domain challenge rather than just the technicalities of how the challenge was filed.
  4. Landowner’s attorney’s fees should be paid by the companies who own the pipelines if they are challenged in a court case and make them think twice about condemning and seizing land at will. This kind of legislation needs to be enacted with a bill in the legislature. In the 2015 legislative session, we supported Sen. Lois Kolkhorst's SB 474. It passed the Senate but fell short in the Texas House. Read about SB 474 important legislation here and get ready to support it in 2017.
  5. Prohibit the use of eminent domain for "economic development" projects.

Make sure you read our most recent update in this post on August 21, 2014 about the Railroad Commission's proposed new rule changes: click here for more.

Just note that the Railroad Commission that is supposed to regulate the energy industry in Texas has become a laughing stock of those seeking basic regulation of an industry that has a huge impact on Texas land and water resources. The legislature has failed miserably to reform the agency -- they can't even change the name of the agency so citizens know what the commission's charge is. We need a statewide movement independent of both parties for a fundamental shakeup of Texas state government.

Please join the League to give us the firepower (lots and lots of members) to be effective. And, please volunteer! (Go to the Contact Section and email or call us!)

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2 Comments

    • Richard Fournier says:

      FOR IMMEDIATE RELEASE
      February 9, 2016

      The Right of Private Property Ownership, Southwest Gulf Railroad,
      and the State of Texas

      Farmers, ranchers, and all land owners in the state of Texas should be concerned when they learn about the action taken in Medina County Texas, on Tuesday, February 2, 2016, by Southwest Gulf Railroad, a wholly-owned subsidiary of Vulcan Materials Company (“Vulcan”). Vulcan, a Fortune 500 multinational materials company, is based in Birmingham, Alabama.
      Attorneys for Southwest Gulf Railroad filed a Petition in Condemnation in the Medina County Court on 43 properties belonging to farmers, ranchers and other landowners in northeast Medina County, for a nine-mile long rail line easement. This is the first step in the process of forced taking of land by eminent domain.

      What separates this case is that eminent domain is being abused by a private corporation, solely for its own benefit. For over 16 years, since 1999, Vulcan has been trying to build a rail spur from a 1700 acre site Vulcan Materials leased. Vulcan plans to develop the 1700 acres as a quarry, to connect with the Union Pacific rail line 7 miles south at US Hwy 90.

      In 2000, area landowners organized and formed the Medina County Environmental Action Association, Inc., (MCEAA) to study all the impacts of the proposed quarry and rail line. In the 16 years since, there have been between 93 to 150 member households. MCEAA has been successful in getting federal and state agencies to move the rail line to avoid sensitive historic areas and floodways and mitigate some impacts, but permits for construction have still been granted.

      A restrictive covenant barring rail construction binds 9,622 acres, on 56 separate properties with 108 signatories, along Vulcan’s proposed rail line. Only condemnation using the power of eminent domain would extinguish these restrictive covenants and remove them. But such power can only be validly exercised by a common carrier, which Vulcan’s paper railroad, Southwest Gulf Railroad, plainly is not.

      A true common carrier transports goods for other companies as well as for themselves. There are no other companies that will have goods on this proposed 9 mile rail spur to transport at this time, or likely ever, due to the restrictive covenant. Yet now Vulcan, not the landowners, seeks the power to control future land use in northeast Medina County, Texas.

      Texans are very proud of their land, and their land is very dear to them. For generations Texas farmers and ranchers have produced abundant crops and livestock and strong families. The right to private property ownership is the cherished heritage passed down to us by the early settlers of the Republic of Texas and is the bedrock of our unique way of life in Texas.

      If Texans allow this outrage of confiscation of private property by a private company for their own use to happen in Medina County Texas, no landowner in the entire state of Texas is safe from seizure of their property. Any company, even an out-of-state company, can come in and seize property for private gain, if this case is ruled in favor of Vulcan and its paper railroad.

      It is most important to recognize that this case is potentially precedent-setting. How the courts handle this case will establish the law in all future court cases in Texas involving the taking of private property by private companies for their own use. No one’s land is safe from confiscation if Vulcan and its paper railroad prevail. Landowners, farmers and ranchers across the state should rise in protest and outrage.

      Alyne Fitzgerald,
      afitzgerald100@gmail.com
      830-741-1295
      830-538-9745
      166 PR 4664
      Castroville, TX 78009

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