Riots consumed Los Angeles in 1992 after a court police officers found not guilty in the beating of Rodney King. Buildings burned.

In 1994, eminent domain was raised as an option to redevelop the destroyed buildings. It wasn’t until 2008 that an agency attempted eminent domain after neighborhood activists opposed the use of eminent domain. 

Plans for a $100-million entertainment district are on target for 2015. Los Angeles Times

Private property Rights advocates are gathering in Pfluegerville on May 9th. 

“The Texas Landowner Rights Summit and educational seminar discusses the rights of Texas landowners facing condemnation and eminent-domain proceedings. The meeting will be held on Saturday, May 9, starting at 9 a.m. at the Hilton located at 801 University Drive East, College Station, Texas 77840 (Ballrooms 5-7).”  Community Impact  

The Court ruled that billboards are fixtures of a real property interest. And, that the removal of bill boards, compensation is required. 

However, compensation for the removal of billboards are hampered by existing case law that prohibits lost profits from entering valuation of business property. 

NFIB  Court Opinion in Texas v. Clear Channel

Targeting private entities that have the power of eminent domain, Iowa, wants to require projects to negotiate purchases with 75% of the private land involved in a project before eminent domain can be triggered.

The bill targets a pipeline project and a transmission line project. The pipeline has only been able to neogtiate 50% of the land acquisition while the transmission line has negotiated purcahse of 15% of its land acquisition.

KCHA  Iowa Daily Herald  Chicago Chronicle  Houston Chronicle via AP

States are changing statutes to require that the public benefit/public use for eminent domain occur within the state boundaries. Good news for local projects. Bad news for pipelines and transmission lines that only service out of state customers. 

Augusta Chronicle 

An Eminent Domain fight is at the heart of campaign to disrupt the status quo on the Tarrant Water Regional Water District (TRWD).

The players are:

• Our Water, Our Future 
  • supporting TRWD Board members Leonard and Lane
  • Treasurer: Mike Moncrief
•  Save North Texas Water
  • Supporting Craig Bickley and Michele Von Luckner to unseat Leonard & lane
  • Backed by Monty Bennett

Contributions exceed $500,000.

Ft. Worth Business Press

An unnamed representative from the Texas Central Railway, the high speed rail btween Dallas and Houston group recently said that without eminent domain high speed rail is cost prohibitive. 

Senator Kolkhorst has SB 1601 which is out of committee and heading to the Senate floor which prohibits the use of eminent domain for high speed rail.

Mass Transit Magazine

This week Grayson County commissioners declined to use eminent domain to rebuild the Carpenters Bluff Bridge. Teh current bridge appears to be either a dirt path or a wooden path, which seems appropriate considering you go back in time when entering Oklahoma. 

A collaborative project emerged. The states are funding a replacement for the 100 year old bridge. The Oklahoma County will maintain the the bill. Grayson County is required to acquire the right of way and is doing so through negotiations and not takings. 

Statesmanship prevails.

Herald Democrat

A works proposal by Colleyville to add sidewalks, drainage and hiking trails has drawn vocal opposition. A counter referendum, Protect Glade,  is on the ballot. 

The opposition to Colleyville’s project want the road improvements but want road improvements that are:

• accomplished over a shorter period of time
• at less than half the cost
• without taking private land
• without removing mature trees

City Council is split. The Mayor supports the Colleyville plan and has an Empower Texas backed opponent. Empower Texas 

On a 92-3 vote, and within 7 minutes, the Iowa House passed an eminent domain bill that:

• prohibits the use of eminent domain for personal profit
• requires approval of a route before eminent domain can be used
• 5 year land buy back provision if the land is not used within 5 years for its intended purpose

What has Iowans inflamed over eminent domain? A proposed drinking water pond by private developers, “greedy private developers.”  

Globe Gazette

Raisin growers were before the US Suprmee Court arguing that a law allowing the government to take their crops, without just compensation, is unconstitutional.

During the New Deal, farmers got a raw deal. The 1937 Agricultural Marketing Agreement Act permits the taking of crops to shore up prices.  The great raisin caper of 2015 led the Justices to offer colorful fodder:

• Chief Justice Roberts described the law as ““You come up with the truck and you get the shovels and you take their raisins, probably in the dark of night.”
• Justice Scalia described the law thusly, “Central planning was thought to work very well in 1937, and Russia tried it for a long time.”

 WallStreet Journal Headline: Justices Skeptical Whether Crop Program Has a ‘Raisin’ D’être

Property Rights advocates know no international borders. Property owners on both side of the border raise concerns about the Trans Pecos Pipeline. Here’s what people are saying:

• “It is not only illegal but profoundly discourteous. It’s just not done out here.” Val Beard a rancher in Brewster County. 
• “You can’t drop $760 million in a 150-mile corridor without all the businesses doing well,” said Brad Newton, economic development director in Presidio, Texas.

• “I won’t lease my land for the pipeline. I’ll defend it.” Rancher Epidio Bonilla in Mexico.

Precondemnation access to ranch land is not popular on either side of the border. The Texas rancher forced a surveyor off her land and received an apology letter from the pipeline. The Mexican rancher did not receive an apology but was equally adamant about defending his land from the pipeline.

Fronteras

Flower Mound City Council candidates uniformly oppose eminent domain for commercial puposes.  They uniformly support private property rights saying that emient domain is for public uses only and with just compensation. Cross Timbers Gazette

“Paul joined most of the chorus of Republican candidates for governor in opposing eminent domain in the name of public utility for private companies.” Central Kentucky News

Iowa joins the band wagon to prohibit eminent domain for private companies. Eminent Domain by a merchant, such as a pipeline who is moving a good to and from, would have a higher level of public use to meet. Blog for Iowa

This week House State Affairs Committee heard testimony from Matt Miller, of the Institute of Justice. He drew comparisons between eminent domain and asset forfeiture.

He compared the government’s ability to take property from innocent Texans without charging them of a crime with the ability of the government to take property from innocent Texans for a public use under eminent domain. 

Refreshing our Recollection: The Institute for Justice is the the group of attorneys that represented Kelo, the property owner, in the infamous U.S. Supreme Court case, Kelo v. New London. 

HB 3171 by Simpson

The Iowa Supreme Court halted eminent domain power for a drinking water project. The Supreme Court opined that since the drinking water project also included recreational water use, the water district had no authority to use eminent domain. 

The moral of the story: public use means only a public use, no extra bells and whistles. 

KNIA Knoxville Osceola Sentinal  AP

Ojai California is using eminent domain to condemn the water utility that serves its community. Fed up by high water rates, the city opted for eminent domain.

Eminent Domain and the judicial system go hand in hand. The private company that operates the private water utility in Ojai, sued. The Second Court of Appeals sided with Ojai that eminent domain allows the taking of the utility so that the the utility can be operated by the local government. 

The Court went so far as to state: ” The Act facilitates the purchase of property regardless of whether the seller consents to the sale or is compelled under force of law. Moreover, financing the acquisition of intangible property incidental to the real or tangible property being purchased is consistent with the Act’s text and purpose.”

Central Valley Business Times  California Special Districts Association

Missouri is grappling with the Grain Belt Express Clean Line, a transmission line to move wind energy. The majority of county governments and land owners have not approved the transmission line.

Right now the transmission line is tied up in the Missouri version of the PUC, and the drama is rising.

Ralls County has become engaged in the statewide regulatory approval of the transmission line. The county went so far as to make clear that it has never consented to the the transmission line and it “retracts and denies” consent until  ““[u]ntil such time that Grain Belt Express Clean Line LLC has utility status in Missouri and the approval of the Missouri Public Service Commission.”

Hannibal Courier Post

In the West Virginia mountains, a fight is brewing between a pipeline and 100 landowners over access to land.

The pipelines say they need access to the land to comply with federal requirements. 

The landowners say that the access the pipeline wants exceeds what is allowed under West Virigina Law in at least 3 ways:

• West Virginia code is limited to  examining, surveying, and laying out lands for easement
• Only a governmental body may enter and bring machinery, equipment, or tools upon the property.
• Eminent domain can only be exercised in West Virginia if the private property is going to be put to public use and a pipeline with no access polints for West Viriginians is not a public use.

Courthouse News Service

Houston Metro plans to sell a closed park and ride to the Houston Housing Authority. HHA wants to build a 300 unit development. 

In a public meeting about the sale and development of the vacant park and ride, HHA said that if the property is sold in a private sale, HHA would use eminent doamin to acquire the property. Property owners reaction was predictability not thrilled, who prefer a private sale of the property. Houston Press

UNT and Sac and Save have reached an agreement to purchase the 91,000 building for $6.25 million. The agreement is pending approval from the board of regents. 

Eminent Domain was an available option for UNT. However,  because the property had other pending offers for purchase, and the desire to avoid eminent domain litigation; a purchase agreement was reached. The Denton County appraisal of the property was approximately $2.2 million. 

Denton Record

Squeaking by in a 5-4 vote, Senate Transportation Committee passed SB 1601 by Kolkhorst. the bill removes eminent domain authority for high speed rail.

The High Speed Rail proponents say federal law, alone,  doesn’t provide the tools that will help them to build their rail. 1190 Talk Radio Dallas

In Texas, The Senate Committee on Transportation approved SB 1601 which would deny eminent domain for high speed rail in Texas.

In Minnesota, all railroads may have their eminent domain authority revoked or curtailed by local government approval of projects. Opponents to a rail plan cite problems for emergency responders, increased train traffic, and lower property values in their desire to reign in the power of eminent domain. Sun Post

HB 4175  grants new statutory eminent doamin authority to 29 special purpose districts in and around the Houston area. 

Missouri wants to block emiennt domain authority for Missouri electric transmission companies that do not contribute electricty to the regulated electric grid for the use of Missouians. 

To receive eminent doamin authority, the electric transmission compnay would have to demonstrate a need or benefit to Missouri.  Land woner groups, agricultural groups, and cattle groups support the bill.

Add it to the laundry list of new eminent domain regulations that reign in eminent domain for private companies. 

My Caldwell County

Say you’re a property owner having your property taken by eminent domain. You file suit to protect your property from eminent domain, and then the condemning entity files motion after motion as an exuberant party. You pay your attorney to reply to each motion.

What happens when attorney fees are due to an overzealous litigant that is a condemning entity?

The Florida Supreme Court will rule on when attorney fees can be awarded for fees related to an overzealous, litigating condemning entity. Lexis Nexis Law360

Nevada Assembly Bill 408 would require that the Federal Government get state permission to use land within the state’s borders. It would also remove state water rights from the feds. It’s a big deal in a state where more than 80% of the land is federal. The impact to Area 51 is unknown at this time. 

10 states are following Nevada’s lead.

Cliven Bundy made a name for himself in a stand off with the federal government over ranch lands in Nevada.  

Yahoo News Reno Gazette Journal

The Texas pipeline proptests over TransCanada Pipeline are enough for a movie. Here’s the story:

• Landowners and others protested the Trans Texas Pipeline in Texas (and elsewhere)
• 3 peaceful protestors were arrested 
• the 3 peaceful protestors sued the Sheriff Department that arrested them & TransCanada
• TransCanada seeks a dismissal alleging that there is no proof that TransCanada’s agents or employees aided abuse of force by the sheriff department.

Southeast Texas Record

In tiny Eagle, Idaho, a business owner is fighting a blight designation for her property. The property has not, in the last 14 years, received a ticket or notice or fine. 

An Idaho Redevelopment Corporation wants her property for a parking lot and is trying to use a blight designation to get it. 

The business owner is a fighter. Sounding like 80s rock icons, she said, “My plans are still to continue to do what I think every American should do, fight for their property, fight for their right,” (to party, nay, property).

KIVITV Idaho 

The Mayor of the City of New London wants to turn the property where the Kelo house stood to be turned into a park in honor of the residents whose homes were taken by eminent domain. 

Kelo’s house was taken for a economic development project that never came to full fruition. The Kelp land is ripe for something. 

The mayor’s campaign included these two issues:

• The US Supreme Court was wrong in Kelo. New London should never have taken the land.
• As mayor, I will dismantle the development corporation that sought Kelo’s land, which he did.

The Day

The Institute of Justice is asking the US Supreme Court to reveiw a 4th Circuit Court of Appeals case that prohibits banners protesting the use of eminent domain. Why the hush-hush?

• Central Radio had been in Norfolk for 80 years.
• Norfolk Redevelopment and Housing Authority wanted its land and buildings for Old Dominion University
• Central Radio put up a banner on its own property which read ” “50 years on this street/78 years in Norfolk/100 workers/Threatened by eminent domain”
• The sign would have been ok if it was on other topics
• Old Dominion complained.
• Norfolk  fined Central Radio
• VA Supreme Court said- Can’t take the land. Central Radio Wins on Eminent Domain.
• The banner issue went to federal court, which has thus far ruled against Central Radio.

Moral of the Story: If you live in Norfolk, don’t put up signs in protest of eminent domain. There’s no talking about eminent domain while your property is being taken by eminent domain. 

Washington Post

Soccer, the world’s version of football, necessitates stadiums for professional teams in the US. The District of Columbia’s professional soccer team, the D.C. United, is getting a new stadium once all the requisite land is acquired.

Negotiations between a landowner, who owns 2 acres of primo D.C. land, and the District aren’t going so well. At least not in terms of what matters- numbers.

As a result, the mayor keeps dropping hints that D.C. will use eminent domain. The mayor wisely hasn’t used the phrase “eminent domain.”  Washington City Paper

Refreshing our recollections: Stadiums are economic drivers. Back in the day, Oakland, CA bandied about the idea of using eminent domain to keep the Raiders in Oakland because of the economic development boon the team meant for the city. 

A California Appellate Court ruled that pre-condemantion access to private property did not include environmental and geological testing.

The land at issue was to be part of a multi-million dollar water delivery project , the Bay Delta Conservation Plan, to divert water from the Sacramento-San Joaquin Delta to Southern California. 

National Federation of Independent Business attorneys have filed an amicus brief supporting the landowner and encouraging the California Supreme Court to affirm the denial of pre-condemantion access to private property. 

Owners Counsel

A group of landowners, who filed suit against the State of Texas (TCEQ) for forcing them into a ground water district, were vindicated when the Groundwater district voted 5-0 to allow the landowners to live freely outside their groundwater district.

The landowners alleged in their law suit that they purchased land because it was not in a groundwater district and that private property rights should prevail. Lubbock Online

This Panhandle scenario should sound awfully familiar to Lege watchers.   Rep. Isaac is fighting a similar fight in Central Texas and has filed 4 groundwater bills that would cease the use of eminent domain for unregulated groundwater lands. Texas Tribune 

Refreshing our recollection from Energy & Water Subscribers:

On February 27, 2015, 20 Texans, owning 406 square miles of the Panhandle, sued the state for trying to force them to join a water conservation district.  What are the landowner’s arguments:

• The property interests the landowners purchased were unmanaged water rights
• The state’s actions are “socialism” at its finest

How did we get to the point of suing the state?

•  ” In January 2013, the Texas Commission on Environmental Quality (TCEQ) mailed notices to government bodies and public water districts that it would recommend putting the 406 square miles at issue into the High Plains Underground Water Conservation District No. 1.”
• “TCEQ acknowledged and made a judicial admission at the preliminary hearing that it had no jurisdiction over private groundwater rights of the Aligned Parties.”
• SOAH assumed jurisdiction and recommended that the land be incorporated into High Plains Underground Water Conservation District No. 1. 
• TCEQ adopted SOAH Decision 12/12/14.
• 2/5/15 Rehearing Denied.
• 2/27/15 Landowners file suit in Travis County.

Courthouse News Service

On Monday the US Supreme Court heard a Texas case about confederate flag license plates, because fans of the Dukes of Hazards are moving to Texas in droves.

I haven’t seen any Klingon license plates in Austin- yet, but the Trekkie community is deeply divided and have retained counsel.

Seems weird to argue about license plates at the US Supreme Court, but in 1977 the US Supreme Court set forth the idea that a license plate is free speech on private property. The case was Wooley v. Maynard. 

Private property rights are everywhere; in your DNA, license plates, and your land.

 ScotusBlog Dallas Morning News  Al Jazeera America  FoxNews

A headline to make make condemining entities cringe.

In 2006, Trenton took property by eminent domain. In 2011, Trenton and the property owners reached a settlement and city council approved the pay out. However, funds were never paid to the property owners.

Times of Trenton

HB 1863 by Rep. Paddie woud allow businesses to ask TXDOT for permission to trim or remove trees or vegetation:

• around bill boards
• on state highway right of ways that impact visibility of adjacent businesses

Scenic Texas opposes the bill.  Outdoor Advertising Association of Texas supports the bill. 

This week Denbury filed to seek a rehearing over the appellate ruling that it is not a common carrier. It’s going to pop up via amendment between now and June 1st. 

Why will this head to the Legislature? Because Denbury alleges that the current legal precendent, the appellate ruling, will have wide spread ramifications. 

This common carrier fight has spanned 7 years. This complex legal tale includes:

• More than 7 years ago Jefferson County landowners James E. Holland and David C. Holland, their business Texas Rice Land Partners and their tenant Mike Latta were approached by Denbury Offshore to conduct a survey on their land to build a gas pipeline through the Hollands’ property.

• Landowners declined. Denbury claimed the pipeline would be for public use, exercising the right of eminent domain.

• “In 2008, 172nd District Court Judge Donald Floyd ruled Denbury was a common carrier, and the Ninth Court court agreed”

• The Texas Supreme Court Said No. The case was sent back to the court in Jefferson County.

• The Jefferson County Court said yes to common carrier status.

• The 9th Court of Appeals said, no Denbury isn’t a common carrier based on the standards set by the Texas Supreme Court. 

South East Texas Record

Falconhead golf course, located in suburban sprawl outside of Austin, allegedly owes its water district $778,000. Naturally, legal action has ensued. The clincher is the Travis County Utility District is also considering siezure of the golf course’s property- in the form of its irrigation system.

 Here’s what happened:

• The golf course and the Travis County Public Utility Agency (TCPUA) disagree as to how the golf course should use its irrigation system.
• TCPUA says the golf course owes it $778K
• TCPUA filed legal action asking for any proceeds from the sale of the golf course to stay in Texas so they get to the funds to recoup their $778K
  • A judge denied TCPUA’s motion
• TCPUA wants to sieze the irrigation system and force the golf course to use its irrigation system under the terms it says apply to the course

Siezing private property by a local governmental entity is not likely to end this legal drama.

Statesman

No Eminent Domain for Economic Gain is a very popular refrain for property rights supporters. It’s as popular as A/C is in August in Austin. 

In Nebraska it is a tag line for  LB473, which prevents the use of eminent domain by foreign owned pipelines.  Foreign owned pipelines would be permitted to negotiate for purchasing easements.  Many states are cracking down on the use of eminent domain by private entities. 

The Antelope of  the University of Nebraska at Kearney

• egregious, Senator Hall, Corsicana Daily Sun 

• “egregious abuse of their power” Isaac for Texas

• “Misuse and abuse of power of eminent domain” Sen. Schwertner to KBTX

California has been building the infrastrcture for a high speed railway. Property aquisition has caused the following issues:

• 18 months behind on construction
• contractor is already reportedly seeking compensation for the delays
• The high speed rail needs to acquire 525 parcels, but they’ve only successfully acquired 123 parcels

FoxNews

Half miles swaths of land near bus and train stops will be under constant threat of eminent domain under language in Connecticut’s state budget.

The eminent domain authority would reside with the state and could exclude the use of eminent domain by local governmental authorities.

CBS New York

Texans love their private property rights. It’s a toss up who loves Texas private property rights more: Libertarians? Republicans? Ranchers? Cattlemen?Farmers ?Wild Life enthusiasts?

This month’s issue of The Cattleman looks at easements for pipelines and power lines. They run through pros and cons, and here they are:

Pros of Pipelines and Power Lines Running Through Pastures:

• “don’t expect the value of ranchland to decrease drastically based on added pipeline or high voltage power lines on the land.”
• ” rural land real estate brokers see the demand for ranchland as being higher than ever.”

The Cons of Pipelines and Power Lines Running Through Pastures:

• legal headaches
• “worries that too many people may traipse across a prize pasture to patrol a pipeline meter”
• Harm to value of land due to excessive obstructions
• Harm to value of land if royalty or easement lease rights don’t come with the property
• Harm to value of land if “energy companies cause damages outside the agreed easement “
• Value “damage outside the easement could approach up to 25 percent of the ranch value.”
• “red tape when it comes to buying ranchland with pipeline, power line and, more recently, wind turbine easements.”

The Cattleman

Representative Isaac says removing eminent domain authority from a water district is the “saving grace.”  he goes on to talk about the abuses of eminent domain authority by special districts. Texas Tribune

There are 100s, if not 1000s, of special districts in Texas. Texas Legislative Council has tracks and organizes these grants of eminent domain authority. The 2012 list of special districts with eminent domain authority is here. 

New Mexico State Representative Matthew McQueen, D-Galisteo offered legislation to ban the use of eminent domain by private companies operating pipelines that would carry CO2.  

This unique bill died in committee, but has sparked an activist movement that believes their property will be rezoned and their mortgages cancelled should a pipeline cross their land.

 Mountain View Telegraph

The California legislature has provided several mechanisms to build stadiums more quickly. One of these tools is to allow for eminent domain before environmental studies are completed. 

The City of Sacramento and the Sacramento Kings have won 2 court cases upholding their ability to move quickly to build the new stadium.

National Law Review

 This week, Sen. Kolkhorst’s SB 474  , received a hearing in Senate State Affairs. To commemorate the occasion, TPPF released a paper supporting her bill. 

TPPF offers 4 Key Points on why reimbursing property owners for fees and costs of eminent domain litigation is good public policy:

• “Texas property owners cannot rely on legislative oversight or the political process to protect them from negligent and abusive condemnation practices. 

Mineral rights owners would be granted clear statutory authority to file suit against local governments when regulations limit use of their property under SB 809 by Van Taylor.

SB 809 carves out reasonable regulations that address:

•  visual aesthetics
• noise abatement
• or hours of operation

Eagle Ford Texas.Com

LB 473 would prevent eminent domain for private companies. It’s a direct response to the Keystone XL Pipeline ruckus in Nebraska that has seen protests and court rulings thus far blocking eminent domain.

More than 11,000 people have signed a petition supporting this bill for Bold Nebraska, a group opposed to eminent domain for private pipelines. 

Bold Nebraska

Some Republicans in Iowa are openly speaking out about their opposition to former Gov. Rick Perry due to his appointment to the board of directors for Energy Transfer Partners.

Eminent domain and pipelines are front and center issues for Republicans in Iowa.  DesMoinesBlog

Passing by a margin greater than 2:1, Littleton Colorado voters approved a measure to require that a property owner consent to eminent domain before eminent domain can be used.  

Removing the ability to threaten eminent domain will likely make negotiations for property purchases more productive. Supporters say the goal is for citizens to do what is best for Littleton. 

Denver Business Journal

Iowa is polling on everything from potential Presidential candidates to private companies using eminent domain. Private companies using eminent domain is as popular in Iowa as it is in Texas.

• 57% favor pipelines
• A majority favor building wind transmission lines and pipelines

Iowans like energy projects, but they strongly dislike these same companies using eminent domain. 

• 74% oppose eminent domain by pipelines and transmission line companies
• 7% are not certain
• 19% support eminent domain for pipelines ans transmission lines

DesMoines Register

An earnest supporter of property rights, Representative Will Metcalf filed HB 1889 that requires municipal or county approval before construction of the railway. Representative Metcalf is strongly opposed to taking private lands for private enterprise. 

Metcalf’s opposition to high speed rail is noted at NoTexasHighSpeedRail & Texas Turf.

A second Nebraska judge has halted Keystone XL’s use of eminent domain. The second injunction is from York County and affects the sourthern portion of the pipeline. Omaha.Com WOWT NBC Laredo Morning Times

The above is a quote from USA Today this week examining the harsh opinions against eminent domain. Opinions become the most heated when eminent domain is used for ” taking of private lands for private enterprise,” quoting Representative Will Metcalf. 

Reflecting on Kelo, the 2005 U.S. Supreme Court case permitting the use of eminent domain for economic development, its noted that not all public use projects move quickly.

In the case of Kelo, no construction in furtherance of the economic development project has occurred post-eminent domain. 

• Ten years after the US Supreme Court’s decision, 
• 15 years after the approval of the city’s development plan, and 
• over 17 years since it was first proposed,
• there has been no new construction in the Fort Trumbull neighborhood of New London where the condemnations occurred.”

USA Today

Restricting the use of eminent domain is en vogue. Idaho’s Senate passed a bill to stop cities from using eminent domain to build hiking trails, bike trails, and greenways.

Idahoans love their green space. The state is almost entirely greenspace. Idahoans don’t love eminent domain. The bills author said this of eminent domain:

“eminent domain gives cities too much power.”

Texas looks to also stop cities from using eminent domain for trails and green space. SB 178 by Nichols 

KIVI via the AP

A vocal group at a transmission line public meeting echoed the refrain- no eminent domain for private gain. It rhymes which makes it good for protest marches.

A Houston Company is the target of this group of landowners. The company, Clean Line Energy Partners, is seeking the federal government’s buy-in to a wind energy project in Oklahoma & Arkansas. If the federal government gets involved, then the company gets eminent domain authority. 

200 landowners showed up to a meeting. They were lock step in opinion. The highlights:

• “This project is about one thing, and that’s greed,” she said. “They don’t see our green trees, our land, our lives that are so important to us. They see a different kind of green, and that’s money.”
• Transmission lines would make their property useless and worthless
• Multiple local governments have voted in opposition to federal government involvement and in opposition to eminent domain

Project Supporters Say:

• The project will be a half-billion-dollar investment
• It will generate jobs
• It will provide 500 megawatts of low-cost, clean energy to Arkansas electric customers.
• Arkansas Wildlife Federation supports “the project as an opportunity to lower the state’s dependence on nonrenewable coal and other fossil fuels.”

Arkansas Online

A Wichita Falls jury validated property owners’ right to collect reasonable damages when electric power lines lower the value of their land.

It boils down to a question of the value of the remainder of the land after every one agrees eminent domain is proper. 

The electric provider offered the landowner $140,000 for an easement 1.7 miles long, that bisects the landowner’s property.  The jury sided with the landowner appraiser who said the value is $393,165. 

Texas Lawyer on Oncor Electric Delivery v. Clack
 

St. Louis Aldermen approve the use of eminent domain to retain an employer in St. Louis, the National Geospatial Intelligence Agency. The choice was retain 3,100 jobs or use eminent domain against 30 properties. The vote was 17:11.

National Geospatial Intelligence Agency has not indicated if it will stay in St. Louis or relocate, but eminent domain use has been decided to try to keep it in St. Louis. 

St. Louis American

Refreshing Recollection: Information Intelligence on the use of eminent domain to retain an employer. 

Colorado & Texas are both proposing bills that would prohibit eminent domain for open space land. Woody Guthrie wasn’t being literal when he wrote,  “This land is my land, this land is your land.”

In Colorado, the bill would prohibit a county from acquiring land for open space via eminent domain. It stems from mining property that a county acquired with eminent domain after some permitting issues. The acquisition of the land was at 4 times appraised value. The odds of fair comepnsation are high, but the author of the Colorado bill believes no property owner shold be forced to sell their land.  9 News  AP

In Texas, Seantor Nichols’ SB 178 would prohibit all condeming entities from acquiring land for recreational purposes. His bill will cover parks, greenbelts, trails and the like. 

In a 7 year legal tussle over whether Denbury is a common carrier, the 9th Court of Appeals ruled that Denbury is not a common carrier.  Sounds innocuous, except that common carrier status grants Denbury, a private pipeline company, the power of eminent domain. Common carrier status comes with great power.

The Legislature tried to fix the common carrier issue in 2013, but an elegant point of order stopped it. In the summer of 2014, the Railroad Commission tried to fix it by rule making.  

In 2014, the Texas Supreme Court established a standard for determining whether an entity is a common carrier. The common carrier test used by the 9th Court of Appeals is:

• “reasonable probability
• that at some point after construction
• the pipeline will serve the public
• by transporting gas
• for at least one customer who uses the pipeline to transport CO2 that the customer either keeps or sells
• to someone other than an affiliate of the pipeline company.”

The legal wrangling began when Denbury representatives entered private property to survey land. Pre-condemnation surveying comes hand in hand with the power of eminent domain.

In the few last years, courts have struck down the ability to enter private property before eminent domain begins. Its a legal trend that has been protecting private property rights, even in left leaning states like California. 

Southeast Texas Record

Fracking & private property rights. Eminent domain is triggered at many levels in fracking. It can br triggered by the pipeline moving the oil to refining. It can be triggered when new roads are needed. It could be inverse condemnation when a regulation, like a fracking ban, limits how people can use their land. 

Senator Konnie Burton says cities should not be able to infringe on private property rights. Her SB 440 , prohibiting Denton-like fracking bans, protects private property rights while leaving the door open for cities to regulate where, when and how oil and gas production can occur. 

Texas Municipal League Reaction to Senator Burton’s bill:

• Burton’s SB 440 is a better starting point since city regulation remains on the table.
• Phil King’s HB 539 & HB 540 are “non-starter(s)” as they remove a city’s ability to establish distance regulation on gas wells.

FW Star Telegram

Refreshing Recollection from Information Intelligence:

HB 539 & HB 540: Local Fracking Bans Harm Texas Tax Coffers | Information Intelligence

Bill Filing: Ban Fracking Bans | Information Intelligence

12 North Texas Earthquakes on the Front Page, Impact to Fracking Legislation | Information Intelligence

Fracking Ban Meets Legislature. Bills Filed. Fight Begins, Again. | Information Intelligence

7 eminent domain bills have been filed to curb the powers of condemning entities. Activists are  organized. The games are set to begin.

The playing field favors their success. Property Rights is a tenant of Republicans and all Texans. Republicans control every facet of Texas government.  

In the last 7 days, these media outlets have focused on Texas eminent domain reform:

• Harvey Kronberg’s Quorum Report 
• Proposed bill adds some teeth to Texas’ eminent domain rules | Austin Business Journal
• Schwertner Files Eminent Domain Bill to Protect Private Property Rights    | Navasota Examiner 
• Texas Lawmaker Proposes Tougher Eminent Domain Rules | Law 360
• Schwertner Files Eminent Domain Bill to Protect Private Property Rights   | KBTX
• Farmers, Ranchers Set Ag priorities (Eminent Domain)   | Mason County News
• Rick Perry, exploring Iowa caucus bid, joins pipeline board (Questions Eminent Domain) | Des Moines Register
• Opposition to High Speed Rail Gets Organized | Houston Chronicle 
• Capitol Update | Waxahachie Daily Light 
• Ashby: Committee posts will help me protect East Texas | Lufkin News
• Rep. Poncho Nevarez Update | Ft Stockton
• Schwertner Files Eminent Domain Bill to Protect Private Property Rights|  Texas Insider

A judge in Nebraska today issued an injunction against the use of eminent domain for Keystone Pipeline.  KRIS TV US News & World Report

A quickly moving constitutional amendment in North Carolina makes it harder for condemning entities to take private property using eminent domain.

How does it increase the burden on condemning entities? By limiting eminent domain to public uses- roads, court houses, schools, and prohibiting eminent domain for projects that do not have a clear public use.

Its a proposal also beloved by private property rights proponents in Texas.   WNCN via AP

In the last year, opposition to eminent domain has turned more vocal and more public. Opponents have:

• Hosted concerts & parades with world renowned musicians (featured Texans)
• Shut down public meetings with overflowing crowds (occurred in Texas)
• Consistently encourages city councils and county commissioners to vote in favor of land owners and against private entities using eminent domain (occurred in Texas)

This week we have “”Death of Democracy” march in Virginia. Death of democracy occurred because:

• A private company, a pipeline, has the power of eminent domain
• A private company, a pipeline, can survey private property without express consent

Franklin News Post

HB 1220 by Laubenberg establishes private property rights for a person’s DNA and RNA.

Without informed consent, DNA and RNA cannot be:

• collected
• tested
• retained

If DNA and RNA is collected, tested, or retained without informed consent, the Attorney General may seek injunctive relief and a civil penalty that is tied to profits.   HB 1220

When eminent domain negotiations fail, the parties move to court. But, what happens when a court sides with a landowner and awards substantially more for their property? 

If SB 474 passes, a land owner that prevails with an award that is 10% higher than the last negotiated offer can have their attorney fees paid by the condeming entity.

It’s loser pay for eminent domain and applies to local governments as well as private companies that use eminent domain. 

Seizing business permits by eminent domain is new. Connecticut is doing it to solve a state transportation issue. The CT Department of Transportation seized permits from a private bus company to make way for a new public transportation project.

The private companies sued. The Court allowed eminent domain to be used for the permits relying on the the use of eminent domain in CT for facilities, and lumping the bus permits in with facilities. 

A Republican Senator in CT is not thrilled. He wants to limit eminent domain to tangible property. 

The Courant  

Put 800 people together, many of whom are conservative, and momentum builds to oppose a  private entity from using eminent domain to build a new transportation network.

What don’t people like about private companies using eminent domain?

• Rep. Will Metcalf: 

  “I am not a happy camper,” said state Rep. Will Metcalf, R-Conroe, adding he is frustrated by the lack of transparency on the project. “They are moving forward and we need your help.

  “I don’t believe private enterprise should have eminent domain power. In regard to the 10th Amendment, I talked a lot about this during my campaign; we are living it here today. Federal overreach, they are bypassing us at the state, the county, and that is not OK.”

• Former Montgomery County Judge: ” one of the biggest threats to the county I have seen in years” It’s extreme, folks.

• Precinct 2 Commissioner Charlie Riley: Determined to stop the project

• Rep. Mark Keough vows to stop the project

• County Commissioners passed a resolution opposing the project.

The 10th amendment is increasingly popular symbol of federal intrusion. It’s like a rally cry for conservatives.  Montgomery County Courier 

Flower Mound would like to acquire land to join two “business” thoroughfares. The land owner objected to eminent domain to join businesses & wants to negotiate an easement.

Controversy stirred and generated 400 Facebook & public comments over a weekend, such as:  “This is a battle about the heart of Flower Mound.”

City Council pulled the agenda item. The City says it followed the letter of the law and has been negotiating with the land owner.

Cross Timbers Gazette

Rowlett has a new Sprouts store. People need to get to the new store. Rowlett is considering eminent domain to access to the new location. This translates to acquiring private property to help people get to more private property. 

What’s the hiccup? 

• If you ask the attorney for the property owners whose land may be taken says it’s: “Basically, what you would be doing is condemning one private property owner’s land to benefit another private property owner.”

Rowlett Lakeshore Times

St. Louis is considering using eminent domain to retain a local employer, the National Geospatial Intelligence Agency. 

The Supporters Say:

• The City will lose 3,000 high-paying jobs 
• The City will see reduced tax revenue if the employer leaves
   

The Concerns:

• Using eminent domain against homeowners
• Locals want the area to remain residential, and not become commerical property

KMOV St. Louis

A County in rural Pennsylvania is intervening to stop a pipeline that is proposed to cross private property. Amish are a strong stock. You don’t want to mess with them. 

20 of 26 townships also seek to stop the pipeline project after hearing tales about the impact of eminent domain proceedings against century old farms & decreasing property values. 

Standard Speaker

Rand Paul, The Senator from Kentucky, voted to protect private property rights and oppose Keystone XL according to the Lexington Herald Leader. A future 2016 campaign issue?

Empower Texas offers up a smorgasbord of eminent domain abuses by Tarrant Regional Water Board. The list:

• Received expanded eminent domain powers through abuse of the local and consent calendar
• The district’s majority financial focus is on economic development and not water, a public use
•  The commissioners, who can vote in favor of eminent domain, had their terms extended without an election
• Landowners in an eminent domain dispute uncovered evidence that the water district had promised there would be no eminent domain for their property

Empower Texas

One eminent domain bill is becoming a media darling: HB 565 by Burkett. The bill revokes eminent domain authority from a private toll company.

Here’s why Burkett says it is important: 

• The problem is a private company overseeing a project with eminent domain authority (hello, pipelines, are you listening?)
• If property is taken for public needs, it should be “fair and transparent”
• Toll roads are wearing out their welcome

Dallas Morning News

Refreshing Recollection.   Previously on Information Intelligence.

Eminent domain protests occur across the U.S.:

• Dallas area saw eminent domain protesters shut down transportation proposals, and city councils vote ceremoniously vote against proposals.
• The Dakotas held parades and Farm-Aid style concerts to shut down Keystone XL pipeline, which is now in litigation for eminent domain usage.
• It’s been campaign fodder in Iowa, Tarrant County Water Board, and more…
• This week protesters in Connecticut, the same state that brought us Kelo, forced Stratford Town Council to vote against expanding eminent domain power. 

Eminent Domain is not popular. It’s not popular even when your state or city needs to grow.

Eminent Domain is like broccoli flavored cupcakes- no one is buying it. Stratford Star

Surfing is to Californians like guns are to Texans. You don’t mess with it. A California billionaire tried to block surfers from accessing killer waves off the coast of San Mateo County. It set off a fight.

The Californai Legislature, Courts, and now the California Lands Commission have all attempted to settle the disupted beach access. 

The California Lands Commission is mulling over using eminent domain to seize the surfer paradise from the billionaire. In 77 years, the California Lands Commission hasn’t used its eminent domain power. 

This isn’t just for Californians. Remember the post-hurricane beach access and property line disputes in Texas?

Bloomberg News via San Diego Source

Previously on Information Intelligence:

Compensation is the hottest of hot topic in eminent domain. If eminent domain is a habanero pepper, compensation is a ghost pepper. 

Compensation gets tricker when talking about business property or property on which profits are made. How do profits factor into compensation, is at all?

Virginia is tackling how to factor in profit into compensation by proposing legislation to:

• Eliminate damage to the residue (remainder) standard
• Replace damage to the remainder with straight just compensation
• Require that just compensation awards establish the lost profit

Virginia SB 1435

SJR 9 by Van Taylor would move the ball toward legislative approval of rule making.

Sound far fetched? It’s not.  Other states are doing it:

• 59 % of Arkansas Voters approved it this past November. 
• Utah does it. 
• Idaho tried. 50.59% of voters opposed it. 

A quick, non-exhaustive, list of contentious Texas rule making issues:

• The Railroad Commission common carrier rule making, which is a fight over eminent domain.
• Any urban-rural water rule making action.

The toll road by a private corporation all but dead, this bill is hailed as the final nail in the coffin. The Texas Turnpike Corporation is the only private toll road authority in the state, having authority through a grandfather provision. Texas Tribune 

Previously On Information Intelligence: The Bill Filing

In 2014, a private tollroad corporation proposed new toll roads in North Texas. Town halls were held. Fire Marshals shut them down as too many people turned out against new toll roads. City  councils in the proposed toll areas passed resolutions opposing the plans to use eminent domain. 

Toll road opponents and private property rights supporters united.  

The 2015 Legislature will consider HB 565, which  will stop private toll authorities from exercising eminent domain. HB 565

Previously on Information Intelligence: The Project that Started it All, Toll Roads by a Private Corporation

• No Toll Roads by TX Turnpike Corporation Information Intelligence
• Private Company Exercising Eminent Domain Authority As Popular as Jazzercize  Information Intelligence
• North Texans Not Happy Campers with Private toll Authority Information Intelligence

A multi-million dollar courtroom drama over land value for the Sacramento Kings new stadium is brewing. 

Land values are differing by $25 Million :

• Land investors/owners say the land value is $31.5 Million.
• The City of Sacramento says its $6.3 Million. 

If the $25 Million gap in valuations wasn’t enough- the eminent domain process is further complicated by CALPERS being an investor in a segment of land. CALPERs values its land at $12.5 Million. 

Under California Law, valuations are based as though there is no Kings arena being built. Trial is scheduled for April. Sacramento Bee

Now, we know why the Buffalo Bills support paying more for property in negotiations than going to court. Information Intelligence

The Buffalo Bills & Sacramento Kings both need new stadiums. Building new stadiums takes land. If negotiations fail, land is acquired via eminent domain. The Buffalo Bills prefer negotiations.

Buffalo would rather pay more in a neogtiation than use eminent domain, which leads to costly litigation.

There’s a list of professional sports stadiums that have used eminent domain, Texas makes the list:

• Brooklyn Nets
• Dallas Cowboys

The Buffalo News   Sacramento Bee (The Kings also used eminent domain & are in litigation over compensation)

What does the North Carolina Tea Party Backed, Bipartisan Supported, Constitutional Amendment do?

• Prohibit condemnation of private property for any reason other than a public use.
• Require just compensation when condemnation procedures are used, and
• Allow for parties to demand a jury trial.

It has passed the NC House for 3 sessions, but stumbles with a 3/5ths rule in the NC Senate. Carolina Journal  Watauga Democrat

What’s the North Carolina Tea Party Saying: 

• “When the government can tell you what you can and can not do with your “Private Property” it is no longer private property.”
• Point to the Heritage Foundation which says stronger private property rights correlates to a stronger economy. 

Refreshing Recollection: TPPF has also called for prohibiting eminent domain except for public use. Information Intelligence

Texas Central Railway has clarified its website regarding eminent domain. The clarification was picked up by the Dallas Business Journal.  

Texas Central Railway (TCR)  stresses that eminent domain is a last resort after all voluntary options are exhausted.

TCR further offers this message on private property rights:

“The project is committed to respecting and honoring the private property rights of our fellow Texans. This reflects our personal values and simply makes good business sense. As such, the project is committed to negotiating and settling with landowners fairly and transparently and in a way that seeks ‘win-win’ solutions.”

Massachusetts State Rep. Stephen Kulik, D-Worthington filed HD 3168 would require:

• a 12.5% royalty on natural gas transported on a pipeline through the state; IF
• the natural gas is later sold to a foreign country

Supporters Say:  “The idea is to reimburse people for the taking, because eminent domain is for the public good, not private profit. It’s one thing if it’s for domestic use, and another if it’s for export.”

Daily Hampshire Gazette   

In an effort to keep utilities off private lands for surveying, bills in Virginia look to reign in the ability to survey within eminent domain powers.  

Democrats are lining up to defend the utilities right to access private lands. Republicans are lining up on the other side. 

Republicans also want utilities with eminent domain authority subject to open records. Watchdog.org

Information Intelligence subscribers will remember a court in California blocked pre-eminent domain surveying.  InformedIntel.com

A list of why eminent domain is necessary is not something that occurs with frequency. A law professor lists reasons why eminent domain is necessary in Detroit:

• Eminent Domain worked in the past to build factories that still function
  • Look at the  GM Hamtramck Assembly Plant and the Chrysler Jefferson Avenue North Assembly Plant
  • Detroit has collected hundreds of millions of dollars of property and income tax revenue from the plants and their workers
• The need of economic development, and the use of eminent domain to achieve economic success
  • Even if you can’t use eminent domain for economic development, eminent domain can be used to remedy blight. Tomato, to-mah-to. Potato, po-tah-to.
  • Land speculators have been buying up property
• He proposes eminent domain for economic development, if the land owned by speculators.  

Refreshing recollection: There has been an FBI investigation into land speculation in right of way purchases in North Texas. Information Intelligence

Detroit News

Billboards and the City of Houston have a long history. Like a love affair that thrives on disagreements. The love lasts, but it is a roller coaster.  

New movement in this relationship. The City & 3 billboard companies (Outfront Media, SignAd &  JGI) are in talks to address what the city calls, billboard blight. The bargaining chip offered by the CIty: 

• Voluntary removal of billboards- Keep 1 sign for the next 20 years, if you remove 2 signs.

The Houston Chronicle goes on to talk about bill board statistics in Houston:

• In 1980 there were 10,000 billboards
• Today it is 1,500
• 1,090 within Houston City Limits
• 950 protected by federal laws and regulations
• 140 signs are unprotected and viable for the city negotiations.  

Providing great material for 2015 bills in Texas, The Nebraska Supreme Court, making reference to Denbury, issued an opinion on the constitutionality of a pipeline certification.  Read More: Information Intelligence 

The Court said we don’t like it, but that pesky super majority threshold to declare the statute unconstitutional isn’t met, so it’s not officially unconstitutional. Pipelines declared victory.

Here’s the kicker- these same judges who referenced Denbury, and opined about private property rights, will hear eminent domain suits, once eminent domain proceedings begin. KMA Land  AP via Star Telegram  Lincoln Journal Star

The landowners trying to stop Keystone XL in Nebraska were dealt a blow in the Friday, January 9th, ruling of the Nebraska Supreme Court. Landowners won a majority of the Court, but not  super majority. Highlights:

• Pg. 38: the NE Court cites Denbury.
  • Writing: ” The Texas Supreme Court has addressed this issue in the context of pipeline carriers.150 It reversed a court of appeals’ decision that a property owner could not challenge a common carrier certification by a pub- lic service commission.”
  • “It held that Texas statutes authorizing eminent domain power for common carriers do not include the owner of a pipeline built for the owner’s exclusive use. ” 
• The NE Court ruled on constitutionality of a statute that transfered power to the Govenror and allowed expedited permitting for pipelines. Under the statute, the Governor could directly authorize eminent domain for a project.
  • A majority of the Court ruled the statute unconstitutional, BUT
  • The NE Constitution requires a super majority to overturn statutes. 
  • No supermajority existed to find the statute unconstitutional. 
  • The Court opines that citizens deserve a hearing on the merits- the transfer of power and eminent domain. 
• The NE Court did not rule on eminent domain

WSJ Nebraska Supreme Court Opinion   

Response from Landowner Attorneys: The Fight for Property Rights Continues

On par with bill filing rates in 2013, 5 eminent domain related bills have been filed to restrain or prohibit the use of eminent domain or the the taking of private property:

• SB 178  Relating to prohibiting the use of eminent domain to take private property for recreational purposes.
• HB 565  Relating to powers of private toll project entities.
• HB 572 Relating to the sunset review of regional tollway authorities.
• HB 264  Relating to procedures for asserting taking claims against certain governmental entities.
• SB 234 Relating to the creation and operation of a park and recreation district in counties that share a border on the San Marcos River and to the authority of the district to collect fees; creating an offense and providing penalties.

Anticipated bill filings: Bill responding to the summer 2014 Railroad Commission rulemaking, which was a response to 2013’s HB 2748, which was a response to the Denbury case. 

Private property rights advocates will be laser focused on a report by two economists that shows that taking private property for public use is not economically beneficial.

The economists wrote that there is “a negative relationship between eminent domain and revenue growth.”  

Heartland.org

Landowners in the path of the Keystone XL pipeline, including those who have entered into easements, raise concerns about how landowners are labeled by condemning entities. The list of what not to say about landowners is:

• Calling landowners “willing” misrepresents the facts 
• Just because they entered into an easement doesn’t equal support for the project
• Landowner fears of dangers related to pieplines increase over time 

Unhappy landowners publish media pieces, host concerts featuring Willie Nelson, and sue.

Roll Call

The Department of Transportation is condemning intangible property by amending it’s rules. Connecticut’s Department of Transportation is condemning bus routes used by private bus companies, because the state has a new bus plan to roll out. 

The private transportation companies have sued. The bus routes operate with a CCN from the Department of Transportation.

The first judge to hear this case said the Dept. of Transportation has proper authority to condemn this intangible property because the CCNs fall within “land, building, equipment and facilities.”

Hartford Courant