Land Use & Property Rights

The Texas Central Railway survived the – no eminent doamin for you- chopping block. An attempt had been made in House Bill 1 to remove the railway’s ability to qualify for eminent domain. Ft. Worth Star Telegram

The President of the Texas and Southwestern Cattle Raisers Association explains 5 reasons they oppose the Railway:

• Primarily funded by Japenese sources with uncertain long-term financial security.
• Will require over 3,000 acres of right-of-way for the railway.
• Harmful impact to private property in 11 counties. (Dallas, Ellis, Freestone, Grimes, Harris, Leon, Limestone, Madison, Montgomery, Navarro & Waller). Prime Cattle Land.
• Negatively affect grazing and moving cattle, transporting equipment and the ability to continue to efficiently and effectively use property.
• The use of eminent doamin by a private company to sieze private land for a public use.

  Gilmer Mirror

On the 10th anniversary of the 2005 U.S. Supreme Court decision Kelo, there’s a new focus on how the transfer of land harms the poor. 

The Washington Post, Volokh Conspiracy, features a heavily edited quote from the NAACP, post-Kelo: 

“As Hilary Shelton of the NAACP put it in testimony before the Senate Judiciary Committee, “allowing municipalities to pursue eminent domain for private economic development [has] … a disparate impact on African Americans and other minorities….”

Washington Post | Volokh Conspiracy  Real Clear Policy 

Find an appraiser that can:

• Address value based on cash flow potential, not price per square foot that you would typically see with a commercial property
• Look for appraisers with experience in special use properties

Retail Petroleum Consultants, Condemnation: Appraising Gas Stations and Car Washes, How to Ensure Just Compensation for Business and Goodwill

California Eminent Domain Report

A growing sentiment in the Texas House is the Senate Liberty Caucus support of special purpose district bills that grant these districts the power of eminent domain. These districts can also levy taxes and assess fees. 

May 27th Texas Local & Consent Calendar

An Arkansas Landowner alleges that there is no public benefit to Arkansas for a pipleine from Oklahoma to Tennessee.  Further, the only benefit is to the private company building the pipeline.

Growing case law supports this position throughout the country to deny common carrier status to interstate transportation of oil, gas, and electricity. 

Arkansas Business

If there is no public use in Kentucky, then a common carrier isn’t afforded eminent domain to build a pipeline in Kentucky according to a Court of Appeals Panel last week.

This growing trend in eminent domain litigation- is the public use occuring within the govenrmental entity that is granting the power of eminent domain.

Over the last year, court rulings have impacted pipelines and transmission lines.

SunHerald

The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain is now in print. 

10 years after the epic eminent doamin case, we get…the book. Polls show 80% of Americans oppose Kelo. Justice Scalia talks about how bad it is to this day & predicts it will be overruled.

Washington Post: Volokh Conspiracy

As a reminder that it’s really just your bad local governments that use eminent domain, the Department of Justice has put up a series of delightful photos detailing the history of eminent domain use by the federal government.

The History lesson:

• “whenever the United States acquires a property through eminent domain, it has a constitutional responsibility to justly compensate the property owner for the fair market value of the property.  See Bauman v. Ross, 167 U.S. 548 (1897); Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 9-10 (1984).”
• The Federal government does nice things with eminent domain:facilitate transportation, supply water, construct public buildings, aid in defense readiness, construct of public buildings and aqueducts to provide cities with drinking water, maintain navigable waters, production of war materials, and build pretty things like parks and the Gettysburg Railway.

Justice.Gov

Robert Henneke, newly hired as the head of TPPF’s Center for the American Future,  will belitigating government overreach and 10th amendment issues, including:

• environmental
•  private property
• and business autonomy rights.

It’s like a Texas version of Institute for Justice, the group of attorneys that represented Kelo in Kelo v. New London, the preeminent eminent domain case of the last 20 years. 

TPPF

Appraisals that continued to lower the price of land in dispute were deemed “strong arm tactics” designed to force settlement, and were the basis for a pro-land owner ruling by the  Virginia Supreme Court.

The state supreme court  found all the appraisals must be presented to the fact finder to determine value. 

The difference in appraisals: $150,000. The legal fees for the state’s outside counsel: $140,000. 

Virginian Pilot  

This week ISD Trustees voted to use the power of eminent domain to obtain 46 acres of undeveloped land to build a highschool. 

The ISD statement: “…we were unable to have successful negotiations. We are going about it in a professional manner. We have hired a top-flight appraiser and we are making a very fair offer.” The ISD streses that it only wants 6.7% of the landowners 677 acres. 

Montgomery Courier

To use eminent domain in Georgia, a pipeline company must have approval from the Governor and the Department of Transportation. In this case, a pipeline company wished to build a 210-mile pipeline to move gasoline and ethanol across Georgia to terminals near Augusta, Savannah and Jacksonville.  For this pipeline, wishes and dreams did not come true. 

What stopped the pipeline from getting eminent domain?

• The Governor had said the pipeline is not good for the state.
•  Land owners were opposed.
• The agency received 3,000 public comments.
• Ultimately, the agency found the pipeline didn’t meet the requirements for a common carrier to receive eminent domain authority for the project.

Jacksonville News

17 states have passed laws concerning drones. The Feds say, who cares- we control air space, not the states. It’s the perennial states right fight.

The International Association of Chiefs of Police says they have few tools to protect citizens from drones.

The Wall Street Journal points us to a 1946 the US Supreme Court established that property owners have exclusive control of the area immediately above their land, which is estimated to be 83 feet.

Wallstreet Journal

Its harder and harder to build insfrastructure in Texas. Tollroads, high speed rails, pipelines are greeted by protestors, private property rights activists, and lawsuits. 

The Midwest has responded with the Midwest Alliance for Insfrstructure Now. It is a coalition of:

• “agriculture, business, and labor sectors aimed at supporting the economic development and energy security benefits associated with infrastructure projects” 
• “Expansion of our energy infrastructure — such as pipelines — provides a safe and efficient means of moving resources to market”  

Texas Infrastructure is Growing too.  

Willing buyers, a hot topic in eminent domain. No one wants to be forced into selling their property.  So, who doesn’t like this idea?

The Midwest Alliance for Infrastructure Now. 

Private property rights as engrained in Texas as the Lone Star. Dueling private property rights are facing a detante.

Denton’s fracking ban sought to protect use and enjoyment of your private property, your home. In contrast, HB 2595 would prohibit initiative and referendum petitions that restrain private property rights. Sounds just like what Denton did, until one sees that there are also private property rights in mineral interests, which is what HB 2595 sought to protect.

What can continue this detante? Perhaps an earthquake that breaks apart land interests and mineral interests. 

Houston Business Journal 

The 143-mile Trans-Pecos pipeline will take West Texas gas to Mexico. To get there, it has to build a pipeline through lands owned by Texans. 

Say you’re a ranch owner, and you’re asked for a 50 foot easement for a pipeline that won’t deliver its goods to the U.S. Did the Constitution contemplate a public use outside the U.S.? 

A land owner quote from a meeting in Alpine, TX: “If it were supplying people in this state with fuel, I could better understand it,” Nelson said. “Using eminent domain to [take over land] to supply another nation — I got my reservations about that.”

Al Jazeera America

Iowa’s proposal to require condemning entities to negoitate agreements for 75% of the land it needs to aquire continues to move rapidly through the Iowa Legislature. It is expected to easily make it to the Governor’s desk for his signature. WNAX

Strong early voting numbers in Tarrant Regional Water Development Board races, which have been spurred by an eminent domain dispute.

At the end of early voting 11,292 early ballots were cast. An additional 5,840 ballots were cast by mail. In contrast, the 2013 numbers were 8,143 early walk-in votes and 4,015 mail-in ballots. 

Ft Worth Business Press 

While Iowa is leading the pack on “No eminent domain for private gain,” Tgexas is moving forward with no eminent domain for private toll roads. 

HB 565 is awaiting referral to a Senate Committee. Dallas Morning News

On Thursday, May 7th,  Senate State Affairs is hearing HB 2536. Its a fascinating new front in eminent domain legislation granting free reign to condemning entities in Harris County. 

This bill will allow a condemning entity to unilaterally select the court for eminent domain proceedings.  Wouldn’t we all love the power to unilaterally select the best court? the best line at the gas station? the best lane on the freeway? 

Surprise, surprise, more people oppose eminent domain according to an Austin environmental  lawyer.  

Opposition to eminent domain use for a water pipeline that seeks to move East Texas water to DFW has fueled campaign contributions, and court cases related to open records. 

Tarrant Water Campaign is Over East Texas Land: Ft Worth Star Telegram

At least one eminent domain lawyer thinks large value, 7 or 8 figure, eminent domain cases may be forced into a new three judge panels that can be convened by request of the AG. Texas Lawyer describes the bills as:

“allow[ing] the Texas attorney general to petition the Texas Supreme Court’s chief justice to convene a mandatory three-judge court to hear school finance or redistricting cases. The panel would consist of the original district judge who got the case, and two others appointed by the chief justice: a district judge from another county and an intermediate appellate court justice from another district. An appeal from a three-judge court would go straight to the Supreme Court.”

As filed the SB included a provision that would allow a 3 judge panel to be called by the AG for other claims of statewide importance. It’s not in the CSSB, but that language remains in the HB and concerns some eminent domain lawyers.
 

HB 1091  SB 455  Texas Lawyer

Decreasing property values, eminent domain, property divisions and intrusions lead the reasons why Navasota area residents oppose high speed rail. They gathered at the Grimes County Expo Center. KAGSTV

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