Land Use & Property Rights

Texas and Southwestern Cattle Raisers Association provided No Texas High Speed Rail it’s policy on eminent domain. TSCRA eminent domain policy is:

Eminent Domain Fairness

WHEREAS, it is recognized that the exercise of eminent domain powers is a valid governmental function; and
WHEREAS, it is recognized that there have been abuses by governmental and private entities possessing eminent domain powers; and
WHEREAS, the exercise of eminent domain should be appropriately limited and subject to the strict scrutiny of Texas courts; and
WHEREAS, actions to compel the taking of private property under law should
be transparent and subject to review; and
WHEREAS, it is essential that property owners be fully compensated and treated with fairness when forced to relinquish property rights; now, therefore, be it
RESOLVED, that TSCRA supports legislation to amend the Texas Constitution and other laws to ensure fair treatment of property owners by condemnors by:

1. Providing the landowner with a written statement or certificate of the condemnor’s right to exercise eminent domain as well as a copy of the condemnor’s resolution authorizing the taking of the landowner’s property and its letter to the Texas Comptroller registering the right of eminent domain;

2. Requiring advance written notice and complete information be given to the property owner regarding the project and the rights of the property owner before any negotiations commence;

3. Requiring that the condemnor negotiate in good faith and make a good faith offer in an amount designed to induce the voluntary transfer of property rights based on appraised fair market value of the property and damage to the remainder;

4. Requiring that the condemnor furnish to the property owner the appraisal and the form of easement agreement; and include the terms of the easement in the legal adjudication of the condemnation.

5. Providing for compensation for all losses suffered by the property owner, including the market value of the property taken, damage to the remainder, cost to cure, and diminution of access;

6. Providing for payment by the condemnor to the property owner of all costs and expenses, including attorney’s fees, when the condemnor misuses the legal process or unnecessarily threatens the interests of private property owners;

7. Providing that the condemnor pay all costs and expenses, including attorney’s fees, to the property owner when the award by the special commissioners or the court is greater than the condemnor’s original offer;

8. Providing written notice of the condemned property owner’s option to reacquire the condemned property, or property conveyed in lieu of condemnation, and all associated property rights, including mineral and groundwater rights, for the price paid by the condemnor if the original project causing the condemnation does not progress or is not completed within a reasonable time;

9. Requiring advance written notice to private property owners of the intent to survey or access the property and secure such consent in writing before entering the property;

10. Providing the landowner with an indemnity, proof of insurance, or written assurance that any damages occasioned by the survey or other activities, including construction, on the property will be the responsibility of the condemnor;

11. Requiring the condemnor to take full responsibility for themselves and contractors, including reasonable measures to monitor all gates, cattle guards, and fences securing livestock and repair or replace any such gates, cattle guards, and/or fences that are damaged;

12. Prohibiting access beyond the proposed and final condemnation area for unauthorized purposes;

13. Requiring that the condemnation will specifically reserve to the condemnee all rights to groundwater and minerals unless the taking is specifically designated for the taking of groundwater pursuant to Texas law;

14. Ensuring that the condemnor limit the width of any temporary or permanent easement to the minimum essential for the proposed project, restore any surface area and vegetation, and take steps to prevent and/or eliminate the invasion of noxious plants;

15. Requiring the condemnor to pursue alignments along existing right of ways of other utilities and along property boundaries to minimize damages to the landowner.

16. Requiring pipeline companies to adhere to objective routing standards similar to those in place at the PUC for power lines and requiring pipeline companies to receive approval from the RRC for the proposed routing through a contested case hearing.

17. Requiring the condemnor to provide condemnee with an estimate of reasonable attorneys’ fees required to evaluate the offer and proposed taking along with the appraisal and make an additional offer to pay this amount in a final settlement.”

In the perennial battle of how to simultaneously support landowners and economic prosperity, VT Governor supports a pipeline but goes to bat for landowners. The Governor asked the pipeline company to pause eminent domain legal proceedings and allow for negotiations.

Landowners want to be reimbursed for legal expenses they have incurred. The pipeline company initially said no, but now it says it is “definitely willing to consider reimbursement for legal expenses.”    VT Digger

In 2014, a private tollroad coporation proposed new toll roads in North Texas. Town halls were held. Fire Marshalls 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

6 years of litigation and we might see the first jury trial. Here’s what happened:

• Denbury wanted to build a pipeline.  It needed land. Landowners and Denbury were unable to come to an agreement. Eminent Domain proceedings ensued. 
• Trial Court: Denbury is a common carrier with eminent domain authority.
• Appellate Court: Yes, common carrier. Yes, eminent domain. 
• TX Supreme Court: Not a common carrier. No eminent domain. Here’s what we say establishes a common carrier. Appellate Court, you listen to arguments again.
• December 18, 2014 Oral Arguments before the Appellate Court in Beaumont. 

Southeast Texas Record

Here’s what happened as a result of the litigation:

• 2013 Texas Legislature tries to pass HB 2748. it dies on a point of order. Private property rights are a very big deal to Texans and they let their politicians know that. 
• Summer 2014 Texas Railroad Commission uses rulemaking to clarify common carrier rules. Private property rights supporters remain displeased. 
• 2015: Inevitable legislative fight. Private Property Rights are sacred in Texas. Like football. 

New York prohibits fracking. Mineral rights owners and companies with existing leases may file suit claiming that the fracking prohibition is tantamount to the state government taking their private property.  

Shale Plays Media

Austin Business Journal lists eminent domain, especially in relation to pipelines, as a must watch legislative issue for 2015. 

Information Intelligence subscribers know that the hot legislative topicis broader. It’s any private company that has the power of eminent domain that triggers higher & hotter legislative scrutiny.

This includes private toll authorities, transmissions lines, and pipelines at a minimum.  Austin Business Journal 

The Green Bay Packers are the only professional franchise to be municipally owned.

Municipal acquisition of sports franchises is not an entirely new concept, Oakland considered eminent domain when the Raiders attempted to leave.

According to Stanford economist, Roger Noll,  “whether eminent domain would work probably varies from state to state and from judge to judge.”

 Even the threat of eminent domain could have an impact on professional sport franchise ownership negotiations for facilities.  Vice

Management Districts are controlled by the cities in which they operate and by the statutes that created the districts. The dual level of oversight means that while state law may grant a management district the power of eminent domain, a city may restrict a management district’s use of eminent domain.  

Such is the case in El Paso. Chapter 505 of the Government Code grants the Monticello Management district the power of eminent domain. The City Council of El Paso has prohibited the district’s ability to use eminent domain. KVIA

Claremont, CA is aquiring the local, private water company through eminent domain. 

71% of Voters in November approved the use of eminent domain by the city. The city wasted no time to file legal action. It is believed that if the city aquires the water utility, rates will decrease.    Claremont Courier

Texas Rice Land Partners Ltd. v. the Denbury Green Pipeline-Texas has been a hot legal topic for years. The repurcussions have been:

• a 6+ year  lawsuit, which may be on a path back to a jury trial
• 2013 legislation that was a hot target for points of order
• 2014 rule making that is a hot target for legislative action by private property advocates
• 2015 legislation is inevitable.                             Southeast Texas Record 

AG Opinion GA- 1096 

Question Posed: Whether  municipalities must  meet the population requirement in section 43.121 of the Local Government Code to annex property under section 43.129.   

Opinion Summary: “Without further guidance from the courts or the Legislature, it is not possible to reliably predict whether a court would require a municipality to meet the 225,000 population requirement in subsection 43.12l(a) of the Local Government Code in order to annex for limited purposes by consent under the authority granted by section 43.129.”

Information Intelligence has written about the pending TX Supreme Court case about a pipeline that owes a landowner a hefty judgment and hasn’t paid it. The case is gaining attention and momentum. TPPF weighs in on the case of the non-paying pipeline:

• “…energetic property rights is what enables individuals to attain self-sufficiency and assert their independence…”
• “Democratic government is not exempt from the temptation to circumvent the boundaries of private property rights for the sake of expediency.”
• “Texas has granted the power of eminent domain to electric trans- mission utilities and pipeline companies operating as a common carrier. ” 
• “By extended the power of eminent domain to private enti- ties, the government has introduced greater uncertainty for landowners into the eminent domain process when it comes to just and adequate compensation.”
• “Unadorned assertions of public use are constitutionally insufficient.”
• Merely registering as a common carrier does not conclu- sively convey the extraordinary power of eminent domain or bar landowners from contesting in court whether a planned pipeline meets statutory common-carrier require- ments. ” 
   
   
  A friendly reminder: When eminent domain is exercised by a private company, like a pipeline, the public and legislative scrutiny is higher.  TPPF

This week TPPF released a private property rights paper about a pipeline company facing a judgment in excess of $1.6M against it. The judgment is unpaid and no bond is posted for appeal. It has ruffled feathers.

In the paper, TPPF reminds us transmission lines are no different that pipelines in that they both are private companies that have the power of eminent domain. 

TPPF stresses 2 major points:

• When private companies have eminent domain authority the scrutiny is higher
• private property rights, and the compensation for a taking of property, are fundamental 

TPPF

Compensation of land owners is a common refrain in eminent domain debate. When property is taken by private companies, such as pipelines, the debate grows more intense. 

Massachusettes is considering a 12.5 percent royalty on any oil and gas transported in a pipeline through Massachusettes and ultimately sold to a foreign country. The royalty would be split amond land owners and is in addition to any compensation from taking of land through eminent domain. Daily Hampshire Gazette

The City of Denton passed a proposition to ban fracking. It’s led to lawsuits to stop the implementation of the ban.

New lawsuits may emerge from mineral rights owners. Mineral Rights owners could assert that the fracking ban ordinance unfairly restricts their ability to use their property. In short, that the city used a form of eminent domain to take their property and didn’t compensate the mineral rights owners for taking away their ability to extract the minerals.  Breitbart 

3 craft brewers are suing Texas Alcoholic Beverage Commission over a 2013 law that prohibits the brewers from distributing their product. 

The craft brewers liken the prohibition from retaining distribution abilities to TABC exercising eminent domain.  The analogy is that the law gives distributors property, that isn’t theirs and that they didn’t earn without compensating the the owner of the property, the craft brewers.  

The Institute for Justice is representing the craft brewers.   The Institute for Justice also represented a person named Kelo in an eminent domain case that caused quite an uproar.  

Personal Liberty  Texas Tribune 

The South San Joaquin Irrigation District was granted approval to enter the retail electric market. South San Joaquin has its eyes on acquiring PG&E’s transmission lines, transformers and poles.  

South San Joaquin co-owns hydroelectric damns. It’s not new to electric world. PG&E wants $600 million for its infrastructure. South San Joaquin wants to pay $125 million.

The two sides are far apart in compensation. Since South San Joaquin has the authority to use eminent domain coupled with the number of lawyers involved in the negotiations, compensation will most likely be determined by the courts.  [SFGate]

“We will do whatever it takes to make sure landowners are treated fairly when an entity uses the power of eminent domain to claim land for public use.” – Robert McKnight, Second Vice President, Texas and Southwestern Cattle Raisers Association

Cattleraisers made hundreds of calls last session opposing Tryon Lewis’ common carrier bill, HB 2748. [Southeast Texas Legal Record]

Protesting eminent domain & protesting pipelines has become de rigueur. But, what is the cost impact?

WallStreet Journal examines the slowed development of Keystone XL pipeline and 10 other pipeline projects. The total economic cost of these projects is more than $20 billion. [WSJ]

Private property rights proponents say the RRC common carrier rules do not go far enough to protect private proeprty rights. 10 years ago, maybe this wouldn’t be a big deal. But, there’s an oil and gas boom in a state that has 97% of its land privately owned. If a private company wants to build a pipeline to move the oil and gas; it’s going to have to deal with private landowners. 

Property rights proponents say the common carrier rules are:

• too vague
• might not require substantial proof from pipeline operators that their pipelines would be open for hire
• Texas needs to establish standards of proof for common-carrier status

Commissioner Craddick called the rules “vibrant, transparent permitting process for pipelines operating in the state of Texas.”

[Dallas Morning News | Trailblazers]

Landowners are on a winning streak with private property rights arguments in Texas courts.  Most wins occur when a private company, like a pipeline, uses eminent domain.  The murky territory of private companies acting like public entities. 

On December 18th, the Court of Appeals for the 9th District will hear oral arguments in a case between land owners and a pipeline. These landowners won with the Texas Supreme Court. The Supreme Court  sent common carrier standards back to the appellate court. Here we are full circle with more appellate arguments. 

Stay tuned to see if landowners win- again.  The ultimate decision will be with the 2015 Legislature.  [SETexas Legal Record]

Refreshing Recollection: 2013’s legislative attempt to handle this issue ended up dead on a point of order. In 2015, as Informed Intel has highlighted there are also multiple court cases on landowner compensation that the Legislature can address.  

John Stewart took on eminent domain. It’s hilarious, as always. Here’s an excerpt:

“I am disturbed by eminent domain abuse, because I think private property rights are fundamental to who we are as Americans… I don’t we should be helping out private interests,” Cruz said. “The problem with the Keystone Pipeline isn’t the issue of Eminent Domain, the problem is the Obama administration with the stroke of a pen shut that project down.”

“What the f–k?” Stewart said before mocking Cruz’s logic.

[The Wrap with Video]

An eminent domain attorney Steve Adler, is in a run-off race to be the next mayor of Austin. [Texas Tribune]

In an interview with a local paper, Representative-Elect John Wray expounded on his views on private companies exercising eminent domain authority:

“We would also look at a private entity having eminent domain authority, which is always problematic.” [Waxahatchie DayLight] 

This week the Railroad Commission passed rules to address when eminent domain attaches to certain common carriers. The rules will become official March 1st. The fight is making a beeline to the Legislature, which historically favors private property rights. 

Background: This eminent domain fight began because of court cases, which sided with landowners & private property rights. Legislation moved forward in 2013, but died on an elegant point of order. [HB 2748]

The supporters and the opposition remain the same:

• landowner & private property rights groups remain skeptical to opposed
• industry remain supportive  [Ft. Worth Star Telegram] [RRC Press Release] [EagleFordTexas.com] [Natural Gas Intel]

Ron Kirk will serve as  senior advisor. He joins Robert Eckles and Tom Schieffer.

Central Texas Railway has been hosting public forums to discuss its projected Dallas to Houston route. Landowners along the route have raised concerns. 

Building the bullet train requires land. Most land in Texas is privately owned by Texans, who love their land.  Acquiring land presents challenges.     [Dallas Morning News]

Land ownership is to Texans like blue is to the sky. Tarrant Regional Water District  (TRWD) needs to move water around to meet supply demands. The project is expected to cost $2.3 Billion in tax revenues.

Two big flags in this fact pattern:

• Billions of tax revenue draws attention of lawmakers. 
• To accomplish its goal, TRWD needs privately owned land from Texans who love their land.    

The land TRWD needs is owned by private citizens who want to continue to own their land without government interference.

State Representative Gooden requested information from TRWD, dissatisfaction ensued, campaign contributions flew around (all above board), and a grand jury is looking into the how TRWD is conducting its business. [Ft. Worth Star Telegram]

Highland Park ISD wants to buy land for a parking lot. They tried to buy it, but offered less than the June purchase price. The land’s owner is a developer who wants to put in town homes on the West Lovers Lane property.

This Monday Highland Park ISD Trustees approved using eminent domain, if necessary. Unless an agreement is reached, look for a lengthy legal process. [Dallas Morning News]

D.C. needs a stadium home for D.C. United. Its futbol, or what the world, except for the U.S., calls football.  D.C. has a property swap in mind, but hesitancy in D.C. leadership leads to speculation of eminent domain.

Speculators surmise that eminent domain would be more costly (lots of lawyers) and would take more time than to purchase or swap land to build a stadium. [Soccer America]

A pipeline company wants to build. Accordingly, it sent landowners letters that it would be surveying land.  The Appalachian landowners are unhappy. Rural mountain people upset with big corporations coming onto their land with fancy science equipment reads like a script for Deliverance 2014. 

Lawyers say that until there is an established common carier purpose and a public need, the pipeline cannot survey land. [The Public News Service]

Refreshing Recollection: Earlier this year a California Court disallowed pre-condemnation access to property. Texas Courts are grappling with the same issue. [Legal Trend: Unconstitutional Pre-Condemnation Entry Statutes]

An early eminent domain bill this pre-filing season: SB 178 by Nichols prohibits the use of eminent domain for recreational purposes. Quotes from Senator Nichols:

“Senate Bill 178 would prohibit state or local governments from taking private land for recreational purposes. Nichols believes eminent domain can be a last resort when considering public utility projects and other public works, but that no one’s land should be taken for bike trails or parks.” 

“These bills represent some of the priorities brought to me by the citizens of Senate District 3,” he said in a news release. “My work is driven by the interests of the constituents I represent.” [Tyler Morning Telegraph]

2014 has been the year of eminent domain protesting. There were farmers who planted crops to spell out their protest, a Willie Nelson rally, and old fashion protestors. Public meetings have been shut down by the fire marshall. Protestors are loud. They want their voices heard.  

The latest protest rally is in response to a Houston based pipeline company that wants to build a pipeline in Massachusttes. The protest brought together property rights activists, environmentalists, land owners, and elected officials. All are claiming that the pipeline company does not care about land or landowners. [AP via Houston Chronicle] [AP via Brownsville Herald]

A Florida city wanted to protect seagrasses. So, it prohibited docks to promote seagrass growth. Property owners, with riparian rights, wanted to build docks to access the water.  The conflict ended up in court.

Landowners went to state court seeking property right protections for their riparian rights. The city moved the suit to federal courts. The 11th Circuit held that riparian rights, state based property rights, are not protected by the US Constitution. Litigants await word from the US Supreme Court. [Owner’s Counsel] [US Supreme Court Docket]

UT Regants had put Players on the eminent domain chopping block in 2004. Players was saved from eminent domain and UT ultimately paid fair market value for the property. The Austin Chronicle details the eminent domain challenges Players faced. [Austin Chronicle]

Want to see the details of an agreement between TXDOT and a private toll company delineating the private toll companies eminent domain authority? The Texas Observer delivers.

The Texas Observer also gives us this piece of trivia: “The Texas Turnpike Corporation still has eminent domain powers because it formed one day before the 1991 repeal went into effect.” [TX Observer]

Americans love their baseball. Hartford, CT loves baseball and wants to build a new minor league stadium. The city knows where they want the new stadium, but the people who own that land disagree.

The city and landowners couldn’t reach an agreement to sell the land to the city. Naturally, the city is opting for eminent domain.

The city proposes to take 14 pieces of private property for a total of $1.98 million. The city will then turn the land over to a developer for a $350M baseball stadium project. [WNPR]

Texas High Speed Rail is hosting public meetings about its proposed high speed rail between Dallas and Houston. The popular topic at these meetings? Eminent Domain.  

Progress that the train represents is welcomed, but property owners love their land and don’t want to be separated from it.  [KPRC Houston]

Claremont asked voters to approve the City condemnation of the water utility. This marks the second local government in recent months to utilize eminent domain to acquire a privately owned utility. [Inland Valley Daily Bulletin]

Refreshing our Recollection: Earlier Missoula, MT has begun condemnation process for its privately owned water utility.  [Missoula Independent] 

Bragg v. Edwards Aquifer is a story about a pecan farmer who wanted to water his pecan orchards. His request for water was denied. He went to court.

The trial court and the appellate court agreed with the pecan farmer- the denial of the water permit was a taking of his private property rights and he deserved compensation.  

We’re now at the Texas Supreme Court. The landowner has won twice. The response brief is due December 22nd. Time will tell whether denying a water permit is a compensable taking of private property in Texas. [Bragg v. Edwards Aquifer]

Usually when you think eminent domain, you think a governmental entity is trying to acquire land. The Mountain Water Company is facing eminent domain by Missoula, MT.

By all accounts, Mountain Water Company is privately owned and operated. [Missoula Independent]  Legal fees in this eminent domain case for Missoula are $750,000 and there remains 6 months before trial. Public support favors using eminent domain. [Missoulian]

The ordeal raises an interesting question, can a private utility company be acquired by eminent domain?

On Halloween, the Texas Supreme Court set December 1st as the deadline for response to the Petition for Mandamus in Eagle Ford Land Partners.  Eagle Ford Land has a judgment for $1.6Million from a pipeline company that is not satisfied. Eagle Ford is asking the Texas Supreme Court to enforcement to judgement. 

Property Rights advocates from the Farm Bureau to the WildLife Association  to TPPF have lined up in support of Eagle Ford Rice Partners. [Eagle Ford Land Partners]

There’s a new WalMart SuperCenter in the works for Longview. But, acquiring the land for access roads to get to the new SuperCenter is challenging.  Landowners have not agreed to sell the necessary land to build the access roads.

Whether building the roadways to benefit a for profit corporation falls within public use/purpose required for eminent domain will be decided by the courts if eminent domain is used. [KLTV 7]

A Republican sold out landowners by passing a bill to form a special district for reservoir management. The special district was granted the power of eminent domain.

This gave rise to campaign material in Alabama, a Southern property rights state. [AL.com]

Richmond, California set a trend for using eminent domain to take over underwater mortgages. It has been a controversial program that has been winding its way through the courts and is now the undercurrent of campaign mailers.

The National  Association of Retailers have gotten involved in the Richmond City Council races because of eminent domain. The Realtors are supporting candidates who oppose eminent domain.  [Richmond Confidential]

Want to know what agricultural interests think about eminent domain? This article in the Progressive Cattleman outlines it. It walks you through these crucuial questions:

Q: When can land be taken with eminent domain?

A: When there is a public use.

Q: How is a landowner compensated?

A: Depends on how the land is taken, but if its a portion of the land, the land owner is generally compensated justly and adequately for the land taken and the impact on the remainder of the land.  

That’s the big picture. [Progressive Cattleman]

Resfreshing our recollection, two professor types published a paper for  Mercatus Center at George Mason University.  Their conclusions did not favor eminent domain and has become an anthem for property rights advocates.

The Editorial Board at The Oklahoman took an economic spin from the research, and write about optimistic economic development projections, that often fail to take into account opportunity costs. The Editorial Board pushes for more protections for property owners. [The Oklahoman]

The author of the forth coming book,   The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain , is touring the country speaking about eminent domain.

This will be the first legal scholar book on the Kelo v. City of New London case, which permitted eminent domain for economic devleopment purposes and sparked state by state legislation to prevent such a thing. The author is Ilya Somin is Professor of Law at George Mason University. [Washington Post | Volokh Conspiracy]

Private pipeline companies exercising eminent domain for common carrier pipelines isn’t only a Texas issue. A Lt. Gov. candidate in Massachusettes also raises the same private property rights concerns that draw the attention of Texas land owners. The Massachusettes candidate also throws in environmental concerns, but the private property rights concerns are identical.  [The Recorder]

The first public meetings about the privately funded, high speed rail proposed for Texas began this week. The Dallas Morning News reports that the company developinghigh speed rail has eminent domain authority.

Its a combination of words that do not sit well with private property rights activists: private, company, eminent domain, and development. [Dallas Morning News]

Refreshing Recollection: A high speed rail project is progressing in California, but its backed by state funding. The Texas project is touted as privately funded. [Fresno Bee]

TPPF, an ardent supporter of private property rights, submitted a letter brief in support of the property owner, Eagle Ford Land Partners.

Here’s the big picture: A natural gas pipeline wanted land to build a pipe. The pipeline company and land owner weren’t able to reach an agreement. The eminent domain case went to a trial court. At trial, the jury awarded Eagle Ford $1.6Million. The pipeline never paid the award of adeqaute compensation. As a result, land rights groups filed amicus briefs and letters asking the Texas Supreme Court to enforce the judgment.

Those voicing their support for Eagle Ford are:

TPPF   Texas Farm Bureau    Texas Forestry  Association      Texas Land & Mineral Owners Association      Texas and Southwestern Cattle Raisers Association      Texas Wildlife Association 

 [Eagle Ford Land Partners at the Texas Supreme Court] [TPPF Amicus Letter]

A proposed new toll road in North Texas by the Texas Turnpike Corporation has garnered the attention of activists. Lots of activists.

A public forum was shut down by the Fire Marshall. The next public forum included heated and vocal opposition. Last week there was an organized protest by Texas TURF. And now Breitbart, the same organization for which Michael Quinn Sullivan writes, posted in opposition to the toll road. 

Besides the disdain for toll roads, the proposed North Texas road may be built with wminent domain exercised by the private entity, the Texas Turnpike Corporation. Activists are not pleased. [Breitbart]

Thousands of years ago salt was a valuable commodity. Empires were built on salt.

Today, the Tax Foundation uses a George Mason University Eminent Domain Paper to empirically state that eminent domain is not worth it. The Tax Foundation highlights that eminent domain has a negative relationship with economic revenue growth. “The gamble against private property rights rarely pays off.”  

Hear that sound? It’s the printers of private property rights advocates printing this paper in bulk for legislators. [Tax Foundation] 

Odds are high every member of the Texas Legislature will receive a copy of this George Mason University Mercatus Center Paper, “Takings and Tax Revenue: Fiscal Impacts of Eminent Domain.”

This academic paper details the use of eminent domain and resulting impact to government. [Synopsis of the Eminent Domain Paper for 2015] [Full Paper on Eminent Domain]

The meat of this article is that private proeprty rights are the foundation for the market economy. The authors then work their way through the landmark 2005 Kelo case and note that Kelo’s property was never used for the economic development purpose for which it was taken. But rather, Kelo’s property was used for refuse from 2011 hurricane Irene. 

RealClearPolicy also highlights the 2014 Economic Freedom of the World Report that the U.S. fell to 36th for its legal system and private property rights.   [Real Clear Policy]

Merrill Matthews writes that the proposition to ban fracking within the city limits of Denton has broader implications. The ban would fuel a public relations campaign for environmentalists. The ban would also give rise to inverse condemnation claims for property owners to argue that the ban denied them full use of their property to earn royalties. It’s a sticky situation. [Dallas Morning News]

Briefing is underway for a controversial groundwater case before the Texas Supreme Court. A pecan farmer was denied permits to water his pecan trees by the Edwards Aquifer. The pecan farmer argues the denial of the permit was a taking of his property. For all you land use lawyers, yes, the land owner is claiming an inverse condemnation. [Bragg v. Edwards Aquifer Authority] 

Refreshing Recollection: There’s another inverse condemnation case before the Texas Supreme Court about billboards in Houston. 

Obtaining eminent domain compensation for the loss of business goodwill is tricky. Just ask the business owners along 183 in Austin. When 183 was raised to above street level, businesses lost foot traffic. These businesses claimed a loss of goodwill, but the Texas Supreme Court disagreed. In California, businesses can obtain compensation for a loss of business goodwill, not all businesses owners are as lucky. [JD Supra]

22% is a very low approval rating. Eminent domain has an image problem. A big one. President Obama has a higher approval rating. [Rasmussen] [New Liberty] 

The world is full of con artists. New York City area has scammers flashing fake government official credentials and threatening building owners with emient domain, if the unsuspecting owners don’t sell their buildings. Awful. Just awful to prey on property owners with fake eminent domain threats. [CBS NY]

The Railroad Commission is in the midst of controversial rule making about which entities qualify as common carriers, because of last session’s HB 2748.

Texas needs to move its rich oil and gas resources around the state and country. Moving oil and gas to and fro requires traversing land. Land is owned by private individuals who love their private property rights, which makes getting access to build pipelines complicated. In 2013, a bill tried to address this issue. But,many private property right activists viewed HB 2748 as harming private property rights.  HB 2748 was killed on a very elegant point of order and never re-emerged again. 

The author of HB 2748 has retired from the Legislature, but the issue will be back for round 2 in 2015. Private property rights activists are engaged now more than ever before. Hold onto your hats it will be a bumpy ride.  [HB 2748 (2013)] 

Local governments are paying attention to the robust public input on a North Texas private toll road project by the Texas Turnpike Corporation. To translate lawyer speak- robust public input means angry voters. This week the town of Wylie called a special council meeting  & voted to OPPOSE a private toll road, which gives the private corporation eminent domain authority. Texans don’t like private toll roads. Texans dislike private companies using eminent domain & building private toll roads more.[NBC DFW]

The former mayor of Dish, Texas, tells us eminent domain Reform #1 is no more eminent domain for private companies. Texas private property rights are ranked very low nationally. Texas should look to Florida, where real eminent domain reforms have been enacted. Condemning entities pay legal bills whenever a land owner challenges eminent domain.[Star Telegram] 

P.S. The former mayor of Dish’s editorial first apepared on TribTalk. 

Mean Green is an unfortunate motto when UNT is moving toward eminent domain. Headlines to come- Mean Green Won’t Give Land Owner the Green. Mean Green is Mean to Land Owner. UNT Regents voted to acquire land a Sack ’N Save sits on to build a UNT community services center. The Sack ’N Save has good freeway access. UNT wants good freeway access too. [NBC FW]

The California legislature sought to find middle ground over public beach access through a California billionaire’s property. The courts sided with the surfer’s right to beach access. The legislature sought the more peaceful resolution for the billionaire- negotiation. Governor Brown agreed and signed the bill. But if negotiation fails, eminent domain is back on the table. A billionaire wants to keep his beach private. Surfers want to surf.

Never ending circle between the courts and the legislature over private property rights.  Happens in California. Happens in Texas. Private Property rights will always be a bone of contention. [San Francisco Chronicle]

Surfers are the nemesis of one California Billionaire, who watched Point Break too many times. In an effort to protect his beach from Presidential-mask wearing, bank robbing surfers, our billionaire blocked access to his beach. California Courts said no way, no how, dude.  Surfers must have access to the surf, dude.  [WSJ]

Hundreds of comments have been received from individuals and entities. Most interestingly, John Adams has shared his two cents on the proposed RRC rule. Who better than a Founding Father and an advisor to the US Constitutional Convention to weigh in on the issue of property rights. [RRC Public Comments]

A few weeks ago a fire marshall shut down this crowd because the crowd was too big. Time passed. A new venue was located. Time does not heal all wounds. For this crowd, time stoked the flames of anger. The crowd yelled names at officials & offered near unanimous opposition to eminent domain and toll roads.  [Dallas Morning News]

Preserving farmland is high on the minds of West Texans. The Brazos River Bottom Alliance says Texas leads the nation in disappearing farm land. Texas without farm land is like Texas without cowboys, a seeming impossibility. [Odessa American]

On Thursday the Texas Supreme Court heard oral arguments on an inverse condemnation case. A condo complex was deemed inhabitable by the City. The residents moved out of the complex. An appellate court said the residents didn’t get their constitutional due process rights. The Texas Supreme Court’s opinion will be a smorgasbord of constitutional rights- private property rights, takings, due process, and let’s throw in equal protection just for giggles. . [ City of Houston vs. Carlson et. al.] 

Want to build something for the public good? The odds are higher that Scotland will leave the UK than you building your public project without using privately owned land. 84% of Texas land is privately owned. Texans love their property rights & love to defend their property with their guns. [Texas Land Trends]

Imagine if Texas Legislators had to authorize eminent domain for a project to move forward? California hasn’t gone that far to make the Legislature approve eminent domain, but the California Public Works Board is voting to condemn a feed store, a vacant lot, and other Fresno properties to build the San Francisco-Los Angeles high speed rail line. [Fresno Bee]

An end run around the Legislature to give the Nebraska Governor sole eminent domain authority for TransCanada Keystone XL pipeline has raised eye brows. It’s currently the subject of contentious litigation before the Nebraska Supreme Court. Legislators don’t like their powers taken away. Toddlers don’t like their toys taken away. The bill had a bumpy committee hearing and the press seized it. The press likes discovering that a legislator can’t answer questions about his bill in a committee hearing and refers the questions to corporate officials who brought him the bill. Prepare legislators. Don’t just drop off a draft and walk away. Prep legislators like you’d prep a witness for trial.  [Toronto Star]

Sounds crazy, right? A sports team isn’t real property. How can eminent domain be used for intangible property? In 1982 the City of Oakland began eminent domain proceedings against the Raiders when they sought to move to L.A. During this process, the California Supreme Court opened the door for the use of eminent domain to take professional sports teams. [JD Supra]

In 2012 the Commonwealth amended its constitution to allow a landowner to petition for up to 3 years worth of profits from a project that used eminent domain. Imagine the revenue impact for profit sharing on electric transmission or oil and gas pipelines in Texas. [The National Law Review]

The North Central Texas Council of Government did the right thing by hosting a public meeting on a planned toll road linking Bush Turnpike with Greenville. Unexpectedly the meeting drew a crowd. A really big crowd. A crowd too big for the school cafeteria. People were there to voice opinions about eminent domain. The big crowd caused a quick end to the meeting. There is nothing that pleases people who are upset more than being denied a forum to voice their opinions. Tempers are sure to flare.   [Dallas Morning News]

Hurricanes are awful. Imagine a hurricane destroying the Texas Gulf Coast like Sandy destroyed New York. Add to the destructive power of mother nature, the power of eminent domain granted to the Army Corps of Engineers. Congress gave the Corp authority to study the need for erosion and dune protection, along with the power of eminent domain. Sandy’s aftermath is destructive for property rights advocates who want to tend to their own beaches. [CBS 7 Your Eye on West Texas]

An interesting nugget from the article: “Blair Fitzsimons, the executive director of the Texas Agricultural Land Trust, said 

there are few options for private landowners in Texas who are fighting against eminent domain.” She goes on to discuss potential eminent domain protection from certain conservation easements.

 

The Chair of the American Bar Association Section on Eminent Domain says, “Yes.” State courts have been wrangling with just compensation for years. In Texas, court decisions have increased compensation to land owners by millions. But,  the US Supreme Court has been silent on just compensation. In 2005, the US Supreme Court’s Kelo provided guidance on why land could be taken, but didn’t touch on how much land owners should be compensated. It’s the next big issue. Look for vocal land owners on the horizon. [JDSupra]

High Speed Rail is progressing in California. Billion Dollar construction contracts have been awarded. But, there’s a hitch. Eminent Domain and right of way negotiations aren’t moving. Hard to build when land disputes exist. [Fresno Bee]

Kathie Glass talks about eminent domain and theft of water as she kicks off her tour of Texas’ 254 counties. [KLTV]

A story about this week’s indictment includes details of eminent domain. Visions of eminent domain dance in our heads, riling conservatives full of dread.  [New Republic]

First, protests in the plains states with a Texas property owner heralded as a property rights hero. Now, Texas’ own Willie Nelson playing to support private property rights. [Schuyler Sun]

Property owners on the border face eminent domain to build the border wall. It’s a tale of cattle being separated from their water source & landowners separated from their land. Lawsuits ongoing.[NPR]

Outdoor advertising is at the heart of an eminent domain case now before the TX Supreme Court. Land with a billboard was condemned by the State. The billboard owner sought just compensation for the condemnation & won- twice. The billboard owner won at district court, won at appeal, and now we’re awaiting arguments before the Texas Supremes.  Owners Counsel of America, a group of attorneys supporting private property rights, joined with NFIB to file an amicus brief supporting the billboard owner. [Eminent Domain Law Blog] [TX Supreme Court]

A Pipeline “ticked off” a cattleman. Said cattleman is President of the Texas & Southwestern Cattle Raisers Association.  Messing with Texans isn’t wise, messing with Texas cattlemen far less than wise.    [TSCRA] [Star Telegram]

95% of Texas is privately owned. To build roads or move oil, water, electricity or natural gas, you have to negotiate with land owners.  Negotiating fairly and respectfully is key. It can be done, with a cool head and an even cooler temperament. When fairness and respect fail, enter eminent domain. Is the RRC messing with Texas private property rights with their new rules? Grist says yes. You decide. [Grist.Org]

The City of Orlando, in lieu of proceeding with eminent domain against a church, opted to redesign their MLS stadium plan to avoid church owned land. First amendment freedom of religion wins by default. For those keeping score, it is religion 2, eminent domain 0. [Law 360] {Statesman] 

• The Cattle Raisers take note of the RRC’s proposed rules. Cattle is big business on big swaths of land. Naturally, anything that affects their land draws attention. Beef and property rights remain sacred in Texas.  [The Cattleman]
• East Texas media darling, Juila Trigg Crawford, having returned from speaking to an eminent domain protest in North Dakota, gets more media attention than any other land owner impacted by eminent domain. Odds that private property rights groups will file bills for 2015: 100%. Odds of Republicans voting against private property rights: 0%. [Longview News-Journal]

An Appeals Court in San Diego valued a property at $8,000,000, up from $700,000. For the math wizards, that’s more than a ten fold increase in value plus excellent lawyering. The source of the increased value? Open pit mining was found to be the highest and best use of the property.   [San Diego Gas & Electric v. Schmidt]

Texas Tribune reports on this renewed legislative MMA fight.  In one corner we have lovers of the Constitution along with their legions of attorneys. In the other corner, we have economic powerhouses along with their legal battalions. [Texas Tribune] [NY Times] [TX Agri Law]

A Kentucky court held that 1st amendment freedom of religion trumps eminent domain authority preventing church lands from being condemned.  A similar fight is brewing in Orlando, FL. The City wants to build a MLS stadium, but it needs church lands. The church has refused offers for purchase from the City. Soon enough we’ll be in Court to find out if freedom of religion wins again.     How many acres of church owned property are there in Texas? Would religion trump eminent domain in Texas Courts too? [Orlando WFTV]

In 2011 Dallas began eminent domain proceedings. By 2013 a special commissioners hearing had not been scheduled & land owners grew weary. So, the landowners asked a court to dismiss. 18 months is a long time to wait. The trial court agreed. On Tuesday an appeals court reinstated the eminent domain case for jurisdictional reasons. Looks like fodder to forthcoming legislation. [Justia]

A landowner seeking to route a pipeline around his property has contributed more than $235,000 to certain water board members. A handful of related lawsuits ensued.  [Ft. Worth Star Telegram]

Have the requirements set by the Texas Supreme Court in Denbury been met by the RRC rules? We’ll have to let the Courts tell us. The final word will be handed down by the Legislature which will determine how Texas Grows & respects private property rights. [DMN]

Julia Trigg Crawford, a Texas landowner heralded for fighting eminent domain, will rally protestors this weekend in Nebraska. The protest is part of a national protest walk from Los Angeles to Washington. Eminent Domain is a populist movement. [Gillette News Record]

There are two blonde women running for governor this fall. Libertarian Kathy Glass is also on the ballot. She wants to permanently snuff out eminent domain, instituting an eminent domain apocalypse.  [Victoria Advocate]