Land Use & Property Rights

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]

Naturally, everyone should look to Texas when trying to solve problems.  Aljazeera did while forecasting how Pennsylvania will handle pipeline common carrier use of eminent domain. In the last few years, the Texas Supreme Court has been rolling back the power of eminent domain in favor of stronger private property rights. The effects of the Tea Party are pervasive, and private property rights are de rigueur.  [Aljazeera America]

The AgriLaw Center at Texas A&M has produced a checklist for those negotiating pipeline easements.[A&M Agriculture Law Blog]

Houston Business Journal names land rights, a top legal issue in energy.  

Texas Tribune & KETK quote a South Texas College Law Professor, who says the country will be watching Texas’ eminent domain cases. Focuses on a Texas landowner, who in March received a jury award 20 times greater than the condemning entity’s offer.

Bipartisan support for private property rights and opposition to eminent domain. Bipartisanship lives.  [Hays Co. Democratic Party] 

Drought is Gaelic for “Must move water to needed areas.” Tea Party is modern English for “We love private property. We detest eminent domain.” What happens when drought and Tea Party meet? Is it love at first sight? No. Its a water infrastructure quagmire. [National Eminent Domain Blog (Quoting the Ft. Worth Star Telegram)]

Nebraska farmers plant corn to protest a pipeline. Interesting logic if the corn is processed into ethanol and transported via pipeline. [Houston Chronicle]

An issue brewing in Texas Courts has been held unconstitutional by an Appellate Court in California. The Third Appellate District Court of Appeal ruled in Property Reserve, Inc. v. Super. Ct. of San Joaquin County that pre-condemnation entry statues violate California’s taking clause. It’s a legal battle currently brewing in Texas.   [Fox Rothschild LLP]

Supporting eminent domain breeds political attack ads.  Iowa gubernatorial candidate Jack Hatch(D)  is the target of Republican Governor Association ads attacking Hatch’s support of eminent domain. Hatch is a real estate developer who is targeted for “his support of eminent domain.” His opponent is Terry Branstad (R).[Ad Script: The Des Moines Register]

Condemning land owned by a corporate entity gets more complicated when the employees sue to intervene. I would have thought land was plentiful in Montana, but such is not the case.  [ABC/Fox Montana]

A potential precursor to the Bureau of Land Management tussle with Texas, the U.S. government has filed an eminent domain suit against California. A developer acquired land at a federal auction. He wants to do what he does- redevelop, but the street leading to the area needs improvement. The Feds are claiming eminent domain to upgrade a road for its building and any other related purpose, including a sale of government land.  [San Jose Mercury News]

One Odessa is growing, the other Odessa may be facing Russian troops. Odessa, Texas is growing. A convention center and hotel development is eyed to spur economic growth in its quiet downtown. With a disinclination to use eminent domain, the fate of downtown redevelopment is firmly in the hands of business owners. [CBS7KOSA]

What happens to cause a jury award to exceed an initital offer by more than $2 million?

According to lawyers its a message that jurors want pipelines to know how much damage they cause land owners.

Peregrine Pipeline Co., L.P. v. Eagle Ford Land Partners, LP, No. E-2007-00046

TPPF is on the case in 2015.

What do you make of the Nevada rancher who grazed his cattle on federal lands for several decades? Do you think the rancher has an adverse possession claim? estoppel? Was the seizure of cattle in the midst of armed Nevadans Constitutional? [Washington Post]

The motion for re-hearing filed this week in Crawford Family v. Keystone  was wild, right? Courts misinterpreting the Texas Legislature; culminating in “absurd results.” Say it isn’t so.

Be happy Texas isn’t California where pre-condemntation surveying and impact testing took a hit. If a condemning entity wants onto land to look around, they have to condemn it first according to a new Appellate Ruling that halted the Bay Delta Conservation Plan. California Supremes will have the ultimate word. [Property Reserve Inc. et. al. v. Department of Water Resources et. al]

Maryland is threatening eminent domain to claim land used by House of Cards, the Award winning Netflix political series. Frank Underwood, the slippery protagonist, would not be amused. [Washington Post]