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

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

Standard Speaker

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

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

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

Empower Texas

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

Here’s why Burkett says it is important: 

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

Dallas Morning News

Refreshing Recollection.   Previously on Information Intelligence.

Eminent domain protests occur across the U.S.:

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

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

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

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

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

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

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

Bloomberg News via San Diego Source

Previously on Information Intelligence:

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

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

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

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

Virginia SB 1435

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

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

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

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

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

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

Previously On Information Intelligence: The Bill Filing

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

Toll road opponents and private property rights supporters united.  

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

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

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

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

Land values are differing by $25 Million :

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

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

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

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

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

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

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

• Brooklyn Nets
• Dallas Cowboys

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

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

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

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

What’s the North Carolina Tea Party Saying: 

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

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

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

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

TCR further offers this message on private property rights:

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

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

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

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

Daily Hampshire Gazette   

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

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

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

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

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

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

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

Detroit News

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

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

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

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

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

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

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

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

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

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

WSJ Nebraska Supreme Court Opinion   

Response from Landowner Attorneys: The Fight for Property Rights Continues

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

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

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

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

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

Heartland.org

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

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

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

Roll Call

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

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

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

Hartford Courant

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]