Wednesday, August 22, 2012

Recent Court Ruling Favors TX Land Owners In Effort To Stop Pipeline Firms' Forced Easements By Invoking Purported Condemnation/Eminent Domain Rights

In Austin, Texas, The Associated Press reports:

  • Pipeline operators and landowners called on Texas lawmakers [] to clarify eminent domain laws following a recent court decision that has thrown that authority into question.

    Representatives for pipeline companies complained that the Texas Supreme Court decision to give landowners the power to challenge a company's right to condemn property to make way for a pipeline has injected uncertainty into the industry. Before the court ruling, the company only had to check a box on a permit application to the Texas Railroad Commission to prove it should have the authority to force people to sell their land.

    "To go to a policy change that would make this a judicial review (instead of an administrative one) ... could severely impede the development of pipelines in this state," said Greg Schnacke, a representative for Plano-based Denbury Associates, which lost the Supreme Court case.

    Julia Trigg Crawford, a landowner and farmer in Lamar County, said she was sued by TransCanada Corp. when she refused to turn over part of her land for a pipeline. She complained that no state agency is thoroughly vetting whether pipelines actually qualify under Texas law for eminent domain authority as a common carrier.

    A common carrier is a pipeline that transports substances to or for the public and are for hire by the public. The pipeline must not operate solely for the company that owns it to have eminent domain powers.

    "The process lacks real oversight by any empowered and engaged state agency," Crawford said. "Why is it my responsibility as a Texas landowner to make a foreign corporation prove critical elements that should be step one in the state permitting process?"

    Lindale Fowler, general counsel of the Texas Railroad Commission, said the agency processes 4,400 pipeline permits a year and a little more than 200 are for new pipelines. Applicants check a box on the application form promising to be a common carrier, but the commission does not attempt to verify the claim, he said.
  • Clayton Henry, representing the Texas and Southwestern Cattle Raisers Association, told lawmakers his members want a process where they can argue against a pipeline company using eminent domain authority.

    "To simply check a box on a one page form, submit a pipeline route, and post a $25,000 bond to receive condemnation authority appears to be a very low bar," he said.

    Pipeline operators said they would like the Legislature to give the Railroad Commission control of certifying a pipeline is in the public interest and for public use, rather than force companies to fight legal challenges in perhaps dozens of local courts if the pipeline crosses multiple counties. "The issue is whether we do it once, or will we do it 100 times," said James Mann of the Texas Pipeline Association.

Go here for the State of Texas Landowner’s Bill of Rights, which applies to any attempt by the government or a private entity to take your Texas property through eminent domain (go here for Spanish version).

Go here for Pipeline Eminent Domain and Condemnation Frequently Asked Questions.

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