TX High Court Again Nixes Pipeline Outfit's Claim Of Eminent Domain Right To Take Farmer's Land; Checking Box On Gov't Form Not Enough To Invoke Power

The Southeast Texas Record reports:

• [Texas] rice farmers and landowners breathed a collective sigh of relief [...], after the Texas Supreme Court denied a pipeline company’s second motion on rehearing in a case over its common carrier status.
  
  In 2009, Denbury Green Pipeline-Texas, claiming it was armed with the power of eminent domain, obtained a permanent injunction in Jefferson County District Court that stopped Texas Rice Land Partners from delaying construction of a pipeline running through private famers’ lands.
  
  Texas Rice Land Partners appealed the ruling, arguing that Denbury has its own interest at heart and not the public’s, court records show.
  
  Nonetheless, the Ninth Court of Appeals found that Denbury meets all the requirements of a common carrier, granting the company the right to take private lands for public use at below market prices.
  
  The case was appealed to the Texas Supreme Court and on Aug. 26, 2011, justices removed Denbury’s common carrier status and remanded the case, court records show.
  
  On Aug. 17, nearly a year later, the Supreme Court denied Denbury’s second motion on rehearing.
  
  “The Court holds that to be a ‘common carrier’ carbon dioxide pipeline, and endowed by the Natural Resources Code with the power to exercise eminent domain for public use, it must do more than check a box on a government form,” wrote Justice Dale Wainwright in his concurring opinion.
  
  “The right of private property is a fundamental right expressly protected in the constitution. The Court also holds that for a carbon dioxide pipeline owner to be a common carrier engaged in transporting the resource to or for the public, the pipeline’s only users must be more than a ‘corporate parent or affiliate.’”
  
  Justice Wainwright was joined by Justice Phil Johnson.
  
  Denbury filed the second motion for rehearing solely on the issue of the breadth of the court’s use of the term “affiliate” under sections 111.002(6) and 111.019 of the Texas Natural Resources Code, the opinion states.
  
  Case background
  
  As the Record reported in June 2008, shortly after being informed that the police would be called if the pipeline company’s surveyors came anywhere near a rice paddy, Denbury Green filed its petition for an injunction against TRLP and Mike Latta in Jefferson County.
  
  That same day, Judge Donald Floyd, Jefferson County 172nd Judicial District, approved the TRO.
  
  On Jan. 5, 2009, Judge Floyd approved Denbury Green’s motion for summary judgment, granting the company full access to the farmer’s lands.
  
  Shortly afterwards, TRLP and Latta appealed, arguing that “the trial court erred … since TRLP showed proof that Denbury Green’s pipeline is a private carrier,” court papers say.
  
  Denbury Green has planned a 314 mile, 24-inch pipeline starting near the Texas-Louisiana border and ending at the Hastings Field located in Brazoria and Galveston counties. The pipeline will transport carbon dioxide (CO2), which will be injected into oil reservoirs to recover additional crude oil.

Source: SC denies Denbury Greeen’s motion for rehearing in common carrier case.

Litigation Over Foreign Company's Common Carrier Status, Eminent Domain Rights Back In Front Of State Appeals Court As Texas Landowners Continue Battle To Keep Pipeline Outfit From Snatching Their Property On The Cheap

In Beaumont, Texas, The Southeast Texas Record reports:

• In a few weeks, an appeals court will hear arguments on whether a Beaumont judge erred by granting a foreign company’s petition to condemn land for the construction of a crude oil pipeline.
  
  In June 2011, TransCanada Keystone Pipeline filed the petition for condemnation against Texas Rice Land Partners, James and David Holland and Mike and Walter Latta. TransCanada filed the petition seeking to build a pipeline to carry crude from Alberta to the Gulf Coast.
  
  On Sept. 24 Judge Tom Rugg, who was presiding over the Jefferson County Court at Law No. 1 at that time, ruled that the company has the right to seize land in Jefferson County for the pipeline.
  
  A month later, Texas Rice Land Partners filed a petition for a writ of mandamus, court records show. Justices seated on the Texas Ninth District Court of Appeals in Beaumont will hear oral arguments on March 7.
  
  In its appeal, Texas Rice Land Partners argues that the “trial court abused its discretion by refusing to require TransCanada to establish its authority as a common carrier before granting TransCanada possession of Texas rice property.”
  
  “TransCanada does not have the power of eminent domain because it is not a common carrier and the pipeline is not a common carrier pipeline.”
  
  Conversely, TransCanada argues in court papers that the pipeline is a common carrier pipeline available for public use and that the foreign company is a common carrier.
  
  During a Sept. 12 hearing, Terry Wood, the attorney for the rice farmers, attempted to link the TransCanda case to a ruling made by the Texas Supreme Court in August 2011 denying Denbury Green common carrier status in a pipeline project of its own.
  
  However, the Denbury pipeline would have carried CO2, not crude oil.

For the story, see Appeals court to determine eminent domain powers of TransCanada Keystone Pipeline.

Texas Trial Judge OKs Foreign Company's Exercise Of Eminent Domain Right To Wrestle Land Away From Lone Star State Farmers To Construct Pipeline

In Beaumont, Texas, The Southeast Texas Record reports:

• A Beaumont judge [last week] granted a foreign company’s petition to condemn land for the construction of a crude oil pipeline.
  
  Last June, TransCanada Keystone Pipeline filed the petition for condemnation against Texas Rice Land Partners, James and David Holland and Mike and Walter Latta. TransCanada filed the petition seeking to build a pipeline to carry crude from Alberta to the Gulf Coast.
  
  On Sept. 24 Judge Tom Rugg, Jefferson County Court at Law No. 1, ruled that the company has the right to sieze land in Jefferson County for the pipeline.
  
  TransCanada has posted bonds to compensate landowners if a higher court finds that the company ultimately did not have the right to damage the sought after property, court records show.
  
  During a Sept. 12 hearing, Terry Wood, the attorney for the rice farmers, attempted to link the TransCanda case to a ruling made by the Texas Supreme Court last August denying Denbury Green common carrier status in a pipeline project of its own.
  
  However, the Denbury pipeline would have carried CO2, not crude oil.

Source: Judge grants foreign company eminent domain powers for pipeline construction.

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.

For more, see Pipelines unhappy with Texas eminent domain ruling.

In a related story, see Texas Farmer Takes On TransCanada.

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.

Private Company's Attempt To Invoke Eminent Domain Power To Wrestle Property Away From SE Texas Landowners Again At Issue

In Jefferson County, Texas, The Southeast Texas Record reports:

• Southeast Texas landowners will have to wait two weeks before learning if a Jefferson County judge will grant a foreign company’s petition to condemn land for the construction of a crude oil pipeline.
  
  TransCanada Keystone Pipeline filed the petition for condemnation against Texas Rice Land Partners, James and David Holland and Mike and Walter Latta on June 28, 2011. According to its website, TransCanada seeks to build a pipeline to carry crude from Alberta to the Gulf Coast.
  
  A hearing on whether to grant the petition was held Wednesday, Sept. 12, before Judge Tom Rugg, Jefferson County Court at Law No. 1. Rugg did not rule on the matter, but gave the parties until Sept. 21 to reply to a recently filed legal brief.
  
  While the hearing was in progress, several protestors stood outside the Jefferson County Courthouse to show their objection to the overuse of eminent domain. “It’s a concern of this court that the rights of landowners not be trampled,” Rugg said during the hearing. Rugg said he would craft a ruling on Sept. 24.
  
  During the hearing, Terry Wood, the attorney for the rice farmers, attempted to link the TransCanda case to a ruling made by the Texas Supreme Court last August denying Denbury Green common carrier status in a pipeline project of its own.
  
  In that opinion, the court stated “Private property is constitutionally protected, and a private enterprise cannot acquire condemnation power merely by checking boxes on a one page form.”
  
  TransCanada argued that the high court ruling did not apply, since Denbury Green’s pipeline would not have carried crude oil, but would have transported carbon dioxide (CO2) to be injected into oil reservoirs to recover additional crude oil.

Source: Judge to decide fate of eminent domain pipeline dispute by Sept. 24.