Legal Trend: No Talking About Eminent Domain. Eminent Domain is Fight Club.

The Institute of Justice is asking the US Supreme Court to reveiw a 4th Circuit Court of Appeals case that prohibits banners protesting the use of eminent domain. Why the hush-hush?

  • Central Radio had been in Norfolk for 80 years.
  • Norfolk Redevelopment and Housing Authority wanted its land and buildings for Old Dominion University
  • Central Radio put up a banner on its own property which read ” “50 years on this street/78 years in Norfolk/100 workers/Threatened by eminent domain”
  • The sign would have been ok if it was on other topics
  • Old Dominion complained.
  • Norfolk  fined Central Radio
  • VA Supreme Court said- Can’t take the land. Central Radio Wins on Eminent Domain.
  • The banner issue went to federal court, which has thus far ruled against Central Radio.

Moral of the Story: If you live in Norfolk, don’t put up signs in protest of eminent domain. There’s no talking about eminent domain while your property is being taken by eminent domain. 

Washington Post

A Mayor Hints at Eminent Domain Use for a Soccer Stadium

Soccer, the world’s version of football, necessitates stadiums for professional teams in the US. The District of Columbia’s professional soccer team, the D.C. United, is getting a new stadium once all the requisite land is acquired.

Negotiations between a landowner, who owns 2 acres of primo D.C. land, and the District aren’t going so well. At least not in terms of what matters- numbers.

As a result, the mayor keeps dropping hints that D.C. will use eminent domain. The mayor wisely hasn’t used the phrase “eminent domain.”  Washington City Paper

Refreshing our recollections: Stadiums are economic drivers. Back in the day, Oakland, CA bandied about the idea of using eminent domain to keep the Raiders in Oakland because of the economic development boon the team meant for the city. 

Pre-Condemnation Access. Cannot Take it for Granted. NFIB Lawyers on the Case.

A California Appellate Court ruled that pre-condemantion access to private property did not include environmental and geological testing.

The land at issue was to be part of a multi-million dollar water delivery project , the Bay Delta Conservation Plan, to divert water from the Sacramento-San Joaquin Delta to Southern California. 

National Federation of Independent Business attorneys have filed an amicus brief supporting the landowner and encouraging the California Supreme Court to affirm the denial of pre-condemantion access to private property. 

Owners Counsel

UPDATE: Panhandle Landowners Sue State Over Putting Them in a Water District (The System Works)

A group of landowners, who filed suit against the State of Texas (TCEQ) for forcing them into a ground water district, were vindicated when the Groundwater district voted 5-0 to allow the landowners to live freely outside their groundwater district.

The landowners alleged in their law suit that they purchased land because it was not in a groundwater district and that private property rights should prevail. Lubbock Online

This Panhandle scenario should sound awfully familiar to Lege watchers.   Rep. Isaac is fighting a similar fight in Central Texas and has filed 4 groundwater bills that would cease the use of eminent domain for unregulated groundwater lands. Texas Tribune 

Refreshing our recollection from Energy & Water Subscribers:

On February 27, 2015, 20 Texans, owning 406 square miles of the Panhandle, sued the state for trying to force them to join a water conservation district.  What are the landowner’s arguments:

  • The property interests the landowners purchased were unmanaged water rights
  • The state’s actions are “socialism” at its finest

How did we get to the point of suing the state?

  •  ” In January 2013, the Texas Commission on Environmental Quality (TCEQ) mailed notices to government bodies and public water districts that it would recommend putting the 406 square miles at issue into the High Plains Underground Water Conservation District No. 1.”
  • “TCEQ acknowledged and made a judicial admission at the preliminary hearing that it had no jurisdiction over private groundwater rights of the Aligned Parties.”
  • SOAH assumed jurisdiction and recommended that the land be incorporated into High Plains Underground Water Conservation District No. 1. 
  • TCEQ adopted SOAH Decision 12/12/14.
  • 2/5/15 Rehearing Denied.
  • 2/27/15 Landowners file suit in Travis County.

Courthouse News Service

Private Property Rights in License Plates?

On Monday the US Supreme Court heard a Texas case about confederate flag license plates, because fans of the Dukes of Hazards are moving to Texas in droves.

I haven’t seen any Klingon license plates in Austin- yet, but the Trekkie community is deeply divided and have retained counsel.

Seems weird to argue about license plates at the US Supreme Court, but in 1977 the US Supreme Court set forth the idea that a license plate is free speech on private property. The case was Wooley v. Maynard. 

Private property rights are everywhere; in your DNA, license plates, and your land.

 ScotusBlog Dallas Morning News  Al Jazeera America  FoxNews

Common Carrier Battle. Round 2000. Danbury Seeks Rehearing Over Court Loss. Countdown to Amendment Flurry.

This week Denbury filed to seek a rehearing over the appellate ruling that it is not a common carrier. It’s going to pop up via amendment between now and June 1st. 

Why will this head to the Legislature? Because Denbury alleges that the current legal precendent, the appellate ruling, will have wide spread ramifications. 

This common carrier fight has spanned 7 years. This complex legal tale includes:

  • More than 7 years ago Jefferson County landowners James E. Holland and David C. Holland, their business Texas Rice Land Partners and their tenant Mike Latta were approached by Denbury Offshore to conduct a survey on their land to build a gas pipeline through the Hollands’ property.

  • Landowners declined. Denbury claimed the pipeline would be for public use, exercising the right of eminent domain.

  • “In 2008, 172nd District Court Judge Donald Floyd ruled Denbury was a common carrier, and the Ninth Court court agreed”

  • The Texas Supreme Court Said No. The case was sent back to the court in Jefferson County.

  • The Jefferson County Court said yes to common carrier status.

  • The 9th Court of Appeals said, no Denbury isn’t a common carrier based on the standards set by the Texas Supreme Court. 

South East Texas Record

Local Governmental Entity To Take Private Property. Golf Course Irrigation System.

Falconhead golf course, located in suburban sprawl outside of Austin, allegedly owes its water district $778,000. Naturally, legal action has ensued. The clincher is the Travis County Utility District is also considering siezure of the golf course’s property- in the form of its irrigation system.

 Here’s what happened:

  • The golf course and the Travis County Public Utility Agency (TCPUA) disagree as to how the golf course should use its irrigation system.
  • TCPUA says the golf course owes it $778K
  • TCPUA filed legal action asking for any proceeds from the sale of the golf course to stay in Texas so they get to the funds to recoup their $778K
    • A judge denied TCPUA’s motion
  • TCPUA wants to sieze the irrigation system and force the golf course to use its irrigation system under the terms it says apply to the course

Siezing private property by a local governmental entity is not likely to end this legal drama.

Statesman

The No Eminent Domain for Economic Gain Bill

No Eminent Domain for Economic Gain is a very popular refrain for property rights supporters. It’s as popular as A/C is in August in Austin. 

In Nebraska it is a tag line for  LB473, which prevents the use of eminent domain by foreign owned pipelines.  Foreign owned pipelines would be permitted to negotiate for purchasing easements.  Many states are cracking down on the use of eminent domain by private entities. 

The Antelope of  the University of Nebraska at Kearney