Eminent Domain for Open Space? Not so fast Woody Guthrie.

Colorado & Texas are both proposing bills that would prohibit eminent domain for open space land. Woody Guthrie wasn’t being literal when he wrote,  “This land is my land, this land is your land.”

In Colorado, the bill would prohibit a county from acquiring land for open space via eminent domain. It stems from mining property that a county acquired with eminent domain after some permitting issues. The acquisition of the land was at 4 times appraised value. The odds of fair comepnsation are high, but the author of the Colorado bill believes no property owner shold be forced to sell their land.  9 News  AP

In Texas, Seantor Nichols’ SB 178 would prohibit all condeming entities from acquiring land for recreational purposes. His bill will cover parks, greenbelts, trails and the like. 

9th COA Rules: No Common Carrier Status.

In a 7 year legal tussle over whether Denbury is a common carrier, the 9th Court of Appeals ruled that Denbury is not a common carrier.  Sounds innocuous, except that common carrier status grants Denbury, a private pipeline company, the power of eminent domain. Common carrier status comes with great power.

The Legislature tried to fix the common carrier issue in 2013, but an elegant point of order stopped it. In the summer of 2014, the Railroad Commission tried to fix it by rule making.  

In 2014, the Texas Supreme Court established a standard for determining whether an entity is a common carrier. The common carrier test used by the 9th Court of Appeals is:

  • “reasonable probability
  • that at some point after construction
  • the pipeline will serve the public
  • by transporting gas
  • for at least one customer who uses the pipeline to transport CO2 that the customer either keeps or sells
  • to someone other than an affiliate of the pipeline company.”

The legal wrangling began when Denbury representatives entered private property to survey land. Pre-condemnation surveying comes hand in hand with the power of eminent domain.

In the few last years, courts have struck down the ability to enter private property before eminent domain begins. Its a legal trend that has been protecting private property rights, even in left leaning states like California. 

Southeast Texas Record

Private Property Rights >The Fracking Bans. Do Property Rights Trump All?

Fracking & private property rights. Eminent domain is triggered at many levels in fracking. It can br triggered by the pipeline moving the oil to refining. It can be triggered when new roads are needed. It could be inverse condemnation when a regulation, like a fracking ban, limits how people can use their land. 

Senator Konnie Burton says cities should not be able to infringe on private property rights. Her SB 440 , prohibiting Denton-like fracking bans, protects private property rights while leaving the door open for cities to regulate where, when and how oil and gas production can occur. 

Texas Municipal League Reaction to Senator Burton’s bill:

  • Burton’s SB 440 is a better starting point since city regulation remains on the table.
  • Phil King’s HB 539 & HB 540 are “non-starter(s)” as they remove a city’s ability to establish distance regulation on gas wells.

FW Star Telegram

 

Refreshing Recollection from Information Intelligence:

HB 539 & HB 540: Local Fracking Bans Harm Texas Tax Coffers | Information Intelligence

Bill Filing: Ban Fracking Bans | Information Intelligence

12 North Texas Earthquakes on the Front Page, Impact to Fracking Legislation | Information Intelligence

Fracking Ban Meets Legislature. Bills Filed. Fight Begins, Again. | Information Intelligence

Eminent Domain Reform Has Arrived in Austin. 7 days. 12 news clips. 7 bills to curb eminent domain.

7 eminent domain bills have been filed to curb the powers of condemning entities. Activists are  organized. The games are set to begin.

The playing field favors their success. Property Rights is a tenant of Republicans and all Texans. Republicans control every facet of Texas government.  

In the last 7 days, these media outlets have focused on Texas eminent domain reform:

  • Harvey Kronberg’s Quorum Report 
  • Proposed bill adds some teeth to Texas’ eminent domain rules | Austin Business Journal
  • Schwertner Files Eminent Domain Bill to Protect Private Property Rights    | Navasota Examiner 
  • Texas Lawmaker Proposes Tougher Eminent Domain Rules | Law 360
  • Schwertner Files Eminent Domain Bill to Protect Private Property Rights   | KBTX
  • Farmers, Ranchers Set Ag priorities (Eminent Domain)   | Mason County News
  • Rick Perry, exploring Iowa caucus bid, joins pipeline board (Questions Eminent Domain) | Des Moines Register
  • Opposition to High Speed Rail Gets Organized | Houston Chronicle 
  • Capitol Update | Waxahachie Daily Light 
  • Ashby: Committee posts will help me protect East Texas | Lufkin News
  • Rep. Poncho Nevarez Update | Ft Stockton
  • Schwertner Files Eminent Domain Bill to Protect Private Property Rights|  Texas Insider

Lege Trend: Higher Constitutional Standards for Condemning Entities

A quickly moving constitutional amendment in North Carolina makes it harder for condemning entities to take private property using eminent domain.

How does it increase the burden on condemning entities? By limiting eminent domain to public uses- roads, court houses, schools, and prohibiting eminent domain for projects that do not have a clear public use.

Its a proposal also beloved by private property rights proponents in Texas.   WNCN via AP

Activist Alert: Death of Democracy. March Protesting Pipeline Eminent Domain

In the last year, opposition to eminent domain has turned more vocal and more public. Opponents have:

  • Hosted concerts & parades with world renowned musicians (featured Texans)
  • Shut down public meetings with overflowing crowds (occurred in Texas)
  • Consistently encourages city councils and county commissioners to vote in favor of land owners and against private entities using eminent domain (occurred in Texas)

This week we have “”Death of Democracy” march in Virginia. Death of democracy occurred because:

  • A private company, a pipeline, has the power of eminent domain
  • A private company, a pipeline, can survey private property without express consent

Franklin News Post

Bill Filing: DNA Gets Private Property Rights & Civil Penalties.

HB 1220 by Laubenberg establishes private property rights for a person’s DNA and RNA.

Without informed consent, DNA and RNA cannot be:

  • collected
  • tested
  • retained

If DNA and RNA is collected, tested, or retained without informed consent, the Attorney General may seek injunctive relief and a civil penalty that is tied to profits.   HB 1220

New Bill Filing: Attorney Fees Imposed Against Losing Condeming Entities

When eminent domain negotiations fail, the parties move to court. But, what happens when a court sides with a landowner and awards substantially more for their property? 

If SB 474 passes, a land owner that prevails with an award that is 10% higher than the last negotiated offer can have their attorney fees paid by the condeming entity.

It’s loser pay for eminent domain and applies to local governments as well as private companies that use eminent domain. 

Eminent Domain & Stadiums Like Oil & Vinegar.

Eminent Domain and stadiums is a controversial. Eminent domain by its self it controversial. Add in publicly funded stadiums and the controversy goes from jalapeño hot to ghost pepper hot.
 
Boston has decided to not use eminent domain to build the 2024 Olympic Stadium using eminent domain.  
 
Local governments declaring no eminent domain is very trendy.  Boston did it. North Texas cities did it this fall in protest to the Texas Toll Authority.  It’s sparked Texas bill filings to prevent eminent domain use. 
 
Boston’s refusal to use eminent domain is being heralded by conservative groups shocked that it happened in Boston and not ”not some red state or libertarian outpost in an untamed corner of Texas.”