Thursday, September 30, 2004

"When government can take property to give it to private parties, interest groups will try to commandeer that power to enrich themselves."

Rein in Abuse of Eminent Domain


Guest Column

By Henry A Miller
Victoria Advocate
Copyright 2004

A chain of events caused construction of 277 huge transmission towers in Karnes and Goliad counties. In 1998 the Texas Public Utility Commission and electric utilities decided to take private property in order to construct huge transmission lines across the state prior to deregulation taking effect. Commissioners and utilities agreed the only problem facing them was just how contentious land owners might be (Wall Street Journal, 1999). There would be no regulatory problems because the chief regulator, Chairman Patrick Henry Wood, III was in their pocket.

Americans supposedly have property rights protected by State and federal constitutions. Laws and regulations are supposed to govern the taking of property. The law of eminent domain requires a public need.

When your property rights are threatened by a profit making company helped by the government, you can give in or fight. In fighting you are going against all odds. The trend over the last twenty to thirty years has been that when your property rights are threatened you might as well give up because the big and powerful can not be stopped. The courts tended to approve the takings. This has caused those wanting to take your property and the regulators to become lax in following the laws. Why bother, property owners are defeated before the start.

100 or so property owners first knew of the proposed line in July 1999. Most took conventional wisdom and gave up. Some decided to see what could be done. We sought expert legal advice from lawyers that deal in eminent domain and procedures at the PUC. One said it was pointless to practice before the PUC. One said Commissioner Wood made up his mind that the 277 were needed. Wood controlled the other commissioners and was judge and jury in power line matters. Public need is supposed to be the reason that private property is taken.

A short chain of events was to rubber stamp the application. Utilities apply. The charade of following procedures was to happen. Application approved, no one the wiser, no matter what, a done deal. “No matter what” happened, contentious property owners chose to question the process? Two lawyers were found. A principled administrative law judge was assigned.

The utility asked to be ordered to construct the 277. The PUC had the right to do so and avoid a hearing to prove the need. Knowing it was a mere formality; the PUC ordered a hearing where the utility was to prove the line was necessary for the service, accommodation, convenience, or safety of the public. Knowing it was just a part of the charade the utility didn’t bother much in their attempt to prove the need. To the actors’ surprise, Administrative Law Judge Barbara Owens ruled that the utility failed to prove the line was necessary… and recommended the application be denied.

Regulations give the PUC limited rights to overrule the ALJ. Going beyond the limits, Wood overruled the ALJ saying the line was needed to improve market conditions. Market conditions serve the utilities and the power generating companies for their profit.

“When government can take property to give it to private parties, interest groups will try to commandeer that power to enrich themselves. The force of the state becomes a prize to be won in a political contest. Groups which hope to profit from forced redistributions of property will attempt to influence the government to use eminent domain in their favor. But, properly applied, the public use limitation prevents this by making it impossible for interest groups to profit”, Pacific Legal Foundation, in reference to a July 2004 decision by the Michigan Supreme Court said to have national implications. That court reversed a twenty year trend that allowed governments to take from one and give to another in order for the other to make a profit.

The 277 towers symbolize government taking from A and giving it to B so B can profit. Lawyers, Catherine J. Webking and Shannon K. McClendon have taken our case through the administrative hearing, district court, 3rd Court of Appeals, and on August 24 filed with the Texas Supreme Court.

Wallace Jefferson has been appointed Chief Justice, Texas Supreme Court. “He is perfect for the job because he will decide issues based on the law — he has no political agenda whatsoever, and he is not beholden to anyone," Lamont Jefferson(lawyer and brother of Wallace) (San Antonio Express 9/14/04). The same can be said of ALJ Barbara Owens, not so of Chairman Patrick Henry Wood, III.

The Texas Supreme Court now has the opportunity to right a wrong, to force the PUC to follow the law and to take away the utilities’ political prize.

We are therefore hopeful that the 277 towers will come down.

Note: The Texas Supreme Court declined to rule on the case. On April 4, 2005 a request for rehearing was filed at the Supreme Court. The Court has ordered the PUC and the utilities involved to file a response, due 6/29/05, to our filing for a rehearing. The Texas Farm Bureau on 6/29/05 filed an amicus brief in support of our case.

© 2004 Victoria Advocate: