In Texas 100 different TYPES of non-governmental entities have the authority to use eminent domain.
by James A. Bernsen
The Lone Star Report
Volume 10, Issue 36
Eminent domain was back on the Legislature's agenda this week, this time at the House Committee on Land and Resource Management.
At issue is one of the committee's interim charges – studying the use of eminent domain by non-governmental entities.
The most common of such entities are common carriers – railroads, pipeline companies and the like. Bill Peacock of the Texas Public Policy Foundation said that legislative counsel has identified 100 different types of entities with authority to use eminent domain.
Peacock said common carriers appear to have avoided extremes to acquire land.
"We haven't found any cases that we would ascribe to common carriers," Peacock said. "Not that they're not out there, perhaps, but that doesn't seem to be where most of the problems are. The problem seems to be among government bodies, generally."
But there is concern in one part of the state that private companies could use eminent domain for private gain. At issue is a proposed quarry in Quihi, a rural farming community in Medina County, west of San Antonio. [In the interest of full disclosure, the writer of this story's family farm is within five miles of the project, but is unaffected by it and the writer's family is neutral on the issue.]
Vulcan Materials, a large rock quarry company located in Alabama, has proposed the project. The company currently runs several such plants in Texas.
Medina County residents have been fighting for six years to stall the quarry project. Vulcan currently has a lease on the land but in order to utilize it, must build a railroad line from the site to the rail line which runs parallel to Highway 90 about 10 miles away.
The path such a railroad takes, therefore, has led to eminent domain concerns. A parade of landowners who are concerned about their property rights came before the committee on May 3, hoping to shut down one possible route that Vulcan could use to reach the land.
Brian Pietruszewski, a lawyer representing the Medina County Environmental Action Association, called the case virtually unique. What the company was trying to do, he said, was take advantage of a loophole in Texas law.
"That loophole," Pietruszewski said, "can be closed by the state making a greater effort to clarify what it passed last session in Senate Bill 7 by distinguishing more clearly between truly private rail ventures and true common carriers and the 99 percent of partnerships, consortiums, groups of industries organizing...to construct rail service to benefit their industries," he said.
The "loophole" is a statute that allows railroads to condemn land through eminent domain. Courts have narrowed it somewhat by stating that such railroads must be common carriers – transporters of goods for all takers – to satisfy the requirement that eminent domain be for a "public use."
Vulcan has established the Southwest Gulf Railroad to serve the proposed quarry. The rail line was approved by the federal Surface Transportation Board, and the railroad itself has been granted common carrier status. Although the line will be built specifically to serve the quarry, the company claimed in a 2003 press release that it could have other uses.
"As a common carrier, Southwest Gulf Railroad, which is wholly owned by Vulcan, will be capable of serving other shippers that could locate on or near the planned line," the release stated.
However, the route of the railroad is unlikely to generate much new business, as its entire path is in a rural area, and Quihi, the nearest town, has little more than 50 residents. Locals are concerned, therefore, that the common carrier designation is little more than a front to allow the company to exercise eminent domain.
Vulcan, however, maintains that the matter of the company's authority to use eminent domain is settled. But, as Clay Upchurch, a company spokesman said, it was an authority the company would rather not use.
"While the Southwest Gulf Railroad would have the same authority of eminent domain as any other railroad in Texas, " Upchurch said, "we would always consider it only as a last resort. Our goal is to work constructively with landowners to purchase any necessary right of way at a fair price."
But many landowners refuse to sell, and told the committee that eminent domain would be the company's next route. The company's common carrier status, moreover, is more than legalistic for the residents of the small town, which was settled during the Republic of Texas and still has many landholders living on the original land claims.
Russell Mangold, a resident of the area, asked committee members, "How can you put a value on land that has been in a family for over 100 years?"
Rep. Rob Orr (R-Burleson) said he was supportive of tightening up eminent domain legislation, but he didn't want the Legislature to get caught up in a local "nimby" (not in my back yard) dispute on whether or not the facility could go forward. If, he said, there were real eminent domain concerns in this or any similar projects, he would study the issue carefully.
Rep. Anna Mowery (R-Fort Worth) said that she would be completely opposed to any non-governmental organization using eminent domain authority.
"We believe that the people who use the extreme power of eminent domain – they should at least be elected by the voters," Mowery said.
Vulcan says the quarry is needed, and would benefit all parts of Texas.
"...As Texas continues to grow and as existing quarries are depleted, sources of high-quality construction aggregates become increasingly difficult to find," Upchurch said. "The stone mined in Medina County will support the economy in the region and around the state, including areas like Houston, which do not have an available local supply of limestone."
© 2006 The Lone Star Report: