ISSUES & POLICY Where We Stand
Call Your State Leaders to Support Eminent Domain Reform
By Richard Thorpe, Texas and Southwestern Cattle Raisers Association president
We are nearing the end of the 85th session of the Texas Legislature. There were more than 6,600 bills submitted in this session. Thank goodness they meet only every 2 years. Texas and Southwestern Cattle Raisers Association (TSCRA) is tracking more than 850 of them. These bills have an impact on our property rights, water rights and taxation, and our ability to raise cattle and conduct our businesses.
While most of the time we’re playing defense on these bills, I’d like to highlight an initiative where your association is playing offense in a big way on behalf of cattle raisers and private property owners of Texas. And, I’m going to ask for your help.
The first issue, and most important, is that of eminent domain. In most cases, eminent domain consists of private companies, sometimes cities and municipalities, using state authority to take your land in the name of public good. You get a one-time condemnation settlement, yet a private company continues to profit on your land in perpetuity.
The problem of eminent domain has been with us a long time and many of us have had experiences with it first-hand. I can still remember that sinking feeling in my heart when we were notified that a power line was going through our ranch in Winters, passing over grazing land, fishing holes and even our private family cemetery.
Our story is not unique. At just about every cattle ranchers’ meeting or ranch gathering I have attended as an officer, a member will come up to me and tell me a horrible story of how a utility company or a pipeline company or city came after their land for a public project, offering a ridiculously low price at the very beginning of the process. I could see the landowners’ heartbreak and hear their anger as they talked about the disrespect and intimidation tactics they faced.
After making some individual changes to the eminent domain laws over the past few legislative sessions, your association’s leadership felt that this was the year to pursue significant reform, helping to level the playing field for landowners during the condemnation process.
Here’s an interesting fact about eminent domain. If you don’t accept their price when they come knocking on your door, according to the law, they sue you to start the condemnation process. One day you’re at your ranch and you get a visit from a guy in a suit. He offers you a ridiculously low-ball offer for your land. You’re smart enough to say, “I’m not taking that.” What do you do? You end up having to hire a lawyer, experts and getting appraisers to represent your rights in court.
If you win because the court says you are owed a better price, you still must pay all the court-related costs and attorney fees. Ranching is a land-rich, cash-poor business. You might be defending yourself and facing contingency fees from your attorney as high as 40 to 50 percent. Even if you win a better settlement, you still don’t get the full value for your land because you have to pay your own legal fees. We think this is wrong.
More than a year ago, TSCRA reached out to the Texas Farm Bureau and the Texas Wildlife Association, organizations that share a desire for eminent domain reform. We formed a coalition called Texans for Private Property Rights. The coalition has grown to represent 25 associations who are concerned with leveling the playing field for the landowner when facing eminent domain proceedings. You can learn more about this coalition at TexansforPropertyRights.com.
Through the efforts of the coalition, several bills have been introduced that would significantly, significantly, benefit the landowner. Here are some of the elements that are designed to make the landowner whole and protect your private property rights.
Right off the bat, we want to require condemning entities to make a fair offer from the very beginning of the process. If a court finds the offer was too low and awards a significantly higher settlement, the condemning entity should reimburse the landowner all costs and fees associated with representing themselves in court, in addition to the amount the court has decreed as a settlement.
Our reason for this is simple. There has to be a financial penalty. If we don’t have one, the condemners won’t make that fair offer. We have to send a clear and compelling reason for them to make that fair offer. Having to pay your opponent’s court-related costs is definitely a clear penalty.
We want to get a secure bond. We have landowners who haven’t been paid after their land was condemned by eminent domain. The companies hide behind bankruptcy, but produce crude oil or gas or electricity and continue to run. We don’t like the unfair rules regarding the submission of appraisals during the court proceedings.
We want them to carefully spell out what they intend to do with our land. Will they put in 1 pipeline or 3? Two transmission lines or 4?
We want them to maintain the surface throughout the life of the easement, managing soil erosion, brush and other elements that contribute to healthy land.
What’s really interesting are the cases in which pipeline and power line companies have made a fair offer and found the seller to be willing to agree. Without having to go to court, the willing buyer and willing seller settled on a price.
Today, use of those prices is not allowed in court when your land is condemned. That’s wrong.
We also don’t think we should have to pay taxes on land that has been condemned by eminent domain and has been taken out of your use.
We have been criticized for stepping out to reform eminent domain laws in Texas. Pipeline and power line companies and cities are our opponents. They have started their own coalition, The Coalition for Critical Infrastructure. They’ve accused us of trying to stifle the oil and gas and transportation industries. I can tell you clearly that TSCRA is not anti-energy or anti-transportation association. I’ll tell you what we are; we’re very pro-landowner.
They’ve accused us of setting up a cottage industry for trial attorneys. Again, this couldn’t be further from the truth. We firmly contend that if a condemning entity made a more reasonable, market-based initial offer we would be more willing to accept that offer and avoid a costly court system altogether. We champion a marketplace where a willing buyer and a willing seller can negotiate from a position of equality. We support a process that is fair to the landowners who are currently at a huge disadvantage when dealing with the condemnation process.
We’ve more than doubled our efforts on this issue, talking to our legislators about supporting reforms and educating them on why this is necessary. We’ve been refuting the allegations of the opposition. As we near the end of this legislative session, we need your help.
We’re grateful for the support of our friends in the State Senate and House of Representatives. In particular, I want to recognize Senator Lois Kolkhorst, Representative DeWayne Burns, Representative Trent Ashby, Representative Kyle Kacal, and Representative Justin Holland for their support. If they represent you, please pass along your appreciation for their support.
I ask you to call your state senator and state representative and let him or her know you support eminent domain reform.
I’ll tell you, as an association and personally, we’re committed to representing the interests of Texas landowners and we’re ready to fight for that right. Please make those phone calls. This is an important step in protecting the property rights of Texans. ❚
“Call To Support” is from the May 2017 issue of The Cattleman magazine.