Common Carrier Trumps Texas Quick Take: GOING FORWARD WITH TRANSCANADA’S REQUEST FOR ‘WRIT OF POSSESSION’

“We’re not giving up. A writ of possession is a right to rape the land, but it doesn’t end the case.”


By Bruce Branick l October 2, 2012
 

 

On September 24, 2012, Judge Tom Rugg’s Jefferson County Court at Law in Beaumont, Texas told TransCanada’s Keystone Pipeline Company that under the ‘quick take’ provision of the law it was cleared to enter upon the lands of Texas Rice Land Partners, but that Keystone’s Surety Bond “remains questionable,” and that Keystone’s position as a “common carrier” is yet to be decided in a separate court case.

Texas land owners are forever fighting ‘City Hall’ when it comes to defending their constitutional rights to private property. But in the Lone Star State ‘pipelines’ reign supreme, except in the event they are not considered a ‘common carrier’ and are for private use rather than public use. Title 3 of the Natural Resources Code on Oil and Gas requires that any part of a pipeline in the State of Texas be “for the public for hire.”

There are a number of phases associated with the expansion of the Keystone Pipeline System. Phase 3 of the original and extended route referred to as the Cushing MarketLink is expected to infuse domestic oil from U.S. producers backed up in oil tank farms located in the Cushing, Oklahoma distribution center into this segment of TransCanada’s operation. At the end of the day, that just might qualify Keystone as a common carrier.

However, a bitter denial of writ is in operation, with local landowners continuing a challenge to the writ of possession that would allow Keystone to begin trenching on their property. Meanwhile, Keystone basks in the shadow of that bloody battering ram, eminent domain.

Contrarily, the Holland Agra-family were amenable to the pipeline passage, having been offered $446,864, but told Keystone: We are not willing to assume uncompensated risks to the rest of our property. (Keystone’s offer would have allowed it to “walk away” from most responsibility.) Other pipeline concerns of Rice Land and the Agra-group were contamination of the clean water of life from aquifers: Carrizo-Wilcox, Yegua, and Gulf Coast aquifers.

At 12:30 Friday September 28, 2012, attorneys for defendants and Keystone’s attorney met, almost jovially, in front of Jefferson County Courthouse, and introduced themselves. There was a party air, including reporters, cameraman and assist from a local TV station, but the Dishmans, Mr. Phelan and the Hollands were deadly serious, questioning the writ of condemnation on their lands.

Eminent Domain, in legal parlance, is “the right of government to take private property for public use, by virtue of the superior dominion of the sovereign’s power over all lands under its dominion.” This may often boil down to the wants of a president, governor, mayor, of a domain, and their legislature, or councils, and with courts deciding the legality, even boil down to some shadow person with head-turning money, looking for special treatment, and often getting it.

For decades, Texas’ eminent domain laws have caused a lot of tears, loss of money, destruction and hard feelings over thriving and productive land cut in half, polluted, destroyed, or otherwise corrupted, and it’s happening now. Rice Land Partners and the Agra group stand to lose a bundle of bucks.

Most people – especially those on unemployment – believe Keystone will bring myriad jobs to Texans. Port Arthur is approximately 270 miles from the Oklahoma border, that’s approximately 270 miles of 36 inch pipe and trenching to be ripped loose from often unwilling hands.

“Welders can finish an average of 1.25 miles of piping per day.” If these figures were used it would take approximately 210 days, or 7-8 months to complete the line from Port Arthur, Texas to the Oklahoma line. How many Texans would be employed in those 7-8 months? Ultimate destination of the pipeline for this segment of piping is Cushing, Oklahoma, a huge oil reserve bristling with tank farms, some 60 miles northeast of Oklahoma City, OK.

The Texas legislature has had over one-hundred years, since Lucas’ gusher of January 10, 1901, at Spindletop-Beaumont, Texas, to shake down the oil industry, and eminent domain was one of the leafy tunnels in the petroleum labyrinth that made Texas wealthy, offers that couldn’t be refused. Today, Americans are becoming increasingly angry over the way eminent domain is being used as a grab bag for any and all land snatching.

The court’s verdict on September 28, 2012 allows TransCanada-Keystone permission to commence trenching on Rice-Land’s acreage, but Josh Brown’s article in the Port Arthur TX NEWS. “…the “Rhino Case,” now in Texas Ninth Court of Appeals, will decide whether the pipeline is for the ‘common good.’ If TransCanada loses for the common good, it must pack up its carpet bags and turn tail.

Agra man, David Holland told the NEWS, “We’re not giving up. A writ of possession is a right to rape the land, but it doesn’t end the case.”

Yet, Rice-Lands and other Agra lands, pale when compared to the morass of Rick Perry’s eminent domain condemnation plans to construct the Trans-Texas (or Perry) Corridor that would have mulcted thousands of Texas landowners with hundreds of thousands of acres in the course of that land-grab. The Texas’ ‘quick take’ provision was and remains a weapon in Perry’s eminent domain arsenal, under HB 3588, Sec. 361.137(a). Owners’ outrage made Perry put the cork back in the bottle, though he maintained he would continue his planning for that take-away party, anyway.


Bruce Branick served his nation for over 5 decades at sea. After three years of North Atlantic convoy duty as a Radioman in the U.S. Coast Guard’s Greenland Patrol and a fourth year attached to the Richmond Naval Air Station, a Florida Blimp Base concerned with Anti-submarine Warfare, he spent 50 years in the U.S. Merchant Marine as a Radio Officer, voyaging the world over from the Arctic to Antarctica, from Galveston to Istanbul, from Suez to Hong Kong. Mr. Branick, a contributor to

SFPPR News & Analysis

, is author of


Memoirs of a Loose Cannon

and
Two If By Sea
(1970).