Texas Delivers Victory for Property Rights in Keystone Pipeline Fight

By Terri Hall l March 9, 2012

Julia Trigg Crawford’s fight to prevent TransCanada from seizing her property by using the state’s coercive power of eminent domain scored a big win late last Friday, when an appellate court reinstated her temporary restraining order (TRO). However, the same court just vacated the TRO today. TransCanada – a private entity and owner of the proposed Keystone XL pipeline – called in some big guns from the Houston-based international law firm of Fulbright & Jaworski, to get it done.

Americans believe, under the takings clause of the Fifth Amendment to the Constitution, eminent domain is a power unique to government that should be used sparingly and only as a matter of public necessity, such as to build a road, hospital, airport or military base. So they’re incredulous to discover how private companies, like TransCanada, can obtain this governmental power under certain circumstances, and one of them is for pipelines. However, in Texas, that’s restricted to what’s called a ‘common carrier’ pipeline deemed a ‘public use’ as opposed to a private use.

A coalition of organizations in Texas, who are backing Crawford, is expressing “exasperation” over the The Property Rights Protection Act, H.R. 1433, which excludes common carriers, under Section 9, Definitions, as specified in House Report 112-401. The bill recently passed in the U.S. House of Representatives with bipartisan support and is now before the Senate Judiciary Committee.

The reinstatement of Crawford’s temporary restraining order against TransCanada was not the only big news for her case last Friday. On the same day, the Texas Supreme Court also denied a motion for rehearing in the Texas Rice Farmers v. Denbury-Green pipeline case, subsequently reissuing an opinion that decidedly favors landowners. The Denbury-Green case unequivocally gives landowners the right to challenge a pipeline company’s common carrier status in court, which Crawford is doing. Her case is the first known litigation to rely on the Denbury-Green decision.

In Denbury-Green, the Court specifically stated that a company cannot simply check a box on a one-page application form and self-declare it meets the legal requirement for gaining eminent domain authority without checks and balances.

“Private property cannot be imperiled with such nonchalance, via an irrefutable presumption created by checking a certain box on a one-page government form. Our Constitution demands far more,” Justice Don Willet contends in the opinion he authored for the Court.

He continues, “However, as for the core constitutional concern—the pipeline’s public vs. private use—the parties point to no regulation or enabling legislation directing the Commission to investigate and determine whether a pipeline will in fact serve the public interest.”

So, the Texas Supreme Court in denying the motion for rehearing emphatically gave landowners a right of action on whether or not a pipeline is indeed for a public use rather than a private one.

Debra Medina, the former Republican gubernatorial candidate and executive director of the non-profit state policy group called We Texans, responded to the decision saying, “The case points to an ongoing problem: there are no checks and balances in Texas to stop eminent domain abuse when it comes to pipelines. TransCanada wants to take advantage of that fact and has mounted a powerful and expensive legal effort to do so. Meanwhile, Texans are fighting back. We stand with Julia, because her victory will be a victory for the property rights of ALL Texans.”

The groups maintain that TransCanada has yet to prove its own common carrier status in its case against landowner Julia Trigg Crawford. TransCanada says its T-4 permit issued by the Texas Railroad Commission makes it a common carrier, but the group points to comments from the Railroad Commission itself saying it has no authority to grant common carrier status.

Serious questions remain about TransCanada’s legal authority to exercise eminent domain in the State of Texas. Texans don’t like foreign companies coming into our state and taking our land for private profiteering. They didn’t like it with the Trans-Texas Corridor, which the grassroots defeated, and they don’t like it now either. The Corridor would have bisected farm and ranch land making huge slices of property inaccessible to ranchers, threatening their ability to drive cattle across it or to make a living off their own land.

Similar to the Trans-Texas Corridor, TransCanada is also, in effect, cutting-off access to people’s property by trying to dictate to landowners what they can and can’t do with their property – like telling ranchers they cannot drive a tractor across the pipeline’s easement.

Farmers like Crawford, who rely on the water from a spring on their property to irrigate their crops, have a right to be concerned about leaks from this Keystone XL Pipeline, since oil sands is basically a sticky tar-like sludge when extracted from the ground. It’s a high density substance which requires chemicals, dilution, and intense heat to get it to move through a pipeline. So these high pressure, high temperature conditions subject the pipeline to a sand blasting-like effect that makes it even more prone to leaks and ruptures than traditional crude oil pipelines.

Sounds like a nightmare!

Julia Trigg Crawford may become the next Susette Kelo, or not as the case may be, in the battle to save her land against the Calgary-based TransCanada Corporation, a battle that started in 2008 when she was first contacted. The 53-year old East Texas farm manager is used to going up against tough odds stretching all the way back to her days as a Texas A&M forward for the Aggies women’s basketball team. She has opposed TransCanada and the Keystone XL pipeline and even gotten herself arrested for a sit-in at the White House last August. Although, Crawford has taken to the Web in a way that Kelo and her neighbors over ten years ago could never have dreamed of doing by starting a petition drive called “Protect my land from oil giant TransCanada.”

Crawford describes her family owned farm in Direct, Texas as “inherited from my grandfather who purchased it in 1948” and now a major Canadian company “is trying to build a pipeline to transport highly toxic hydrocarbon,” she writes, “from Alberta, Canada to Texas, to refine it and then export it to foreign countries.”

As she tells it, Crawford’s story is compelling, “Imagine, one day, that a massive, foreign company decided to dig through your backyard without your permission. When you went to law enforcement to try and stop the company, they brought in big city lawyers to try to throw your right[s] out the window.

And if tearing through your property weren’t enough, this company would expose you and your family to serious health risks and threaten the water and safety of your community – and potentially millions of other Americans, too. Sound like a nightmare?

That’s exactly what’s happened to me.”

Groundswell of support for Crawford

“The support that’s been coming my way from regular folks is just unbelievable,” said Crawford. “But we know TransCanada sees my property as a key battleground and they’re going to come at us with guns blazing, so we have to be ready to defend ourselves.”

“TransCanada and the Keystone Cushing/Gulf Coast segment are exempt (in H.R. 1433),” says Calvin Tillman, the former mayor of DISH, Texas. “This leaves landowners like Julia Trigg Crawford in Oklahoma and Texas in the lurch, subject to the clutches of TransCanada’s ongoing eminent domain proceedings. But let’s remember that it was the bravery and the tragedy of the Alamo that inspired victory in the Battle of San Jacinto. TransCanada’s bullying and lobbying has led to a groundswell of support for Julia and landowners like her, and I think TransCanada should be worried.”

Tillman urged citizens across Texas and America to stand with Julia and the Crawford’s lawsuit by giving to the Crawford Defense Fund at StandWithJulia.com. Crawford’s case will likely be a landmark, precedent-setting case for property rights both in Texas and across America.

Terri Hall is the founder of Texans Uniting for Reform and Freedom (TURF), which defends against eminent domain abuse and promotes non-toll transportation solutions. She’s a home school mother of eight turned citizen activist. Ms. Hall is also a contributor to

SFPPR News & Analysis.