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Tortured Law in Texas

William Boardman
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   By William Boardman  Email address removed"> Email address removed  


TransCanada had a good September in East Texas, relentlessly clear-cutting its way through piney woods and oak groves to make way for the Keystone XL pipeline that will bring hot, pressurized, toxic tar sands oil to the Gulf Coast on its way to market in China.  Despite Tar Sands Blockade establishing a tree-house barrier in Wood County, the month ended on a high note for the multi-billion dollar Canadian corporation as it won another round in court and wiped out a resisting vineyard. 


Tar Sands Blockade established a tree-house encampment in the path of TransCanada's earth-stripping equipment on September 24.  Although the company encouraged sheriff's deputies to torture two blockaders who chained themselves to a backhoe the next day, the faceoff remained peaceful but tense the rest of the week with the construction workers some 20 feet away from the trees with nine tree-sitters waiting 80 feet above.


Friday's court decision in three eminent domain cases gave TransCanada a firmer legal basis for pressing ahead and dislodging the tree-sitters, when Jefferson County Court Judge Tom Rugg, Sr.,  granted the company the formal right to take possession of the land it had already been clearing.  Having required TransCanada to put up more money in the surety bonds it posted, the judge concluded that "The statutory requirements for the issuance of writs of possession are now met."


Even though the Texas Supreme Court issued a decision in March 2012 that raised the bar for pipeline companies using eminent domain, Judge Rugg denied the landowners' request to apply the law as stated by the Supreme Court to this case.   While acknowledging that the Supreme Court case, Texas Rice Land Partners v. Denbury Green Pipeline-Texas, LLC, was "perhaps the most difficult issue" in the case before him, the judge held, in effect, that even though TransCanada had not established it right to clear the land, it could continue to do so because the bonding would provide compensation to the landowners in the event that it was needed. 


The judge did not address the question of how money could be a just compensation to a landowner whose was destroyed in whole or in part. 


Earlier the same week, David Hightower of Winnsboro came to the end of his resistance to the pipeline clearing crews.  Hightower, who was living in his childhood home after serving 40 years in the Air Force, had planted a muscadine grape vineyard and nurtured it over the years into a home business.  He asked TransCanada to shift the pipeline route.  TransCanada wiped out his vineyard.   


The use and abuse of eminent domain, especially by pipeline companies, has been an increasingly contentious Texas issue for several years.  The dispute in Denbury goes back to 2008, but by the time the court ruled in favor of the landowners, the pipelines company had already completed the pipeline. 


The Supreme Court has reaffirmed the Denbury decision twice more this year.  Judge Rugg's reluctance to apply the decision to the cases before him extends the uncertainty surrounding Texas eminent domain law and some observers are saying the Texas legislature may take up the question in its next session in 2013 (the Texas legislature meets every other year).    


Judge Rugg, who is serving a one-year fill-in term until a new judge is elected this fall, will eventually return to his former job in the District Attorney's office where he worked on civil and probate cases.  He took an $18,000 cut in salary, to $139,000, to serve as county judge. 


Talking about the Denbury decision to local public radio, the judge observed that:

"It's opened up a real can of worms and I'm not sure how it's gonna get resolved".  That decision has left a lot of unanswered questions, so there are a lot of legal issues that will have to be sorted through over the next few years." 


Meanwhile it leaves people like the Holland family, who are part of Texas Rice Land Partners, already have some 50 or more pipelines on their property, but this is only the second time they've gone to court over the issue of eminent domain.  The first time they were plaintiffs in the Denbury case. 


TransCanada had offered the Hollands $446,864 for an easement, which the Hollands were prepared to accept on the same terms as their other pipelines.  But TransCanada, with a pipeline that would be carrying a far more toxic load than the other pipelines, would not accept the usual terms, but rather wanted to be able to walk away from their pipeline any time, with no liability. 


With the court order, the Hollands are to get $20,808, or about 5% of what TransCanada offered, even though a landowners' compensation is supposed to bear some reasonable relationship to fair market value.  


As David Holland put it:   "There is something terribly wrong when a private company is allowed to take land for less than 5% of real world prices".  We are willing to grant an easement but we are not willing to assume uncompensated risks to the rest of our property."


Tar Sands Blockade remains intent on remaining in its tree houses and mounting other actions until TransCanada abandons the pipeline.  TransCanada has shown no indication it will do that.  Tar Sands Blockade will be training more volunteers in non-violent direct action at an October 12-13 training camp.         
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Vermonter living in Woodstock: elected to five terms (served 20 years) as side judge (sitting in Superior, Family, and Small Claims Courts); public radio producer, "The Panther Program" -- nationally distributed, three albums (at CD Baby), some (more...)
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