Justin Hodge, Kyle Baum, and Kyle Hlavinka presented on eminent domain at the January 2022 Brazoria County Bar Association luncheon. Brazoria County is one of the fastest growing Counties in the Texas and continues to experience a significant volume of condemnation and eminent domain-cases. You can watch the entire CLE presentation here. Special thanks to Brazoria County Bar Association for the opportunity to speak at the luncheon.
On January 12, 2022, the United States Court of Appeals for the Federal Circuit heard Milton v. United States (The Tropical Storm Harvey Downstream Flooding Cases).
Russell S. Post for the landowners/appellants framed the question as “not whether property owners have a right to perfect flood control, it is whether those property owners held their property in fee simple, not subject to a flowage easement. And assuming so, whether they must bear the cost of the government’s decision to inundate downstream properties as a precautionary measure, not as an emergency action during Tropical Storm Harvey.” Moreover, Mr. Post asserted that the dam was performing properly and that there was no threat of failure when the gates were opened. He urged the Federal Circuit to decide the “property rights question and then remand the other questions for full development.”
Brian C. Toth for the government argued that there is a baseline that the court needs to recognize in terms of the flooding prior to the government’s discretionary decision to build the dam in the first instance. Further, that background principle of a baseline can be used in a lot of different lenses, such as causation and for the property interest. The government also argued that the Federal Circuit should affirm the lower court’s decision based on causation, citing Saint Bernard Parish v. United States, 887 F.3d 1354 (Fed. Cir. 2018). However, the Court recognized that in Saint Bernard Parish, there was no government actor consciously raising flood gates and inundating property.
Excellent job to Mr. Post in his defense of Texas property owners in their fight seeking just compensation for the government’s taking!
Here is s a link to listen to the oral argument. https://cafc.uscourts.gov/home/oral-argument/listen-to-oral-arguments/
Emma Whitford, with Law360, wrote a terrific article entitled “3 Real Estate Cases to Watch in 2022.” As part of the 3 real estate cases to watch in 2022, she includes Texas Central Railroad & Infrastructure Inc. et al. v. James Fredrick Miles. Here is the article:
The Texas Supreme Court granted a Petition for Review on whether the Texas Central Railroad is a “railroad” and whether it qualifies as public use. The case is currently set for oral argument on January 11th. Here is link to the setting:
Justin Hodge of Marrs Ellis & Hodge LLP, who represents Texas landowners, is quoted in the Law360 article saying, “a win for the developers [Texas Central] would inevitably kick off a second contentious phase of litigation, in which owners seek just compensation for the takeover of their land. Phase two will go on for years and years and years to come.”
If you are interested in learning more about the project, here is a link to Texas Central’s website.
If you are interested in reading more about the Texas Supreme Court case, then you can read the parties briefs here:
Brief on the Merits:
If Texas Central is allowed to proceed with condemnation using the power of eminent domain, then Texas landowners should fight for just compensation, including damages caused by the train to their remaining land.
Alliance Houston, Stop TxDOT I-45, LINK Houston, Texas Appleseed, and Texas Housers filed a complaint on Thursday, December 16, 2021 with the Federal Highway Administration alleging TxDOT violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-7, and U.S. Department of Transportation’s (USDOT) implementing regulations, 49 C.F.R. Part 21 on the I-45 project in Houston, Texas.
On March 8, 2021, the Texas Division of the FHWA wrote to TxDOT requesting that the agency pause further contract solicitation efforts for the NHHIP to allow the federal agency “time to evaluate the serious Title VI concerns” raised by complaints it received from the public and an elected official.
Despite this letter, TxDOT continued to pursue right of way acquisition; threatening homeowners who refused to sell with eminent domain proceedings. Then, on June 14, 2021, FHWA issued a letter to TxDOT instructing it to “pause” right-of-way acquisitions, including solicitations, negotiations, eminent domain, and final design activities, because TxDOT had continued residential acquisition; including by threatening individual homeowners with the use of eminent domain if they refused to sell. According to a November 29, 2021 letter from the FHWA, TxDOT is allowed to acquire property through market negotiations, but at this time cannot rely on its eminent-domain power. You can read more on this update here: https://texascondemnation.com/2021/12/03/txdot-i-45-project-is-allowed-to-proceed/
The groups allege TxDOT is not in compliance with Title VI of the Civil Rights Act of 1964, or DOT and FHWA implementing regulations. Further, they argue that TxDOT has failed to consider environmental justice and civil rights concerns about and understand that civil rights requirements are broadly applicable to all its project activities
You can read their full complaint here:
In conclusion, the groups say TXDOT “project goals do not counterbalance civil rights issues; improving transportation must be pursued in a way that is non-discriminatory and does not result in disproportionate and adverse impacts on protected populations.”
Despite these challenges, TxDOT appears to be moving forward with the I-45 project. If history provides us with any lessons, TxDOT will very likely use its eminent-domain power to take private property along I-45. Landowners should protect their property rights by consulting with an eminent-domain lawyer.
TxDOT and Mexico both recently conducted studies connecting San Antonio, Texas to Monterrey, Mexico. Another high-speed train project is also being studied between Oklahoma and Texas. With significant federal infrastructure funding approaching, many of the project concepts may be real in the future. Landowners should keep up with these projects because they can have significant impacts on their property – both good and bad.
You can learn more about these studies here: https://www.kgns.tv/2021/12/08/txdot-conducts-study-bullet-train-san-antonio-monterrey/
Despite months of delay, the Federal Highway Administration announced that TxDOT is allowed to proceed with portions of the I-45 project on North Houston Highway Improvement Project, which would widen I-45 from downtown Houston, Texas north to Beltway 8. The project is estimated to cost over $10 billion. TxDOT’s I-45 project will impact private property along I-69, State Highway 288, and IH-45 in Houston, Texas.
You can learn more about the project here:
There are still many concerns that will need to address the impacts and displacements in Houston’s Third Ward. According to a November 29, 2021 letter from the Federal Highway Administration, TxDOT is allowed to acquire property through market negotiations, but at this time cannot rely on its eminent-domain power. Regardless, TxDOT should fairly compensate all the landowners along the project and not make lowball offers. This would allow the I-45 Project to proceed and reduce the harm to individual landowners. Landowners along the route should consider consulting with eminent-domain lawyers to make sure TxDOT pays just compensation, including damages to remaining property.
“To establish that the emergency has passed, statements and acts of the President and of other executive officers are adduced; some of them antedating the enactment of the statute here in question. There are statements of the President to the effect that the war has ended and peace has come, that certain war agencies and activities should be discontinued, that our enemies are impotent to renew hostilities and that the objects of the act here in question have been satisfied in the demobilization of the army and navy. Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 159, 40 S. Ct. 106, 109, 64 L. Ed. 194 (1919) (citing Thanksgiving Proclamation, Official U. S. Bulletin, Nov. 18, 1918, p. 1.) (emphasis added).
The Supreme Court explained that “severe restriction imposed by the act upon the disposition of liquors amounts to a taking of property, and, being uncompensated, would, at least as applied to liquors acquired before the passage of the act, exceed even the restriction held to be admissible under the broad police powers possessed by the states.” Kentucky Distilleries & Warehouse Co., 251 U.S. at 155. Although many of the restrictions imposed by the pandemic may have passed, let us not forget that severe government restrictions can amount to takings by eminent domain. That is, the public, not the individual, should shoulder the burden together. Let us be thankful that the framers protected our property rights in this regard.
By the President of the United States
It has long been our custom to turn in the autumn of the year in praise and thanksgiving to Almighty God for His many blessings and mercies to us as a nation. This year we have special and moving cause to be grateful and to rejoice. God has in His good pleasure given us peace. It has not come as a mere cessation of arms, a mere relief from the strain and tragedy of war. It has come as a great triumph of right. Complete victory has brought us, not peace alone, but the confident promise of a new day as well in which justice shall replace force and jealous intrigue among the nations. Our gallant armies have participated in a triumph which is not marred or stained by any purpose of selfish aggression. In a righteous cause they have won immortal glory and have nobly served their nation in serving mankind. God has indeed been gracious. We have cause for such rejoicing as revives and strengthens in us all the best traditions of our national history. A new day shines about us, in which our hearts take new courage and look forward with new hope to new and greater duties.
While we render thanks for these things, let us not forget to seek the Divine guidance in the performance of those duties, and divine mercy and forgiveness for all errors of act or purpose, and pray that in all that we do we shall strengthen the ties of friendship and mutual respect upon which we must assist to build the new structure of peace and good will among the nations.
Wherefore, I, Woodrow Wilson, President of the United States of America, do hereby designate Thursday, the twenty-eighth day of November next as a day of thanksgiving and prayer, and invite the people throughout the land to cease upon that day from their ordinary occupations and in their several homes and places of worship to render thanks to God, the ruler of nations.
In Witness Whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.
Done in the district of Columbia this sixteenth day of November in the year of our Lord one thousand nine hundred and eighteen and of the independence of the United States the one hundred and forty-third.
According to estimates from the White House, Texas could receive as much as $35.44 billion over five years for various projects across the State. This includes $27 billion for federal highway programs, $3 billion for public transportation, $3 billion for improved drinking water infrastructure, and $100 million for broadband internet expansion. The approximate $1.2 trillion infrastructure packages is one of the largest investments in our infrastructure in nearly 100 years.
We will start writing more about these projects, but we anticipate funding will be made available soon for “shovel-ready” projects in Houston, Harris County, Texas like IH-45, GrandParkway, and I-10. We also anticipate funding for “shovel-ready” projects in Austin, Travis County, Texas like the 620 and IH-35 projects. In Dallas, we anticipate funding for “shovel-ready” projects along I-635 and I-20. We also anticipate funding for future DART projects in Dallas, Dallas County, Texas.
Landowners and businesses along Texas highway expansions should begin to prepare for future eminent-domain cases throughout the State. If this is consistent with the 2009 infrastructure bill, then eminent-domain and condemnation filings will likely see significant increases within the next 1-2 years.
As most Texans are likely aware, plans to build a high-speed rail between Houston and Dallas have been in the works for several years with little actual progress being made. While Texas Central Partners, the developer of the high-speed rail, has stated construction could begin in 2020, most analysts and those following the project had doubts regarding that timeline even before the Covid-19 outbreak put an effective end to “business as usual.” A primary reason for the doubt surrounding the project is the legal uncertainty regarding whether Texas Central Partners can use the power of eminent domain to condemn the property necessary for the construction of the high-speed rail. As Justin Hodge, partner in the Houston office of Marrs Ellis & Hodge LLP, put it in a recent article published in the Dallas Business Journal, “Texas Central’s right to condemn is a hotly contested issue [and] we don’t know how the Texas Court of Appeals will address Texas Central’s right to take.” If it is ultimately decided that Texas Central Partners lacks eminent domain power, the project has little to no chance of ever being built.
For more details regarding the high-speed rail project and its seemingly uncertain future, please see previous blog posts uploaded to this site as well as the above-referenced Dallas Business Journal article.
Written by: Graham Taylor
Dallas Area Rapid Transit (DART) is planning a new line from DFW terminal to UT Dallas in Plano. As part of that construction, many landowners will be impacted, including businesses that have been operating for decades. Although many of those businesses will be severely damaged by the project, Texas eminent-domain law may not allow recovery under the Texas Supreme Court’s Schmidt “community damages” ruling. This is a “horrific standard” says Justin Hodge, that should be changed to better protect Texas landowners when their property is taken, damaged, or destroyed.
To learn more about this project, you can visit DART’s project page below.