Jacob Merkord, Marrs Ellis & Hodge LLP partner, was interviewed on Fox 7 Austin news regarding the upcoming Matterhorn Pipeline project in Williamson County, Texas. You can watch the full interview here:

https://www.fox7austin.com/news/williamson-county-property-owners-fight-proposed-natural-gas-pipeline

https://www.fox7austin.com/news/williamson-county-property-owners-fight-proposed-natural-gas-pipeline

Mr. Merkord said Marrs Ellis & Hodge LLP clients, “are asking for full market value for what the pipeline wants.” He explained, “A lot of our landowners are not against the pipeline, but what our landowners want to see is that they want to have substantial feedback in the process and be able to decide and work with the pipeline company on the route.” Families in Burnet and Washington Counties, according to Merkord, are also objecting to the route and to the offers that have been made.

About the Matterhorn Express Pipeline

The Matterhorn Express pipeline, a 410-mile pipeline run by Whitewater Midstream, that will connect Upton County (south of Midland) to Fort Bend and Waller Counties (west of Houston). The project will impact landowners in as many as 17 Texas counties. If you are a landowner who has been contacted by Whitewater Midstream or any other right-of-way company about the Matterhorn Express pipeline project, you need to speak with an eminent domain lawyer as soon as possible. Do not agree to or sign anything without speaking to an attorney. This is the only way to fully protect your rights as a landowner.

At Marrs Ellis & Hodge LLP, our attorneys have significant experience representing landowners facing eminent domain issues across the State of Texas.  We understand the law, compensation, damages, and what is necessary to secure the best possible outcome for property owners.  Call today and let us explain your legal options.

At the end of February 2022, WhiteWater Midstream submitted a T-4 permit to the Railroad Commission, requesting the right to take private land for their pipeline project.  The Matterhorn Express Pipeline will stretch 410.8 miles and will transport natural gas through the following 17 counties:

• Austin County
• Burnet County
• Concho County
• Fort Bend County
• Glasscock County
• Irion County
• Lapasas County
• Lee County
• McCulloch County
• Midland County
• Reagan County
• San Saba County
• Tom Green County
• Waller County
• Washington County
• Wharton County
• Williamson County

The Eminent Domain Process

When a private for profit oil and gas company decides that it needs to take land for a pipeline project, they file for a T-4 permit with the Railroad Commission of Texas – Texas’ oil and gas regulatory body.  Once this happens, there is very little oversight or transparency in the process.   Once approved, however, landowners affected will typically receive a letter to request to survey and make an offer to purchase part or all of the property.  Such letters will often outline the need to purchase an easement for the pipeline project – in this case, the Matterhorn Express pipeline.  The letter may come from WhiteWater Midstream, Matterhorn Express Pipeline, LLC or another company acting on their behalf.

If the owner does not accept the offer, the owner may attempt to negotiate with the pipeline company for additional compensation, or the owner may reject the offer. If an agreement is not reached or the property owner rejects the offer, then the pipeline company may then file a condemnation lawsuit against the owner.  In such situations, courts appoint three landowners to serve as Special Commissioners. The Special Commissioners can consider evidence presented by both parties and issue an “award” of the property value based on the information.

If either party disagrees with the “award”, they may object to the decision. This sends the case to the trial court, where the case proceeds just as any civil lawsuit would.

It is in your best interests to speak with an attorney as soon as you receive a notice about the Matterhorn Express Pipeline, but particularly if you are offered an unfair amount for your property.  At Marrs Ellis & Hodge, LLP, we have represented landowners in every stage of the process, including in trial against pipeline companies.  Please contact us for a free consultation.

Pipeline Trial Representative Case

Peregrine Pipeline Company, L.P. v. Eagle Ford Land Partners, L.P., No. E200700046, In the County Court at Law No. 2, Johnson County, Texas (2014):

Luke Ellis and Justin Hodge represented a landowner in a jury trial over the disputed value of a pipeline easement. The Plaintiff pipeline company had offered $80,000. After a week-long trial, the jury returned a verdict of $1.66 million in the landowner’s favor, the exact amount testified to by the property owner’s appraiser. Peregrine appealed and the jury verdict. The parties reached a settlement while the case was pending on appeal that resulted in $616,943.47 net to the client.

Luke Ellis, Marrs Ellis & Hodge LLP partner, was interviewed on KXAN-NBC news in Austin regarding the upcoming Matterhorn pipeline project.

You can watch the full interview here: https://www.kxan.com/news/local/williamson-county/central-texas-landowners-lawyer-up-against-new-natural-gas-pipeline/

• 

In the interview, Mr. Ellis warned about the impacts of the Matterhorn pipeline to Texas landowners. He explains that, the increased oil and gas production in West Texas is causing increase pipeline construction throughout the state of Texas. Unfortunately for Texas landowners, this means that more and more pipeline companies are filing claims to take their private land for these projects through a process called eminent domain.

About the Matterhorn Express Pipeline

The Matterhorn Express pipeline, a 410-mile pipeline run by Whitewater Midstream, that will connect Upton County (south of Midland) to Fort Bend and Waller Counties (west of Houston). The project will impact landowners in as many as 17 Texas counties. If you are a landowner who has been contacted by Whitewater Midstream or any other right-of-way company about the Matterhorn Express pipeline project, you need to speak with an eminent domain lawyer as soon as possible. Do not agree to or sign anything without speaking to an attorney. This is the only way to fully protect your rights as a landowner.

At Marrs Ellis & Hodge LLP, our attorneys have significant experience representing landowners facing eminent domain issues across the State of Texas.  We understand the law, compensation, damages, and what is necessary to secure the best possible outcome for property owners.  Call today and let us explain your legal options.

At the end of February 2022, WhiteWater Midstream submitted a T-4 permit to the Railroad Commission, requesting the right to take private land for their pipeline project.  The Matterhorn Express Pipeline will stretch 410.8 miles and will transport natural gas through the following 17 counties:

• Austin County
• Burnet County
• Concho County
• Fort Bend County
• Glasscock County
• Irion County
• Lapasas County
• Lee County
• McCulloch County
• Midland County
• Reagan County
• San Saba County
• Tom Green County
• Waller County
• Washington County
• Wharton County
• Williamson County

The Eminent Domain Process

When a private for profit oil and gas company decides that it needs to take land for a pipeline project, they file for a T-4 permit with the Railroad Commission of Texas – Texas’ oil and gas regulatory body.  Once this happens, there is very little oversight or transparency in the process.   Once approved, however, landowners affected will typically receive a letter to request to survey and make an offer to purchase part or all of the property.  Such letters will often outline the need to purchase an easement for the pipeline project – in this case, the Matterhorn Express pipeline.  The letter may come from WhiteWater Midstream, Matterhorn Express Pipeline, LLC or another company acting on their behalf.

If the owner does not accept the offer, the owner may attempt to negotiate with the pipeline company for additional compensation, or the owner may reject the offer. If an agreement is not reached or the property owner rejects the offer, then the pipeline company may then file a condemnation lawsuit against the owner.  In such situations, courts appoint three landowners to serve as Special Commissioners. The Special Commissioners can consider evidence presented by both parties and issue an “award” of the property value based on the information.

If either party disagrees with the “award”, they may object to the decision. This sends the case to the trial court, where the case proceeds just as any civil lawsuit would.

It is in your best interests to speak with an attorney as soon as you receive a notice about the Matterhorn Express Pipeline, but particularly if you are offered an unfair amount for your property.  At Marrs Ellis & Hodge, LLP, we have represented landowners in every stage of the process, including in trial against pipeline companies.  Please contact us for a free consultation.

Pipeline Trial Representative Case

Peregrine Pipeline Company, L.P. v. Eagle Ford Land Partners, L.P., No. E200700046, In the County Court at Law No. 2, Johnson County, Texas (2014):

Luke Ellis and Justin Hodge represented a landowner in a jury trial over the disputed value of a pipeline easement. The Plaintiff pipeline company had offered $80,000. After a week-long trial, the jury returned a verdict of $1.66 million in the landowner’s favor, the exact amount testified to by the property owner’s appraiser. Peregrine appealed and the jury verdict. The parties reached a settlement while the case was pending on appeal that resulted in $616,943.47 net to the client.

Justin Hodge was interviewed on Fox26 news about the Texas Supreme Court’s recent approval of eminent domain for the high speed train between Houston and Dallas, Texas. You can watch the interview here:

https://www.fox26houston.com/video/1087229

The eminent domain project impacts landowners in Harris, Waller, Grimes, Walker, Madison, Leon, Freestone, Limestone, Navarro, Ellis, and Dallas Counties. Texas Central may file condemnation against many landowners in these counties.

To read the Texas Supreme Court’s opinion in Miles vs. Texas Central Railroad & Infrastructure, Inc. and Texas Logistics, Inc., please follow this link: https://www.txcourts.gov/media/1454463/200393.pdf.

Justin Young’s concurring opinion, referenced by Mr. Hodge in the interview can be found here: https://www.txcourts.gov/media/1454465/200393c2.pdf

Justice Young explained, “Eminent-domain power has repeatedly been called one of the most “awesome” powers of government.  “Scary” is another fitting term. The very words eminent domain and condemnation sound foreboding, and they should. They represent the sovereign’s power to unilaterally strip individuals of property rights—rights that may have been gained at great cost. Condemnation is an extraordinary intrusion that often destroys homes, scars farmland that generations have cultivated, disrupts thriving businesses, and far more. It is an act of force by the government that uneasily coexists with the strong protection of individual property rights that Texas law guarantees. We have described “the fundamental right of property” as being “among the most important [rights] in Texas law.” 

On occasion, to serve a public purpose, a citizen’s private property must be taken without his consent. We tolerate such intrusions because society cannot function without roads, schools, military facilities, and other vital infrastructure. Eminent domain also requires “just” or “adequate” compensation, to be sure. U.S. Const. amend. V; Tex. Const. art. I, § 17(a). But the condemnation process is complicated, time- consuming, and sometimes confusing. And no compensation can accurately value the sweat, tears, pride, love, beauty, and history that, for some property at least, is its chief value. A given exercise of eminent domain may turn out to be all for nothing, too. Grand plans can fail. Property may therefore be permanently damaged without purpose . . .

Justin Hodge with Marrs Ellis and Hodge presented at the 2022 ALI CLE Eminent Domain Conference in Scottsdale, Arizona. You can see the action here:

www.linkedin.com/posts/amy-weinberg-b7aa91b_legalethics-eminentdomain2022-activity-6892940311283195904-iWms

Special thanks to Robert Thomas and Joe Waldo on a terrific conference. Also, thank you to my co-presenters, Bobby Debelak, Kelly Sheeran, Ivy Cadle, and Darius Dynkowski. Great job all around! Finally, thank you to Amy Weinberg for all the organization and hard work for a great conference.

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:

https://www.law360.com/articles/1449498/3-real-estate-cases-to-watch-in-2022

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:

https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=5c39c357-1b3e-4eeb-a2b9-4864c206970d&coa=cossup&DT=SUBMISSION%20SET&MediaID=b14b29a9-8f88-432f-a6b2-fb591c8cf7fe

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.

Texas Central Home

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:

Respondent’s Brief

https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=3da75e84-bb29-4b47-89b0-308a5e916c78&coa=cossup&DT=BRIEFS&MediaID=a8f680b1-6797-47df-b24e-8b36ddcf1155

Petitioner’s Brief

https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=42989d3d-cf11-43ec-8282-2f693aa644a5&coa=cossup&DT=BRIEFS&MediaID=880014e4-cdae-4f44-9bdb-9979a27bf912

Reply Brief

https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=97b1e44d-c67f-4090-8461-1a67f07c73a2&coa=cossup&DT=BRIEFS&MediaID=7d3acf49-b8a0-457b-873d-64735b711442

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:

Click to access 12-15-21%20Title%20VI%20Complaint%20-%20TxDOT.pdf

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/