We are honored to team up with Mark Lanier, The Lanier Law Firm, to host a Q&A on Houston Post-Flood Inverse Condemnation.  The purpose of the meeting is to bring healing to our community and answer questions concerning the flooding.  More information is below.

Neighborhood Q&A on Sunday, September 10, at 5:00pm.

The destruction left in the wake of Hurricane Harvey will take Texas years to recover from. Members of Johns Marrs Ellis & Hodge LLP, along with many of our friends and families, have been directly impacted by the storm’s effects. Our thoughts and prayers continue to go out to all those affected and also to the first responders and volunteers assisting with the recovery efforts.

As gray skies return to summer blue, our lawyers keep getting the following questions: did Houston’s system of reservoirs and dams designed to protect against flooding actually make it worse for some people, and do some property owners have a takings claim against the government for releasing water into their neighborhoods?

The Addicks and Barker Reservoirs on Houston’s west side were designed to store and gently release accumulated water into Buffalo Bayou to help prevent catastrophic flooding to downstream neighborhoods, Houston’s downtown, and the Houston ship channel. But during Hurricane Harvey, as both reservoirs reached their capacities, the Army Corps of Engineers intentionally decided to open the flood gates, intentionally flooding homes and businesses downstream from the dams in the Buffalo Bayou watershed in order to prevent destruction in other areas.

Col. Lars Zetterstrom, the Corps’ Galveston district commander, explained the purposes of the Corps’ intentional release of water: “If we don’t begin releasing now, the volume of uncontrolled water around the dams will be higher and have a greater impact on the surrounding communities.” This was done in an attempt to keep the waters from overtopping the earthen-levee system, which would risk a complete failure of the dam.  The tragic, unenviable choice was to flood some to protect other people and other property. The results of that choice were predictable: flooded homes and cars, lives upended, dreams destroyed. For many, everything changed in an instant.

The question remains: Do the property owners directly affected deserve to be compensated for bearing the burden of the larger community? According to the U.S. Supreme Court in a flooding case, the Constitution’s Fifth Amendment is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Arkansas Fish & Game Commission v. United States, 568 U.S. 23, 31 (2012).

We at Johns Marrs Ellis & Hodge LLP will continue to investigate the flooding from the dam releases and will work to serve our friends, families, and neighbors and to protect the rights of those impacted by these tragic events in Texas and throughout the country.  If you or a family member were impacted by the flooding caused by the release of water from the dam, then we would ask that you complete the survey at the below link so that we can further investigate the potential takings claims.

Complete the survey here.  (Sample survey below).

Who can cut down the tree in your backyard? Recently, this question has caused much controversy. One might intuitively reason that any vegetation located on a piece of land is the property of the landowner, and therefore, is subject to change or removal at their discretion. However, certain laws suggest otherwise. Nearly 50 municipalities in Texas have ordinances prohibiting land owners from removing trees on their private property without the city’s permission. Even when the requests are approved, landowners are often assessed a fee which the cities justify on the grounds that the trees are a “public good,” and so their removal comes at a cost.

Municipalities argue that these ordinances are a means of limiting tree removal, and claim that the trees confer a public benefit. They suggest that since municipalities regulate numerous other aspects of private property, such as through zoning ordinances and health and safety codes, protecting trees is a logical extension of the same.  It is unclear at this point whether the legislature or the courts will see fit to provide guidance on the tricky question of how much regulation is too much.

A compelling case could be made that these ordinances impose an uncompensated “regulatory taking” on landowners. A regulatory taking occurs when government regulations substantially interfere with or disturb a property owner’s use and enjoyment of their property rights.  If proven, the government is then required to provide just compensation. Often, these types of regulations reduce a property’s value or potential uses. However, not all types of government regulation of property rise to the level of a taking.

The Adorers of the Blood of Christ (“Adorers”), an order of Catholic nuns, built an open-air chapel  in hopes of blocking construction of the Atlantic Sunrise project, a natural gas pipeline expansion in Pennsylvania. The chapel was dedicated on July 9, 2017 and sits directly in the pipeline’s proposed path. Court papers filed by the Adorers with the Federal Energy Regulatory Commission (“FERC”) assert that a decision by FERC to force the Adorers to accommodate the pipeline is “antithetical to [their] deeply held religious beliefs and convictions.” Lawyers for the Adorers assert that the nuns’ religious convictions “compel the Adorers to exercise their religious beliefs by, inter alia, caring for and protecting the land they own as well as actively educating and engaging on issues relating to the environment.”

The chapel could halt or delay the Atlantic Sunrise project to be constructed by Williams Partners (“Williams”), an Oklahoma-based energy company. Williams seeks to lay 183 miles of pipeline across Pennsylvania, which would expand the Transco pipeline system that currently transports natural gas from Texas to New York. According to a company statement, the $3 billion expansion of the existing Transco natural gas pipeline would “create a crucial connection between Pennsylvania and consuming markets all along the East Coast.” This dispute between the Adorers and Williams revolves around the 1993 Federal Religious Freedom Restoration Act, which states that “governments should not substantially burden religious exercise without compelling justification.” Earlier this year, FERC cleared the way for the pipeline’s construction, including the condemnation of property in its path. The result of any legal challenge by the Adorers may affect the nature of the intersection between condemnation law and the laws of religious freedom. It remains to be seen whether these particular circumstances could support a legal outcome favoring the Adorers.

In the 84^th legislative session of the Texas Legislature, Senate Bill 474, a pro-landowner eminent-domain reform bill was championed by various members of the Texas Legislature. In the recently concluded legislative session, despite the momentum of another pro-landowner eminent-domain reform bill, House Bill 2684, Texas landowners were blindsided by the sudden redirection of legislative support. The abuse of condemnation power will remain unchecked. As we celebrate our Nation’s fight against an oppressive King with the power to take one’s property without just compensation, we are reminded of our nation’s greatest betrayal at the hands of Benedict Arnold.

As many of us recall, the promise of fame, fortune, and political power turned Benedict Arnold, a General and once-celebrated member of the Revolution who distinguished himself with acts of intelligence and bravery, away from supporting rights that we celebrate today such as “no taxation without representation” and “just compensation.”

Unlike Benedict Arnold, who never redeemed himself, on July 18^th the Texas Legislature will meet for a special session and will be given an opportunity of redemption to prevent history from repeating itself roughly 240 years later. Texas landowners should call their representatives and urge them to support landowner rights in this upcoming special legislative session. Let us not take our independence for granted as we enter this Fourth of July Holiday!

Happy Fourth of July!

 – Written by Graham Taylor and Justin Hodge.

Brazoria County, Texas has recently experienced a rapid increase in its volume of eminent-domain cases. The County has long been considered a “hot spot” of the energy industry. Oil giants such as Conoco Phillips, Kinder Morgan, Gulf South, Enterprise, HSC Pipelines, as well as public utilities like the Brazosport Water Authority, maintain large-scale operations within the County. As energy production and transportation activities are often land intensive, the State government has established mechanisms by which private corporations can use the power of eminent domain to obtain private land.

Typically, natural gas is a by-product of the oil production process. In the past few years, global events in the oil market have resulted in a massive surplus of natural gas. Simultaneously, many of the new eminent-domain acquisitions in Brazoria County have been for the construction of new pipelines. One could speculate that this increase in activity within Brazoria County, especially the construction of pipelines, may be related to the abundance of natural gas.

In addition to pipelines, a new gas liquefaction plant is being developed in Brazoria County. Liquefaction is the process of converting gas that is in its vapor form, into a liquid. The liquid is denser per volume and easier to contain and transport than its gaseous counterpart, making it more profitable for companies. The liquefaction process requires extreme pressure and consumes large quantities of water. Also notable, the city of Freeport is a major export hub of the oil and gas industry within Brazoria County. It remains a mystery as to whom and where the liquid is transported and/or sold. It is only reasonable to attribute these rapid additions to the Brazoria County infrastructure to this new process.

Because this is a revolutionary concept, it is only a matter of time until this Brazoria County based process of gas liquefaction is spread out to the rest of the world. As with Brazoria County, these projects will likely produce an increase of eminent-domain actions against land owners wherever they are being built. Though the process of eminent-domain is never pleasant, landowners should remember that receiving just compensation for their land is a Constitutional right.

Written by James Nguyen.

JMEH Partner Justin Hodge at the firm’s Houston Offices.

The Texas transportation and energy industries’ need for new infrastructure often brings them into conflict with landowners whose properties are required for these expansions. This tension has only increased in recent years, as economic and population growth have produced a need for ever greater quantities of energy, and the infrastructure necessary for its production and delivery. Transportation projects have been similarly affected by these growth conditions. Recent examples in both industries are the high speed rail project from Houston to Dallas and the pipelines being built from the Permian Basin to the Gulf Coast. Land requirements therefore have risen at a commensurate rate.

Naturally, landowners are generally not thrilled when an entity makes an offer for their land ahead of a planned construction project. They are even less happy when they realize the entity can often seize the land anyways via eminent domain if the offers are rejected. Making matters worse, these initial offers are often artificially low. Landowners who reject these low-ball offers and fight for compensation in the courts regularly receive settlement amounts several times greater than the offer they rejected. This however, leads to the additional problem of a lengthy legal process, as well as forcing the landowner to pay court costs, expert fees, and legal bills – the total cost of which can absorb large portions of the settlement.

There have been attempts to address this issue legislatively. In 2015, a bill would have allowed landowners to recover legal fees if their cases succeeded. It passed the Senate but not the House. This legislative session, a bill was proposed that would require a condemning entity to reimburse legal fees if a resolution for the landowner was greater than the entity’s final offer by 20% or more. The bill was revised to remove this language – and it passed the Senate. Since then, it has been referred to the House Land and Resource Management Committee.

There are two sides to this issue. On one hand, condemning authorities have argued this type of legislation would adversely affect the construction process – and stifle the economic benefits these projects produce. They assert such legislation would increase the propensity for landowners to take matters to court (currently, only 15% do) and the construction process would become more costly and lengthy as a result.

Property owners and their representatives disagree. They argue there’s little evidence to compel the notion such legislation would actually dampen industry growth. Florida, for example, robustly grows despite an eminent domain law that permits reimbursement of legal costs. They also suggest that without such a law, the legal costs associated with fighting a large corporate or government entity will continue to prevent landowners from being made whole.

These issues stir the passions of many because both property rights and oil and gas are embedded in the people and politics of the State of Texas.

To read the full article, click here.