THE BIG BEND SENTINEL: Constitutionality of pipeline easements challenged by local landowners

By: John Daniel Garcia

MARFA – Six Presidio County landowners are continuing their fight against Trans-Pecos Pipeline easements on their properties that were obtained through a land grab using eminent domain.

The civil lawsuits, filed on behalf of landowners Troy W. Parsons, the Barreno Ranch, Betty McGuire, the Bar Triangle Ranch, Dorothy Holland Stillwell, and Texas State Bank, are set to be heard by 394th State Judicial District Judge Roy Ferguson on Wednesday, November 16 at the Presidio County Courthouse in Marfa.

The landowners have also filed a challenge to the constitutionality of the pipeline’s use of eminent domain to acquire the easements, claiming that the pipeline does not meet the eight standards for use of eminent domain as established in the 1997 Texas Supreme Court case Boll Weevil Eradication Foundation, Inc. v Lewellen.

“This is a condemnation case brought by a private, for-profit company acting as a ‘gas utility’ against a private landowner,” the pleas read. “The power of eminent domain exercised herein is purported to be conveyed by the Gas Utility Regulatory Act […] Texas Utilities Code […] However, Section 181.004 of the Texas Utilities Code does not satisfy the test for the delegation of legislative power to private entities […] and therefore Section 181.004 is unconstitutional as it violates Article II Section 1 Texas Constitution. The constitutional infirmity of the statute purporting to convey eminent domain authority to the Condemnor herein renders the Condemnor powerless to take private property by eminent domain. Therefore, this court lacks jurisdiction in this case, and the case should be dismissed with prejudice.”

The use of “legislative delegations to private companies,” the pleas also state, “can compromise ‘the basic concept of democratic rule under a republican form government,’ because private delegates are not elected by the people, appointed by a public official or entity, or employed by the government.”

The taking of the private land by the pipeline, the pleas continue, are in opposition to Article I Section 17 of the Texas Constitution, which “prohibits the taking of private property for private use.”

“It’s our contention that the delegation of condemnation authority was granted to a private entity without meaningful oversight,” said Lubbock attorney Zachary Brady, who is representing the six landowners. He added that the state’s oil and gas regulatory commission, the Texas Railroad Commission, doesn’t rule on whether an entity has power of eminent domain nor does it decide the route of the pipeline.

“The statute that grants Trans-Pecos Pipeline condemnation authority is unconstitutionally broad when it comes to eminent domain for a private entity without government oversight,” he said. “There is no supervision or control.”


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