March 18, 2016
Few principles hold a more prominent place in Texans’ personal creeds than the right to own property. It’s why many settled here. It’s why many bridle against regulations that impinge on how they ranch, farm, or manage their property.
And they recoil at the notion that a private company can ask and receive permission from state or federal governments to have part or all of their property condemned by eminent domain, limiting access to essential parts of a farm or ranch or, in more dire cases, rendering the property unfit for agriculture, hunting, or sale.
Landowners in Medina County, Texas, in dwindling numbers, hope to prevent a private out-of-state corporation — Vulcan Materials, a Fortune 500 multinational materials company based in Birmingham, Ala. — from completing condemnation of 43 properties to build a 9 mile rail spur from a quarry site. Vulcan has been trying to build the rail spur from a leased 1,700 acre quarry site to connect with the Union Pacific rail line 7 miles south at U.S. Hwy. 90.
Attorneys for Southwest Gulf Railroad filed a Petition in Condemnation in the Medina County Court on 43 properties belonging to farmers, ranchers, and other landowners in northeast Medina County.
“This is the first step in the process of forced taking of land by eminent domain,” says Alyne Fitzgerald, writing for the Medina County Environmental Action Association, Inc. (MCEAA) in a recent press release.
EMINENT DOMAIN ABUSE
She explains that the organization has been active since 2000, evaluating all the impacts of the proposed quarry and rail line. “In the 16 years since, there have been between 93 to 150 member households. MCEAA has been successful in getting federal and state agencies to move the rail line to avoid sensitive historic areas and floodways and mitigate some impacts, but permits for construction have still been granted.
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“What separates this case is that eminent domain is being abused by a private corporation, solely for its own benefit,” Fitzgerald writes. “A restrictive covenant barring rail construction binds 9,622 acres, on 56 separate properties with 108 signatories, along Vulcan’s proposed rail line.
“Only condemnation, using the power of eminent domain, would extinguish these restrictive covenants and remove them. But such power can only be validly exercised by a common carrier, which Vulcan’s paper railroad, Southwest Gulf Railroad, plainly is not.
“No other companies will have goods on this proposed 9 mile rail spur to transport at this time — or likely ever — due to the restrictive covenant. Yet, now Vulcan, not the landowners, seeks the power to control future land use in northeast Medina County, Texas.”
If this taking is allowed, she says, the resulting precedent will affect future land rights across the state. “No landowner in the entire state of Texas is safe from seizure of their property. Any company, even an out-of-state company, can come in and seize property for private gain if this case is ruled in favor of Vulcan and its paper railroad.”
STILL HOLDING OUT
Richard Fournier, who runs a Black Angus cow/calf operation, raises Boer goats, and does horse rescue, is one of the few remaining holdouts.
“This is your typical big business rolling over farmers and ranchers,” he says, claiming it a particularly burdensome injustice “after we just fought off a four year drought here in Texas. This will destroy my land value and cut my property almost in two halves.”
He has rangeland and also produces coastal bemudagrass and hay grazer for his livestock and for sale. That production is threatened. “If this rail goes through, I will have no access to the back of my property, except to go about 2 miles on the county road.”
Land value also declines. “This rail already has ruined our land value — just on the rumor. If you tried to sell property since they started talking about a rail, you had to disclose that information to the real estate agent, and nobody wants to buy land that could have a railroad cut right through it — nobody wants to purchase land that has a railroad running near it. Just the rumor of the railroad has ruined local land values.”
He says Vulcan’s acquisition practices are different from similar companies. “They buy narrow strips of land and condemn what they can't get. Other companies buy the entire land parcel, and they make the land boundaries butt up against the rail. That's not what's happening here.”
He says an alternate route already exists. “There was a narrow gauge rail across here in 1910 to 1914 to build Medina Lake Dam. After four years, they packed up and left. Vulcan wants to be here for 50 years. MCEAA attempted to give Vulcan the same route that the Medina Lake rail took on a silver platter. We still don't know why they want to cause flooding and break up land values.”
SGRR Denies Claims
Scott Burnham, Southwest Gulf Railroad (SGRR), takes issue with some of the MCEAA claims. Burnham dismisses the notion that no companies will “likely ever” transport goods or utilize the Medina Line. “SGRR is working with Union Pacific Railroad to actively market development opportunities on or near The Medina Line to provide local businesses with a low-cost and convenient connection to the regional, national and global marketplace,” he says
He also rejects the land value devaluation, claiming recent appraisals, compared to “what land is actually selling for,” indicate no negative impact.
He says SGRR has purchased entire properties, not just “narrow strips” from “several landowners along the route,” adding that SGRR begins discussions by offering to buy entire properties.
“Only 20 properties are located along the route, and SGRR purchased property, acquired easements, or otherwise reached agreements with landowners for nearly 90 percent of The Medina Line route.” He adds that SGRR reached mutually agreeable solutions with 17 of the 20 landowners to build the common carrier line and contends that federal and state laws recognize the common public benefits of projects like the Medina Line.
Landowners reluctant to sell their properties, however, remain committed to fighting eminent domain.
OTHERS JOINING FIGHT
Fournier, Fitzgerald, and others are at a loss to explain how the private company received common carrier status. “They don't fit the description,” he says.
“It's the idea that they can come in here illegally, wreck your land, and then tell you what they are going to pay you for it. You have no rights whatsoever — private companies have the ability to condemn land at will for their private profits. You can see where this is going to end up.”
Fournier says MCEAA may be outgunned, but they are not alone in the fight. “Farm Bureau and other ag organizations are fighting this in Washington as we speak. They stand with us. Farmers, ranchers, and all land owners in the state of Texas should be concerned,” says Fitzgerald.
“Texans are very proud of their land, and their land is very dear to them. For generations Texas farmers and ranchers have produced abundant crops and livestock and strong families. The right to private property ownership is the cherished heritage passed down to us by the early settlers of the Republic of Texas, and it’s the bedrock of our unique way of life in Texas.
“This case is potentially precedent-setting. How the courts handle this case will establish the law in all future court cases in Texas involving the taking of private property by private companies for their own use. No one’s land is safe from confiscation if Vulcan and its paper railroad prevail. Landowners, farmers, and ranchers across the state should rise in protest and outrage.”
“This is a major case, and if we do not win no landowner in Texas (and possibly other states) will be able to stop any private company from destroying their land and their land value,” Fournier says.
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