By Kenneth Dierschke
President
Texas Farm Bureau

Congratulations, Texas. Eminent domain has been reformed!

Private property laws in the Lone Star State have entered the 21st Century. The take-it-or-leave-it attitude displayed by some condemning authorities will be replaced by good faith and cooperation.

It’s been a long time coming. Farm Bureau leaders and members in all 206 of our county organizations were major players in this high stakes game for many years.

Thanks to Gov. Perry for designating this issue as an emergency item, which paved the road for its smooth passage. Our appreciation goes to Gov. Perry for signing this important piece of private property rights legislation.

Senate Bill 18, led by Craig Estes in the Senate and shepherded by Charlie Geren in the House, unanimously passed in both chambers. Thanks to the state senators and representatives who have stuck to this issue like syrup to pancakes. Thanks to those new legislators who came on board. Thanks to Agriculture Commissioner Todd Staples for his ardent support. And thanks to Lieutenant Governor David Dewhurst, House Speaker Joe Straus and House Land and Resource Management Committee Chair Rene Oliveira for guiding this important bill through the legislative process.

As eminent domain reform becomes law, Texans will now find:
• Private property can be acquired only for a public purpose, not for an entity’s private benefit.
• Condemning entities must make a good faith offer before the beginning of the condemnation process.
• Property owners will have a stronger voice in determining who decides what damages are owed if condemnation proceedings occur.
• Property owners will be compensated for damages from a loss of direct access to their land and receive relocation assistance when forced from their property.
• Property owners—under certain conditions—will have the right to repurchase their property at the original value after 10 years.

Is Senate Bill 18 the perfect fix for Texas eminent domain laws? No, but it goes a long way toward solving what’s wrong with the eminent domain process in Texas.

Transparency is an overused word, but in this case it fits. This legislation ensures each side deals with a fair and open process. It provides a framework for resolution in those cases where the process is abused.

Most importantly, members of Texas Farm Bureau have extended the same respect they hold for the land and private property rights into the laws of the State of Texas.

That’s how it should be. Congratulations on a job well done.

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By Billy Howe
TFB State Legislative Director

It is often said that there are hundreds of ways to kill a bill, but only one way to pass it.

One of the most effective means to polish off legislation is to cause enough confusion that time runs out on it. That is the tactic currently being employed by opponents of SB 332 by Sen. Troy Fraser, the bill to reaffirm that landowners have a constitutionally-protected right to the groundwater beneath their land.

Although the Texas Supreme Court has said repeatedly—at least four times since 1904—that the landowner “owns” the groundwater under “his own land,” opponents of SB 332 continue to claim that groundwater cannot be “owned” by the landowner until it is actually “reduced to possession.” Because groundwater can move from property to property, opponents claim the landowner can’t own it beneath the surface. Those claims have been rejected by the Texas Supreme Court since 1915.  The court has ruled that if groundwater is in your soil, you own it while it is there. You have a right to capture it. And, that right to capture what you own is a vested property right.

Even though both the U.S. and Texas Supreme courts have repeatedly ruled for over 100 years that government can extensively regulate “vested” property rights, opponents continue to claim that SB 332 will prevent regulation of groundwater.  However, the “vested” property right in oil and gas hasn’t prevented the Railroad Commission from requiring permits to drill wells, spacing of wells, or limiting the amount of oil and gas that can be produced from each well.  Each of these requirements used by the Railroad Commission is also used by groundwater conservation districts. Why can the Railroad Commission regulate vested property rights, but groundwater conservation districts can’t?

Opponents say that they fear lawsuits will bankrupt the districts. If landowners can bankrupt local government by filing “takings” lawsuits, then why isn’t every city and town in Texas bankrupt?  They all restrict landowners’ vested property rights.  Shouldn’t there be a “flood” of litigation against them?

It is expensive and difficult to sue government for a taking, so landowners don’t. Ninety percent of the time, the court rules against the landowner.  That is why there is no “flood” of takings claims against government regulation. Groundwater districts would be no different. Also, groundwater districts have a protection under the law that other government entities don’t. If you sue them and lose, you pay their attorney’s fees. That is a one-way protection.  If the landowner wins, the district doesn’t pay his attorney’s fees.

Texas Farm Bureau will continue to work hard to clarify the “ownership and rights” of landowners in the groundwater debate by supporting SB 332. If the opposition is successful with their focus on “unintended consequences,” we know what the real outcome will be—landowners will be in jeopardy of losing their right to the groundwater under their land.

Opponents of SB 332 have asked for examples of where landowners will be denied their right to groundwater. If anyone needs proof, all they have to do is look at the list of groundwater districts, groundwater district lawyers, and “historic” users who have testified against SB 332. If there wasn’t a problem to be fixed, then why would they be opposed to recognizing that landowners have a constitutionally-protected property right in the groundwater beneath their land?

SB 332 answered its critics and passed the Texas Senate by a 28-3 margin. We will work hard to ensure its success as it winds its way through the House.

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By Gene Hall
The long battle to achieve meaningful protection of private property rights in Texas with reform of eminent domain laws seems to be nearing a conclusion. This change in the Texas property code will be important to every property owner in the state.

When Governor Rick Perry designated the issue as an emergency item for the Texas Legislature on Jan. 11, chances for speedy approval of the legislation were greatly enhanced.  In the 2009 Legislature, the eminent domain reform bill—Senate Bill 18—had cleared the Senate and was awaiting House action, where near unanimous support was expected. Instead, the controversy over voter ID bogged down the House and eminent domain reform joined other important bills that did not get a vote. Similar issues, like the budget and redistricting, could have the same result this session.

Now, with the emergency designation, positive changes for eminent domain should be resolved early in the session, as it deserves to be. Once again, the bill is labeled Senate Bill 18 by Senators Craig Estes and Robert Duncan.

Farmers, ranchers, small businesses and homeowners all have a stake in this. If you own property, then it might be taken from you for the public good. This is well established in law and no one is advocating repeal of eminent domain. It’s a necessary evil in our society. The taking of a farm, home or business that has been in a family for generations is always sad and sometimes tragic.  Reforms have focused on the issue of compensation where current Texas law falls far short of other states.

It might surprise you to learn that a good faith offer to begin eminent domain proceedings is not required by the Texas property code. Though the law mentions “market value,” that value is whatever the taking entity says it is. Only the most stubborn property owners and those with deep pockets can afford to appeal the offer. When they do, they often win, but at great expense. Under Senate Bill 18, if the taking entity loses the appeal, they will be required to pay legal costs.

The issue of “diminished access” is also addressed in Senate Bill 18. Currently, if the taking of a portion of property restricts the access to the remaining property and lessens its value, those who take the property are not required to compensate for that lost value. Again, Senate Bill 18 clarifies that lost access requires fair compensation.

Other issues such as relocation expenses and an accounting of just which legal entities have the right of eminent domain are covered in Senate Bill 18. At present, a list of just who has this authority does not appear to exist. There are thousands of entities, ranging from governments to water districts to pipeline companies and many more.

Those previously victimized by this process have one complaint that is heard repeatedly: “We were told they are taking the land because they can.” Everyone knows they can, but eminent domain should be a last, carefully considered resort and property owners must be fairly compensated when these takings occur. When private property is taken for the public good, the public must assume the true cost.

The farmers and ranchers of Texas appreciate Governor Perry’s designation of eminent domain reform as an emergency item on the legislative agenda. When it is passed and signed into law, Texas will take its rightful place as one of the nation’s leading property rights states.

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By Billy B. Brown

Most landowners have a strong belief that they have a Texas private property right to the groundwater beneath their land.  They believe that the Rule of Capture gives them a property right to drill a well and pump groundwater for their use.  Unfortunately, this belief is being challenged at the Texas Supreme Court and the halls of the State Capitol.

The Edwards Aquifer Authority, some groundwater conservation districts (maybe your district), and some historic groundwater users are saying the landowner does not have a private property right in Texas to the groundwater beneath their land.  They say you only have a right to the groundwater you capture and control above the surface.  Why would they make this argument?  Because if you don’t have a property right, then your access to the groundwater can be limited or completely taken away without you having any legal right to stop them.

Your property rights as a landowner are legally “vested.”  So, if groundwater is considered to be a property right that you have as a landowner, it is a “vested” right—one that is protected from unfair regulation and cannot be taken from you without compensation.

Does your groundwater district believe that you have a property right in the groundwater beneath your land?

This is a very important question.  It is the difference in how far your district believes it may legally go in restricting your right to groundwater.  It is the difference in whether your district is paying attorneys to file legal briefs with the Texas Supreme Court saying you don’t have a property right in groundwater.  It is the difference in whether or not the lobbyist for your district is in Austin opposing legislation to protect your groundwater rights.  Is your district for or against you?

Some districts will say that they believe the landowner has a right to the groundwater, but they don’t know if it is a “vested” right.  They are completely missing the point.  Property rights are “vested” rights.  Landowners don’t have property rights that aren’t vested.  So, either the district believes you have a “vested” right to groundwater as the landowner or they don’t. Legally, there is no “in-between.”

Some districts also say they fear that they won’t be able to regulate groundwater if the landowner has a “vested” right.  They seem to believe that “vested” rights are some sort of “super” property rights—that if it is restricted, then the landowner must be compensated.  It is very troubling if districts believe this.  It makes one wonder if these local districts have the knowledge and ability to exercise the extensive regulatory authority given to them by the legislature.

Why would a property right in groundwater be superior to all the other property rights of a landowner?  Are there any other property rights that can’t be regulated?  NO!  Then why would districts believe that they can’t continue to regulate groundwater as a “vested” property right?

Cities, state agencies, and federal agencies certainly don’t seem to have any doubt about their authority to regulate a landowner’s property rights.  Cities have extensive power to restrict the use of private property.  All of these rights are “vested.”  Yet, cities have no problem in enforcing zoning ordinances, building codes, etc.  The Railroad Commission of Texas certainly doesn’t have any issues with regulating the “vested” rights to oil and gas.

So, if you aren’t sure whether or not your local district believes you have a legal right to the groundwater beneath your land, then you may want to ask the question.  In fact, it is your obligation to ask the question.  These districts are accountable to you.  You have a right to know if they are working against your rights in court or in the Capitol.

In fact, there are a few groundwater conservation districts that are willing to support landowners’ private property rights in Texas. The water beneath my land falls under the authority of the Panhandle Groundwater Conservation District. They have adopted a resolution supporting the landowner’s vested right to groundwater. Unfortunately, some districts have refused.  Is your district one of them?  Landowners voted to create these districts to protect their groundwater rights. Does your district believe you have rights? There’s one way to find out. Ask them.

Go to www.groundwaterownership.com for more information.

Billy B. Brown is secretary-treasurer of the Texas Farm Bureau and chairman of the organization’s Natural Resources Committee.

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The following excerpt is from President Kenneth Dierschke’s address to convention delegates during TFB’s 77th annual meeting Dec. 5 in Waco.
For the Texas Farm Bureau—for the people who grow our food—this is a crucial time.

It is a time of potential danger and enormous expectations, a time of great challenge and potential reward. It is a time to harvest that which has been sown by generations of our members and leaders. 

This is Texas Farm Bureau’s time—if we have the will to make it happen.

At the end of 2010, we have much to celebrate. Our membership is at an all-time high of more than 450,000 families. Our service programs are as good as any in all of Farm Bureau—far better than most. AGFUND, our independent political action fund, achieved an 80 percent mark of success in the November elections. 

Yet we know that our success is merely the foundation to build on what lies ahead. 

Our legislative agenda is on track.  It seems that much of what we work on these days is like a marathon—not a sprint. But our Texas Farm Bureau team has stayed on track. The finish line for some of our most important legislative goals seems very close.

First and foremost, eminent domain is our top priority. I’m happy to report that eminent domain reform will be designated as an emergency item in the upcoming session, assuring quick passage.

This session of the Legislature also could yield landmark decisions on water policy. At stake are cornerstones of Texas water law, including right of capture, local control and historical use.

What happened in the November election was, in part, a wipeout of the moderates. What’s left is a large number of elected officials who are either on the right or the left. 

On the national level, there’s a pretty good chance that Congress will be more polarized than ever. It could be difficult to muster the necessary compromise to address the huge challenges our nation still faces.

With a huge class of freshmen legislators heading to Washington in January, we have our work cut out for us. We must explain the importance of agriculture to the nation. 

The story was much the same in Texas. Republicans picked up an astonishing 23 seats in the 150-member Texas House. With so many new faces in Austin, we’ve got some work to do there, as well.

This Congress likely will write the next farm bill. It’s going to be hard work. A curious blend of critics from both the right and the left have opposed price supports for farmers. Unfortunately, their arguments are ill-informed and wrong.

Farm bills go against the flow in a divided and uncompromising Congress. They always have been bipartisan efforts. In the past, when our elected officials actually got down to the business of writing a farm bill—and came to understand that they held America’s food and fiber security in their hands—they’ve done the right thing. It will be a courageous vote in today’s ugly political climate.

It’s safe to say that the 2012 Farm Bill will be different and probably smaller.  I do believe, however, that we will preserve critical safety net provisions of the federal farm program. It’s not a done deal, though. 

Farm Bureau’s role in this is to speak up for rational solutions and common sense. We will fight for our members, recounting the joys and challenges of feeding and clothing our nation and the world. Our system of producing food and fiber is not perfect—but it’s the best system this often-hungry planet has ever known.

We’ve all learned to live with change, and Texas Farm Bureau is no different. Change should not be feared but embraced as a way to make Farm Bureau better, bigger, stronger and even more capable of meeting the challenges that face all Texans.

It’s up to all of us to make 2011 –“Texas Farm Bureau’s time.”

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By Mike Barnett

Should my well be pumped dry to fill your swimming pool? That’s the million dollar Texas water rights question.

Texas landowners—concerned about their livelihoods and their private property rights—watch as the courts, and soon the legislature contemplate the use of this precious resource.

An influx of new residents could burst the Texas water pipeline. Experts predict a doubling of the state’s population in the next 50 years. Nobody’s predicting a doubling of water resources to meet those needs.

There are no easy answers. Texas water law says landowners have complete access to water beneath their land. Public need will force the question on how that access will be restricted. Will it take the form of usage limits? Will the Texas water rights of individuals be compromised? Those questions have yet to be resolved.

Yet the focus seems to narrow on rural areas, where the water is. I know a lot of farmers—many of who depend on irrigation to feed and clothe the rest of us—would like to see a focus too, on urban areas, where the needs increasingly grow.

What I hear in the country is acknowledgement that Texans are in this water dilemma together. Farmers and ranchers recognize the needs of all Texans to access this increasingly precious resource.

But I also hear resentment when cities such as Dallas aspire to quench their unending thirst upon the backs of rural areas. “Why take mine when you’re wasting yours,” is a question asked again and again by farmers concerned about their ability to stay in the business of growing food and fiber.

Many farmers seek efficiency through irrigation systems that precisely direct water to plants and through conservation techniques such as minimum tillage or no-till farming—where crop residue is left on the surface of the field to conserve moisture.

They’re asking their urban neighbors to step up their efforts as well. Cities such as San Antonio and El Paso have taken the lead in municipal water conservation efforts. Other Texas cities should follow their examples.

The fact is we can build more reservoirs. We can pump rural areas of Texas dry. But it comes at an expense—not only in the state’s limited resources but in the human cost of spent livelihoods and private property rights as well. Without life-giving water, agriculture literally dries up in many parts of the state.

And that is shameful—especially when a big part of the solution is as simple as stopping a leaky faucet or fixing a running commode, as well as taking advantage of a number of readily available water conservation techniques.

No matter what the future holds, water remains a finite resource. It’s much cheaper to make better use of what we’ve got than to find new sources.

That’s a simple truth all Texans—rural and urban—need to live by.

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By Gene Hall

Texas' reputation as a private property rights state is somewhat overrated. Some of our political leaders talk about it a lot, but our failure to address eminent domain reform in a meaningful way is proof enough that we are not what some claim we are. Still, Texans undeniably care about property rights. That is the reason there is real hope that we break through the entrenched interests that like eminent domain the way it is. 

Some of my conservative friends feel they are on safe ground condemning government entities for abuses, yet, some of the most egregious cases have been at the hands of corporate entities with eminent domain authority. The list of folks who would rather not see reform is long. It does include municipalities, other government entities, pipeline companies, utilities, water districts and more. No one even knows how many entities have the power of eminent domain.

One thing we hear from our Farm Bureau members over and over again is this grating response, “We were told they’re taking it because they can.” Some basic customer relations training may be in order. Often, the taking authority offers less, knowing that only the most stubborn folks, with deeper pockets, can afford to fight them.

There are many things that can be done in the interest of fairness. Use existing rights-of-way whenever possible; minimize the damage to existing structures; clean up the mess; work with landowners instead of rolling over them. To be fair, all of this is done to some degree. Still, there is great anger from many who’ve experienced the process.

Eminent domain has been a part of law for more than four centuries. It came to the New World as part of European common law. It is so firmly established that it is useless to fight as a concept. I have myself described it as a necessary evil that is sometimes employed for the common good. At its best, it’s still evil. It’s always powerfully inconvenient. At times, it’s tragic.

Yet, Texas is growing so rapidly. The new Texans making their way here and those yet to be born will need roads, water, power and the infrastructure necessary to accomplish this. There is no way all of this can be stopped.

That’s why the efforts to reform eminent domain have focused on compensation. It’s ridiculous that a good faith offer is not even required to begin the proceedings. Market value is whatever the taking authority says it is. It’s also outrageous that property can be diminished in value with no compensation whatsoever. This has to change. 

Twice the legislature has been on the cusp of true reform. It has been derailed both times, once by veto and once by partisan bickering over another issue.

Yet, Texans have a powerful sense of fairness. Once again, those who are properly ashamed of our Texas eminent domain laws will attempt reform. When we get there, Texas will become the property rights state we now only pretend to be.

By Mike Barnett

We’re all aware of the financial toll of unfair eminent domain laws in the Lone Star State. Horror stories abound of sweet arrangements dealing raw hands to landowners when Texas laws deem property can be taken for the public good. What is rarely told is the human toll these archaic laws can extract.

Jim and Nazneen Talukder found the United States to be a land of opportunity. Natives of India, they immigrated first to California, and then found success in their medical practice in Texas. Jim had fond memories of his uncle’s farm in India, where he recalled fields of rice and wheat. Nazneen’s idea was to eventually build a home in the country. They followed their dreams to a perfect piece of land just north of McKinney—25 acres of green grass, trees—a place where they could entertain their friends and family, and perhaps make a home. Or so it seemed.

The illusion of an idyllic country life was soon shattered. With close proximity to Dallas, McKinney and surrounding communities are booming. With increased population comes the need for more public services, water and sewer included. The sewer lines between McKinney and neighboring Melissa come to a confluence at the Talukder farm. They were about to experience the horror of eminent domain laws in Texas.

Jim’s first experience in the fight for his rights as a property owner was an eye-opener. Trying to get a fair deal, he hired a lawyer. The land was condemned anyway. Jim was out both time and money. What followed were four years of construction, four years of animals escaping from torn fences, four years of heartbreak as the family watched the land they loved ripped and mangled by huge machinery.

Today, the land has been pieced back together in a hit or miss fashion. A sinkhole near the creek that borders the farm causes Jim concern for one corner of his property. A raw wound running the length of the property has been left by construction crews. A debris field straddles the center of the property. Unsightly manholes—the largest measuring four feet tall by eight to ten feet wide—dot one side of the small acreage.

Land that once brought pleasure now draws pain. More strife is due as another sewer connection is in the works. Efforts by Jim to negotiate how the line is to be run and the placement and configuration of more manholes failed.

Money talks for those with the power of condemnation, Jim feels. Financial considerations of the landowner are left unheeded. Who cares about emotional attachments? Damn the landowner. The cheapest route is the road taken.

The landowner is left to pick up the pieces—if they want them. Nazneen doesn’t. Jim is not sure. What once was a place full of laughter, of family and business get-togethers, now languishes. The joy is gone. What’s left is dreaded anticipation of the future.

Eminent domain laws in the Lone Star State are broken. Texans will have the opportunity to fix them as the Texas Legislature convenes in January. Let you state representative and senator know how you feel. Let the governor know, too.

Texas Farm Bureau members will lead the battle. We hope you will join the charge.

 By Mike Barnett

Okay, Texas Farm Bureau’s AGFUND endorsed candidate for governor lost the Republican primary. It was a huge disappointment for those who worked so hard to see Kay Bailey Hutchison heading our state government in Austin.

But as my blog writing partner Gene Hall said, the sun did come up on Wednesday morning. The birds sang. And life goes on. As does Texas Farm Bureau’s efforts to achieve true eminent domain reform.

Senator Hutchison recognized the archaic state of Texas property laws. She promised to right the private property wrongs which have plagued the Lone Star State. She promised to give true eminent domain reform priority in her administration. Although she was unsuccessful in a hard fought battle, Texas Farm Bureau’s fervor for private property rights justice has not cooled.

Nobody knows who will be elected in November. If the political pundits can be believed, it’s going to be a real horse race.

What I do know is although it has been bashed and battered over the last four years, the will to deliver eminent domain reform to Texas property laws has not been diminished. Farm Bureau leaders overachieved in their efforts to get Proposition 11 passed last year, and their efforts were rewarded as the constitutional amendment passed with the highest percentage of any of the proposals on the ballot.

But Proposition 11, which prohibits the government from acquiring land for non-public use, was only the first step. True reform will happen only when additional protections—including offers to landowners that represent fair market value, compensation to landowners for lost access to their property, and the right of landowners to repurchase land not used for condemning purposes—are added to state law.

 Texas Farm Bureau members need to work to finish reform efforts with the same intensity they tackled Proposition 11. We must lay the groundwork now to remind our state representatives and senators of the importance this issue holds for all Texans. New candidates for state government need to know where we stand.

When they go into session next January, state legislators must quickly affirm the language from last session’s SB 18, which unanimously passed the Senate but was tied up by the voter ID wrangling in the House as the session closed.

Any delay could be fatal to our efforts. If whoever is elected governor chooses to veto the reform bill, it would take every remaining day of the session to accomplish an override. There are many who are opposed to this effort to protect private property rights who will be seeking derailment at every opportunity. Those opportunities will abound with a legislative agenda crowded with Sunset bills, redistricting and dealing with an estimated $20 billion budget shortfall.

With the disappointments of the last two sessions, it would seem the deck is stacked against Farm Bureau in our eminent domain efforts. Not so. We are a grassroots organization of true believers. The fire to protect our rights as property owners burns deep within. We’ve come very close to achieving our goals two times.

Texans need eminent domain reform. Farm Bureau members are not timid in standing up for what they believe. We will work hard for success. I know we are up to the task. The third time will be the charm.

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Election Day is next Tuesday and with it, your chance to affect government.  We don’t do politics on this blog, but we do government. We criticize when called for and praise when earned.  Okay, I admit it.  There hasn’t been much to praise recently. 

The debate on all the cable news shows is over whether or not government, at the federal level is “broken.” Well, Duh.  Of course it’s broken.  It’s never been more broken and frankly we’re seeing a lot of that in Texas government as well.

The extremes of the political spectrum, left and right, are throwing a blue faced tantrum.  There is no pretense of compromise, no give and take.  In every human relationship, we negotiate, we compromise and we decide what we are willing to give up in order to get something else we want.  Why should politics be any different?  It’s not, and the inability to accept this simple concept is the reason government is broken.

My message to the far left is, “No, we are not going to accept pushing the U.S. toward a status akin to the socialist democracies of Western Europe.”  The current majority in Washington misread their mandate in trying to achieve this.  Having said that, we know that there are certain things that only government can do.  Left unchecked, markets and capitalism sometimes go off the rails.  Reasonable amounts of adult supervision and regulations are prudent.  Too much of it can be a disaster.  Just check out what’s going on at EPA.  Park the steamroller and seek out common ground.

My message to the far right is, “There has got to be more to your plan than ‘no new taxes or reduce taxes.”  Government has obligations.  I am closer to your position than to the left, but come on.  Stonewalling is a poor tactic.  Compromise is possible and desirable without sacrificing principle.  Failing to understand this is why you’re now in the minority.  Americans are with you on smaller government, but you really haven’t delivered on that.  We can’t spend like we’ve been spending under both Democrats and Republicans without the bill coming due.  I’m not comfortable in sticking my five month old granddaughter with the check.

What I’m getting at here is that both sides have their feet set in stone, claiming that it has to be all white or all black.  There are shades of gray in governing.  There are tough decisions that must be made.  People live in the big middle. Ideologues like to lurk on the edges.  If the left and right can move to the middle, I think they’ll find most people there waiting for them.  Governing is choices.  Governing is compromise.  It has been thus since the beginning of our republic.

If you think your elected officials need a nudge to get there, Tuesday is your chance.

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