Victory for Texas landowners along the Red River

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April 6, 2017
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AG Paxton: Suspension of BLM Red River Surveys is a Win for Texas
 
AUSTIN – Attorney General Ken Paxton today praised the Trump administration for suspending three U.S. Bureau of Land Management (BLM) surveys from the Obama-era that the BLM used to justify a land grab involving 90,000 acres near the Red River.
 
The federal action was prompted by the BLM’s admission earlier this week that it used “incorrect methodology” while determining the gradient boundary on a portion of the 116-mile stretch of Texas properties along the Red River. Attorney General Paxton intervened in November 2015 on behalf of the state in a lawsuit brought against the BLM by affected property owners.

Landowners score big win for property rights as eminent domain lawsuit dropped

Eminent domain lawsuit dropped against Hill Country landowners
By Terri Hall
August 30, 2016

Finally some good news for Terrell and Pat Graham. Amidst the backdrop of the scenic Texas Hill Country, a three-year war over property rights has been waged by a private developer against the Grahams, whose cattle ranch has been in Pat’s family for over 100 years. The developers of Johnson Ranch, David Hill Johnson Brothers (DHJB), decided to dump its treated sewage onto their neighbor’s property in order to maximize its profits and cram as many houses as possible into its subdivision rather than contain the sewage within its own boundaries. When the Grahams fought back, DHJB resurrected a dormant Municipal Utility District (or MUD), stacked it with board members in its pocket, and sought to take the Graham’s property using eminent domain for its private project. Monday, after a fierce fight, including from its own residents, and a million dollars in legal costs (combined from both sides), the Johnson Ranch MUD decided to drop its lawsuit to condemn the Graham’s property using eminent domain.

“It’s a positive step, but we still have a ways to go,” related a relieved Terrell Graham.

Texas AG joins landowners in Red River lawsuit against feds

Link to article here.

Texas Attorney General intervenes in Red River land dispute
By Terri Hall
March 22, 2016

It’s a nightmare most ranchers and property owners hope they never experience. But it’s happening to property owners along a 117-mile stretch of the Red River at the Texas border where the federal Bureau of Land Management (BLM) is seeking to seize 90,000 acres of  private property. The Texas Public Policy Foundation’s Center for the American Future filed a lawsuit, Aderholt, et. al. v. Bureau of Land Management, challenging the move on behalf of seven Texas families and three counties, and Texas Attorney General Ken Paxton quickly had the state of Texas join the suit as an intervening party. The General Land Office followed suit. Governor Greg Abbott has also expressed his support for the impacted landowners and vehemently defends the existing boundary lines of Texas’ northern border.

Congress defunds civil asset forfeiture program

Link to article here.

Funds yanked: Congress puts the brakes on civil asset forfeiture
By Terri Hall
February 1, 2016
Examiner.com

Many conservatives are upset with the omnibus spending bill Congress passed at the end of the year, but one provision they should praise is congress rescinding funding for the Justice Department’s civil asset forfeiture program. Most Americans have no idea what civil asset forfeiture is until law enforcement seizes your vehicle and everything in it during a routine traffic stop even though you have committed no crime.

The program was initially launched to help local law enforcement agencies fight drug trafficking and other organized crime by seizing assets they suspect may be involved in those crimes. But now it’s morphed into a system where you don’t even have to be charged with a crime to have your property seized by police, and few innocent parties ever get their money or property back.

Hill Country residents fume over sewage dump, land grab

Link to article here.

Angry residents give developer earful about sewage dump, land grab
By Terri Hall
Examiner.com
November 20, 2015

Last night, in a little hill country town in Bulverde, Texas, over 130 angry residents vented at a hearing over the 4S Ranch wastewater permit. The hearing conducted by the Texas version of the EPA, known as the Texas Commission for Environmental Quality (TCEQ), had an overflow crowd. The original meeting room could not accommodate attendees, who were stacked deep into the hallways. So TCEQ moved the residents into the bay of the EMS building to conduct the makeshift meeting amid fire equipment with no seating. Attendees, many of them elderly, had to grab their own chairs from anywhere they could muster if they wanted to sit down for the nearly 5-hour meeting that went late into the night.

The issue that drew the crowd was the developer of 4S Ranch seeking to amend its wastewater permit from 180,000 gallons of treated effluent contained on the developer’s own property to dumping 460,000 gallons a day of treated sewage onto its neighbors and into Dripping Springs and Lewis Creek (which feed into Cibolo Creek and recharges the Edwards Aquifer). The biggest neighborhood effected would be Oak Village North. The high density subdivision will be located between Stahl Lane and Smithson Valley Road north of FM 1863.

4S Ranch wants to put 1,880 homes on 780 acres in a county where there’s normally a restriction of one house per acre. If there’s just two residents per home, this subdivision alone represents a near doubling of the population of Bulverde (as of 2013, there were 4,841 residents).

State agency grants permit to take Hill Country land for private developer despite judge’s ruling

Link to article here.

TCEQ grants permit to take land for private developer despite judge’s ruling
By Terri Hall
August 5, 2015
Exmainer.com

The Graham family can never seem to cut a break from big government. The Texas Commission on Environmental Quality (TCEQ), the state agency that grants wastewater permits, approved a permit for the neighboring developer of Johnson Ranch in spite of the fact that Administrative Law Judge Sarah Ramos, who heard the Graham’s case in a contested case hearing, ruled that the permit should be denied. Allowing the developer to dump its treated sewage onto the Graham’s property means they’ll lose that land under the ‘waters of the state’ claimed by the state of Texas, even though the area is a dry creek bed and unnamed tributary of the Cibolo Creek. It’s a backhanded way for a developer to exploit the power of government for its own private gain.

Eminent domain by private high speed rail company draws ire

Link to article here.

Eminent domain takes center stage with high speed rail project
By Terri Hall
April 9, 2015
Examiner.com

The fight over eminent domain and who should wield it came to a fore in the Senate Transportation Committee yesterday. A public hearing on SB 1601 authored by Senator Lois Kolkhorst would prevent private companies from using eminent domain for a high speed rail project. The bill narrowly passed the committee by a vote of 5-4. Surprisingly, two grassroots senators, both considered tea party candidates, Don Huffines and Van Taylor, voted against the bill along with both senators from Houston.  Texas Central Railway (TCR), whose parent company is Central Japan Railway Company, wants to build a 240-mile privately owned and operated high speed rail line from Dallas to Houston, causing the nine counties in its path to rise up in opposition.

Aside from the obvious negative impacts from a safety, land use, and quality of life perspective, the fact that this private company can wield the power of eminent domain for its own private gain has stirred up a hornet’s nest in the long-standing struggle to protect property rights. Concerned citizen Dan Agan and the President of Texans Against High Speed Rail, Kyle Workman, expressed the disgust of many Texans who vehemently object to a private company having the power of eminent domain for a private project. The easement needed would be 100 feet wide to accommodate a double track and security fencing, and even wider near substations.

Hill country landowner wins a round in legal fight with developer

Link to article here.

Judge rules in favor of Hill Country landowner threatened by neighboring developer
By Terri Hall
Examiner.com
April 2, 2015

Landowners Pat and Terrell Graham won a small victory in the battle with a neighboring developer of the Johnson Ranch in the Texas Hill Country. Administrative law Judge Cathleen Parsley has ruled in favor of the Graham and Lux families recommending that the Texas Commission on Environmental Quality (TCEQ) deny the Johnson Ranch developer, DHJB Development, its permit seeking to take over a dry creek bed on the Lux-Graham family ranch to accommodate discharge of treated sewage and storm water runoff from the Johnson Ranch Subdivision (read the decision here).

DHJB initially sought a land application with TCEQ but then sought to convert it to a discharge permit. Rather than contain the treated effluent on the developer’s own 750-acre property, it decided to amend its permit and dump 350,000 gallons a day of treated sewage onto his neighbors’ property so that DHJB could build even more houses per acre.

Repeal of private toll companies' eminent domain authority imminent

Link to article here.

NOTE: TURF prefers Rep. Yvonne Davis’ (HB 1004) bill and Sen. Bob Hall’s  (SB 444) bill to remove the eminent domain authority from these private toll corporations. Their bills are stronger than Burkett’s and no loopholes.

Texas Lawmaker Proposes Ban On Toll Road Land Confiscation
Texas state representative proposes to deny privately owned toll roads their authority to seize land through eminent domain.
The Newspaper.com
February , 2015

Opponents of toll roads in Texas no longer want to see the public gets the worst end of the bargain in "public-private partnerships. That is why state Representative Cindy Burkett (R-Sunnyvale) introduced legislation for the current session to strip private entities of the power of taking land from citizens for the use of toll road builders.

Burkett's proposal, House Bill 565, would prohibit the Texas Turnpike Corporation from taking land through eminent domain as if it were a governmental entity. A law adopted in 1991 gave the corporation this exclusive authority.

Landowners revolt: Push cities to oppose private Blacklands tollway

Link to article here.

Citizens blitz local governments to stop private Blacklands tollway
By Terri Hall
October 16, 2014
Examiner.com

Opposition to the controversial private Blacklands-Northeast Gateway Toll Road from Garland to Greenville east of Dallas kicked into high gear this week when concerned citizens did a full court press to pressure remaining cities and counties to pass resolutions opposing the toll road. Seven cities had already passed resolutions prior to Tuesday. Those cities include Fate, Josephine, Lavon, Nevada, Rockwall, Sasche, and Wylie. The Rockwall County Democratic Party also passed a resolution opposing the tollway.

On ‘Super Tuesday,’ residents blitzed four city council meetings and one county commissioners meetings in one day. The City of Rowlett agreed to pass a resolution and Caddo Mills plans to pass one prior to the next crucial meeting of the Regional Transportation Council (RTC) on November 13, where the board may decide whether or not to adopt the tollway into its short and long-range plans.

Blacklands Corridor - NE Gateway Tollway

Blacklands Corridor

The people have spoken and their will is clear - they do not want the proposed private Blacklands Tollway-Northeast Gateway corridor from Garland to Greenville east of Dallas. The Texas Turnpike Corporation has the power of eminent domain and can forcibly confiscate Texans' private property for its own private gain. Nearly 1,500 people packed the public meeting in Rockwall on September 22, 2014 to put their opposition on the record.

VICTORY!
Your letters to the Regional Transportation Council (RTC) made the difference, along with the 8 cities that passed resolutions opposing the tollway. Together, concerned citizens forced the RTC staff to pull its recommendation to include the toll road in its long-range plan! While they still keep the corridor open for further study, this is a MAJOR short-term victory! We need to STAY VIGILANT to ensure they don't sneak the tollway into the plan at a later date, and we need to keep pressing the remaining cities to pass resolutions against it so that NO toll road comes through our communities in the future.

Congress Holds Hearing on Red River Fight

Link to article here.

Congress Holds Hearing on Red River Fight
By Gilad Edelman
Texas Tribune
July 29, 2014

Lawmakers at a U.S. House Subcommittee on Public Lands and Environmental Regulation meeting on Tuesday said they support legislation that aims to resolve a land dispute between the federal government and Texas landowners.

The Red River Private Property Protection Act, introduced by U.S. Rep. Mac Thornberry, R-Clarendon, would affect a 116-mile stretch of land along the Red River that forms part of the border between Texas and Oklahoma. The U.S. Bureau of Land Management, citing court rulings, says the area belongs to the federal government. But Texans have used and lived on the land for years, holding deeds to it and paying taxes on it.

The bill would require the BLM, which has said it won’t decide what to do with the land until at least 2018, to transfer property within the disputed territory to landowners who can prove they hold a title through Texas county or state records.

“The status today is that private landowners cannot borrow money on their land, because the title is clouded," Thornberry said. "They cannot make improvements on the land, they cannot sell the land, because there is all this concern that the federal government is going to come in and make a claim on portions of these acres.”

Pat Canan, a Wichita Falls game warden, told lawmakers that BLM officials placed boundary markers on his land in 2008, laying claim to 1.7 miles between his house and the river that he considered his property.

Steve Ellis, deputy director of operations for the BLM, said the agency opposes the bill because it could force the federal government to transfer mineral rights without compensating U.S. taxpayers.  
 
Ellis suggested that the BLM could deal with some of the land by selling it at fair market value. Lawmakers bristled at the idea.

“That’s why there’s such fear of a federal land grab,” said Thornberry.

Subcommittee Chairman U.S. Rep. Rob Bishop, R-Utah, said that the suggestion “sent a chill up my spine.”

“Let’s hope we can solve this problem for you very quickly,” Bishop told Canan.

Original story:
A high-profile land dispute between the federal government and Texans who live along the Red River will be the subject of a hearing by the U.S. House Natural Resources Committee on Tuesday.

The Red River Private Property Protection Act, introduced by U.S. Rep. Mac Thornberry, R-Clarendon, would direct the federal government to give up some of its claims to a 90,000-acre strip of land along the river’s south bank that has become the subject of controversy over ownership. Texans who have lived on the land for years, using the property, paying taxes on it and holding deeds to it, worry that the federal government is trying to take lands they claim to have long owned. The U.S. Bureau of Land Management, though, has cited court rulings holding that the federal government owns the land.

BLM officials and Pat Canan, a Texan whose land has been called into question, will testify at the hearing.

Controversy over the land began last year, when the BLM, a federal agency that manages nearly 250 million acres of public land and 700 million acres of mineral rights, announced that it would update its resource management plans in Kansas, Oklahoma and Texas to determine how the land will be used for the next 15 to 20 years. The BLM has said it won’t finalize its plan until 2018, leaving Texas landowners to wonder what will become of property they have long considered theirs.

This past April, Texas Attorney General Greg Abbott sent a letter to the BLM accusing the agency of “threatening [Texans’] private property rights by claiming ownership over this territory” and urging it to disclose its plans for the land.

The dispute has a complicated history. In 1923, a fight between Texas and Oklahoma over oil and gas rights forced the U.S. Supreme Court to determine the boundary between the states. The court held that under an 1819 treaty between the U.S. and Spain, everything north of the middle of the river belonged to Oklahoma and everything below the south bank belonged to Texas. That left a strip of land between the south bank and the middle of the river that belonged to the federal government.

In the decades following that decision, the river shifted north, and new parcels of land on the south side were sold as parts of Texas. But in 1983, the U.S. 10th Circuit Court of Appeals ruled that because the shifting was the result of sudden, rather than gradual, changes, the Texas border remained where it had been fixed in 1923. That meant the new land between the Texas border and the river belonged to the federal government, and not to the people who considered it their property.

The BLM has not fully surveyed the area, so it is not clear how many acres the locals have claimed and how many are untouched.

The proposed legislation seeks to clear up the confusion — and keep the land in Texan hands — by directing the BLM to transfer deeds to landowners who can prove ownership through state and county records. Those properties would not be included in the bureau’s resource management plans.

“This hearing is one more step forward, and a very important one, in our efforts to assure landowners that their private property will be protected,” Thornberry said in a written statement. “Property owners deserve this certainty, particularly when their livelihoods are at stake.”  

Pipeline rule revives eminent domain debate

Link to article here.

Pipeline Proposal Revives Eminent Domain Debate
by Jim Malewitz
Texas Tribune
Aug. 1, 2014

Amid an oil and gas boom that has increased demand for new pipelines, Texas regulators have proposed new rules that have renewed a clash between two major state interests: energy development and private property rights.

The Railroad Commission of Texas — which regulates the state’s 426,000-mile network of natural gas, hazardous liquid and other pipelines — offered rules last month aimed at clarifying when pipelines qualify as “common carriers,” a status indicating availability for public use and enabling companies to seize private land using eminent domain. The agency is accepting comments on the proposal until late August.

The proposal would require companies to submit documentation — including a sworn statement — supporting a common carrier claim and to give the commission 45 days to review an application. Currently, companies seeking common carrier status need only to mark a line on a permit application — an honor system that has spurred legal battles over eminent domain claims.

Pipeline operators say stricter regulations would bog down efforts to transport the resources that lubricate Texas’ economy. Landowners say they want fair offers for their land and lose bargaining power when companies haphazardly invoke eminent domain claims.

Both groups are scrutinizing the Railroad Commission proposal, which follows a 2011 Texas Supreme Court decision that upheld a landowner’s right to challenge a pipeline operator’s eminent domain claim.

"Merely registering as a common carrier does not conclusively convey the extraordinary power of eminent domain or bar landowners from contesting in court whether a planned pipeline meets the statutory common carrier requirements," the court said in its ruling in favor of David Holland, a Beaumont-area landowner who questioned Denbury Resources’ use of eminent domain to build a carbon dioxide pipeline across his land.

David Holland walks among the dozens of pipeline markers scattered across his Beaumont-area farm.

The commission opposed the ruling, writing in a brief that it could “significantly impact the development of needed pipeline infrastructure.”

Phil Gamble, a lawyer who represents several major pipeline companies, said the commission’s proposal was “certainly more burdensome” to the industry.

Advocates for landowners say they want to ensure that proposal, which does not add any mechanism to contest a commission decision, will not hinder a landowner’s challenge in court.

“It’s still a little vague,” Regan Beck, assistant general counsel for the Texas Farm Bureau, said of the proposal. “We want to make sure that there’s not an assumption in court that it’s a common carrier because the Railroad Commission says it is.”

The Railroad Commission says the proposal will simply improve its registration process for common carriers and will not grant the agency new authority on eminent domain.

“The ultimate authority to make that determination of who qualifies for common carrier status is with the courts,” Ramona Nye, the agency’s spokeswoman, said.

Matthew Festa, a professor at the South Texas College of Law, said the proposal “doesn’t really seem to address the main issue” in the common carrier debate.

Requiring pipeline companies to prove their status should not, in theory, create new hurdles for development, he said. “They should be doing it anyway.”

Festa said it was unclear how the proposed regulations would affect future legal battles over eminent domain. Judges might give more weight to a Railroad Commission permit, bolstering a pipeline company’s position, he said, but landowners might benefit in other ways. The information provided to the commission, for instance, might help landowners challenge a pipeline company’s false statement in court.

TX Railroad Commission to close eminent domain loophole, but groups say still too vague

Link to article here.

TX Railroad Commission to close eminent domain loophole, but still too vague
By Terri Hall
Examiner.com
July 25, 2014

The Texas Railroad Commission, that regulates the oil and gas industry, recently proposed a new rule to close the so-called ’T-4’ loophole that’s long allowed private pipeline companies to claim common carrier status by simply checking a box on a one-page form and gain eminent domain authority.

In 2011, the Texas Supreme Court said in its Denbury Green decision that companies need to prove they’re truly a public use pipeline, known as a common carrier, before they obtain or exercise eminent domain powers. It quickly became an issue with the Keystone Pipeline, which TransCanada claimed to be a Texas common carrier and used eminent domain for its private international pipeline.

The proposed rule would give the Commission the ability to revoke a permit if a company violates the law, giving the Commission enforcement powers that it currently doesn’t have. It would also mandate permits must be renewed on an annual basis. The legislature contemplated at least four bills to fix the problem last year, but none of them passed. While the Railroad Commission rule makes an effort to quell the controversy, it stops short of fixing the problem.

Fracking in North Texas brings property rights fight to the fore

Link to article here.

Nowhere does the tension between property rights and the energy industry display itself than with the ongoing debate over tracking. The ability to enjoy and use one’s property and the pursuit of happiness mean different things to different people - to corporations they want an unlimited, uncontested right to develop minerals they own, and to people with interests above ground, they feel just as strongly. In the end, the people have a right to vote and redress their government for grievances. Energy companies have become too powerful in Texas, and they need to learn to be better neighbors and work with landowners or they may risk losing access to their golden goose.

Denton Fracking Ban Could Spur Wider Legal Clash
by Jim Malewitz
Texas Tribune
July 25, 2014

DENTON — Debbie Ingram understands the importance of Texas’ oil and gas industry, and she enjoys the look of a lit-up drilling rig rising in the nighttime sky.

But a few months of living about 400 feet from a natural gas well — the source of a cacophony of noises and nauseating fumes that, at times, have overtaken her brick house — prompted her to join hundreds of others pushing back against the industry in this North Texas city.

“I couldn’t sit on the back porch because I couldn’t breathe,” said Ingram, 67, wearing a black T-shirt reading “Frack Free Denton,” the name of the grassroots group spearheading that opposition.

The group could have its moment in November. Voters will decide whether the city will become the state’s first to ban hydraulic fracturing, or fracking — the method of oil and gas extraction that has led to a domestic energy boom. But passage of a ban would probably trigger another fracking fight: a legal clash over a city’s power to regulate for health and safety and the rights of mineral owners to develop their resources. The outcome could reshape Texas law at a time when drilling is causing tension in some of its urban areas.

“It’s going to be one of those first-time tests, and I don’t think there’s a clear answer out there in Texas law,” said Jim Bradbury, a Fort Worth-based lawyer who focuses on environmental and energy issues.

The Denton measure would not prohibit drilling outright; it would apply only to fracking, which involves blasting apart rock with millions of gallons of chemical-laced water hauled in by trucks. After gathering nearly 2,000 signatures on a petition calling for a ban on fracking, opponents forced the City Council to vote on it. Council members rejected the proposal last week, leaving the decision to voters.

Denton, a city of 121,000 with more than 270 gas wells scattered among its neighborhoods, is one of several cities that has tried to ban fracking. That includes towns in New York, whose highest court last month upheld local ordinances banning the practice. The state of Colorado has sued its cities that have banned fracking and is pushing back against ballot measures that would toughen regulations. The prospect of such a ban in Texas — a leading oil and natural gas producer — has put Denton in a bright spotlight, rankling industry leaders and the state’s Republican leadership.

“If one community after another continues to say ‘Not in my backyard,’ then before long, a tsunami of exclusion will jeopardize our freedom as a country,” said Chris Faulkner, the chief executive of Breitling Energy in Dallas, one of many industry representatives who spoke at City Hall before the Council’s vote.

In a letter to the City Council this month, Barry T. Smitherman, chairman of the Railroad Commission of Texas — the state’s oil and gas regulator — praised the energy industry’s multibillion-dollar impact on the Texas economy and its schools, and said a Denton fracking ban could embolden opponents across the state.


Debbie Ingram in her backyard, which is just a few hundred feet from a gas well that was last fracked in March.

“If other cities were to follow your lead, then we could potentially, one day, see a ban on drilling within all cities in Texas,” he wrote. “If that were to happen, I believe that our country, our state, its citizens and its school children would be severely harmed.”

Proponents of the ban called the measure a last-ditch effort to address noise and toxic fumes that spew from wells just beyond their backyards, after loopholes and previous zoning decisions have rendered unenforceable changes to the city’s drilling ordinance, including a 1,200-foot setback from homes, schools and other structures. Opponents argue that the move would effectively halt all drilling inside Denton, costing mineral owners and the local economy millions of dollars and exposing the city to expensive litigation.

Passage of the ban would almost certainly spur litigation, with energy companies and royalty owners arguing that state drilling regulations supersede Denton’s and that the city was confiscating mineral property.

Those claimants could include the state, which owns minerals within Denton’s corporate limits. Jerry Patterson, Texas' outgoing land commissioner, warned in a letter last week that the state would “pursue any available remedy to ensure the right to develop” those minerals.

George P. Bush, the Republican nominee in this year's election to succeed Patterson, said he supported that stance. “We don't need a patchwork approach to drilling regulations across the state,” he said. But John Cook, Bush's Democratic opponent, disagreed, saying that “local communities need to have a say” in quality-of-life issues.  

Though Texas courts have occasionally considered cities’ drilling regulations, they have yet to see a case of such size and scope, legal experts say.

Texas law says the state intends its mineral resources to be “fully and effectively exploited,” but courts have said the power is not absolute. The Railroad Commission has jurisdiction over all oil and gas wells in the state, with authority to adopt “all necessary rules for governing and regulating persons and their operations.” Local governments have the right to impose reasonable health and safety restrictions, and the Legislature has granted most Texas cities, including Denton, the power to “regulate exploration and development of mineral interests.”

The state has long regulated most aspects of drilling, including well integrity, pipeline safety, and air and water impact, while cities have typically controlled noise and authorized the location of wells or related facilities like compressor stations. Now, a key question is where fracking falls in that spectrum.

Tom Phillips, chief justice of the Texas Supreme Court from 1988 to 2004, said he would expect courts to side with the energy industry — by ruling that the ban unconstitutionally supersedes state law or that it makes gas beneath the city too difficult to tap and amounts to a taking.

Phillips, now a lawyer with the firm of Baker Botts, who was asked to review the proposal for the Texas Oil and Gas Association, said state law gave cities less stringent options for protecting health and safety at well sites, and that Denton “can’t just say no” to fracking.

Other legal experts acknowledge that state high courts tend to favor oil and gas interests, but say that Denton could make a compelling argument that a fracking ban would not wipe out all options to drill.

“To say that this is a slam dunk, it’s a taking, I think that’s painting with an overly broad brush,” said Terrence Welch, a lawyer who has helped write drilling ordinances in several Texas cities. “The property — the mineral estate isn’t left valueless. You can drill, but you just can’t frack.”

Bradbury, the Fort Worth lawyer, agreed and noted that new technology has enabled drillers to reach resources thousands of feet away at various angles. He suggested that some companies might reach Denton’s gas from outside city limits.

Sitting in a living room that has been quiet during a temporary “standstill agreement” between Denton and EagleRidge, the company that has fracked the well near her home, Ingram said she doubted a ban would cripple the industry.

“You can’t take gas and oil out of Texas,” she said, “because that’s what Texas is.”

Blacklands private toll road exploits repealed law

Link to article here.

This project sends up so many red flags it's hard to note them all. The big one is the fact that a private corporation has the right to use eminent domain for its own private toll profits. This should NEVER happen in the cradle of liberty. The legislature and voters of Texas approved a Constitutional Amendment in 2011 that is supposed to protect Texans from eminent domain for private use. This supposed turnpike corporation thinks it skirted Texas law by forming ONE DAY before the law allowing such corporations was repealed. We'll see what Texas landowners can do to challenge it using the Texas Constitution in court.

Private Toll Road Considered to Counter Population Boom
By Aman Batheja
New York Times
June 12, 2014

Facing traffic congestion that is only expected to get worse, officials in North Texas are weighing a proposal to build a toll road for commuters into Dallas. The Texas Turnpike Corporation of Dallas has proposed a private toll road, the only of its kind in the state, connecting Greenville and Wylie, and local transportation officials say they are keeping an open mind.

“This would be a private-sector company that would 100 percent finance the project,” said Tom Shelton, a senior program manager with the North Central Texas Council of Governments, which coordinates the region’s transportation planning. “As a result, they would take 100 percent of the risk, and they would take 100 percent of the benefits.”

Much of Texas drinking water flush with 'potty water'

Link to article here.

No Joke: Most Drinking Supplies Flush With "Potty Water"
by Neena Satija
Texas Tribune
May 14, 2014

Poor old Wichita Falls.

The city of about 105,000 people has become the butt of late-night jokes and the subject of shocked headlines since officials decided to turn to treated sewer water to fill residents' drinking glasses.

Turns out, though, the joke is on just about everybody else. Because for the large chunk of population that lives downstream from a big city and whose water supply flows through a river, more than a few drops of the water in their glasses was probably once in someone else's toilet.

Let’s start with Houston, which, as Texas State University professor Andy Sansom says, “has been drinking Dallas’ crap for decades.” Wastewater from Dallas and Fort Worth is deposited into the Trinity River, where it flows down into the lakes that supply Houston residents. The wastewater is so clean that it’s credited with helping the Trinity River stay strong during recent years of severe drought.

San Antonio’s wastewater — which flows through the city’s famed Riverwalk in times of drought — is considered valuable, too. Recently, the San Antonio Water System applied for a permit to ensure complete ownership over that wastewater, which is currently deposited into the San Antonio River and is so clean that it helped bring back species some thought were gone from the area forever. 

The Guadalupe-Blanco River Authority balked at the application, saying its own customers — farmers, manufacturers and, you guessed it, South Texas city residents — rely on that wastewater. It is so important to the authority that it’s taking legal action against the San Antonio Water System’s permit.

No one involved in the brewing court battle over who owns San Antonio’s wastewater is calling it “potty water," as the Fort Worth Star-Telegram did in a recent story about the Wichita Falls plan.

There are a few other things to be clear about regarding the multimillion-dollar project planned in Wichita Falls. Wastewater reuse in Wichita Falls has been in the works for years and would have happened with or without the drought. It was fast-tracked as the city deals with reservoirs that are only 25 percent full today. In addition, the Texas Commission on Environmental Quality — not known for being a particularly strict regulating agency — is currently on the defensive for delaying the city’s project by asking for more testing.

Several other Texas cities — San Antonio, Austin and Fort Worth among them — have been looking at such water reuse projects for decades, and some are hoping the plans might come to fruition in the coming years. Across Texas, treated wastewater is being used for everything from watering golf courses to making silicon chips.

Yet judging by the headlines on news reports about the Wichita Falls project, the city’s residents could be in for some sort of disgusting surprise.

“Brushing Teeth With Sewer Water Next Step as Texas Faces Drought,” read a Bloomberg News headline.

National Public Radio wrote, "Drought-Stricken Texas Town Turns To Toilets For Water." Most recently, NBC’s Today Show tackled the topic, with a reporter noting, “Some residents think it’s just plain gross.”

Bloomberg News noted that many people are concerned about water contamination, comparing the Wichita Falls project to the example of Oregon water officials flushing 38 million gallons from a reservoir after a teenager urinated into it. "We're not drought-stricken Texas," an official there noted.  

On that note, remember all the people guzzling beer and floating in the water out on Lakes Travis and Buchanan, which supply Austin's drinking water. No one is suggesting flushing those bodies of water or implying that residents of the capital city are brushing their teeth with sewer water.

When talking about the yuck factor associated with water reuse projects, people seem to be distraught over the fact that the water would go directly from a sewer treatment plant to the tap. That's the short-term plan in Wichita Falls during this extreme drought. Eventually, the city plans to blend treated sewer water with reservoir water before anyone drinks it — not unlike what happens in other cities.

And the fact is, some of the lakes and rivers that supply water here in the United States can get pretty dirty. The recent horrific spill in the Elk River from the chemical manufacturing company Freedom Industries that had 300,000 West Virginians afraid to take showers is just one example.

A recent New York Times investigation showed that public water supplies nationwide contain everything from arsenic to radium at higher-than-safe levels. In the Rio Grande, which supplies millions of South Texans and farmers with drinking and irrigation water, raw sewage is dumped in the river from Mexico every day — and water treatment plants either deal with it or they don't, as was demonstrated in a small town near Laredo last fall when residents were forced to boil their water for three weeks after getting sick from taking showers.

In fact, an exhaustive National Academy of Sciences study of wastewater reuse concluded that when it comes to potential pathogens that may be in the water, “the risk from potable reuse does not appear to be any higher, and may be orders of magnitude lower, than currently experienced in at least some current (and approved) drinking water treatment systems.”

No wonder so many cities — not just in Texas — are considering direct water reuse as a water supply strategy to quench their thirst.

On The Tonight Show recently, host Jimmy Fallon made a joke that a lot of environmental advocates, water engineers and city planners across the state have said they think asks a good question.

“A town in Texas just announced a controversial plan to recycle toilet water and use it for drinking water. Dog said, ‘How are you only thinking of this now?’"

Bundy grazing battle more complex than first blush

Link to article here.

Nevada Cattle Rancher Standoff Far More Complex than Simple Lawbreaking
Cliven Bundy claims that he inherited “pre-emptive grazing rights’ on federal land because his ancestors kept cattle in the Virgin Valley since 1877, before the Department of the Interior was created. However, by continuing to graze his livestock on federal land for over 20 years after he stopped paying fees in 1993, Bundy may have acquired “prescriptive rights;” the right to an easement over property after trespassing on it for several years.

By Rachel Alexander | April 23, 2014
Selous Foundation for Public Policy & Research

Some legalistic conservatives aren’t jumping to the defense of Nevada cattle rancher Cliven Bundy and his recent standoff with the federal government. They’d rather focus on the fact that he broke federal law by not paying taxes for permitting his cattle to graze on 150 square miles of scrub desert overseen by the federal government. Such a shallow analysis fails to take into account the facts during the years leading up to the showdown, as well as other laws that may likely exonerate him.

Bundy paid grazing taxes until 1993, when federal grazing rules were restricted in the Gold Butte and Bunkerville areas of Nevada for the dubious reason of protecting the desert tortoise. The desert tortoise is listed as vulnerable, not endangered, despite virtually every media article hysterically referring to it as “endangered.” It is not clear how grazing cattle threatens the desert tortoise. Even more bizarre, it has been revealed that the U.S. Bureau of Land Management (BLM) has shot many of the desert tortoises it claims to protect.

Infuriated by the federal government instituting these draconian environmental regulations in 1993, Bundy insisted on paying grazing fees to local government instead of the feds, so his money wouldn’t be used against him, but Clark County declined. After that, Bundy says the federal government overreach drove every other rancher in the area out of business except him.

He owns the last large cattle ranch remaining in Clark County. The feds now own 84 percent of the land in Nevada, and large portions of other Western states, including a massive 96 percent of the land in Alaska.

Bundy’s friction with the federal government is nothing new. In the 1970s, cattle ranchers in the Western states fought with the federal government over land in what became known as the Sagebrush Rebellion.

It was widely believed that President Jimmy Carter instigated it, by purposely punishing ranchers in the states that didn’t vote for him by “halting work on vital water projects, hiking fees for grazing cattle on public land and attempting to break up large farms irrigated by federal water systems.” Former president Ronald Reagan ran for president backing the rebellion, saying in a campaign speech, “I happen to be one who cheers and supports the Sagebrush Rebellion. Count me in as a rebel.”

Bundy claims that he inherited “pre-emptive grazing rights” on federal land because his ancestors kept cattle in the Virgin Valley since 1877, before the Department of the Interior was created. “My forefathers have been up and down the Virgin Valley ever since 1877. All these rights I claim have been created through pre-emptive rights and beneficial use of the forage and the water. I have been here longer. My rights are before the BLM even existed,” Bundy told KLAS-TV in Las Vegas. Bundy has also argued that Nevada’s open range statute excuses his trespass.

So far, the federal courts have sided with BLM against him on both of these legal arguments, very likely due to a cozy relationship between the two branches of government under the liberal Obama administration.

However, by continuing to graze his livestock on federal land for over 20 years after he stopped paying fees in 1993, Bundy may have acquired “prescriptive rights;” the right to an easement over property after trespassing on it for several years. Columnist Ben Swann interviewed Montana cattle rancher Todd Devlin about the possibility. Devlin asked the BLM if Bundy had acquired prescriptive rights, and was told that the agency is concerned he may have.

The BLM could have attached a lien to the cattle, instead of spending $3 million forcibly rounding them up. The reason the BLM didn’t try to remove the cattle peaceably this way through the court system may be because it wouldn’t have won due to Bundy’s prescriptive rights.

Instead, the BLM forcibly started seizing Bundy’s cattle, and destroyed several of them. Former judge Andrew Napolitano told Fox News, “The draconian, authoritarian way that the government is going after Mr. Bundy is obviously to try and scare him, and scare ranchers, and send a message which is utterly un-American and not consistent with a free people.” Sen. Dean Heller (R-NV) spoke out during the standoff, “I told him [BLM Director Neil Kornze] very clearly that law-abiding Nevadans must not be penalized by an over-reaching BLM.”

Nevada Governor Brian Sandoval also sided with Bundy, saying, “No cow justifies the atmosphere of intimidation which currently exists nor the limitation of constitutional rights that are sacred to all Nevadans. The BLM needs to reconsider its approach to this matter and act accordingly.”

In recent years, Sen. Harry Reid (D-NV) has attempted to seize land in Nevada and award it to his major political contributors. Since the head of the BLM is a former high-level staffer for Reid, it appears very likely that Reid masterminded the Bundy cattle siege, in a type of eminent domain. One anonymous source who has lived in the area for 35 years says the BLM is using the desert tortoise as a pretext to grab the land and seize its water rights.

There have been several cases similar to Bundy’s in recent years. Rancher Wayne Hage won his battle against the government by arguing that he had the right to graze his cattle within two miles of a water source he had developed. Bundy’s case may yet be resolved in a manner such as this.

This dispute has sparked a debate over the federal government’s massive land grabs and intrusions into states’ rights. Nevada Assemblywoman Michele Fiore, who helped Bundy get his livestock back, said, “It’s time for Nevada to stand up to the federal government and demand the return of the BLM lands to the people of Nevada.” At a town meeting, Bundy declared, “It’s about freedom and liberty and our Constitution … and above all it’s about our policing power. Who has policing power today?” It was local law enforcement that finally broke the standoff, not the BLM. Las Vegas Metro Deputy Chief Tom Roberts ended it by announcing that Bundy’s cattle would be returned within 30 minutes.

Bundy may not be a sympathetic person, in part due to his statements about not recognizing the federal government and holing up with his guns. But Americans are fed up with the federal government’s expansion and overreach, and so even though Bundy was technically breaking a law, patriots stood with him because this was a clear example of how government expansion had forced out hundreds of innocent ranchers over the years. Bundy broke the law, but only because the law had become so oppressive it was destroying the livelihood of ranchers in the name of radical environmentalism and crony capitalism.

Sen. Rand Paul (R-KY) introduced legislation last year that would have given state governments more control over federal land and the Endangered Species Act. Considering this has been taking place since the Sagebrush Rebellion in the 1970s, it is long overdue for local and state governments to take back control of land seized by the federal government.

Rachel Alexander is the founder of the Intellectual Conservative and an attorney. Ms. Alexander is also a contributor to SFPPR News & Analysis.

Texas couple under siege by government land grab for developer

Link to story here.

Texas couple under siege by government land grab for developer
By Terri Hall
Examiner.com
May 12, 2014

The battle between a big developer and private property rights continues to rage on in Bulverde, Texas. With a grand bait and switch, the government has expanded its tactics from using the Texas Commission on Environmental Quality (or TCEQ’s) ‘waters of the state’ argument to now invoking Municipal Utility District (or MUD) authority to use eminent domain to seize the land instead. Initially, the developer sought only a wastewater permit to discharge treated sewage onto its neighbor’s land, but now they’re seeking a storm water easement using eminent domain through a little known MUD.

Why? Because the Lux family had the audacity to fight back and the developer wants the land now. Eminent domain is the means to get it fast, and landowners are generally helpless to stop the confiscation of land once they receive notice that the government will seize it through eminent domain.

BLM eyes 90,000 acres of Texas land near Red River

Link to article here.

BLM Eyes 90,000 Acres of Texas Land
By Bob Price
Breitbart.com
April 21, 2014

After the recent Bundy Ranch episode by the U.S. Bureau of Land Management (BLM), Texans are becoming more concerned about the BLM’s focus on 90,000 acres along a 116 mile stretch of the Texas/Oklahoma boundary. The BLM is reviewing the possible federal takeover and ownership of privately-held lands which have been deeded property for generations of Texas landowners.

Sid Miller, former Texas State Representative and Republican candidate for Texas Agriculture Commissioner, has since made the matter a campaign issue to Breitbart Texas.
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