Eminent domain by private high speed rail company draws ire

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

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.

“We’re talking about using the power of the state to reduce the costs of a private company,” noted Workman.

He went on to say the landowners do not want to give up the land that’s been in their family, in many cases, for generations.

“The power of eminent domain allows this company to override the needs and wants of those people in its path,” said Workman.

“What this company is seeking to do is more despicable than a company seeking public funds, TCR is seeking the iron hand of government to confiscate and condemn private property for their own private gain.

“There is nothing more sacred in Texas than the right to own private property. How secure is that right if a private, politically powerful, high speed rail company can use their influence and the power of government to condemn and confiscate the landowner’s property from them,” fumed Agan.

He concluded, “If a high speed rail company wants to build a train, fine, let them do it. They can buy property and build a train. But they should only be able to buy land if there’s a willing seller. Allowing a private high speed rail company to use eminent domain is unconscionable. Should the rights of a property taker be more powerful than the rights of a property owner? I say, ‘No.’”

Texas Rail Advocates and two student leaders from Sam Houston University favor the project and spoke against the bill. Even when reminded that this bill only addresses the use of eminent domain by a private company and wasn’t a general prohibition on high speed rail, opponents maintained their opposition. TCR acknowledged that without eminent domain, it could deep six the project. TCR could still seek eminent domain authority from the federal government, but Kolkhorst was adamant that the State of Texas, where property rights are held sacred, would have no part in condemning land for the project.

Other high speed rail projects have been floated since the 1980s, but none have garnered public support. Though TCR claims its project would not require any public money, when pressed, it admitted it was not seeking public money ‘at this time’ and did concede it may, at some point, seek a federal TIFIA loan, but not state funds.

“While you’re not asking for public money, you are asking for one of the most sacred rights we have as Americans, and that’s the right to own private property,” Kolkhorst chided TCR spokesman Richard Lawless.

Neither the U.S. Constitution nor the Texas Constitution require a condemning entity to compensate landowners for the loss of use of their remaining parcels nor the hit they take to their overall property value. TCR representatives admitted they cannot guarantee every road or community will have an overpass since only so many miles are allocated in their budget to be elevated between Dallas and Houston. Therefore, TCR’s project will most certainly bisect property, rendering the other side useless to landowners.

Twelve public meetings were held in select communities last fall, but several cities in the path of the proposed routes were left out. Many affected property owners were never formally notified of the project or the public hearings before the comment period was closed. Those who did attend found out largely through word of mouth from their neighbors, not through any official TCR or government notices. In subsequent town hall meetings, virtually all attendees opposed high speed rail in Texas, with the largest group coming from Montgomery County where 800 people showed up in opposition to the project.

The parallels to the Trans Texas Corridor (TTC) debacle are striking. The TTC was a massive multi-modal network of toll roads, rail, utilities, and pipelines that also included high speed rail, and involved the confiscation of 580,000 acres of private property for private gain against the will of Texans. A Spain-Based firm, Cintra, gained the development rights to the corridor. The plan included the use of controversial public private partnerships that would have conferred use and control of the property to Cintra for private profit. The corridor would have dissected farm and ranch land and rendered the remaining parcels useless. After a six year battle, the TTC was finally repealed from state statute.

The fate of SB 1601 remains unclear. Though it squeaked out of committee, what will happen when it comes before the full senate is anybody’s guess, much less when it comes before the less conservative Texas House. Special interests in Dallas and Houston, the two largest voting blocks in the state, are heavily lobbying for the project. But with all nine counties in between firmly united in opposition to the project, it sets up another TTC-style battle royale that will likely be resolved through local government coordination — the little-known tool available to local governments that ultimately defeated the Trans Texas Corridor as well as high speed rail in California.

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