Texas landowners face uncertainty with eminent domain

By Jennifer Dorsett

About 95 percent of Texas land is privately-owned. And the Lone Star State’s long heritage of protecting private property rights is touted by individuals and politicians alike.

But as many landowners have found, eminent domain authority is often used by private companies.

Landowners are often treated unfairly in these situations. Tales of lost production, property damage and deception are rampant.

Harold Pullins
Walker County

It’s mid-March. The pasture should be in prime grazing condition. But instead, it’s a mess of mud, water-filled ruts, piles of mulched trees, railroad ties and cast-off pipes.

“That’s 50 feet right through the middle of my property that’s good for nothing now,” Harold Pullins said, surveying the avenue of mud cutting across his land. “I couldn’t plant anything with this mess out here, and now I’m having to buy hay. And hay’s scarce right now. I’m paying an arm and a leg for it.”

In January 2018, an oil and gas company representative approached Pullins. The company would be building a pipeline through Walker County, he said, and Pullins’ entire property was in the planned construction path. The landman said they’d be in touch.

Then, in March, a letter arrived via certified mail. The oil and gas company said they had “determined it is in the public interest and necessary to acquire certain permanent and temporary access easement rights” to build the pipeline.

The letter concluded with a “final written offer” of $11,682 and vaguely threatened court proceedings if the offer was not accepted.

Pullins was infuriated.

He and his wife feel strongly they were offered such a low sum because of their age.

“I’m 81 years old. My wife is 80 years old,” he said. “They just figured they’d take advantage of you; figured, ‘$11,000, he’ll jump at that.’ Well, I got news for them. It takes a whole lot more zeroes than that.”

It was especially insulting, Pullins said, because the company stands to make substantial money from the petroleum products flowing through the pipeline.

“I’m not against progress. But, you know, be fair about it. They’re going to make millions of dollars off this line,” he said. “They made me a ridiculous $11,000 offer to mess my place up like this. It’s unbelievable.”

They hired an attorney, and negotiations began with the pipeline company. But construction started anyway.

Heavy machinery was operated with a disregard for property, Pullins said. Several deer stands were knocked over, and swaths of old pine trees were clear-cut. Yards of barbed wire cross-fencing were torn down and left lying in a jumbled heap. A large water tank was pumped, killing all the fish.

After pumping out the tank, the company laid down railroad ties to make a roadway for their machinery. They widened the tank without Pullins’ permission, and when it rained and the tank filled up and their roadway was submerged, workers began pumping water off the easement onto other parts of his property.

“They did whatever they wanted to do.They thought it was a joke, I guess, but I worked hard to pay for this place,” Pullins said.

After the right-of-way was constructed, heavy machinery constantly traversed the roadway during the hot, dry summer. Clouds of dust billowed across his property and toward his home.

According to Pullins, the construction company never watered the road to keep dust down, despite driving a large water truck back and forth to where their employees were working.

Pullins, who suffers from emphysema, had to stay inside. The thick, choking dust worsened his breathing problems.

His livestock suffered, too.

Relief only came when the drought broke and rain returned to the area.

But soon, the rain was causing just as many problems as the dust.

“They’ve wrecked my place for … it’s been over a year now. And I don’t know when they’ll get done with it, but it’s just been a mess,” Pullins said. “This summer, when it was dry, it was all dust. Now, it’s all mud.”

The earth, stripped of proper ground cover, is eroded and washed out, pockmarked with tire tracks and gouges from drilling machinery.

A discarded industrial-sized drain hose lies in the field nearby, evidence of the company pumping water away from the easement, a claim they deny.

Pullins said the destruction of his property not only robbed him of valuable grazing area, but also poses a danger to his livestock.

He sold some of his cows to keep them from getting stuck in the sticky, heavy mud. His neighbor across the road lost several cattle that way, trapped chest-deep in the muddy easement until they died, exhausted from struggling.

But Pullins doesn’t hold any one person accountable for the mess.

All he wants is transparency, a fair offer and respect.

“Their attitude is, ‘You’re nobody. We just treat you the way we want to treat you,’” Pullins said. “They figured a little person, they can just go in and scare him. Well, I don’t scare too easily. They just think we’re stupid, I guess, but it’s not over.”

Kevin Counsil
Madison County

A prolonged construction project by an oil and gas company has Kevin Counsil facing issues he hadn’t planned for.

“I didn’t think it was going to be a year we’d be working on this,” he said. “You don’t ever think this is going to happen to you.”

Two years ago, an oil and gas company approached Counsil about constructing a pipeline through his property. Counsil agreed to have surveyors inspect his property.

At the outset, company representatives seemed friendly and helpful. They said the pipeline could be placed wherever it was most convenient to Counsil, agreeing a fence line was the best location.

While everyone he spoke with seemed straightforward and professional, the initial offer seemed low.

The Counsil family visited with an oil and gas attorney, who told them the offer was definitely unfair.

After negotiations, Counsil’s final offer was more than double the initial offer.

“We have no choice in the matter,” he said. “We’re in Texas. Oil and gas is king. I’m all for being energy independent. We want to be good neighbors, but we want them to be good neighbors, too.”

As the fifth-generation farmer and rancher from Madison County surveys an empty, uneven field, he shakes his head. A lack of transparency and open communication throughout the process has been frustrating.

The company said they would start construction in July 2018. Counsil told them he’d move cattle out of the pasture in July to ensure they didn’t get out on the state highway.

July came and went. Then August. Then September. Summer was over, and construction still hadn’t started.

Construction finally began in mid-October. In late February of this year, the pipeline was finally put into place.

But the work is not yet complete. Wide lanes of bare earth still await stretches of pipe, and tall mounds of dirt will need to be moved back into place and leveled. It will likely be July before the project is completed, Counsil was told.

Rain delayed progress, a fact that, as a farmer, Counsil knows and understands all too well. But the lack of communication and consideration is unacceptable for someone dependent on the land’s production.

All those months of grazing are lost. And any potential profitability for that time period is gone for good.

“What I didn’t take into consideration is the loss of production for a year,” Counsil said. “There’s a lot of grass out here. I’d have loved to come back and graze some cattle, but there’s a 40-foot wire gap on the state highway that you can pick up and almost walk underneath. As a landowner, I don’t think it’s safe to put cattle out here until that fence is secure.”

Another source of frustration is the duplicity employed by oil and gas company representatives.

“They initially came to us and said ‘We can put the pipeline where you want it. If you want it on the west side near that fence line, we can do that,’” Counsil said, gesturing toward the construction site. “Well, the fence line is a good 50-75 yards past this pipeline.”

His property is located on a busy state highway outside Madisonville, which is not too far from College Station and just north of Houston.

Counsil said if he had known it was going to take the better part of a year to construct the pipeline, he’d have negotiated compensation for loss of production into his agreement.

As it stands, he will not receive anything for lost production. At a time when farm and ranch income is extremely low, every lost income opportunity,–big or small—matters.

His advice for landowners is to be prepared when private companies with eminent domain authority come knocking.

“You really don’t have a choice,” he said. “They’re going to come to you and say ‘This is where the pipeline needs to be.’ We just want them to be fair to us, and do what they say they’re going to do when they come in. We really need some eminent domain reform in the state of Texas.”
Dan Butcher

Dan Butcher is the editor and publisher of High Plains Pundit. Dan is also the host of the popular High Plains Pundit Podcast.

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