In this video, Landowner Condemnation Rights Attorney Philip Hundl reviews the Kinder Morgan Crossover Pipeline Project during a Landowners Forum in Wharton, Texas. Mr. Hundl also talks about the pipeline condemnation process in Texas and the rights of landowners affected by condemnation. You can make an appointment with Mr. Hundl by calling 800-266-4870, and you can ask for a no-obligation case evaluation by clicking this link and filling out the form.
There were microphone problems with this video and the audio is not always easy to understand. We apologize for these issues. Please call us at 800-266-4870 if you have questions regarding the information in the video.
Summary of the Kinder Morgan Crossover Pipeline Project Video
– I appreciate everybody being here. My name is Philip Hundl. My main office is in Wharton, in Wharton County. My practice area covers the State of Texas and it includes eminent domain and condemnation.
A little bit about me. I grew up in Wharton. I moved away for about 15 years and came back. I started practicing law with a large firm in San Antonio and Houston. I had an opportunity to come back home and practice with some friends. I’ve been back now for 15 years working in our law firm, Wadler, Perches, Hundl & Kerlick. Our firm has six lawyers plus or minus one or two. We’ve got a staff of about 13 paralegals and assistants. We also have Fort Bend County offices in Fulshear and Richmond, Texas, and a small law office in El Campo as well.
About Eminent Domain and Condemnation Projects
With that, let’s get started. We’re all here to talk about Kinder Morgan Crossover II Pipeline Project. You all have seen the names of pipeline projects like the Kinder Morgan Tejas Pipeline. They have a lot of entities called lots of different things. This particular project is called Kinder Morgan Crossover II.
The pipelines are a really hot topic right now. You all are affected by this Kinder Morgan Crossover line. It’s a 50 foot permanent easement. I’ve seen some them that are 65 feet wide. The wider easements can include temporary easements, or workspaces or access roads and valve sites. Pipeline easements can also be for valve sites or associated power lines and compressor stations.
Condemnation under eminent domain can include highways and you’re seeing lots of that along Highway 59 on the drive to Sugar Land over the last several years. You’ll also see condemnation for power lines, and I deal with quite a few power line condemnation cases.
A farm may have a canal, and LCRA may decide that the canal will really help us transport water somewhere. So I’ve dealt with some LCRA condemnations of canals and water lines and sewer lines.
Why the Increase in Pipeline Projects
There’s been a huge increase in pipeline projects mainly because of all the production out in Midland. I recently attended a committee hearing of the Texas Legislature regarding eminent domain reform. Several of the representatives from West Texas at the hearing said there are 4,000 wells that are either shut in or flaring gas because we can’t move it to market. Where’s the market? The market is Corpus or Houston or along Gulf Coast. So there’s a tremendous need to get all of the product, mostly gas but crude as well, from Midland or the Gulf Coast.
These may be familiar names to you. Phillips 66 has a Gray Oak project right now. Epic has some multiple projects right now. Kinder Morgan’s been in the news a lot because of what’s going on in Hill Country with their Permian Highway Pipeline. If you’re in the area around Austin County, Washington County, and Burleson County, you’ll hear about Aspen Midstream or AMP.
More About the Kinder Morgan Crossover Project
Let’s talk about the Kinder Morgan Crossover segment. The Railroad Commission approved the permit for a 36-inch of gas line. When the pipeline companies want to construct a pipeline they file a T4 application with the Texas Railroad Commission. Typically the Railroad Commission approves it fairly swiftly. Sometimes applications get rejected because of some technicality. Perhaps you didn’t include this information so it gets rejected. But with a fairly easy correction, the Railroad Commission will approve these applications.
This T4 application is number 00774. It’s an evolved application because it’s a renewal of an already-approved application and it just makes some amendments. Talking about Kinder Morgan Permian Highway Pipeline project going through Hill Country. That was one application for that one project. This Crossover is part of many, many small projects in this T4 application. So, it’s a little convoluted when I was reviewing it. In this particular application, because it was a renewal of an existing permits, it talks about the total permitted miles and that’s 2,988 miles. That’s how complex this application was with that many miles of pipe.
But, once again, what we’re talking about today is the Kinder Morgan Crossover II segment that is approximately 60 miles in total in Colorado, Wharton, Fort Bend, and Brazoria Counties. The pipe wall thickness is probably half an inch, and the maximum allowed operating pressure is 1300 psi. How do they connect the segments together?” They’re welded. Each weld is examined by a trained ultrasonic examiner. The line is pressure-tested with water. Hydrostatic test is what they call it.
I think always important to point out that these lines typically have valve sites every 4 to 10 miles. This line is approximate 60 miles, so it’s assumed that there will be at least six above-ground valve sites. We will talk about above ground facilities.
Everyone’s asked me for a map of this Kinder Morgan Crossover. Pipeline companies include a map in their T4 applications. They didn’t include the map on this T4 application or this T4 renewal. So we don’t have a map.
Who Has the Right of Eminent Domain
People will oftentimes ask who has the right of eminent domain. We understand the government — city, county, and federal government — has that right to take land for a public purpose. There’s a big levy project that will be built in Wharton and that’s by the Army Corps of Engineers in conjunction with the City of Wharton.
But Kinder Morgan is not the government. They’re not the state. They’re not the county. They’re a private entity. Over time the power of eminent domain has expanded to allow private companies to condemn property for what is deemed to be a public purpose.
A lot of time there’s confusion. What’s eminent domain versus condemnation? Think of eminent domain and the word itself “eminent”. It’s ominous. It has a lot of overall power. So eminent domain is the power to appropriate, take one’s private property. And the process is what’s called condemnation. So condemnation is the process by which a government or private entity takes private property for a public purpose, for something that’s going to benefit the public.
The law has changed to say transporting petroleum, petrochemicals, or gas is for public benefit. We can disagree with that, but that’s what the law has been interpreted to mean. The law has gone even further to say if the pipeline companies assert that it’s for a public good, and we’re going to assume they’re correct. When the pipeline companies file a T4 permit with the Railroad Commission, there’s a particular box they check to assert that they are acting as a common carrier. If they check that box, our courts in Texas have said then the pipeline companies are common carriers and they have the power of condemnation.
Steps in the Condemnation Process
There’s a sheet at the table that sets out the steps in the condemnation process. That’s really helpful for landowners because it’s easy to become a bit confused about the process and forget where they are.
Someone may have stopped by your home or maybe you got a letter in the mail. But it’s not from Kinder Morgan. It’s from someone called a right-of-way agent. There’s these companies out there that are called right-of-way acquisition companies. It’s just subcontracting. The pipeline company will get subcontractors for land acquisition and acquiring the rights-of-way. The land acquisition companies working on this project are Defined Land Management and Percheron, LLC.
Right-of-way agents are attempting to acquire the easement voluntarily by agreement. They’ll contact you and they’ll attempt to buy an easement informally. Different pipeline companies handle things differently. They may allow their right-of-way agents a lot of time to talk and deal with the landowner. Or they may not give their right-of-way agents much time at all.
Some land acquisition companies may tell their right of way agents to make an attempt with the landowner. Talk to them once or twice. However, the pipeline company, through its lawyers, will start the condemnation process very quickly. That process starts with you getting an initial offer letter. Then, as the graphic shows, the next step would be getting a final offer letter or notice. Then the pipeline company will file the condemnation suit or petition for condemnation.
Sometimes folks will get multiple notices from a pipeline company and they’re not sure whether a letter is a final offer. I will say this, the “final offer” isn’t the end-all, be-all offer. Will a pipeline company ever offer you more? Hard to say. That’s a step that they have to accomplish to move on to filing the condemnation suit. You’ll know it’s a final offer when it has an appraisal with it.
Sometimes landowners think, “Well, if their appraiser is saying my land is worth this much, I guess that’s what it’s worth.” You’ll see different opinions of different appraisers. The appraiser that the pipeline company chooses is very likely to be favorable to the pipeline company.
The Special Commissioners in the Condemnation Process
After the pipeline company files the petition for condemnation, then there’s a special commission created and the court will appoint special commissioners. Special commissioners are not county commissioners. They’re three landowners from the county that will sit on a panel to determine compensation for the landowner. Each side has an opportunity to strike or remove one of the special commissioners.
When I get the three names of the proposed special commissioners, I’ll send the names to my clients and ask them to review the list. If you know them, will they be favorable or unfavorable. .Are there any proposed special commissioners who just really don’t like you? If there is a person like that, then we can strike that person. Overall, I’ve always found that the special commissioners try to do a good job. But you don’t want someone who is going to be very biased or be unfavorable.
The commissioners’ hearing typically varies from one hour to three hours. I’ve also had special commissioners’ hearings last all day with lots of different witnesses.
What does a special commissioners’ hearing look like? The pipeline company will be there, typically with their appraiser. They’ll put their appraiser on as a witness. The special commissioners hearing is not in court. They’re normally held in a conference room in the courthouse.
Sometimes on these big projects, pipeline companies will have them at a hotel. We’ve had them at the Holiday Inn in Wharton. I’ve got some hearings set for next week in Hallettsville and the special commissioners’ hearing will be in one of the hotels there.
The pipeline company will put on all their witnesses. Sometimes there will be a pipeline representative to talk about the details of the project. Their appraiser will talk about your appraisal a lot. Then the landowner has an opportunity to testify. The lawyer for the landowner will normally have the landowner testify, and any other experts as well.
The special commissioners listen to both sides of the argument on valuation on compensation. Then they issue an award. They normally do it that very day within a few minutes after the hearing. After the award is issued, either side can object to the award.
I’ve had special commissioners hearings that go really, really well and we get a really high award issued by the special commissioners. And I tell my client, “Enjoy it for about a day because the pipeline company is going to object to the award.” When that happens, the award gets set aside, and the case goes into what I call “normal civil litigation”. That’s in a trial court in front of a judge or a jury — normally a jury.
When can the pipeline company start construction? After the trial? No. Once there is an award issued by the special commissioners and after the pipeline company deposits that award, they can move forward with construction. Before then, they cannot begin construction unless there are some special circumstances and they get a special order from the court. In a normal condemnation case, pipeline construction can begin once they deposit the award.
I talked about right-of-way agents and law firms and right-of-way agents and attorneys for the pipeline companies. In this particular Crossover project, the right-of-way agents are from Contract Land Staff. There’s a Brian Comb and a Hannah Rodriguez that I’m aware of.
The attorneys are from a firm called Zabel Freeman out of Houston. This is exclusively what they do — they represent pipeline companies or condemners in condemnation cases. It’s a firm of about 12 lawyers.
Mr. Hundl showed a video from the Texas Farm Bureau with landowners talking about their bad experiences with right of way agents.
One landowner in the video had said that the right of way agents he was dealing with were rascals. At the time the video came out I was dealing with right of way agents who were also rascals. They’d misrepresent things to landowners. They would threaten landowners and say, “Pipeline company is going to take you to court on Friday.” I was amazed and extremely frustrated. Then I saw that video and the folks on the video sounded a lot like the landowners I was dealing with.
There are lots of different personalities working as right of way agents, but the ones I’ve dealt with on this Kinder Morgan Crossover project so far have been very professional. They haven’t been rascals. So, that’s good news. I don’t know if anyone’s had different experience with it. You just have to always be on guard.
Right of Way Agents Represent the Interests of the Pipeline Company – Not Yours
I’ve been amazed that some landowners who were dealing with these real aggressive, tricky right-of-way agents would tell me that they’d eventually lost trust in them. It’s human nature to trust everyone, but I always point out you need to remember that they don’t represent you. Their job is to get an easement as quick and cheaply as possible. Watch out for high-pressure sales tactics, misrepresentation, false promises.
Some right of way agents can be extremely helpful and they’ll provide additional information to the landowner and to me. Sometimes the attorneys for the pipeline company will get the information for me. They can be very professional, very helpful. But I’ve also seen right of way agents promise landowners certain terms in an easement agreement, say that they put those terms into the easement agreement, and then present the easement agreement to the landowner to sign before the landowner has a lawyer. Luckily the landowner luckily read the document and made sure and found that what had been promised had not been done.
Right-of-way agents supposedly have a licensing procedure. I think they have some guidelines they’re supposed to follow as right-of-way agents. I’ve had clients oftentimes say that they were going to file a complaint against the right-of-way agent. I don’t get involved with that. I don’t want to and I don’t know enough about what they can and can’t do, and what they should and shouldn’t do. I just know that you should always remember who they represent.
I’ve seen on some landowners signing the easement agreement before the survey’s even been completed. They signed their name on the first easement agreement they saw without a survey. So, essentially they signed a blanket easement saying the pipeline can go who-knows-where on their land. And why would they do it? Because the right-of-way agent represented that the pipeline would be built in a certain location on their property. Well, maybe it will, maybe it won’t.
This is something I pulled out of a pipeline and gas journal. It was an older and longtime right-of-way agent saying back in the day he would tell landowners, “your neighbors settled for this so that’s what the value is.” Then he says, “If things got sticky or time-consuming in negotiating with the landowner in question, an agent could always play the condemnation card and threaten to invoke eminent domain seizure.” So if you don’t accept the offer of the pipeline company or right-of-way agent, they will often play the condemnation card.
My response to that is that we actually want them to file the petition for condemnation. We want the final verdict. We want the final offer. Because I want to see an appraisal. So I’m not worried about a pipeline company filing a condemnation suit. That’s just part of the process. One of the steps in condemnation is you getting a final offer from an appraiser.
If you can reach an agreement beforehand that’s satisfactory to you, the landowner, then great. If easement terms are favorable, great. But if not they will sue you. There’ll be a lawsuit that says, “Kinder Morgan versus you the landowner.” That’s what will happen.
Negotiating Easement Agreements with Pipeline Companies
You reject the first offer. Don’t take the first offer, and don’t accept the proposed easement agreement that’s a three-page or four-page document that the right-of-way agent gives you. Don’t accept that. Do reject that.
Don’t provide information to the right-of-way agent. The right-of-way agent and acquisition companies like to have this questionnaire. They’ll ask you to tell them everything about your property. My suggestion is don’t do it. There will be a time and place that you may have to, but don’t do it early with the right-of-way agent.
Don’t agree on any monetary number first. There’s lots of important rules but this is one of the most important rules. I get folks calling me every day about different pipeline projects around the State. They’ll ask me about how much to ask for. I’ll then ask them if they’ve nailed down the easement terms yet. Often the landowner will respond that they’re talking about money right now. I’ll tell the landowner that you’re doing it backwards.
First, you need to nail down easement terms to make sure that they’re favorable to you. You won’t know how badly your land will be damaged until you have an easement agreement. You work on the non-monetary issues first. Don’t the rush to sign.
Who’s gone out and bought a car? At a car dealership, they will make you feel like the car’s going to get sold to somebody else if you don’t buy it. So there’s pressure to act quickly. It’s can be the same in negotiating easements. There’s some kind of deadline that the right of way agents may say they have to make you feel pressure to sign. Don’t feel rushed.
Key Terms of an Easement Agreement
What are some key terms of an easement agreement? This should be in your handout. I’m also going to reference a pipeline easement negotiation checklist prepared by Attorney Tiffany Dowell Lashmet of the Texas Agrilife Extension Service. She does a really good job. A lot of what I talk about here is on that checklist of easement terms.
First we need to make sure that the easement area is specifically defined. We want them to survey the property. We’ll give them the right to temporarily to mark the center line of the proposed easement. We want that easement specifically defined. We want it to be a 50-foot easement defined by these metes and bounds. So that’s extremely important.
We don’t want an exclusive easement. What does that mean? We want it to be able to allow someone else to use that same easement area. Now there’s going to be some conditions that follow that. You can’t interfere with the pipeline, but oftentimes what landowners are able to get agreement that the easement can overlap another pipeline easement. Five or ten years from now another pipeline company might want to put a pipeline parallel to the existing pipeline. Since the first easement’s 50 feet wide and you’re going to have another 50-foot easement, you get a 100-foot easement taken up by pipelines.
You can make the easement non-exclusive. Oftentimes, pipeline companies will work together and they’ll overlap those easements. We saw that with the Gray Oak Pipeline and the existing DCP Midstream line. They overlap. Instead of taking a100-foot easement, I think it’s 70 and they overlap.
Define the width of the easement and number of pipelines in the easement. You want to find out always. I’ve seen a few that weren’t defined. There’s been some situations where pipeline easements did not limit the number of pipelines that could be in that easement. And next thing you know, the pipeline company comes back, maybe 20 years later and they say, “Oh, we’re going to put another line in.” The landowner says we need to talk about compensation, and the pipeline company responds that it already has the right to do that. That’s happened.
Specify the type of products that run through the line. This is something we ask for. The pipeline companies don’t like to do that. Kinder Morgan, owner of the Permian Highway Pipeline, agreed and limited it to gas.
Specify the pipeline diameter. The Kinder Morgan Crossover pipeline project calls for a 36-inch pipe. That’s pretty common. A lot of times they’ll say we’re putting in a 12-inch pipeline, but we have the right to go up to an 18-inch pipeline. That is considered to be an 18-inch pipeline if that’s what they have a right to do.
Establish a depth requirement for the pipeline. The standard depth is 36 inches. We always push for more. Pipeline companies have been going normally to 48 inches depth without a problem. We’re talking about the amount of cover above the pipeline.
Other Terms in the Easement Agreement
Above Ground Equipment or Appurtenances. Being real specific on the surface facility or above ground appurtenances is very important. Most pipeline friendly easement agreements allow the pipeline companies to put equipment above ground as well as pipe below the ground. This is a big one that we really need to know now.
Also we want to reserve our surface use. Sure, the pipeline easement agreement is going to say the landowner can do whatever he or she wants above ground, as long as it doesn’t interfere with the pipeline, right. We want to actually list a lot of those things that don’t interfere with the pipeline, so that the pipeline company doesn’t come back and say the activities do interfere. If you want to grow rice over the pipeline we want to put in our easement agreement that growing rice over the pipeline doesn’t interfere with the pipeline. We want as many things as possible listed so that they don’t come back and say these activities do interfere.
Access road to the pipeline easement area. This is a big one that a lot of people overlook. I had some cases where this was probably more important and more damaging to the land than the actual pipeline easement. The easement agreement should specify where any access roads will be located. So pay attention to that. Most pipeline-favorable easement agreements will say basically the pipeline company has a right to go anywhere on your property for any reason to access the easement area. A pipeline-friendly easement agreement may also say the pipeline company can access any other property that you may have that’s adjacent to the property affected by the easement. So, watch out. Be careful.
What do I like to do as far as access roads? Well, ask the pipeline company. Do you really need an access road? Or can you access the pipeline easement from the county road that you’re going to cross 1,000 to 2,000 feet down the road? Or can you access the easement at another location? Let’s talk about it and let’s define the locations of access roads and then let’s also get compensated for it.
Double ditching to preserve topsoil. Double ditching is pretty standard, and it’s just segregating the topsoil from the subsoil and then placing the topsoil over the buried pipe after the subsoil.
We want to add additional damage provisions for certain things that we anticipate. We require the restoration of the surface to the same condition or better than what it was when pipeline construction started. That restoration might include discing and laser leveling. Restoration might include specifying fencing and road repairs. Pipeline companies have done a pretty good job of coming up with some pretty specific terms on fencing. Fencing is normally not a problem.
Road repairs — a lot of times we like to be a little more specific.
Termination of the easement. Yes, we have some language for termination. If the pipeline company doesn’t use the easement for so many years then it goes away. Very rare does that happen. However, that’s happened on some railroad easements. The railroad stopped using the easements and those easements actually reverted back to the landowner.
Arbitration provision. Every once in a while, I’ll see an arbitration provision in a pipeline easement agreement. This provision would require that if there’s any dispute, it goes to arbitration. I tend to not like arbitration. I would rather go to court, not to a private judge.
Negotiate Terms of the Easement and Negotiating the Compensation
Negotiating favorable terms, and why is it important. If you take away anything today, make sure you have good, favorable easement terms. Or, at least try to have good, favorable easement terms. Because they’re extremely important.
This is the thing that I think a lot of people don’t remember. The special commissioners, the judge or the jury — they don’t negotiate or determine the easement terms. That’s not their job. Their job is to come up with compensation — a dollar amount. How much should you, the landowner, be compensated?
So, that’s the importance of negotiating easement terms and the value of reaching a settlement agreement. Because then you can hopefully get more favorable easement terms. If no agreement is reached, the pipeline company’s easement terms are the terms that are in their lawsuit. I will almost guarantee 99% of the time those terms are going to say the pipeline company can have above ground facilities. It will say the pipeline company can have access, ingress and egress, all over your property. Those are not favorable terms that we want.
Determining Compensation. I know we talked about easement terms and now let’s talk about just the monetary, the dollar amount of compensation. How do they come up with that? Your final offer letter will have an appraisal from an appraiser that comes up with this number. And just like any formula, there are different components.
The first one is what’s the highest and best use of land? Is it commercial use? Is it farm or ranch? If by knowing or determining what the highest and best use is, then you come up with the value of the land. Based upon comparable sales, right?
The appraiser might say you have 100 acres, and there was a sale of 100 acres just a couple days ago. That could be a good, comparable value. Well, what if your 100 acres is row crop and that is 100 acres is pasture? Your 100 acres is irrigated, their 100 acres is not irrigated. There are almost never apples-to-apples comparable properties. So that’s where the appraisers subjectively make adjustments.
Let’s say your 100 acres is irrigated row crop and is level. The sale used as a comparable by the appraiser is 100 acres of pasture that’s $3,000 an acre. Your crop land may have a value of $4,000 or $5,000 an acre. That’s how you make adjustments.
They make adjustments on acreage as well. Normally, a large tract is going to have a lower value-per-acre. A smaller 5-acre tract is going to have a higher value because it’s a smaller tract. Those are how they make adjustments.
Let’s just say the appraiser comes up with a value of $10,000 per acre. Let’s also assume that the size of the permanent easement running across your property is one acre. If the value of your property was $10,000 an acre, the part taken will be $10,000, right?
But let’s remember, they’re not completely taking all the land on that one acre. They’re taking an easement. Normally, what appraisers will say is, “We’re taking 90%, not 100%.” So, the part taken by the easement will have $9,000 worth of value. That’s how they come up with the part taken.
However, there is also damage to the remainder. How much does that pipeline affect the rest of your property? If you have 100 acres and that pipeline covers a one-acre strip, how does it affect the other 99 acres? Almost always the pipeline company appraiser will say there is no affect on the rest of the property. My position is there is a damage to the remainder because there’s a pipeline on the property.
This is just a simple example. You’ve got 100 acres and your neighbor has 100 acres. Yours has a pipeline on it and your neighbor’s does not. Essentially, what the pipeline company appraiser is saying is that both properties should be valued the same.
However the typical buyer would prefer your neighbor’s property without a pipeline to yours with a pipeline. So there’s a reduction in the value of the remainder of your property due to the pipeline. This can be a very significant number. The pipeline appraiser will say that damage to the remainder is zero. I say it’s not zero.
There’s some also cost to cure damage caused by construction. If you have one irrigation system split by the pipeline, you may need two irrigation systems now.
If there’s an access road, that’s something that needs to be valued as well, just like a pipeline. As an example, there was access road proposed on my client’s property that would essentially run through a very high-value commercial part of the property on Highway 288. We need to value the damage to the remainder of my client’s property caused by that road.
Also, like I said, temporary easements cause some damage to your property. What do they use temporary easements for? Well, those are part of the construction process. A temporary easement might be any additional strip next to the permanent easement.
There’s a value for that temporary easement as well. How do they value those? Typically the value might be calculated as if the pipeline company leased it or rented it from you for a year.
Attorneys Fees and Expert Fees
Unfortunately in Texas, you don’t get compensated for your attorney or your experts. How do attorney’s fees work in these cases? Lawyers might charge hourly or charge a contingency fee. Very few lawyers charge hourly for a condemnation case. Most of them charge a contingency fee.
So how does that work? You don’t have to pay them up front or anything like that. The lawyers work for 1/3 or sometimes between 45% or 50% depending on where you are in the condemnation process. If you wait until the last minute and your special commissioners hearing is tomorrow when you decide you want to go hire a lawyer, the lawyer may charge a higher rate. Why? Because you’re further along in the process.
How the Contingency Fee Is Usually Calculated in Condemnation Cases
The contingency fee is typically calculated by starting with whatever your initial offer is, that’s yours 100%. Anything above that, that’s what the fee is calculated from. If you’re offered $50,000 and the lawyer in the end is able to get $110,000, the lawyer’s work brought you $60,000 more. If the contingency fee is 1/3 then 1/3 of $60,000 or $20,000 would go to the lawyer and $40,000 plus the $50,000 of your initial offer would go to you. So that’s the way it works.
Ask your lawyer how the lawyer’s fee is calculated? I have seen some lawyers calculate it off the full amount — not the amount in excess of your initial offer. You need to be sure you’re clear on that.
Experts and Case Expenses
You should also ask your lawyer who pays for experts? Who pays for case expenses and what are included in case expenses? I’ve seen some lawyers include mileage in case expenses. Some lawyers will take it completely out of your share. Whatever you’re going to be receiving, we’re going to take it off your part and not their part. I pay 1/3 and you pay 2/3 of the case expenses. I don’t include mileage in case expenses. So, ask your lawyer these questions when you’re making a decision to hire a lawyer..
Why do I do these kind of seminars? Because I do like the breakfast tacos. But the real reason is to educate folks on this, the whole condemnation process. I’ll put some of these segments online for people to watch. Because I want them to be educated.
What Should You Do as a Landowner
If you’re contacted by a right-of-way agent, first document your land. It’s always good to have before and after pictures. Take pictures of the fences, the corrals to be affected, you name it. Photos are very helpful. I take photos when I go out on site visits. But it’s helpful if the landowner takes photos as well. If there are some improvements that are going to be damaged, like I said a corral or some fencing, you want to be able to say this is what it’s going to cost to fix it, repair it, as far as our damage calculation.
Keep all the different pipeline letters, correspondence, schematics, plats, aerials that they send you or email you. I’ve had clients who tend to throw away these documents . When we’re hired, we contact the right-of-way agents and ask them to send us this information. They’ll send it to us in electronic format, but it may not be complete so it’s helpful for the landowner to have a good, organized file.
Also retain any notes of comments that the right-of-way agent may say. Because they may say something that we’re not told formally about. I’ve had surveyors give some valuable information. The surveyor tells the landowner, and the landowner told me. Please keep notes of all that.
Jot down notes of the things that are important to you and any concerns you may have. You may want the pipeline to go around a part of your property or you may want to save a specific tree. Whatever’s important to you, write it down and give that to your lawyer.
Then like I said, visit with several landowner condemnation attorneys. Find one who answers your questions and you feel comfortable with. Know where you are in the process. It’s easy to get lost sometimes. If it’s the Kinder Morgan Crossover, I’d say in step two.
The Status of Eminent Domain Reform in Texas
Well, now it’s just looking back on history. It didn’t happen. Senator Kolkhorst and Representative Burns proposed two very similar bills. House Bill 991 was eminent domain reform that was supported by many organization that may represent your viewpoints. The Texas Farm Bureau, the Cattle Rancher’s Association, the Wildlife Foundation and others supported the bill. It would have required by statute about ten to twelve easement terms in every easement agreement. Most pipeline companies didn’t have any problem with those terms in the standard easement agreements.
The two holdups were public meetings and a low offer penalty. Landowners groups wanted public meetings. They wanted pipeline companies to conduct public meetings as are required when electric transmission lines are built. The Public Utility Commission requires electric companies and power companies to give notice and have public meetings. The groups supporting eminent domain reform wanted the pipeline companies to do the same thing.
I think the pipeline companies didn’t like that public meeting requirement because they were afraid of lots of other people would show up at the public meeting who weren’t landowners affected by the pipeline. And why were they afraid of that? Because that’s been happening in the Hill Country with Kinder Morgan. Kinder Morgan had several public meetings to inform landowners more about the pipeline, and there were protestors attending. In the final bill there was a provision that you had to be a landowner affected by the pipeline or your representative to attend the meeting. There was one public meeting and kind of a private meeting, which I thought that was a good idea.
I think the biggest holdup was this initial low offer penalty. What they wanted to implement was something to the effect of if you’re offered $10,000, and you go to the special commissions hearing and the special commissioner awards something over $10,000, I can’t remember the percentages, but if it’s 20% over, then the pipeline company is penalized. The landowner gets a premium or additional bonus. That’s, I think, was one of the holdups.
The eminent domain reform bill kind of got hijacked by the representatives from West Texas. They took a bill that favored landowners and made it into a pipeline-friendly bill. And then it just stopped. Lots of people worked really hard. From the joint committee meeting I went to, it looked like the lawmakers were extremely exhausted about going through the whole process. Will this come up next legislature? I’d say I hope so. I don’t know. Like I said, I think they’ll probably still be pretty exhausted.
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