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Pipeline injunction denied, Boerschig files appeal

July 14th, 2016 under Home Story Highlight » Top Stories
(staff photo by CAMEREON DODD) Renea Hicks and John Boerschig

(staff photo by CAMEREON DODD)
Renea Hicks and John Boerschig

By CAMERON DODD

cameron@bigbendnow.com

MIDLAND – A federal court has denied one Far West Texas rancher’s request for an injunction against the Trans-Pecos Pipeline.

U.S. District Judge Robert Junell on Wednesday denied a request for a preliminary injunction that would have blocked the Trans-Pecos Pipeline (TPP) from taking possession of part of John Boerschig’s Presidio County ranch. Boerschig has filed an appeal to the U.S. Court of Appeals for the Fifth Circuit in New Orleans.

Boerschig, who owns the South Shurley Ranch, said the denial is based on a technicality and that he is prepared to fight the decision.

“We are appealing to the fifth circuit court of appeals in New Orleans today,” Boerschig said. “If they lose there, that whole pipe is coming out of the ground. It’ll be [TPP’s] undoing.”

The denial was based on a technicality related to the 1793 Anti-Injunction Act, said Renea Hicks, Boerschig’s attorney.

“Judge Junell denied the request, but limited his denial to one issue,” Hicks said. “It has nothing to do with the merits of the case.”

The Anti-Injunction Act prohibits a federal court from enjoining proceedings in a state court. For Judge Junell, this means the U.S. District Court cannot enjoin the condemnation proceedings underway against Boerschig, Hicks said.

“[Judge Junell] thinks the condemnation petition against Mr. Boerschig counts as a state court proceeding,” Hicks said. “But we don’t believe that.”

A condemnation hearing against Boerschig is scheduled for today, Thursday, July 14, to determine the value of damages the pipeline company would owe him for the easement on his land. Under Texas law, the company can assume control of Boerschig’s land and begin construction as soon as they deposit the amount of the awarded damages into the court registry.

Boerschig filed a civil lawsuit against TPP last week, challenging the constitutionality of the Texas law granting the company eminent domain power. Boerschig requested a preliminary injunction against the pipeline company until the suit is settled.

The requested preliminary injunction against TPP was intended to prevent the company from assuming control of the ranch land before Boerschig has a chance to argue his lawsuit against the company in court.

Boerschig and Hicks appeared before the Judge Junell at the U.S. District Court in Midland on Tuesday for the injunction hearing. Hicks argued the case for the injunction against Tom Zabel, of the Houston firm Zabel Freeman, who represents TPP.

Hicks asserted the likelihood that Boerschig’s suit against the pipeline will succeed on its merits, the first criteria for awarding an injunction. Boerschig’s lawsuit against the pipeline claims that the State of Texas delegates the sovereign power of eminent domain to private utilities without establishing any standards. Additionally, the lawsuit claims the Texas Property Code’s allowance for TPP to take control of the land before their eminent domain power can be challenged in court violates the constitutional guarantee to due process.

The other standards for issuing a preliminary injunction are the existence of a substantial threat the Boerschig will suffer an irreparable injury without the injunction, that the injury outweighs potential injury an injunction would cause Trans-Pecos and that the injunction would not disserve the public.

“Property is unique, and taking property before you’ve proven the right to do so is irreparable harm,” Hicks said. “It wouldn’t irreparably harm Trans-Pecos. Less than two percent of the pipeline would cross Mr. Boerschig’s property.”

The Texas laws awarding eminent domain to private companies have been challenged and upheld in court many times since 1989, said Tom Zabel, representing Trans-Pecos.

Zabel appealed to how eminent domain has benefitted economic development in Texas.

“How’d Texas get to be the second largest economy in the country? Oil and natural gas,” Zabel said. “How does that gas get moved around? Pipelines.”

Limiting the power of eminent domain would not only slow down the economy, it would also affect other infrastructure, such as the highway department, Zabel said.

Boerschig’s case against TPP is not questioning the necessity of eminent domain, Hicks said in response. He also argued that the State of Texas erred when they let a private company, in this case LaGrange Acquisitions, determine whether or not Trans-Pecos needs the power of eminent domain. LaGrange is owned by Kelcy Warren, who also owns Energy Transfer Partners, the pipeline company.

“The issue isn’t eminent domain, the issue is the standardless delegation of sovereign power to a private entity,” Hicks said. “Determining necessity of eminent domain power is a legislative function. Since when is a private company allowed to do that?”

Although Boerschig’s injunction request targeted the pipeline and not the state court, Judge Junell ruled that his court, in taking jurisdiction over the condemnation proceeding would violate the Anti-Injunction Act.

In his court order denying the injunction request, Judge Junell wrote, “As [Boerschig’s] Application for Preliminary Injunction is tantamount to staying the state court condemnation proceeding, it is prohibited by the Anti-Injunction Act.” The order goes on to say that in light of the Anti-Injunction Act violation, the court does not need to consider the “Trans-Pecos alternative argument for abstention… or the preliminary injunction factors before denying the motion for injunctive relief.” Judge Junell declined to comment on the case.

For their part, the Trans-Pecos Pipeline is content with the outcome of the injunction hearing.

“We are pleased and look forward to continuing with the process of constructing the pipeline in a safe and timely manner to have the pipeline in service in early 2017,” Vicki Granado, spokesperson for the pipeline company, said in an email.

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