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Fifth Circuit hears Presidio County rancher’s pipeline lawsuit 

May 11th, 2017 under Top Stories

By CAMERON DODD

Cameron@bigbendnow.com

PRESIDIO —  A Presidio County landowner continuing to legally challenge the Trans-Pecos Pipeline’s eminent domain authority presented oral arguments before the Fifth Circuit Court of Appeals in New Orleans last week.

John Boerschig, whose South Shurley Ranch is crossed by part of the 148-mile Trans-Pecos Pipeline (TPP), has been challenging constitutionality of the pipeline company’s use of eminent domain since a hearing at the federal court in Midland in July 2016. After the Midland court denied Boerschig’s request for a preliminary injunction to prevent TPP from beginning construction on the pipeline on his land before the constitutionality challenge was settled, the rancher appealed to the Fifth Circuit in New Orleans.

Boerschig’s attorney Renea Hicks presented oral arguments on May 3 in New Orleans appealing the denied injunction.

“This appeal is about two hurdles that have either been thrown up or attempted to be thrown up in a federal case to keep the federal court from reaching the federal constitutional issues my client has raised with respect to Texas eminent domain statutes as applied to him in an eminent domain proceeding brought by a private pipeline company, Trans-Pecos Pipeline,” Hicks told the three-judge panel in New Orleans.

Construction on the Trans-Pecos Pipeline is largely complete, but state and federal legal challenges to the pipeline’s use of eminent domain remain in process. Boerschig’s federal challenge makes the case that the State of Texas delegated the power to seize private land to TPP without proper standards for public convenience and necessity. Boerschig also alleges his right to due process under the U.S. Constitution was violated when TPP was allowed to begin construction before he exhausted his legal recourse to challenge their use of eminent domain.

In July of 2016, federal Judge Robert Junell in Midland district court denied Boerschig’s request for a preliminary injunction that would have blocked the construction on his land until the constitutional challenge was settled. The denial was based on Junell’s belief that a federal statute, the Anti-Injunction Act, excluded his federal courts from jurisdiction over the eminent domain case.

A reversal of the decision by the Fifth Circuit would affirm Hicks’ and Boerschigs’ assertion that Judge Junell has jurisdiction to hear their request for an injunction. They are effectively making the case that Junell could enjoin the construction that has already occurred.

“If we convince the judge to issue the injunction, that we’re right on our constitutional claims, then [TPP] have to dispossess themselves of his property that they’ve taken illegally,” Hicks told the judges in New Orleans.

Hicks compared Texas’ standards for delegating eminent domain to the process used by the Federal Energy Regulatory Commission or other states, which set much higher burdens of proof on companies seeking that power than Texas.

“They can’t delegate that power and set no standards for it,” Hicks said. “They don’t have a standard for route, for environmental concerns, for width. There are no standards.”

Tom Zabel, attorney for Trans-Pecos Pipeline, presented the pipeline’s side of the oral arguments. Texas system for delegating eminent domain powers is similar to the federal system and almost all the states, he said.

“They all have this procedure whereby you have a commissioner’s hearing, you liquidate an amount, you put it in the registry of the court for the landowner’s benefit,” Zabel told the judges. “The Supreme Court of the United States said that’s fine.”

Zabel also defended Judge Junell’s invocation of the Anti-Injunction Act, saying the matter is clearly a proceeding in state court that the federal court could not have jurisdiction over.

The panel of judges asked Zabel who would be responsible for removing the pipeline if Boerschig’s injunction request is successful.

“Under Texas law, if we go in and we condemn and we don’t have the right to take [land], then we have to remove at our cost,” Zabel said. “When Texas allows immediate possession, they provided landowner safeguards to pass constitutional muster for that.”

The Fifth Circuit Court of Appeals has yet to issue an order in the case. Hicks told the Presidio International this week he does not expect an order from the court for several months.

“They could move quickly because of the nature of this case,” Hicks said. “But I don’t expect any order for at least three months if you made me guess.”

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