|Shackelford Melton McKinley Real Estate Litigation Attorney Charles Fiscus in quoted in Law360 article |
Ruling Expected On TransCanada's Right To Private Property
|August 13, 2012 11:58 pm|
Houston (August 13, 2012, 7:59 PM ET) -- A Texas judge is expected to rule this week on a legal challenge launched by a landowner in a bid to stop TransCanada Corp. from running a segment of a massive oil pipeline through her private property.
TransCanada and Julia Trigg Crawford, whose North Texas family farm lies in the path of the Keystone XL pipeline, are locked in a battle over the oil company's designation as a "common carrier" — a status that enables it to seize private property through eminent domain lawsuits.
Charles Fiscus, who practices real estate litigation with Shackelford Melton & McKinley LLP, said the suit forces TransCanada to prove that its pipeline will benefit the public, and not just the oil and gas giant.
"Certainly, a private company can be a common carrier if it operates a line for the public," he said. "That's the rub in this case. There is a question as to whether or not others will ever be able to use this pipeline."
Fiscus said the Crawford case was "the exception as opposed to the rule" when it comes to condemnation suits brought by oil and gas companies because the vast majority of such cases are settled.
But Fiscus noted that the case raises issues that should cause litigators to take pause when seeking a judicial condemnation judgment based on common carrier status.
Because property ownership is a politically and emotionally charged issue, Fiscus said the perception that private land is being taken for a commercial purpose raises the evidentiary bar.
"The further your client gets away from being a public entity ... the more you're going to have to make sure you can prove you are taking the land for public use," he said.
Fiscus said that if the court rules in favor of Crawford, the delay of the pipeline would likely be temporary.
"This is a big deal, and I have a hard time believing that [TransCanada] will fold up its tent and go away," he said. "They would very likely appeal."
Fiscus noted that TransCanada could use an alternative route for the pipeline. The Texas Railroad Commission does not usually require that pipelines routes be preapproved by the agency, though the company would have to go through the condemnation process again, Fiscus said.
But the high-profile nature of the case makes it likely that public officials will be paying close attention to the ability of common carriers to condemn land, particularly with a seat on the Railroad Commission set to be filled in November, Fiscus said.
"The pipeline is coming through a lot of farmland and land that has been in family hands for three or four generations," he said. "People are attached to their land."
© Copyright 2012, Portfolio Media, Inc.
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