High-Speed Opponents Heading To Texas Supreme Court
May 19, 2020
by Jim Mathews / President & CEO
An aggrieved Texas landowner at the center of opposition to the Texas Central high-speed rail project says he’s taking his claim that Texas Central doesn’t count as an actual railroad all the way to the Texas Supreme Court.
After four years – and doubtless many tens of thousands of dollars in lawyers’ fees – a Texas appeals court two weeks ago found that Texas Central Railway is legitimately both a railroad and an interurban electric railway, relying largely on the Texas Supreme Court’s previous rulings about how to read the text of the Texas legislature’s laws and what is and is not a “common carrier.”
Undeterred, landowner James Miles says he’s not finished. He has until July 22 to file his petition with the Texas Supreme Court asking them to agree to hear his case. That request is right now in the docket under Case Number 20-0393.
There’s no guarantee that the Texas Supreme Court will even take the case. That’s the first hurdle. Then, even if it does, Miles would have to get the Court to do two more things in order to win – ignore Texas’ Code Construction Act and repudiate a three-year old decision the Supreme Court already made about how to meet the test of being a common carrier. How would that work?
First, for the Code Construction Act, he’d have to persuade the state’s top court to ignore this law that guides jurists in how to interpret Texas statutes. That law declares that when reading Texas laws “words in the present tense include the future tense.” Miles argues that the word “operating” in this instance means Texas Central has to already have tracks and stations and other outward elements of a functioning railroad before it can do the things that railroads do – land surveys, for example, or claiming the potential to exercise eminent domain. In other words, he claims “operating” does not include the future tense, which would fly in the face of the Code Construction Act.
Appellate judge Nora Longoria of Texas’ Thirteenth District Court of Appeals flatly rejected the claim in her May 7 decision. “Miles’s interpretation would have this Court ignore the legislature’s instruction under the Code Construction Act by limiting the word ‘operating’ to solely the present tense,” she wrote. “We decline to do so.” Miles is effectively asking the Supreme Court to do what the Appeals court declined to do, which is to ignore the legislature.
Second, Miles would need to get the Texas Supreme Court to back off from its 2017 decision in a pipeline case called Denbury Green Pipeline-Texas, LLC v. Texas Rice Land Partners, Ltd. In that case, the Supreme Court said the pipeline met the test in the Texas National Resources Code to be a “common carrier” because there was a reasonable probability that once it was finished “at some point after construction” the pipeline “would serve the public.” So long as there were concrete steps being taken to carry out the project – something more solid than just completing a form to qualify to exercise eminent domain powers – that was enough to meet the test in the law that a project was reasonably expected to become reality.
Longoria noted in her decision that “while it is undisputed that appellants have not yet physically laid tracks or began to carry passengers or freight onboard a train, appellants have taken many of the necessary steps in order to be able to create and operate a railroad in the future.” Texas Central has spent years working with regulators, including the Federal Railroad Administration, started design, construction, and management operations, conducted land surveys, and entered into purchase agreements.
“Considering the legislature’s instruction to view present tense as including future tense in the statute and the actions taken by appellants to begin to operate a railroad, we conclude that TCRI [Texas Central Railroad & Infrastructure, Inc.] and ITL [Integrated Texas Logistics, Inc.] are railroad companies,” Justice Longoria said in the May 7 decision.
As we’ve said before, the question of eminent domain power is always emotional, and especially so in Texas. The Appeals Court even acknowledged this. But Texas Central has declared repeatedly that while it has the ability to use eminent domain – just like other utilities – it will use that power sparingly and only as a last resort. In fact, Texas Central publicly committed to a detailed landowner bill of rights for potentially affected landowners that goes beyond the existing Texas landowners’ bill of rights.
Among the protections Texas Central outlines are a commitment to acquiring the bare minimum of land required for the right of way, payment at or above market rates and putting landowners first in line to get their properties back if the rail project fails to materialize. These are strong protections and Texas Central is doing their best to move the project forward while being fair to everyone involved.
Miles would seem to have a steep hill to climb in this final phase of his battle with Texas Central. However, stranger things have happened. Rail Passengers is dismayed to see this fight drag on given the degree to which Texas Central is trying to appease landowners. Moreover, this risks billions of dollars of economic growth and the potential to stimulate new travel not just on Texas Central but even on our publicly funded Amtrak network.
Just like in the movie, our advice is: “Let It Go.”
"The National Association of Railroad Passengers has done yeoman work over the years and in fact if it weren’t for NARP, I'd be surprised if Amtrak were still in possession of as a large a network as they have. So they've done good work, they're very good on the factual case."
Robert Gallamore, Director of Transportation Center at Northwestern University and former Federal Railroad Administration official, Director of Transportation Center at Northwestern University
November 17, 2005, on The Leonard Lopate Show (with guest host Chris Bannon), WNYC New York.