Texas Central Railroad prevailed on the issue at the 13th Texas Court of Appeals, which ruled last May that the project can exercise the power of eminent domain because it qualifies as a railroad and as an interurban electric railway under the Texas Transportation Code.
James Miles, a landowner in Leon County whose land would be bisected by the planned 240-mile rail project, has requested the Supreme Court of Texas (SCOTX) to hear the case.
Grimes, Waller, Madison, Leon, Ellis, Freestone, Limestone, and Navarro Counties submitted a brief earlier expressing their concerns with granting Texas Central Railroad & Infrastructure, Inc. (TCRI) eminent domain authority.
The counties write the brief “to provide the Court with critical information concerning the [p]roject, the conduct of its promoters, and its potential impact on rural Texas.”
The brief presents arguments critical of the railroad’s representations regarding its regulatory approvals, location, proposed benefits, funding, and treatment of landowners.
While the Federal Railroad Administration (FRA) released its final rule regulating the operations and practices of TCRI last fall, the rule did not grant a construction permit to TCRI. The railroad must apply to the Surface Transportation Board (STB), which will then review the economic viability of the project, engineering work, and application of the rules promulgated by FRA.
According to the counties’ brief to SCOTX, “TCRI has yet to apply for a construction permit or pay the $96,600 filing fee.”
The counties also point out that the FRA’s rule is a red herring in the case for eminent domain authority. “In that section, FRA states: ‘FRA understands the eminent domain issues to be centered on the interpretation of various Texas State statutes. FRA defers to the State of Texas to interpret its own statutes.’”
Secondly, the counties argue that TCRI’s proposed route is not likely to succeed, citing a 2013 study by Baruch Feigenbaum, a transportation infrastructure expert for non-partisan think tank Reason Foundation, who found that “the U.S. lacks characteristics associated with successful high-speed rail lines in other countries. It has neither the population density nor the land use regulations necessary to support high-speed rail.”
Third, TCRI has exaggerated the potential benefits of the rail, the counties allege in their brief. Most jobs would be created in Dallas or Harris counties, not in the eight rural counties submitting the document. Additionally, the rural counties argue that “diverting automobiles to high-speed rail would negatively impact rural businesses dependent on highway traffic along Interstate 45. These businesses also create [jobs]… and generate tax revenue in amici’s rural communities.”
The counties also point out the deleterious impact the railroad could have, including the conversion of over 6,000 acres of farmland, displacing residents, and impacting flood plains.
The fourth major argument made by the counties’ brief is that TCRI previously asserted that the high-speed rail project would be privately funded, but has recently admitted it would seek government funding. The chairman of the board, Drayton McLane admitted in a letter last spring that the cost of the project has nearly tripled from original estimates to $30 billion.
The counties argue that TCRI has failed to “demonstrate an ability to fund the Project ‘according to plan,’” as required by the STB.
Finally, the counties argue that TCRI has misrepresented its conduct toward landowners along the proposed corridor. They say that TCRI has falsely claimed authority to enter landowner property to conduct surveys and did not apprise landowners of their rights as required by law.
The parties in the case are waiting to hear whether SCOTX will grant an oral argument in the case.
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Kim Roberts is a reporter for the Texan in the DFW metroplex area where she has lived for over twenty years. She has a Juris Doctor from Baylor University Law School and a Bachelor's in government from Angelo State University. In her free time, Kim home schools her daughter and coaches high school extemporaneous speaking and apologetics. She has been happily married to her husband for 23 years, has three wonderful children, and two dogs.