UPDATED: Hays County, City Of Kyle And Local Landowners File Lawsuit Against Kinder Morgan

By, Terra Rivers, Managing Editor

*This article has been updated to include a correction regarding eminent domain powers and the Railroad Commission of Texas and the process Kinder Morgan is required to go through in order to build.*

On Monday, April 22, Hays County and the City of Kyle held a joint press conference to announce the filing of a lawsuit against Kinder Morgan and the Railroad Commission (RCC) of Texas.

The county and city of Kyle have joined local landowners to challenge the RRC’s process for granting private pipeline companies the power of eminent domain to build pipelines.

The coalition of local landowners, the city and the county filed their lawsuit Monday morning in the Travis County State District Court. The lawsuit asks that the RRC be ordered to follow legislative mandates and “adopt administrative rules, policies and practices that provide objective, enforceable standards for the exercise of eminent domain authority” by pipeline companies.

Kinder Morgan has plans to build a 430-mile pipeline, affecting over 1,000 landowners. The pipeline’s proposed route will pass through environmentally sensitive areas in the Hill Country. The RCC’s current methods and regulations for pipelines allowed the route to be determined without community involvement in the process.

Landowners from four of the seventeen affected counties were present at the conference to represent their voices in the lawsuit.

“It is a rare event that people from all over the political spectrum and Hays County come together in unison, and this is one of those occasions,” Mayor Travis Mitchell of Kyle said. “Kinder Morgan has kicked over a hornet’s nest as they say.”

Mayor Mitchell shared sentiments expressed by Commissioner Lon Shell that the power of eminent domain should be a last resort and the process should be transparent and allow the community to hold the pipeline companies accountable.

According to a spokesperson from the Railroad Commission of Texas, the Commission has no jurisdiction or authority over eminent domain laws in Texas; nor does the Commission have authority or jurisdiction over the siting or routing of a planned pipeline.

The Commission’s role is to ensure operators of intrastate pipelines that begin and end in Texas construct, operate and maintain their pipelines in compliance with RRC pipeline safety rules which can be found here.

The process at the Railroad Commission includes a requirement that intrastate pipeline operators file a new construction report with the Commission 30 days before construction starts.

Before an intrastate pipeline is put into operation operators also are required to obtain a T-4 permit from the Commission.

Commissioners Shell and Walt Smith were designated by the Hays County Commissioners Court at a recent meeting to oversee the county’s interests in the lawsuit.

Commissioner Smith said his precinct runs from the Blanco County line all the way through the “North town Kyle.”

“It’s a big precinct, but it’s very diverse,” Smith said. “Our commissioner’s court is just about as diverse as that precinct, actually more so. But we, as a court, are very unified when it comes to certain things, and this is an issue that has truly unified our court.”

Hays County was the first to pass a resolution of opposition against the pipeline; however, local municipalities like the City of Kyle, the City of San Marcos and the City of Buda followed quickly.

Smith said he and Commissioner Shell spoke with members of the legislature, industry groups from all spectrums and other communities and counties that have been impacted by this issue.

“As important as the oil and gas industry is to Texas, they are the only private industry in the state with the power to take someone’s land without a governmental hearing process,” Smith said. “These companies currently enjoy a privilege that is only granted to governmental entities. They should be held to the same standards of accountability and oversight. It’s as simple as that.”

Lana Nance and her husband are two of the over 1,000 landowners affected by Kinder Morgan’s Permian Highway Pipeline. The couple owns Heritage Ranch in North Kyle.

Nance said the property has been in the Nance family since 1838 and remains very special to them.

“Not only does Kinder Morgan not need our permission to take our land and destroy many years of plans,” Nance said. “They don’t have to justify or explain their decision to any higher authority right now. We are happy to join the others…as we fight this pipeline through this lawsuit, we hope that the result will be the formation of a way to participate in the process.”

Clark Richards, an attorney from Richards, Rodriguez, and Skeith, said the lawsuit filed by Hays County, City of Kyle and Landowners coalition is the first challenge against the RRC’s process and regulations for granting private pipeline companies the power of eminent domain. 

Richards said the lawsuit is asking the court for a declaration that the State of Texas’s current methods regarding pipelines and the power of eminent domain is unconstitutional and that a temporary injunction be placed on Kinder Morgan’s eminent domain proceedings until the court decides on the declaration.

State Representative Erin Zwiener attended the press conference. Rep. Zwiener has filed several bills over the last several weeks in an effort to change the process used to determine the routes of pipelines throughout Texas. 

In a statement, Zwiener said, “I want to note that I am from a different branch of government than the local officials here and that I have no involvement in this lawsuit. I am here today [Monday] to support our local governments and our mutual constituents as they are forced to take forceful action to try and level the playing field. This lawsuit is directed at the same inequities and inadequate policies that many of my colleagues, and I have been trying to address with new legislation in the Texas House. My colleagues and I support the oil and gas industry and the need for new infrastructure. It is the unilateral, unchecked and abusive process for routing of that infrastructure that we feel we must change.” 

The lawsuit will be paid for by the local non-profit Texas Real Estate Advocacy and Defense Coalition, or TREAD Coalition.