TexasLandowner May/June 2012 by Texas Landowners Council

TEXASLANDOWNER Published by Texas Landowners Council!

Piper at Big Oaks Kennel and Farm, Buda, Texas

May/June 2012

Photo by Lauren Flake

Texas Landowners Council

President’s Corner TLC will host its annual Texas Land & Water Conference and Lone Star Gala July 26. The conference will provide valuable information; the gala will be a gathering of great people, with interesting and entertaining speakers and exceptional food. ! ! Members of TLCʼs Advisory Council, conference speakers Bob Harden and Glenn Sodd are directly involved day-to-day with land use and property rights issues. Harden is vice president of R.W. Harden & Associates, an Austin-based consulting firm specializing in groundwater, surface water and geologic resources. He has over 20 years of experience in groundwater availability, development and law in Texas. !

4425 S. Mopac Expy., Building 1 Austin, Texas 78735-6726 512-892-1802 phone 512-892-3745 fax texaslandowners.org tlcinsession.blogspot.com facebook.com/texaslandowners twitter.com/texaslandowners Board of Directors President James R. Gaines, Dripping Springs jimmy@texaslandowners.org Emily Seale Buescher, Marathon Archie Ray Enochs, Austin Bob Meharg, Gatesville A.J. Waight, Jr., Fredericksburg Staff Executive Director Lauren Stucky Flake, Austin lauren@texaslandowners.org General Counsel Marvin W. Jones, Amarillo Texas Landowners Council, Inc., a nonprofit 501(c)(6) organization founded in 1990, lobbies to protect constitutional property rights at the Texas Legislature. All TexasLandowner content is created by Lauren Flake unless otherwise noted.

! Sodd is one of the most respected eminent domain attorneys in Texas, specializing in representing landowners. His personal experience as a rancher and dairyman has contributed to his success. Sodd won one of the most significant cases for damages to private property in Texas history and is currently representing a landowner at the Texas Supreme Court against the effort of a private corporation with condemnation power to overturn a wellestablished principal affecting the valuation of property being condemned. ! This yearʼs gala speakers are author James L. Haley and Karen R. Thompson, president general of the Daughters of the Republic of Texas. Jim Haley wrote what many consider to be the most complete biography of Sam Houston and many other books. He was also guest curator of an exhibition of artifacts from the 1845 annexation of Texas at the State Capitol during the Sesquicentennial Celebration. ! Thompsonʼs DRT predecessors saved the Alamo from destruction and raised funds to purchase the San Jacinto Battleground. Her organizationʼs continued work to preserve and honor Texas history, as well as maintain sites such as the Alamo, is an inspiration. ! Join us as we gain useful information and have a very enjoyable evening. If you are unable to attend both the conference and the gala, you are welcome to attend one and not the other. We look forward to seeing you at these events! Sincerely,

Jimmy Gaines

TLC Conference and Gala:

Thursday, July 26, 2012 Green Pastures Restaurant in Austin ! This year, TLCʼs Texas Land & Water Conference and Lone Star Gala will both be held at the beautiful, historic Green Pastures Restaurant, owned by TLC member Bob Buslett, in South Austin on Thursday, July 26. Admission to these events is sold separately. Please see ticket form on page 11.

Texas Land & Water Conference at 2 p.m. ! Hydrologist Bob Harden and eminent domain attorney Glenn Sodd, both members of TLCʼs inaugural Advisory Council, will share their expertise with conference attendees. TLC President Jimmy Gaines and Executive Director Lauren Flake will also present updates on TLCʼs legislative goals and accomplishments. Conference admission includes hors dʼoeuvres and refreshments and is discounted for gala ticket purchasers.

Lone Star Gala at 6 p.m. ! Speakers at TLCʼs second annual fundraiser gala are Texas historians James L. Haley and Karen R. Thompson. The Lone Star Gala also features a three-course gourmet dinner, cash bar featuring Texas wines, entertainment by Mariachi Texas and a silent auction. TexasLandowner!

James L. Haley, now an Austin resident, was born in Tulsa and grew up near Fort Worth. He earned a political science degree from the University of Texas at Arlington and studied law at the University of Texas at Austin before resigning to pursue a literary career. Haley was first published in American Heritage magazine at age 19. His first historical book, “The Buffalo War: A History of the Red River Indian Uprising of 1874-1875,” was published in 1976. In 1981, “Apaches: A History and Culture Portrait” was published. Both are used as supplemental reading texts in history courses. His numerous books on Texas history include the illustrated and hugely popular “Texas: An Album of History,” published in 1985, and its sequel, “Texas: From Spindletop Through World War II,” published in 1993. Haleyʼs “Sam Houston” was published in 2002 and won nine awards, including the Texas State Historical Association's 2003 Coral Horton Tullis Memorial Prize as the best book on Texas of that year, the San Antonio Conservation Society's 2003 Book Citation, the Western Writers of America 2003 Spur Award as best biography of a western subject, the 2003 T. R. Fehrenbach Award of the Texas Historical Commission and the Texas Historical Foundation's Deolece Parmelee Award for outstanding original research. In 2006, Haley released "Passionate Nation: The Epic History of Texas," a 650-page compendium of Texas history, from Cabeza de Vaca to George W. Bush. He was also a contributing author for H. Joaquin Jacksonʼs “One Ranger Returns,” published in 2008. In addition, Haley has written several novels, including “The Kings of San Carlos,” a fictionalized account of Apache Indian Agent John P. Clumʼs career in the 1870s, and “The Lions of Tsavo” about two man-eating lions who shut down construction of the Uganda Railroad in Kenya in the 1890s. ! Karen R. Thompson is the 43rd President General of the Daughters of the Republic of Texas and a fifth generation Austinite. She has written many books about Texas history, including “Scenes of American-Austin” and “Round Rock, Texas – From Cowboys to Computers.” Thompson attended the University of Texas at Austin and St. Edwardʼs University and worked at the Internal Revenue Service for 20 years. She has been a professional genealogist and teacher and has been active in civic and community affairs for many years. Thompson is a longtime member of DRT and the Williamson County Historical Commission and is a founder of Westwood Community School in Round Rock. Last session, Thompson worked closely with members of the Texas Legislature, including Sen. Jeff Wentworth, R-San Antonio, to maintain DRTʼs management of the Alamo. Part of her "President General's Project" was better research and documentation of the Alamo Mission Period and better communication of DRT history. Recently, Thompson made the first ever DRT presentation to the Binational History Conference of Coahuila, Mexico. Photos from www.jameslhaley.com (top left) and www.drtinfo.org (bottom right).

TexasLandowner!

National Update Endangered species endanger Texas ! Under authority granted by the 82nd Texas Legislature, Texas Comptroller of Public Accounts Susan Combs has created a Texas Conservation Plan for the Dunes Sagebrush Lizard. According to Combsʼ Keeping Texas First website, the voluntary plan, which includes both a Candidate Conservation Agreement with Assurances and a Habitat Conservation Plan, is intended “to provide a safety net for private landowners ... if the DSL is listed” as endangered. The U.S. Fish and Wildlife Service approved the plan in February and is expected to make a decision on listing the lizard by mid-June. Last month at the University of Texas of the Permian Basin, the Texas Senate Committee on Natural Resources Subcommittee heard testimony on the impact an endangered listing for the lizard would have on the oil and gas industry. “Land Commissioner Jerry Patterson praised the work that went into developing a conservation plan but likened it to a man who knows he is innocent of murder yet pleads guilty to manslaughter,” writes Meila McEwen of the Midland ReporterTelegram. ! The National Security and Federal Lands Protection Act, H.R. 1505, filed last year by U.S. Rep. Rob Bishop, R-Utah, would give the Department of Homeland Security control of all federal lands within 100 miles of the Canadian or Mexican border. The bill, which is opposed by environmental groups like the Sierra Club, would exempt the agency from the Endangered Species Act, the Clean Air Act and many other environmental regulations. U.S. Rep. Lamar Smith, R-Texas, explains: “The nonpartisan Government Accountability Office has found that less than half of the U.S.-Mexico border is under the operational control of the Border Patrol. At the same time, the Obama Administration prevents the Border Patrol from accessing federal lands in the name of environmental preservation.”

EPA struggles to maintain control ! In March, the U.S. Supreme Court unanimously ruled that Idaho landowners Mike and Chantell Sackett can challenge the Environmental Protection Agencyʼs order to stop construction of their home on property the EPA classifies as a “wetland” under the Clean Water Act. Last month, the EPA backtracked on its allegations of groundwater pollution by the oil and gas industry in both Parker County, Texas, and Pavillion, Wyo. Al Armendariz, EPAʼs regional administrator assigned to Texas, also resigned last month after a video appeared on YouTube in which he promotes “crucifying” oil and gas companies. TexasLandowner!

Landowners of Distinction Big Oaks Kennel and Farm, Buda, Texas

Hardy and Elaine Purvis have combined their love of dogs, gardening and history into a unique home and business. In 1999, the couple left their professional careers in real estate and event planning and purchased the historic Garison Home (built c. 1912) on 2 acres near downtown Buda. Mr. Garison owned the gas station, which is now a florist shop, and several other businesses in historic downtown Buda. Hardy and Elaine replaced the plumbing and electrical wiring in the old house and began removing sheetrock and restoring the original shiplap walls. They also built a kennel for the bird dogs Hardy trains. !

! Eventually the kennel became a full-scale boarding kennel accepting dogs and cats from the Buda, Kyle and Austin areas. Big Oaks Kennel now offers dog grooming, beginner through advanced obedience training for all dog breeds and two choices of dog boarding facilities. The Tradition has spacious, indoor-outdoor heated and air-conditioned quarters and five play yards. The newer Farm has 22 spacious enclosures under an open-air pavilion and a half-acre play yard. TexasLandowner!

! A few years later, the couple bought the adjoining 4 acres between their original property and the railroad tracks along Garison Road. This land--once a gravel pit for construction of the International-Great Northern Railroad in 1880--laid fallow for over 40 years but was ideal for farming, as it contained about 4 feet of rock-free topsoil. Hardy researched fruit and vegetable gardening on the internet and visited various farms before breaking ground on his new project. Now in his third summer growing season, he creates his own compost, irrigates with drip tape and never uses pesticides. ! Hardyʼs 750 tomato plants, which include Celebrity, Best Boy, Roma, Heirloom and Slicer varieties, are interspersed with basil plants for soil compatibility. He also cultivates many other edible crops including beans, squash, asparagus, peppers, cucumbers, okra, broccoli, baby lettuce, red choy, cabbage, kale, spinach, Swiss chard, carrots, beets, turnips, onions, potatoes, blackberries and cilantro. After selling produce at the end of their street each week, Hardy and a neighbor started the Buda Farmersʼ Market next to City Hall in downtown Buda. ! Elaine recently added fruit trees--pear, peach, fig and plum--and a flower garden to their property. On this issueʼs cover, Hardy and Elaineʼs well-behaved Labrador retriever, Piper, poses in wild Mealy Blue Sage across from the coupleʼs 100-year-old home.

Hardyʼs vegetable garden next to railroad tracks near downtown Buda TexasLandowner!

“Where a dog can be a dog!”

Photos by Lauren Flake.

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Big Oaks Kennel! ! 500 East Loop Street! ! Buda, Texas 78610! ! 512-312-0235!! ! www.bigoakskennel.com!

TexasLandowner!

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Buda Farmersʼ Market ! ! Buda City Hall!parking lot at Main Street and FM 967 Saturdays 9 a.m. to 12 p.m. March thru October 512-773-7128!! www.budafarmersmarket.com

State Update: Eminent Domain Staples commends TLC’s efforts ! Texas Agriculture Commissioner To d d S t a p l e s t h a n k s T L C f o r supporting S.B. 18 to provide eminent domain reform in the last legislative session: “Your hard work was a tremendous catalyst in restoring the individual rights of property owners, and I look forward to working with you in the coming years to continue advocating for and protecting these rights, which are the foundation and basis for economic opportunity.” ! TLC was a supporting organization of Staplesʼ “Protect Your Home and Land from Abusive Eminent Domain” petition that called for specific eminent domain reforms in the 2011 session. These reforms-compensation for diminished access, a 10-year buyback provision for land that is not used, better notice and disclosure by condemning entities, relocation assistance for displaced property owners and a Comptrollerʼs list of condemning entities--were passed in S.B. 18. The bill also reinforced the “public use” requirement for eminent domain, which was eroded by the U.S. Supreme Courtʼs Kelo decision in 2005 and addressed by the Texas Legislature in 2009. ! In February, the U.S. House of Representatives approved H.R. 1433, the Private Property Rights Protection Act of 2012. This legislation would prohibit all states from using eminent domain for economic development. TexasLandowner!

TLC files amicus in Enbridge case ! In March, TLC and Pacific Legal Foundation filed a joint amicus brief at the Texas Supreme Court in support of Avinger Timber, LLC against condemning authority Enbridge Pipeline, L.P. TLC Advisory Councilor Glenn Sodd, who represents Avinger, explains the case: Our constitutions require the courts to value land as it is now, not as it was three decades before the condemnation. Here, the land had become the hub of hundreds of millions of dollars in pipelines, was permitted for a gas processing plant, provided any open market buyer with a head start in capturing surrounding gas business and had a plant sitting on the land that would have to be removed or sold to the landowner for salvage value. Any fair valuation of the property must account for those facts. Enbridge and its amici brethren are wrong to insist that Avinger's land should be valued as barren agricultural land 31 years earlier. That argument offends common sense by ignoring the real facts “on the ground.” The proper rule still is that a condemnation itself cannot increase or decrease a property's value once the intent to condemn is manifested.

! PLF Principal Attorney J. David Breemer, who successfully defended Galveston landowner Carol Severance from Texas Land Commissioner Jerry Pattersonʼs “rolling” easement enforcement of the Open Beaches Act, prepared the PLF/TLC brief. Breemer requests that the Court require Enbridge to justly compensate Avinger: Here, the Court should guard against adopting any holding that would give the impression that the condemnor--Enbridge Pipeline--is obtaining a windfall. In particular, the Court should reject Enbridgeʼs attempt to minimize the industrial usefulness and history of Avingerʼs land so that it takes the land at the price it would have sold for decades ago when it was raw land.

! In his conclusion, Breemer references the Courtʼs recent refusal to rehear the Texas Rice Land Partners case, meaning that landowners can challenge a pipelineʼs “common carrier” status and therefore its eminent domain authority: This Court recently held that pipeline owners who wish to condemn land for their projects cannot escape the “public use” requirement simply by calling themselves “common carriers.” Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, No. 09-0901, 2012 Tex. LEXIS 187 (Mar 2. 2012). In this case, the Court should adopt the complementary principle that pipelines must justly compensate property owners when they take their land for valuable pipeline purposes. TexasLandowner!

Ticket Order Form Name(s):__________________________________________________________________________________ _________________________________________________________________________________________ Phone number:_____________________________ Email:__________________________________________ Mailing address:____________________________________________________________________________ City:______________________________________________ State:________________ Zip:______________ Food allergies, etc.:__________________________________________________________________________

Please indicate ticket quantities: Early Registration (must be received by June 15, 2012): Couple pricing for two (2) tickets

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Members $65 Nonmembers $75

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Late Registration (June 15 to July 13, 2012): Couple pricing for two (2) tickets

Individual pricing for one (1) ticket

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Conference Only

Gala Only

Conference & Gala

Members $75 Nonmembers $85

Members $110 Nonmembers $140

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Please mail this form with check by July 13, 2012 to: Texas Landowners Council, Inc. 4425 South Mopac Expressway Building 1 Austin, TX 78735-6726 TexasLandowner!

TLC thanks its 2012 sponsors... Arrington Ranch George W. Arrington

Green Pastures Restaurant

Canadian, Texas 806-323-5366

Bob Buslett

811 West Live Oak Austin, Texas 78704 512-444-4747 phone 512-444-3912 fax greenpasturesrestaurant.com bob@gp1888.com

Prominent Title A.J. Waight, Jr., President

Our Land Our Lives Bob Meharg, President

P.O. Box 411 Gatesville, Texas 76528 254-493-5164 phone 254-865-9380 fax ourlandourlives.com ourlandourlives@yahoo.com

3101 Bee Caves Road Centre II Austin, Texas 78746 512-498-3500 phone 512-498-3511 fax ptaustin.com ajwaight@ptaustin.com

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