On Friday, September 6th, the Texas Supreme Court denied a petition for writ of mandamus filed by TransCanada Keystone Pipeline, L.P. (“Keystone”) on July 3, 2013. In doing so, the Court passed up an opportunity to provide much-needed clarification of its wide-reaching eminent domain decision in Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, 363 S.W.3d 192 (Tex. 2012).

As we reported in an earlier Update, Keystone had sought an immediate writ of possession, pursuant to Property Code Section 21.021, following a successful condemnation proceeding. The land owner objected to the writ of possession and filed a petition for mandamus in the Beaumont Court of Appeals, arguing that Keystone’s common carrier status had not been finally resolved.

In a May 23, 2013 opinion, the Court of Appeals acknowledged that Property Code Section 21.021 specifically allows possession while challenges to a condemnation are still pending. However, the court also wrote that it was error for the trial court to have issued the writ of possession without making at least a preliminary finding that Keystone possessed “eminent domain authority.” Because the only evidence in the record supported common carrier status, the court held that the error was harmless and let stand the writ of possession.

Having won, Keystone did not appeal the decision, but did ask the Texas Supreme Court to order the appellate court to strike from its opinion the language suggesting the need for any “preliminary finding” under Property Code Section 21.021. Keystone (and numerous others who filed amicus curiae letters) warned that the “preliminary finding” language was contrary to Property Code Section 21.021 and would make it costlier and more difficult for common carriers to exercise eminent domain.

As we advised in our prior Update, all evidence of common carrier status is likely to receive increasing levels of scrutiny in eminent domain proceedings. Companies wishing to exercise eminent domain should ensure that sufficient common carrier evidence exists in the record and should seek written findings of fact at every stage of the process.

The Denbury opinion may be found here.

The more recent Keystone case is In re Transcanada Keystone Pipeline, L.P., 402 SW3d 334 (Tex. App.—Beaumont 2013, pet. denied), and may be found here.

Keystone’s petition for writ of mandamus may be found here.