It may be several months before the Texas Supreme Court hands down a decision that determines if a Texas railroad is really a railroad and can acquire land for a high speed rail project.
Oral arguments were aired before Supreme Court Justices Tuesday by attorney Jeffrey Levinger, on behalf of a Leon County landowner who wouldn't allow Texas Central Railway to survey his land for a proposed 240-mile long bullet train route. The rail route, which was approved by the Federal Railroad Administration, would need a 100-foot wide path through a 600-acre property owned by James Miles. Texas Central has steadfastly said that, if needed, they have the right to exercise eminent domain authority like other railroads and utilities under Texas law, for public use.
Miles sued the company and the issue has been winding its way through the court system since 2015. Miles also contends that the state transportation code does not specify that a high-speed electric railroad qualifies as a railroad company and that Texas Central has misinterpreted the state transportation code.
The privately-built line, when running, would connect the two mega-regions of Dallas-Fort Worth and Houston and offer high-speed trains at up to 200 miles per hour with frequent service. The trip between the cities would only take 90 minutes compared to 4 to 5 hours by car or bus.
Arguing alongside the property owner was Texas Attorney General Ken Paxton's office. Solicitor General Judd Stone told the court that “the Legislature would sensibly require that someone, before exercising the highly disfavored practice of having an eminent domain be exercised by a private party, might require the actual operation of real trains on real tracks.” The state had previously filed an Amicus brief that repeated many of the landowner's claims.
Attorney Levinger argued for Miles that a company could only qualify as an operator of a railroad if it had the money and equipment to do so. Levinger said that Texas Central has plans for a railroad, but no current rail service running. Levinger asserted that “a railroad company is a legal entity operating a railroad. The defendants are not conclusively and as a matter of law.”
Justice Evan Young asked Levinger if Texas Central would qualify as a railroad if it built one mile of track. The attorney responded "it's hard to say without knowing a bit more. I would need to know if it is a bona fide railroad. I would need to know if they were actually operating it," according to Levinger. Justice Jeffrey Boyd posed the question of “how do you get to be a railroad company if you do not have eminent domain?” Levinger responded that a company only has to be an operator of a railroad, even if it owned a railroad outside of the state.
Representing Texas Central, Attorney Marie Yeates of Vinson & Elkins (pictured) said both Stone and Levinger had misinterpreted the transportation code and, under a strict reading of it, a railroad company did not have to immediately own track, trains or depots for it to be a legitimate entity.
Yeates argued that Texas Central has been working steadily with many partners since 2014 and has met federal guidelines necessary for a start-up railroad. “Texas Central is not a sham,” Yeates said. “Look at all the different things Texas Central is doing and has done" She said that hundreds of millions of dollars of private investment money has already been poured into the project for the regulatory steps required by the Federal Railroad Administration. Meeting those requirements it should be entitled to use eminent domain authority, according to Yeates.
Yeates issued a passionate plea that if the court rules for Miles “it would create a monopoly to say you cannot exercise eminent domain unless you already have trains on tracks.” She said it would have a chilling effect on public infrastructure projects that would benefit Texans.
On Monday, an Amicus brief supporting Texas Central was filed on behalf of the Dallas Regional Chamber, Texas Rail Advocates and the Dallas Citizens Council. The friend of the court brief was mentioned during Yeates commentary with the Justices.