Private property rights are not optional

By Billy Howe
TFB State Legislative Director

Sometimes it seems people believe the legislature’s power is unlimited; that the legislature has no constraints on determining our state’s public policy, or the regulatory authority they can grant to state and local agencies.

However, it’s simply not true when it comes to private property rights.

Private property ownership and rights don’t come from the legislature. The courts determine if a landowner has a property right. Once that right is recognized, it is protected by the Takings Clause of both the Texas and U.S. constitutions. Both the court and the constitution provide the checks and balance to the legislature’s power.

Stakeholders with an agenda forget this basic truth. In their quest for what they believe is good public policy, these stakeholders forget that first you need to understand the constitutional constraints under which you must operate.

Regulatory power is not unlimited. It can only restrict private property rights for a PUBLIC PURPOSE. It cannot be used to restrict the rights of one property owner for the sole purpose of benefitting another private property owner. If the regulation is for a legitimate public purpose, but it causes significant economic harm to a property owner, then they must be compensated.

These restrictions on the power of government are not optional. They are protections guaranteed to private property owners under the constitution.

The current debate regarding groundwater regulation highlights this disconnect between what stakeholders want our state’s groundwater policy to be and what is legal under the common law and the constitution. The Texas Supreme Court recognized that landowners have “absolute ownership” of the water under their land, and regulation of this property must afford each landowner a fair share of the groundwater.

However, some stakeholders continue to believe they can advocate for the legislature to enact policies that will discriminate between landowners, or that do not require a landowner to be compensated for their water.

Almost 100 years of regulating the absolute ownership of oil and gas shows us this is simply not true. Railroad Commission regulations of this private property right were overturned many times by the Texas Supreme Court because they did not allow each mineral owner over a common reservoir to receive a fair share. Today, the Railroad Commission has very few cases that reach the Texas Supreme Court because they understand the constraints on their power to regulate the right to a fair share. The Railroad Commission had to learn the hard way that private property rights are not optional.

Oil and gas regulation had to forge a new trail of property rights law. Now that trail is there for us to follow with our state’s groundwater policy. We don’t have to repeat the same mistakes that will result in years of litigation and expensive court costs for landowners and other stakeholders.

Landowners and other groundwater users need the legislature to pass laws that are consistent with the private property right recognized by the Texas Supreme Court.

The best policy for our state is one that protects private property rights and ensures the development of groundwater respects this private property right.

Otherwise, the only thing future groundwater policy will ensure is a lot of time in the courthouse, while groundwater projects are on hold waiting for court decisions.

Why? Because private property rights are not optional.


3 Responses to “Private property rights are not optional”

  1. Robert Domitz says:

    Texas has always been short on water. The current drought is making it more so. The real estate interests are fostering the growth of our cities and urban areas need more water per person than rural areas. Urban areas also have the votes to unseat legislators. Therein lies the problem.

    More and more of our state legislators and bureaucrats come from an urban background. To urban dwellers, water is something that comes from something called a “water main” and is a public resource provided by a city department. The idea that private parties own water is something they cannot wrap their minds around.

    Recent experience in California shows how far this problem can go. The California water authorities have cut off water to farmers to provide water to cities. I was just out in Bakersfield, CA where I saw many fallow fields. Some only sprouted a sign with lines like “Water = Jobs” or “Water = Food.” Instead of regulating water use for things like car washes and water-wasting ornamental plants, the water regulators cut irrigation water to food crops. When will they learn? When the food has to be imported and the price goes through the ceiling?

    We do not need this in Texas. We farmers and ranchers need to keep in regular contact with our legislators to remind them that food, whether plants or animals, require water to grow and it comes mostly from two sources: the sky and the ground. If they want to eat, they need to allow us to access the water beneath our land without having to ask a bureaucrat for permission.

  2. There are no times when common sense should not be foregone. I’m a director at a Farm Bureau. I would like a resolution made to have water wells, used in the oil drilling processes, abide by the rules of The Texas Department of Licensing and Regulations (TDLR) and local Underground Water Districts. Currently The Texas Railroad Commission allows comingelling of water sands as proven in the logs of landowners. What’s good for the public interest should be priority to all such practices. Rural landowners are not allowed through TDLR to comingell several different water sands to get a desired GPM and oil companies should not either.

  3. Reality Check says:

    Regarding the so-called culture of conservation: If there are any scarcities, the scarcity is caused by mismanaged infrastructure, not a lack of groundwater. Even the state water board recognizes that Texas has 11,310 acre feet of groundwater, enough to supply Texas for the next 1,500 years, even if it does not rain again. People are crying about the sugar bowl being low when right outside the door is a train load of sugar.

    While the agricultural community spent millions or more on conservation practices over the past decades using less and less water, cities still use 100 year old designs that put drinking quality water out the faucets in the front and back yards of businesses and homes. Cities themselves use drinking quality water to water parks and lawns.

    If the man-made White River Lake has 6% capacity, that is 6% over what Mother nature would provide. That means we are 6% ahead, not 94% behind.

    So-called droughts of record and drought restrictions should separated between city and rural in order to protect private property rights that make America’s exceptionalism from Communism a reality. Stated another way, if a city wants to declare a drought for its internal purposes, such a declaration should not be used to justify unlawful administrative takings of privately owned groundwater.

    Central control of private property never works anywhere in the world to the advantage of the citizens who want shared prosperity from the fruits of their labor and private control and dominion of their own property. Property rights are human rights that are ideas that lead to wealth and a bright future for Americans. Central control of private property leads to subhuman misery. Control equals wealth. Control equals ownership.

    Sometimes I think the phony water scare is about controlling the price of privately owned water. Price controls work no where in the world. Ever. Competition always results in lower prices. And low costs/prices also allow for a form of shared prosperity.

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