Sometimes when I read something in a newspaper or magazine, I look at the bottom of the article, to see whether or not there is a tag line that reads “Ad paid for by….”. This is one of those times!
Everyone is entitled to their opinion. That’s what the Opinion page is for. I do have a problem, however, when a public figure writes an opinion piece, knowing full well that his/her credentials at the end of that article might tend to sway public opinion, especially if they have a vested interest in the issue. In my opinion, this is exactly what happened with last week’s “opinion” about the status of the proposed high-speed rail, by “Craig Enoch, retired justice, Texas Supreme Court”. That tag line didn’t include “and founding member of Enoch Kever, a business advocacy firm affiliated with Texas Central”, like previous publications have stated.
Mr. Enoch has written other pieces about the high-speed rail issue and he always tries to cast doubt on any legal proceeding that didn’t come out in Texas Central’s favor. A December 2016 article on Bisnow.com, Mr. Enoch tried to downplay the relevance of the Court’s decision in the Texas Central Railroad & Infrastructure, Inc. v. Calvin V. House case, claiming that a trial would decide the issue, rather than a preliminary hearing. Now that a District Judge has ruled that Texas Central is NOT a railroad company, nor are they an interurban electric railway and therefore do NOT possess eminent domain authority, he is trying to spin it again. But since Mr. Enoch and his firm “is affiliated with Texas Central”, his obvious bias isn’t unexpected, but his facts aren’t accurate either.
It’s the same old talking points…the “efficient” moving of people, the enabling of “progress” and the reasonable price for “land use”. Those who claim this project is “important to the economic well-being of Texans” simply don’t understand the basic fundamentals of this issue.
There is NOTHING “efficient” about high speed rail, if you are remotely concerned about the economics. There are about 111 “high speed” rail projects in the World and only a couple of them operate at a profit… Paris-Lyon and Tokyo-Osaka, where the infrastructure was built using government funds. The rest LOSE money and are heavily subsidized…EVERY day! How is that considered “progress”? If your idea of “efficient”, “progress” or “economic well-being” is to lose money and require subsidies, we disagree on those definitions.
As far as the whole “reasonable price for land use” issue goes, they are NOT talking about “using” the land…they are talking about “taking” it! Splitting farms and ranches, re-routing hundreds of miles of County roads, delaying emergency response times, preventing the free movement of livestock and wildlife and equipment, fee-simple contracts that include mineral and water rights …all for their definition of “progress”.
Trying to claim that Texas Central is somehow “operating” a railroad, even though they don’t own a single railcar, or one inch of track is a stretch. Chapter 81 of the Transportation Code is very specific. The first part requires that a railroad company be “incorporated before September 1, 2007”. Texas Central didn’t incorporate until December 2012. Mr. Enoch mysteriously skipped that part.
The second part of Chapter 81 includes “any other legal entity operating a railroad”. To my feeble little brain, “operating a railroad” is pretty simply. You should be able to show it to me. Where is it? How many customers do you serve daily? What is your cost per passenger? Profit? If you can’t answer those questions, in my mind you aren’t operating a lemonade stand, much less a railroad! The Statute doesn’t say anything about how “operating a railroad” actually meant “planning, developing, presenting proposals, raising investor capital, conducting local area information sessions and participating in governmental reviews”.
When the language in Chapter 81 doesn’t support their claim of being a railroad, most supporters try to make Chapter 131 fit, by calling themselves an “interurban electric railway” company. In my opinion, this statute was written to address issues regarding electric railways that joined local municipalities…. NOT distant cities. Regardless of that, if you are going to live by the clauses in Chapter 131, you better be prepared to die by them too!
Let’s pretend for a minute, that Texas Central qualifies as an “electric interurban railway company” under Ch. 131. Some other interesting little clauses in Ch. 131 limit the width of the Right of Way to 200 feet. (Ch. 131.013.1) That is significantly narrower than what Texas Central requires in the Draft Environmental Impact Survey!
Chapter 131.014 (c) and (d) also prohibit “the construction of an electric railway on or across a street, alley, square or property of a municipality without the consent of the governing body of the municipality”. This chapter also doesn’t allow for eminent domain authority over a municipality, only over a “person or corporation”. Most Counties along the proposed routes have passed Resolutions condemning this project, so I doubt they will give their consent to it.
Furthermore, Ch. 131.016 states that the rights secured in that chapter are VOID unless the roads (in this case “rail”roads) are completed “within 12 months”. There is NO way, a railroad between Houston and Dallas will be completed within 12 months. In case the 12-month deadline sounds a little unrealistic, that further proves that Ch. 131 wasn’t meant to deal with railways between distant cities…only neighboring municipalities.
Texas Central needs to make up its mind as to what it thinks it is. Then it needs to pick a Chapter of the Transportation Code and stick to it. They don’t get to mix & match. The Transportation Code isn’t an a-la-carte menu!
In my opinion, Mr. Enoch’s letter was, at best, a advertisement for Texas Central and not a credible interpretation of an issue by an unbiased legal scholar. Because of his firm’s affiliation with Texas Central, that bias is on full display.
Enoch Off Track
I would like to address two things in the opinion article “High-speed rail has legal authority to keep moving forward” written by Craig Enoch (Madisonville Meteor, March 26).
First and foremost, Mr. Enoch is the founder of Enoch Kever, a business advocacy firm affiliated with Texas Central Rail (TCR). This is highlighted in a December 2016 BISNOW article found at: https://www.bisnow.com/houston/news/economy/texas-central-rail-headed-to-court-in-land-survey-case-69178. Let’s put that into perspective. Mr. Enoch provides his interpretation and opinion on Texas law as it pertains to Texas Central Rail, their project, and high-speed rail in general but yet, his firm has ties to Texas Central Rail.
I ask one simple question: How can you be fair and unbiased in your opinion when you have business ties to the very company that is trying to build a high-speed rail line between Dallas and Houston? I would submit there is only one simple answer: You can’t be. Quite simply, a conflict of interest exists.
I would submit that what Mr. Enoch has done is provide his interpretation or opinion of law and presented it as a matter of fact on behalf of a client. Another way of thinking about it is that there have been three court cases (Leon County, Harris County, and Ellis County) dealing with the high-speed rail issue. In the Leon County case, the judge disagreed with the opinion held by Mr. Enoch and ruled that TCR is NOT a railroad, DOES NOT enjoy eminent domain privileges, and CANNOT survey property without the property owner’s permission. In the Harris County case, TCR petitioned the judge to allow them to survey, due to TCRs assertion they were a railroad and an interurban electric railroad. The judge denied TCRs petition in its entirety. Lastly, in the Ellis County case, TCR asked the court to recognize their authority to access land and conduct surveys. Again, the judge in the case ruled against TCR. In essence, since TCR has continued to have rulings issued against it, they and their supporters have turned to the court of public opinion in an effort to garner support. Unfortunately for TCR and Mr. Enoch, sentiment will not win the day, the rule of law will.
In closing, not only have 3 courts ruled against TCR, the Surface Transportation Board (STB) has as well. In 2016, TCR petitioned the STB to take jurisdiction over the project, thus allowing TCR to build and operate their railroad under the umbrella of the STB. The STB ruled that they did not have jurisdiction over TCRs project, thus returning the issue back to the state. Subsequently, in 2018, TCR petitioned the STB to reopen the original petition due to the fact that now TCR has a through ticketing agreement with Amtrak. For reference, the Amtrak station in Houston is located downtown, has a very small parking lot, a set of vending machines, a set of restrooms a ticket counter and a very small waiting room. If you want to actually ride the Amtrak train, you must take an Amtrak Thruway Motorcoach connection to Longview (3 hours and 43 minutes or 210 miles away) to ride the Texas Eagle. I’m not sure about you, but after all that travel just to ride a train, I’d much rather take my vehicle. It’d be cheaper, faster, and less of a hassle.
For full disclosure, I am a directly impacted home/landowner.
Gene P. Whitesides LTC, USA (Ret.)
Bullet train no bullseye
Here’s some points of information for the bullet train between Dallas and Houston:
1. Texas Central Partners are a front for the Japanese government.
2. The storage facility in Deer Park that just burned is owned by the Japanese. It’s called ITC Terminal.
3. The power plant in Roans Prairie on Highway 30 is 95 percent owned and operated by the Japanese government.
4. This bullet train will not, is not owned and built by Texas investors; which is a lie put out by Texas Central Partners.
5. Texas Central Partners have lost the last four court cases which the judge stated they are not a railroad and do not have eminent domain rights.
6. Texas Central Partners have hired a Spanish company to run and maintain the railroad and have hired an Italian company to build the railroad.
7. One of Texas Central Partners has a purchase and sale agreement with the landowner in Roans Prairie where the middle station is to be built. This was done before the route was made public. That’s called “insider trading” and is illegal and a felony.
8. Texas Central Partners, as of September 2018, had only $10 million on hand, which is not enough funds to offer landowners a 10 percent cash down payment and a purchase and sale agreement dated 2020 for the balance of the purchase.
9. Texas Central Partners, as of September 2018, stopped offering landowners a 10 percent cash down payment and have now offered landowners a “memo of options” with no 10 percent cash binder and total payout for the land will be in 2020. The short answer is the landowner cannot sell property to any other cash buyer.
10. As of March 2019, the week of the 25th, has a rider on the appropriation to be acted upon by both houses of the Texas Legislature, which will strengthen the state of Texas’ eminent domain rights in the landowners’ favor.