Freeport, TX Eminent Domain

Retired military nurse Pam Tilley grew up in the East End of Freeport, Texas—a historically black neighborhood that was filled with a vibrant community of homes, stores, and churches. First established in the 1920s as the only part of town in which black people were legally allowed to live, Freeport eventually grew into the neighborhood Pam remembers from her childhood. Her father stayed put in her childhood home until well into his 90s. But that home isn’t there anymore. Neither is the East End.

That’s because Pam and her family and neighbors weren’t the only people interested in the East End. The neighborhood was also squarely in the sights of nearby Port Freeport, the self-proclaimed “fastest growing port in Texas,” which wanted to use the East End as a site for its latest expansion. After years of targeting the neighborhood, the Port finally resorted to eminent domain, seeking to take the entire neighborhood by force.

Many residents left, reasoning that there was little they could do. After all, ports, like railroads or other transportation facilities, are often considered a “public use” for which eminent domain can be used. But Pam and her family fought back—and, in fighting back, they made a shocking discovery.

It turned out that the Port didn’t actually want to destroy the East End for a traditional public use. It didn’t want to destroy the East End for anything at all. Instead, the Port’s representatives confessed in deposition that they had no plans for the family’s land whatsoever. They hoped, at some point, to lease the land to some unidentified private business that would use it to somehow create jobs. Even that plan, they confessed, might not come to fruition for a decade.

That’s when Pam and the family teamed up with the Institute for Justice (IJ) to fight the unjust taking of their land. Eminent domain can be used only when government needs land for a public use, and the Port’s clear-cutting of the East End fails that test twice over. “We want to turn this land over to a private business” is not a public use, and “we may not get around to it for a decade” is the exact opposite of actually needing the land.

A Texas trial court blessed the condemnation, but Pam and IJ are fighting on, appealing her case to Texas’s Fourteenth Court of Appeals to establish the basic proposition that the government cannot take away a family’s home simply based on the promise that it will (one day) think of something better to put there instead.

IJ is no stranger to the abuse of eminent domain to create empty fields. It litigated Kelo v. City of New London, in which the United States Supreme Court rejected IJ’s arguments in a widely decried 5-4 opinion that blessed the use of eminent domain for “economic development” and, in the process, greenlit a condemnation that turned a once-thriving working-class neighborhood into an empty field that sat wholly unused for decades. It also defended Atlantic City piano tuner Charlie Birnbaum, who successfully defeated a state agency’s efforts to take his longtime family home based on nothing more than its hope of coming up with a plan in the future.

Pam’s case should turn out more like Charlie’s than like the Kelo decision. In the wake of the Supreme Court’s disastrous Kelo decision, Texas specifically amended its constitution to forbid Kelo-style takings, recognizing that using eminent domain for pie-in-the-sky economic development was a recipe for disaster. IJ is asking the Texas courts to recognize that this amendment forbids exactly this sort of abuse—and that pie-in-the-sky promises of economic development don’t magically become constitutional just because the people promising the pie work for a port.