ML20004F621

Responds to Legal Questions Posed at Conclusion of 810311 Meeting.Applicants Have Right to Preclude Entry Into Exclusion Area by Mineral Right Owners & Party Cannot Use Force to Enter Property.Supporting Documentation Encl

ML20004F621
Person / Time
Site:	Comanche Peak
Issue date:	04/01/1981
From:	Reynolds N DEBEVOISE & LIBERMAN
To:	Rothschild M NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
References
NUDOCS 8106190272
Download: ML20004F621 (5)

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law OrrlCCS or DEBEVolSE & LIBERMAN 8800 SCVENTCENTH g f R C C T, N. W-WASMINGTON, D. C 3003s

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April 1, 1981

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4 Marjorie Ulman Rothschild, Esq. s Office of the Executive Legal Director (l- ,gS 9 g# C U.S. Nuclear Regulatory i, y0's 8k Commission Maryland National Bank Building

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Bethesda, Maryland 20015 /ni1'"

t Re: Comanche Peak Exclusion Area Control

Dear Mrs. Rothschild:

We appreciated the opportunity to meet with you and other NRC Staff members on March 11, 1981, to discuss the status of Exclusion Area control for the Comanche Peak Steam Electric Station. At the conclusion of that meeting, a few legal questions were posed. Spoc.ifically, the Staff sought clarification of (1) the ability of the Applicants to preclude entry upon or presence on the surface of the Comanche Peak Exclusion Area by mineral right owners, and (2) the ability of the Applicants to condemn mineral rights -

with immediate effectiveness.

To respond to these issues, the Applicants obtained a legal opinion letter from Jack C. Wessler, Esq., of the Fort Worth law firm of Cantey, Hanger, Gooch, Munn &

Collins. Mr. Wessler and the Cantey Hanger firm have extensive experience in Texas real and mincral property law, including the representation of parties on both sides of condemnation actions. A copy of Mr. Wessler's legal opinion letter is attached for your information. The opinion letter concludes that the Applicants have the right to preclude entry upon or presence on the surface of the Exclusion Area by mineral right owners, and that a party cannot use force to enter upon property in the face of opposition by the party having possession of the surface. p The opinion letter also confirms that immediately effective.YJ condemnation proceedings may be taken by the Applicants to l

obtain mineral rights under the Exclusion Area.

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k Marjorie Ulman Rothschild, Esq.

April 1, 1981 Page Two We trust that.this legal opinion letter resolves the questions of the Staff. If you require further information or if we can be of further service, please call me.

Since e ,

I rf Nichola s! .. Reynolds vv NSR/er Attachment cc: Spottswood B. Burwell S e e e f

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Mr. Homer C. Schmidt Manager, Nuclear Services Texas Utilities Services, 16e.

2001 Bryan Tower Dallas, Texas 75201

Dear Mr. Schmidt:

Texas Electric Service Company, Texas Power & Light Company and Dallas Power & Light Co.npany acquired certain lands in Hood and Somervell Counties, Texas, upon which is being constructed the Comanche Peak Steam Electric Station.

Prior to the acquisition of title by the Companies, some undivided mineral interest had been either sold or reserved by prior owners, with.the result that the Qompanies acquired the entire interests to the surface but not the entire mineral interests. You have requested our legal opinion concerning the ability of the Companies under these circumstances to maintain and secure their exclusive possesrion of the surface within the Exclusion Area designated at the site for -

purposes of complying with NRC regulations, 10 C.F.R.'Part 100. -

The Companics have the right of eminent domain in Texas under the terms of Article 1435a, Revised Civil Statutes of Texas, and this right of eminent domain can be exercised by any one or more of the Companies for the benefit of all.

The Companies, being the owners of the entire surface estate, have the right to preclude entry upon or presence on the surface of all parties (including mineral right owners) until such party has established his rights in court. A party cannot use force to enter upon property for any purpose in the face of oppcsition by the party having possession.

Mr. Homer C. Schmidt Pcge Two March 31, 1901 The only legal remedy of a party who claims to be wrongfully excluded from real property is to establish his claim by court judgment. The Companies could require any individual or entity seeking to enter the property to establish their ownership and right of entry by action in court. The Companies would in such event be able to contest such entry and file a cross action for condemnation of' the claimant's rights to enter upon the surface or the entire mineral estate, thereby preventing entry on the surface by any third party claimant.

Article,3269, Revised Civil Statutes of Texas, specifically authorizes an.y entity having the right of eminent domain who is made a party to a suit for damages or mandatory relief to seek condemnation and secure injunctive relief in support of the right of ' eminent domain by cross bill or intervention.

In that situation, the court is required to grant the injunction in such party's behalf and to fix the amount of security which the party seeking condemnation is required to post for the payment of any damages which may be assessed.

Article 3269 was held by the Supreme Court of Texas to be constitutional in the case of Costello v. Brazos River Conservation & Dist., 143 SW2d 577 (Supp. Ct. Tex. 194 0) and in the City of Houston v. Adams, 279 SW2d 306 (Supp. Ct.

Tex. 1955). In City of Houston, the Supreme Court of Texas in a case of first impression on whether such condemnation may be immediately effective ordered by mandamus the setting of the amount of security required of the condemnor and permitted the condemnor the immediate possession of the property sought to be condemned, holding:

"The duty of the trial judge to fix the amount of the security to be given by the city was a ministerial duty and did not involve the use of discretion on the -

part of the trial court. This being true, the City is entitled to have issued a writ of mandamus to afford it the rights given by virtue of Art. 3269."

It is my understanding that Texas Utilities Generating Company is operating the Comanche Peak station as agent for the Companies, and that it will have security forces to prevent entry to any portion of the Exclusion Area. Should any party claim to be a mineral owner and assert a right to entry upon the premises, that party may lawfully be denied any right of entry until such right is judicially determined.

The party may file'a proceeding in the District Court of Somervell or Hood Counties asserting their right of entry.

In the event such a judicial proceeding is started, TUGCO and/or the Companies would be served with a citation, and e .. e

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f Mr.' Homer C. Schmidt Pcg3 Three March 31, 1981 upon being served one or more of the Companies could immediately file an answer or intervention contesting the right of entry and in the alternative seeking to condemn either the rights

,,of the claimant to enter upon the surface or the entire nineral rights of the claimant. .

In view of Texas statutory law and pertinent judicial precedent, the district judge would be under the obligation to immediately determine the amount of security which the condemning authority would be required to post and on furnishing such security, grant the injunctive relief sought by the

Companies to. maintain their possession.

Very truly yours,

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