                                     In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                            ____________________

                             NO. 09-14-00176-CV
                            ____________________

TEXAS RICE LAND PARTNERS, LTD., JAMES E. HOLLAND, DAVID C.
            HOLLAND, AND MIKE LATTA, Appellants

                                       V.

         DENBURY GREEN PIPELINE-TEXAS, LLC, Appellee
__________________________________________________________________

                On Appeal from the 172nd District Court
                       Jefferson County, Texas
                      Trial Cause No. E-181,923
__________________________________________________________________

                                   OPINION

      James E. Holland, David C. Holland, and Texas Rice Land Partners, Ltd.

(“Texas Rice”) own a Texas cattle ranch and rice farm. Mike Latta, a rice farmer,

leases the property. Denbury Green Pipeline-Texas, LLC (“Denbury Green”)

sought to construct a carbon dioxide pipeline across the property. When Texas

Rice refused to allow Denbury Green to survey the property, Denbury Green

obtained a temporary injunction against Texas Rice. The trial court subsequently


                                       1
granted Denbury Green’s motion for summary judgment, finding that Denbury

Green is a common carrier with the power of eminent domain. The trial court

permanently enjoined Texas Rice from: (1) interfering or attempting to interfere

with Denbury Green’s right to enter and survey Texas Rice’s property; and (2)

harassing Denbury Green while it conducts its survey.

      This Court affirmed the trial court’s ruling, but the Texas Supreme Court

developed a new test for determining common carrier status and reversed our

decision on grounds that Denbury Green had not shown itself to be a common

carrier under the new test. Tex. Rice Land Partners, Ltd. v. Denbury Green

Pipeline-Texas LLC, 296 S.W.3d 877, 878 (Tex. App.—Beaumont 2009), rev’d,

363 S.W.3d 192 (Tex. 2012). On remand, Denbury Green again moved for

summary judgment, alleging that it is a common carrier under the Texas Natural

Resources Code and the Texas Business Organizations Code. The trial court

granted Denbury Green’s motion, declared that Denbury Green is a common

carrier under both statutory provisions and has the right of eminent domain as to

the carbon dioxide pipeline, and dismissed Texas Rice’s counterclaims. In two

appellate issues, Texas Rice challenges the trial court’s summary judgment ruling

and final judgment. We reverse the trial court’s judgment and remand for further

proceedings consistent with this opinion.

                                            2
                               Factual Background

      Ray Dubuisson, Denbury Green’s vice-president of land, testified that

Denbury Green was formed for the purpose of owning a Texas pipeline. According

to Dan Cole, Denbury Green’s vice-president of marketing and business

development, Denbury Green is regulated as a common carrier by the Texas

Railroad Commission and does not buy, sell, explore for, or produce carbon

dioxide. He stated that the “Green Line” was proposed in 2008 as a pipeline to be

“constructed, owned, and operated for the transportation of carbon dioxide from

the Texas-Louisiana border, running west along the Gulf Coast, to the Oyster

Bayou Unit in Chambers County, Texas, and on to the West Hastings Unit in

Brazoria and Galveston Counties, Texas[.]” Denbury Onshore, LLC, with which

Denbury Green is affiliated, owns the NEJD pipeline located in Mississippi and

Louisiana and would own the Louisiana portion of the Green Line. Together, the

Green Line and the NEJD pipeline would form a network to transport carbon

dioxide from the Jackson Dome Unit in Mississippi and from other sources of

anthropogenic carbon dioxide located along the Green Line’s route.

      Cole stated that Denbury Onshore and other third-party leaseholders own

interests in the West Hastings Unit and the Oyster Bayou Unit. John Armor, a joint

interest advisor for ExxonMobil, testified that Denbury Onshore’s ownership

                                        3
interest in the West Hastings Unit is about eighty-nine percent and ExxonMobil

owns about 9.7 percent. Denbury Onshore also operates the Jackson Dome Unit,

but Cole stated that the carbon dioxide reserves in the Jackson Dome are also

utilized by other working interest owners. In April 2008, the Railroad Commission

granted Denbury Green’s permit to operate the Green Line, noting that Denbury

Green had provided the filings necessary to be classified as a common carrier for

transportation of carbon dioxide. Denbury Green completed the pipeline in 2010.

      Cole explained that the Green Line is located near oil fields whose owners

are potential shippers and that “it was intended from inception that the proposed

Green Line would transport carbon dioxide for hire[.]” Dubuisson also

acknowledged the possibility that “other’s people’s” carbon dioxide would be

transported through the pipeline. According to Cole, Denbury Green anticipated “a

strong demand for carbon dioxide pipelines to carry carbon dioxide waste away

from plants and refineries to oil fields where tertiary recovery operations were

being conducted.” Cole stated that Denbury Green intended the Green Line to be

used for not only transporting the carbon dioxide needed for tertiary operations in

the West Hastings Unit and the Oyster Bayou Unit, but that the Green Line would

also be used by other entities. Cole asserted that Denbury Green has (1) reserved

space in the Green Line for other users; (2) always made the Green Line available

                                        4
to carbon dioxide owners for shipping; and (3) anticipated that plants, refineries,

and other industrial facilities along the Green Line’s route are potential customers

who may choose to use the Green Line for transport and pay Denbury Green for

those transportation services. Additionally, Cole stated that Denbury Green

transports, for a fee, carbon dioxide owned by Denbury Onshore and the other

interest owners of the West Hastings Unit and the Oyster Bayou Unit. Cole

believed Denbury Green would secure additional transportation agreements.

      Cole also explained that Airgas Carbonic, Inc. approached Denbury Green in

2012 about using the Green Line to move its carbon dioxide from Airgas’s facility

in Mississippi to another Airgas facility to be constructed in Texas. Airgas’s Texas

facility would process liquid carbon dioxide for sale to its Houston-area customers.

In 2013, the parties entered into a contract in which Denbury agreed to transport-

carbon dioxide from the Texas/Louisiana border to Airgas’s Texas facility. Airgas

maintains title to the carbon dioxide being shipped to its Texas facility. Phil Filer,

Airgas’s president, stated that Airgas manufactures and distributes liquid carbon

dioxide and was using a Shell Refinery in Texas to convert gas into liquid. Filer

explained that Airgas constructed its own liquid CO2 manufacturing plant in Texas

once the Shell Refinery became unavailable and that Airgas would not have




                                          5
expended the resources needed to build its Texas facility if Airgas did not intend to

use the Green Line for shipping.

      Cole further stated that, in 2008, Denbury Green and Air Products, LLC

began discussions regarding the use of the Green Line to transport anthropogenic

carbon dioxide. In 2012, the parties entered into a contract whereby Denbury

agreed to transport anthropogenic carbon dioxide to a meter in the West Hastings

Unit. Cole explained that Air Products retains title to the carbon dioxide and that

title is transferred at the West Hastings Unit. Gloria Power, the director of business

development tonnage gases for Air Products, explained that, without the Green

Line, it would not have been economically feasible for Air Products, a

manufacturer and supplier of industrial gases, to participate in a capture and

sequestration project with the United States Department of Energy. Power testified

that the carbon dioxide transported to the West Hastings Unit is used by Denbury

Onshore who pays Air Products for the carbon dioxide. She explained that once the

carbon dioxide reaches the West Hastings Unit, it is initially used for enhanced oil

recovery operations, but that all of the carbon dioxide is ultimately permanently

sequestered underground in the West Hastings Unit when oil and gas operations

are abandoned.




                                          6
      In its summary judgment, the trial court declared that Denbury Green is a

common carrier under section 111.002(6) of the Texas Natural Resources Code

and section 2.105 of the Texas Business Organizations Code. The Court found that,

as a common carrier, Denbury Green has the power of eminent domain under

section 111.019 of the Texas Natural Resources Code and the Green Line is a

carbon dioxide common carrier pipeline that serves the public.

                                Summary Judgment

      In issue one, appellants contend that the trial court erred by granting

summary judgment in favor of Denbury. We review a trial court’s ruling on a

traditional summary judgment motion de novo. Provident Life & Accident Ins. Co.

v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We “consider whether reasonable and

fair-minded jurors could differ in their conclusions in light of all of the evidence

presented.” Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.

2007) (per curiam). We view the evidence in the light most favorable to the

nonmovant, indulge every reasonable inference in favor of the nonmovant, and

resolve any doubts against the motion. Id. at 756.

      According to Denbury Green, section 2.105 of the Texas Business

Organizations Code “provides an additional source of condemnation authority

beyond that provided in the Natural Resources Code.” Section 2.105 provides, in

                                         7
pertinent part, that a limited liability company engaged as a common carrier in the

pipeline business for the purpose of transporting carbon dioxide has all the rights

and powers conferred on a common carrier by sections 111.019 through 111.022 of

the Texas Natural Resources Code. Tex. Bus. Org. Code Ann. § 2.105 (West

2012). Section 111.019 gives common carriers the power of eminent domain to

enter and condemn the land, rights-of-way, easements, and property of any person

or corporation necessary for the construction, maintenance, or operation of a

common carrier pipeline. Tex. Nat. Res. Code Ann. § 111.019(a), (b) (West 2011).

To exercise this right of eminent domain, an entity must meet the statute’s

definition of “common carrier.” Id. § 111.002. A common carrier:

      owns, operates, or manages, wholly or partially, pipelines for the
      transportation of carbon dioxide or hydrogen in whatever form to or
      for the public for hire, but only if such person files with the
      commission a written acceptance of the provisions of this chapter
      expressly agreeing that, in consideration of the rights acquired, it
      becomes a common carrier subject to the duties and obligations
      conferred or imposed by this chapter[.]

Id. § 111.002(6). Thus, to have the right of eminent domain conferred by Chapter

111, as referenced in section 2.105, an entity must still meet Chapter 111’s

common carrier requirement. Accordingly, section 2.105 is not an independent

basis for exercising eminent domain authority. See R.R. Comm’n of Tex. v. Moran

Utils. Co., 728 S.W.2d 764, 767 (Tex. 1987) (“A statute must be harmonized with

                                        8
other relevant statutes, if possible.”); see also Howlett v. Tarrant Cnty., 301

S.W.3d 840, 846 (Tex. App.—Fort Worth 2009, pet. denied) (“If the statutes share

a common purpose or object, they must be harmonized if possible.”).

      Under the Texas Supreme Court’s new test for determining common carrier

status pursuant to Chapter 111, “for a person intending to build a [carbon dioxide]

pipeline to qualify as a common carrier under Section 111.002(6), a reasonable

probability must exist that the pipeline will at some point after construction serve

the public by transporting gas for one or more customers who will either retain

ownership of their gas or sell it to parties other than the carrier.” Tex. Rice, 363

S.W.3d at 202 (emphasis added). Thus, central to our inquiry is Denbury Green’s

intent at the time of its plan to construct the Green Line. See id. This is particularly

true, given that Texas Rice challenged Denbury Green’s common carrier status as

early as mid-2008. (“[O]nce a landowner challenges [common carrier] status, the

burden falls upon the pipeline company to establish its common-carrier bona fides

if it wishes to exercise the power of eminent domain.”). Id. “[A] reasonable

probability is one that is more likely than not.” Id. at 202 n.29.

      Denbury Green presents several arguments in support of its contention that it

is a common carrier under Texas Rice. According to Denbury Green, Airgas uses

the Green Line to transport its own carbon dioxide to its own facility in Texas

                                           9
where it uses the carbon dioxide for its own purposes and Airgas retains ownership

of the carbon dioxide at all times. The record demonstrates that the Green Line was

first contemplated in 2008, but Airgas did not approach Denbury Green about

transporting carbon dioxide until after the Green Line was completed. Tellingly,

when Airgas raised the issue in an email sent after the Texas Supreme Court’s

ruling, Airgas stated, “Given the recent ruling about your pipeline, I thought it

might be advantageous for you to have another company transport some CO2 down

this line.” As the Texas Supreme Court has noted, the professed use must be a

public use in truth. Id at 202. We cannot say that the Airgas contract, reached after

the Green Line’s completion, speaks to Denbury Green’s intent at the time of its

plan to construct the Green Line. See id.

      Denbury Green also contends that, because of the Green Line’s location near

oil fields, a reasonable probability exists that carbon dioxide emitters could capture

carbon dioxide emissions and ship those emissions through the Green Line to non-

Denbury Green purchasers, other mature oil fields for tertiary recovery, or other

sequestration locations. According to Denbury Green, it intentionally placed the

Green Line near potential shippers, it intended to transport carbon dioxide for hire,

it anticipated a demand for pipelines to carry carbon dioxide waste, and it believed

additional transportation contracts would be reached. However, “property is taken

                                            10
for public use only when there results to the public some definite right or use in the

business or undertaking to which the property is devoted.” Coastal States Gas

Producing Co. v. Pate, 309 S.W.2d 828, 833 (Tex. 1958) (emphasis added).

Denbury Green’s subjective beliefs about what it anticipated and who might use

the Green Line are mere conclusions and are not competent summary judgment

evidence. See Tex. Division-Tranter v. Carrozza, 876 S.W.2d 312, 314 (Tex.

1994). Such subjective beliefs do not demonstrate, as a matter of law, a reasonable

probability that, at the time Denbury Green intended to build the Green Line, the

pipeline’s purpose was to serve the public. See Texas Rice, 363 S.W.3d at 202.

      Additionally, Denbury Green asserts that, although the Green Line serves its

affiliate Denbury Onshore, the Green Line also serves other West Hastings interest

owners by transporting carbon dioxide from the Jackson Dome to the West

Hastings Unit. Denbury Green contends that all of the interest owners, not just

Denbury Onshore, use the carbon dioxide for enhanced oil recovery operations.

Moreover, Denbury Green argues that the anthropogenic carbon dioxide captured

by Air Products is shipped to the West Hastings Unit and sold to Denbury Onshore

on behalf of both Denbury Onshore and the other West Hastings interest owners

for use in tertiary operations in the West Hastings Unit. Denbury Green maintains

that Denbury Onshore and the other West Hastings interest owners are only

                                         11
incidental users of this carbon dioxide, given that sequestration is the ultimate end

use.

       Denbury Onshore does pay for and use the carbon dioxide that Air Products

sends to the West Hastings Unit and it is not the only interest owner in either the

Jackson Dome Unit or the West Hastings Unit. However, Denbury Onshore owns

the majority interest in both the Jackson Dome Unit and the West Hastings Unit

and is the operator of the West Hastings Unit, incurring the responsibility for day-

to-day operations. Denbury Green’s agreements with Denbury Onshore, as shipper

and operator of the West Hastings Unit, to transport carbon dioxide for a fee was

ratified by four non-operator working interest owners of the West Hastings Unit.

Armor testified that ExxonMobil did not ratify these agreements; Denbury

Onshore appeared to be purchasing carbon dioxide from itself; ExxonMobil does

not have title to or possession of the carbon dioxide; and, ExxonMobil pays a 9.7

percent interest in transportation and production costs.

       Given evidence indicating that (1) Denbury Onshore owns the controlling

interest in the West Hastings Unit and the Jackson Dome Unit, (2) a very small

percentage of non-operator working interest owners ratified the transportation

agreements, and (3) the other interest owners do not take title to or possession of

the carbon dioxide, reasonable jurors could differ as to whether Denbury Green’s

                                         12
contracts with Air Products and Denbury Onshore are sufficient to establish an

intent to serve the public. Specifically, the evidence raises a fact issue regarding

whether the taking serves a substantial public interest. See Pate, 309 S.W.2d at 833

(A taking of property for public use does not become a private use simply because

a private entity benefits from the taking, as long as the “public has a direct, tangible

and substantial interest and right in the undertaking.”). The duty of weighing this

evidence belongs to the jury. See Huckabee v. Time Warner Entm’t Co., L.P., 19

S.W.3d 413, 422 (Tex. 2000) (“[T]rial courts must not weigh the evidence at the

summary judgment stage.”).

      “Issues of knowledge and intent are rarely appropriate for summary

judgment.” Murray v. Cadle Co., 257 S.W.3d 291, 302 (Tex. App.—Dallas 2008,

pet. denied). Only when reasonable minds cannot differ does the issue of intent

become a question of law; otherwise, intent is a question of fact for the jury’s

determination. Logan v. Mullis, 686 S.W.2d 605, 608 (Tex. 1985). In this case,

viewing the evidence in the light most favorable to appellants and indulging every

inference in their favor, we conclude that reasonable minds could differ regarding

whether, at the time Denbury Green intended to build the Green Line, a reasonable

probability existed that the Green Line would serve the public. See Tex. Rice, 363

S.W.3d at 202; see also Mayes, 236 S.W.3d at 756; Logan, 686 S.W.2d at 608.

                                          13
Accordingly, summary judgment was improper. We sustain issue one and need not

address appellants’ second issue.1 See Tex. R. App. P. 47.1. We reverse the trial

court’s order granting summary judgment in favor of Denbury Green and remand

the cause for further proceedings consistent with this opinion.

      REVERSED AND REMANDED.


                                              ________________________________
                                                      STEVE McKEITHEN
                                                          Chief Justice

Submitted on December 18, 2014
Opinion Delivered February 12, 2015

Before McKeithen, C.J., Kreger and Horton, JJ.




      1
       In issue two, appellants maintain that a final judgment was granted on
claims not presented in Denbury Green’s summary judgment motion.
                                         14
