Category: National Eminent Domain

Trump and Eminent Domain

Ilya Somin provided an outstanding article last August in his Blog called the Bollkh Conspiracy.

The article describes the comments of David Boaz of the Cato Institute. President Trump was consistent and remains consistent in his belief of Darwinism when eminent domain is at issue.

“On this issue, unlike most others, Trump has been consistent over time. When the Supreme Court narrowly upheld ‘economic development’ takings that transfer property to private parties in the 2005 Kelo case, the ruling was widely denounced on both left and right. But Trump defended it stating that ‘I happen to agree with it 100%. if you have a person living in an area that’s not even necessarily a good area, and … government wants to build a tremendous economic development, where a lot of people are going to be put to work and … create thousands upon thousands of jobs and beautification and lots of other things, I think it happens to be good.’ The feral cats who currently occupy the condemned land probably agree. Trump did not merely claim that the decision was legally correct; he argued that it was ‘good’ to give government the power to forcibly displace homeowners and small businesses and transfer their property to influential developers on the theory that doing so might promote ‘economic development.’

Both the Kelo case and Trump’s efforts to benefit from eminent domain exemplify a longstanding patternunder which that power is used to take land away from the political weak and transfer it to influential private interests. In the long run, as cities like Detroit have learned, such assaults on property rights undermine development far more than they promote it.”

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Indiana Lawmakers Dream They Can Control Railroad Use of Eminent Domain

In Indiana, legislators are attempting to enact substantial restrictions on the right of railroads to condemn for public use.

This is “barking up the wrong tree.” The place to stop any kind of condemnation by a railroad is not at the state level, but rather, it’s the Surface Transportation Board in Washington. Possibly this can be done, but a request for release from the Transportation Board is unlikely to succeed.

“House Bill 1260, sponsored by state Reps. Ed Soliday, R-Valparaiso, and Mike Aylesworth, R-Hebron, would obligate railroads to abide by the same “public use” mandate and property appraisal process employed by governments in forcing the sale of a home, farm or other land.
Soliday said existing Indiana law, originally written in the 19th century, gives railroads of just about any size almost unlimited use of eminent domain, including potentially taking land in state parks to build a rail line.

‘Under the current law you can just say, ‘I want to build a railroad; give me your land and I’ll pay you,” Soliday said. ‘(This) raises the bar that you do need to have a compelling public need for the eminent domain.’
Aylesworth indicated the legislation was inspired by the largely negative Region reaction to the plan by Great Lakes Basin Transportation to take a 200-foot wide corridor for its proposed 260-mile freight railroad connecting Northwest Indiana to southeast Wisconsin.”

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LaPorte County Counsel Has it Wrong While Lake Porter Understands the Railroad Rules on Eminent Domain

In the recent Chicago Tribune article, LaPorte County counsel thought it would prepare a statute which would stop the eminent domain proceeding for the ridiculed Great Lakes Basin Transportation proposal, the fact is that the County is simply wrong.

When the Surface Transportation Board approves the project, the federal decision that the eminent domain proceeding may be initiated takes precedence over any limitation presented by a state or local jurisdiction.

The right word is “stop the project at the Surface Transportation Board or you will not be able to stop the railroad at all.”

“How much power county ordinances, when in place, have in light of state statutes that grant railroads the ability to acquire land through eminent domain is up for debate.

Attorneys for Lake and Porter counties said state statutes would allow for the land acquisition, but the attorney for LaPorte County said his county’s ordinance, one of the strongest in the state, would shield that county’s landowners.”

“If the railroad were to receive approval from the federal Surface Transportation Board, it would have the ability to begin acquiring land for the project through eminent domain.

The the railroad would be privately held, it would become a quasi-public/private partnership once it received STB approval, said Scott McClure, the Porter County attorney.”

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West Virginia Supreme Court Sides with Landowners in Pipeline Survey Case

In a move which contradicts a recent California decision, the West Virginia Supreme Court of Appeals affirmed a trial court’s refusal to allow surveys for a contemplated pipeline installation.

The difference between California and the subject may be that FERC must first approve the project. Approval had not yet been obtained in West Virginia for the project.

It will take years to parse the decisions, but one can well expect that the US Supreme Court will at one point determine whether surveys and entries prior to acquisition require and create a takings issue.

“Opponents of Virginia’s surveying law, including property owners who have resisted surveying efforts, have argued that the pipeline company should not have access to their property until after FERC decides whether to grant the certificate.

Otherwise, opponents have said, entry without permission and compensation violates ‘takings’ provisions of the Fifth Amendment of the U.S. Constitution.

In turn, the pipeline company has said it needs to survey properties to identify a route it can present for FERC’s review that minimizes negative impacts to the environment and historical and cultural resources.

Meanwhile, pipeline foes in Virginia, including Roberta Bondurant in Roanoke County, cite language in the West Virginia Supreme Court’s ruling that they say supports their efforts to overturn the Virginia surveying law.”

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Grazing Rights & Eminent Domain

The United States v Fuller set forth the rule of non-compensability for government permitted grazing rights. These are cases in which the federal government leases land to adjacent ranchers who are then allowed to use the land for grazing purposes.

Recently an organization has claimed grazers are effectively partial owners of the federal lands. This would run contrary to the precedent of sovereignty existing since the Magna Carta. One only need to look at the Public Land and Resources Law Review article which concludes the gazing rule a departure from eminent domain. To the contrary, the notion of sovereignty does still exist, even though this blogger would prefer it did not.

One thing is for certain. If the rules on permits change and provide for the temporary use to create compensability, the federal government will lease no land at all.

“Bonds said the allotment swap hasn’t been spoken of again.

McIntosh, the executive director of a new organization called Grazing Allotment Owners Association said a couple of historic court cases lend credence to his theory that grazers are partial owners, not renters of their allotments.

“Grazing allotments are private property – they are split estates. The government owns the mineral rights and the commercial timber rights and the rancher owns valuable land for grazing and stock water rights,” he said. The Supreme Court has also referred to the rancher’s right as “limited fee title,” he said, which includes all of the improvements, stock water rights, and forage.

“Based on U.S. v New Mexico, a 1978 Supreme Court decision, they (the ranchers) own the stock water rights, based on Kinney Coastal Oil v. Kieffer, they own the surface estate,” said McIntosh. “Also in Watt V. Western Nuclear, a 1983 Supreme Court Decision, the split estate concept is confirmed.”

The ranchers own the surface rights, starting with the Stock Raising Homestead Act of 1916, he said. “That’s why ranchers can buy or sell those allotments and they have been able to for 100 years. It was the basis for grazing allotments when they created the resettlement projects in the great plains that are now called national grasslands. Those were actually established as ‘resettlement projects.’”

Even the term “public land” is not used correctly, McIntosh believes.

“The definition – the original definition – was land that belonged to the United States that was open to entry and disposal.”

In 1920 Congress changed that legal definition because it had disposed of all these western lands as grazing allotments. “Now the definition after 1920 was land – and interest in land – that belonged to the United States and was open to entry and disposal. The reason for that distinction is because Congress created a split estate – so it was no longer talking about disposal of land but land ‘or interest in land’ and under these grazing allotments, the rancher owns grazing rights, the U.S. owns mineral rights.”

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Why Kitchen Table Meetings Do Not Work

The Indiana Department of Transportation is by its nature a public agency intending to serve the public. But the Department does not always “help” individuals who are about to be acquired. The notion that INDOT will contact individual owners for “kitchen-table meetings” with a third party appraiser implies that somehow the whole situation is collegial program. Realistically, the Department of Transportation agents would love to sit down with the owners and know all the owner’s positives and negatives. However, the owner comments may be taken out of context and utilized at some future trial. Nothing could be more detrimental to the owner. Below is a page of warnings to property owners, written by this firm years ago, but still instructive.

“The state estimates that in a worst-case scenario it could acquire as many as 279 homes and 96 businesses. But the exact route won’t be determined until 2018, and the amount of land acquired could be less.

Under the powers of eminent domain, the state can take private property for public use. In the first five sections of the highway project, the state paid $184 million for 348 properties.

When the properties the state needs are identified, INDOT will contact owners for in-person “kitchen table meetings,” and a representative will be assigned. A third-party appraiser will value the property, which will be reviewed by a second appraiser. To request a change in the appraisal, the owner must submit documentation to back it up.”

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