Category: National Eminent Domain

THE UPCOMING KNICK DECISION

The Knick United States Supreme Court decision is gleefully awaited by those hoping to modify the misbehavior allowed because lower courts simply will not appropriately review claims which had the potential to be in the state court, but claims, even when valid, would never have received an award. After all, one of the justices asked the lawyer whether this would cause an inundation of land use cases in the Federal court system.

Thankfully, this scrivener was not presenting the argument.  One has to wonder whether the notions of both Just Compensation and Due Process were ever in the ambit of the Justices’ question.  Should we simply not have litigation to resolve our constitutionally protected rights?

The argument that there will be a proliferation of litigation simply does not make sense.  More likely, a recognition that there is a responsibility and financial liability will provide governments with the decision of whether a governmental unit should proceed in taking away an individual’s basic constitutional rights to property!

Saginaw Trail Pipeline Continues

The Saginaw Trail Pipeline offers have been sitting out there for up to two years on a number of property offers. When the acquisition agents decided that they could not offer less than the minimum just compensation allowed under the law, often the acquisition people just moved back from the offers and deferred filing cases.

Now, we are at the point where the property is really needed to complete the project. This is the point in which people who have stated they are being offered inadequate just compensation either receive another offer or may deal with the lawyers in the next few months. There are situations in which the minimum offer finally made is indeed the minimum that must be paid under the law…. the appraised amount. In other cases, the right of way agents are losing the “bite” of their threats if people have to go to court. But at least we can be aware that the efforts to acquire are being reinitiated for the Saginaw Valley Pipeline, even where not the amount of just compensation that is owing.

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.”

Click here to read more.

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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