Eminent Domain debate looms
Kelo Decision: Taking private property for economic development
by Cat Urbigkit
December 4, 2006
In wake of the 2005 United States Supreme Court decision that dealt a major blow to private property rights, the Wyoming Legislature will soon reconvene and among the bills up for consideration will be one addressing the issue of eminent domain.
The 2005 Kelo v. New London decision ruled that the governmental body involved could take private property for the purpose of economic development. The decision ruled that such a taking was not a violation of the “public use” requirement of the Fifth Amendment to the United States Constitution. The Fifth Amendment states: “No person shall be … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The high court’s decision in the Kelo case noted: “In affirming the city's authority to take petitioners' properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation. We emphasize that nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power. Indeed, many states already impose ‘public use’ requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised.”
The court indicated that concerned states should turn to their own constitutions and laws, which has been happening across the nation since the decision was issued. Wyoming is no exception.
The Wyoming Constitution provides: “Private property shall not be taken for private use unless by consent of the owner, except for private ways of necessity, and for reservoirs, drains, flumes or ditches on or across the lands of others for agricultural, mining, milling, domestic or sanitary purposes, nor in any case without due compensation.”
Wyoming Attorney General Pat Crank notes that the state constitution is specific regarding what private property may be taken for and economic development is not one of those provisions. But in addition, Wyoming statute allows cities to condemn property necessary for an “urban renewal project.”
According a legal analysis by the Wyoming Legislative Service Office: “Generally, in order for the state to exercise the power of eminent domain it must first show
• that public interest and necessity require the use of the takings power,
• that the project is planned to do the greatest public good with the least private injury: and
• that the property sought to be taken is necessary for the project.”
The LSO analysis, written by staff attorney Joseph Rodriquez, concluded: “Under Wyoming law it would appear that the Kelo decision could be used to expand the ability of a governmental entity to acquire property if doing so would serve a valid public purpose.” The analysis noted that Wyoming law contains no provisions precluding the interpretation to include takings for economic development purposes.
“In fact, there does not appear to be any restrictive language in the Wyoming Statutes limiting the authority of a governmental entity to exercise the power of eminent domain.
… If the property to be acquired through eminent domain satisfies a public purpose, public use or public necessity, it may be taken by a governmental entity.”
A recent poll of visitors to the Wyoming Bar Association’s website indicated that of 182 people participating in the survey, 138 believe Wyoming’s eminent domain laws need to be amended.
The Wyoming Legislature’s Joint Agriculture, Public Lands and Water Resources Interim Committee has developed a “working draft” of a bill to amend Wyoming’s eminent domain laws. The bill would define public use; provide for judicial review of regulatory agency action pertaining to eminent domain; provide for the award of attorney fees in certain situations; provide that eminent domain shall be used as a last resort subject to specified conditions; and clarify public utilities under condemnation proceedings.
Eminent domain restrictions were approved in nine states (Georgia, Oregon, Nevada, Arizona, Florida, Michigan, New Hampshire, North Dakota and South Carolina) via ballot initiatives in the November elections, although voters rejected measures in three other states (including Idaho, Washington and California).
Source: The Jurist’s Paper Chase (the University of Pittsburgh School of Law weblog)
In-depth story coverage of Eminent Domain by Cat Urbigkit:
Kelo Case Made History
Public Reaction to Kelo Decision
President Bush Executive Order on Property Rights
Existing Eminent Domain Law in Wyoming (66.5K PDF)
Proposed Eminent Domain Law in Wyoming (137K PDF)