Out on the range, old eminent domain laws erode private property rights
MONTPELIER, IDAHO -- Bald eagles are the only residents visible as Peter and Judy Riede drive the unplowed road to their eastern Idaho ranch.
At the ranch, animal tracks stitch their way across the early-January quilt of snow; ducks bob on a spring-fed pond and a raptor circles overhead. A jet breaks the snow-muffled silence and disappears over pine-covered mountains.
“It took us 10 years to find this,” says Peter.
Now, the two retired engineers are fighting to hang onto it. Idaho-based J.R. Simplot Co. plans to expand its phosphate mine on nearby national forest land, and wants to build a road across the ranch. The company offered to buy the Riedes’ land for $2.1 million. The proposed road would permanently scar the hillside and generate heavy truck traffic near the site of their future home.
The Riedes do not want to sell, and plan to fight the mine expansion because they fear the mining upstream could pollute the water on their ranch. They purchased their land for around $645,000 in 1997, but say that replacing it with a comparable parcel today — 467 acres with amenities such as private trout-fishing streams — would cost closer to $6 million, triple Simplot’s offer.
But they might have no choice. Idaho is one of five Western states — including Washington, Wyoming, Colorado and Oregon — whose constitutions extend powers of eminent domain to private entities, such as railroads, mining companies, and oil and gas drillers.
Public use, private profit
State and local governments have long used eminent domain, or condemnation, to force landowners to sell property to make way for schools and highways. In 2005, the practice hit the national spotlight after a U.S. Supreme Court ruling allowed local governments to condemn private land and transfer it to other private entities, often to build malls or big-box stores. The Kelo v. New London decision outraged private property-rights activists, and spurred state legislatures to pass laws specifically banning that type of condemnation.
But in Idaho and Wyoming, private entities don’t even need the government as a go-between. The two states’ constitutions allow private parties to directly condemn private property for “public use.” These provisions date back more than a century, to a time when the fledgling states were trying to build their economies. Idaho law considers mining to be a “public use,” meaning Simplot can force the Riedes to sell.
More than just property-rights advocates are upset. Environmen-talists, ranchers and legal watchdogs say these obsolete provisions are worse than Kelo, undermining the free market, posing a threat to the environment and degrading property rights. The battle for reform is perhaps hottest in Wyoming, where the energy boom has pitted industry against ranchers.
“It’s bad enough when government uses eminent domain to benefit private entities. But to take that next step and not even pretend to have oversight and to just give (private entities) the authority is one of the worst cases of abuse,” says property-rights attorney Jenifer Zeigler, who works for a nonprofit involved in the Kelo case.
Historically, states granted condemnation powers to private companies in order to prevent “holdouts” — private landowners who might refuse to sell or ask exorbitant prices — from impeding the development of railroads, irrigation canals and other infrastructure, according to James Huffman, a professor at Lewis & Clark Law School in Oregon.
Railroads offered a public benefit by transporting people, he says. But the public benefit in the Riedes’ case isn’t so clear.
“The law shouldn’t be stuck in the 19th century if it doesn’t make sense for us today,” Huffman adds. “Where do you draw the line? If phosphate mining is a public use, so is an Albertsons supermarket.”
Condemning for convenience
Eminent domain allows private parties to put “a thumb on the scale” when negotiating the purchase price of land or easements, undercutting the free market and opening the door to abuse, Huffman says.
Buffalo, Wyo., rancher Steve Adami agrees. One energy company halved the price it originally offered for an easement to build a utility corridor across his land.
“They say, ‘Take this, or we’ll condemn,’ ” he says. Condemnation didn’t occur, but Adami had to put up a fight. Likewise, the Riedes say that Simplot implied it would condemn before making an offer.
Adami is among ranchers pressuring the Wyoming Legislature to protect property rights. A bill headed to the House floor for debate in January would pressure companies to negotiate in “good faith” and to give more notice to property owners before condemning. But it “doesn’t do one thing that property owners asked for to strengthen private-property rights,” says Laurie Goodman of the Landowners Association of Wyoming, a rancher-driven lobbying group. The group wants the bill to allow jury trials to determine “public benefit” and to prohibit condemnation for the sake of corporate convenience.
Petroleum Association of Wyoming President Bruce Hinchey denies that industry abuses eminent domain. He says most landowners are pleased with the extra money they make from selling easements. “I think it’s a matter of saying, ‘Are you getting a fair price for the land or the use of the land?’ ” he says. “In most cases, ranchers are satisfied.”
Not the Riedes, who say this land battle has destroyed their dream of easing into retirement. They have postponed their plans to build a home, and are bracing for a fight.
“The injustice makes me just furious,” Judy Riede says. “It’s not just our land. If we go, it makes it that easy for the next person to go.”
The author is a Jackson, Wyoming, freelance writer covering environmental issues across the Greater Yellowstone Ecosystem.