Eminent domain the main topic at committee meeting: Torrington (WY) Telegram, 4/21/06

By Jerry Abbott

On Wednesday morning, the Joint Agriculture, Public Lands and Water Resources Interim Committee met at Eastern Wyoming College to discuss several important topics with the most hotly contested being Wyoming’s legislation of eminent domain.

An overview panel of four individuals addressed the joint committee on Wednesday with their view of eminent domain in Wyoming. The committee members were: Tom Toner of Yonkee and Toner, LLP; Matt Micheli of Holland and Hart, LLP; Jim Magagna, vice-president of Wyoming Stock Growers Association; and George Parks, executive director of the Wyoming Association of Municipalities.

In the discussion that followed, it was apparent that there is a wide variance of opinion regarding the appropriate use of the power of eminent domain. The majority felt that eminent domain in Wyoming should be changed/clarified with new legislation.

A number of terms brought different views from the overview panel. One such term was “just compensation.” Micheli felt that the value of land taken exercising eminent domain should be determined by looking at comparable property. He said, however, that companies often end up paying a premium for private land because they want to avoid the cost of court proceedings.

“They get more because we pay more to stay out of legal negotiations,” Micheli said.

According to Micheli, the problem with a 20-year lease is that after the utility, like a pipeline, is in place, the landowner has you over a barrel. At that point, the landowner knows you do not want to take out the pipeline and is prone to charge some exorbitant price for the new lease agreement.

Another method of determining just compensation is a licensed appraiser. In this case, it was noted that land values change over time and change with the installation of telephone poles or railroad lines. Sometimes the land may only be suitable for grazing.

One approach to fair market value used a jury of peers. The idea was that peers would know what land is worth in a given area. Several land owners proposed rental or lease agreements for fair compensation over a lengthy period of time.

“This is just the initial discussion on an issue that will be looked at for a long time,” Parks said. “The Legislature will be addressing eminent domain in a way that makes it fair to all the parties.”

After the overview panel discussion, the joint committee heard from the public. The majority of testimony was from landowners or their representatives who alleged that companies had not treated them fairly and had abused their eminent domain authority.

Several presenters stated that the big companies were not willing to negotiate and had a “we are doing you a favor” attitude. One presenter said to him it wasn’t just dollars and cents. It was mentally draining.

One landowner said he had five days to “take it or leave it.” He has spent $10,000 in legal fees fighting and the case is still not settled. He said there should be some compensation for time spent in negotiations, even if a settlement is not reached.

There was great concern that the impacts to private land are kept in a single corridor. Also, owners stressed that needed electric lines, pipe lines, railroad tracks, etc., should run through federal land before condemning private lands.

Testimony by an electric company representative stressed his company’s fair use of eminent domain. He noted that electric lines could not go for miles just because a landowner did not want the lines on his land. The representative also noted that if the electric company had to pay periodic fees to land owners for the use of their land, it would be a logistical nightmare and would increase electric rates. His company provides electric service in several states.

“I would like to see land owners paid for the total time that land obtained through eminent domain is in use,” said Rep. Jim Hageman, chairman of the House Agriculture Committee and vice chairman of the joint committee. “A mutual agreement is fine but if they go through the courts, the land owner needs to be paid for the rest of time the agreement is in existence. We need to give the land owner a bit more balance.”

Hageman said that he could identify with landowners who face the realities of eminent domain. His ranch has railroad, power lines and highways through it.

“We need to strengthen our subdivision side of eminent domain,” said Gerald Geis, chairman of the joint committee. “We will have a September meeting of the joint Ag committee and use a whole day to draft legislation. Once we have the draft there will be a lot of public debate. Right to minerals supersedes other people. The constitution is pretty clear regarding mineral rights.”

Each of the legislators interviewed said there must be a fair balance of power.

“I look at eminent domain as taking away private property rights,” Sen. Curt Meier said. “It takes away personal freedom but without it there wouldn’t be any sewer, electric, water or other necessities. As a legislative body we need to strike a balance. It is not a necessary evil; it is just necessary. Yesterday I made a motion to draft a bill for public eminent domain and a bill for private eminent domain. In those bills we need to clarify six things: good faith negotiation process, allowance for leasing of land for indeterminate time periods, public purpose, just compensation, put the burden of proof on the condemner and allow for easements only for the original use. (If the easement is used for other purposes, the landowner gets a “bite of that apple” too.)”

Regarding eminent domain, the Wyoming constitution provides that: 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.

The Wyoming Eminent Domain Act permits the state, counties and municipalities to exercise the power of eminent domain. Also, water companies, railroad companies and utility, petroleum and pipeline companies are authorized to exercise the power of eminent domain as specified in statutes.

Under Wyoming law, “any person, association, company or corporation authorized to do business in Wyoming” may condemn for “a way of necessity over, across or on so much of the lands or real property of others, as necessary for reservoirs, drains, flumes , ditches, underground water pipelines, pumping stations, canals, electric power transmission lines, railroad tracks, sidings, spur tracks, tramways, roads or mine truck haul roads.”

Torrington Telegram: http://www.torringtontelegram.com