Railroads employ eminent domain: Yuma AZ Sun, 9/29/06

By Jeffrey Gautreaux

When it comes to eminent domain usage by railroads, it doesn't seem to be a question of if they will get the property they need, but rather how much they will pay for it.

Arizona state law delegates the right to take property through eminent domain to railroads, which have long been considered a public use, according to Tim Keller, executive director of the Institute for Justice, Arizona chapter.

"I understand how people see (railroads) as private companies, but the courts have clearly established that condemnation by common carriers is a public use," Keller said.

The Sun previously reported that Union Pacific officials are researching Yuma as a route to ship cargo from 130 miles south of Tijuana into the United States. Landowners throughout Yuma told The Sun that they had been approached by Union Pacific officials about property acquisition.

Chris Peterson, the Union Pacific director of government affairs, previously stated in articles that the company had conducted preliminary studies, but the "project remains very uncertain."

Local farmer Bruce Easterday has no illusions about trying to fight the railroad if it should pursue eminent domain to acquire his property.

"We would need the state government supporting us to fight it. For simple folks — farmers out there — we couldn't stop the railroad on our own."

Easterday said he was approached by a Union Pacific representative about selling an option to purchase 200 acres he owns at County 13th Street and Avenue 3E for the potential rail line that would come up from Mexico, likely from a new superport planned for Punta Colonet.

James Barnes, director of media information, said Union Pacific uses eminent domain only as a last resort. He said if a property is needed, the corporation almost always finds a way to negotiate a sale price with landowners.

"We have the power of eminent domain, but we have almost never used it."

Barnes said using eminent domain requires the approval of the corporation's board of directors. He said the board has approved only two condemnations in the past six years, and those did not occur in Arizona.

Keller said common carriers include railroads and utilities. While these are private entities, they are used equally by the public — such as a power company offering electricity to all homes — and tightly regulated by government.

In most cases, Keller said, a railroad will make an offer for just compensation to a landowner. If the landowner refuses, the issue will go to court where a judge, or possibly a jury, will decide on the fair value that should be paid.

Union Pacific officials have said they are merely studying the possibility of creating a new line. However, local farmers say they have been approached about selling land for the line.

The Institute for Justice litigates cases for landowners who are having their property taken for private use, not for public uses. One of its most famous cases, litigated by Keller and another attorney, successfully defended the owner of a Mesa brake shop from attempts by the city to take his property to build a new Ace Hardware store.

But Keller said the agency has never defended anyone in a case with a railroad because it is so widely considered a public use. "Historically, railroads have been deemed a proper exercise of eminent domain," he said.

Under Title 40 of the Arizona Revised Statutes, the specific powers of railroads include the power to "take lands and materials to be used in the construction and maintenance of railroad and telegraph lines in the manner provided by law relating to eminent domain in the event such lands and materials cannot be obtained by agreement with the owners thereof."

And under ARS Title 12, the purposes for which eminent domain may be exercised include "rights of way, station grounds, pits, yards, sidetracks and other necessary facilities for railways."

Yuma AZ Sun: http://sun.yumasun.com