Reform or not? Casper WY Star-Tribune, 1/10/07

By Dustin Bleizeffer

A grassroots effort to reform Wyoming's eminent domain laws has gained momentum during the past year, and a major battle over the issue is expected to play out in the legislative session that began Tuesday.

Reform supporters made their presence known in Cheyenne Tuesday afternoon with a rally that included Jenifer Zeigler, the attorney who argued for Susette Kelo in the famous U.S. Supreme Court case Kelo v. City of New London.

"Wyoming allows private industry to use eminent domain. If Wyoming is a state that really values individual freedoms and private property rights, it seems to me it ought to have the toughest eminent domain laws," Zeigler told the Star-Tribune in a phone interview.

Zeigler is the legislative affairs attorney for the Institute for Justice's Castle Coalition, which advocates limited use of eminent domain. She was invited to speak in Cheyenne by the Landowners Association of Wyoming.

Zeigler said 34 states have reined in the use of eminent domain since the U.S. Supreme Court ruled that economic development is reason enough for the government to take private property. Always eager to accommodate development, Wyoming has eminent domain laws go a step further: Even a private entity can take someone else's private property for its own economic gain.

Zeigler said the Fifth Amendment of the U.S. Constitution meant to prevent private property from being taken except for public use with just compensation.

"Public use means the government absolutely needs it to carry out one of its obligations," Zeigler said. "People know what that means. The problem is Wyoming goes so far as to allow private use in its constitution. So instead of eminent domain being used when the government absolutely needs (to take property) the government is using it as an economic development tool."

In a state that receives more than 60 percent of its revenue from mining and energy development, the industry employs a large lobbying presence in the State Capitol. And they're not giving up on the issue without a fight. Utilities and mineral developers say they can't afford to do business in Wyoming without the ability to take private property.

And perhaps one of the largest opponents of eminent domain reform is the Wyoming Department of Transportation, which has filed 25 condemnation proceedings in the past five years and settled each one out of court.

"Our numbers and experience with eminent domain don't show me that there's something broken in the law that needs fixing," said John Sherman, WYDOT's lands management administrator.

One change that reform supporters want is the right to a jury trial to determine if a "taking" is in the greatest public good for the least private damage. Sherman said that would be a nightmare for linear facilities that may cross properties of hundreds of private landowners.

"If one landowner goes to court (and stops a project), then you just bought 99 parcels that you don't need," Sherman said. "I think it would be difficult to plan a whole project and not know if you can prove before a jury that one acquisition out of 100 others is necessary."

Reform supporters insist they only want to limit the use of eminent domain as a last resort and provide assurances that just -- not exorbitant -- compensation be paid.

"These multimillion-dollar industries say they need eminent domain to survive, and I find it very hard to believe," Zeigler said. "They need to be forced to negotiate in the market just like everybody else, instead of using government coercion to get what they want."

Casper WY Star-Tribune: http://www.casperstartribune.net