The Property Rights Page

Why is the eminent domain playing field tilted so heavily in favor of the government? To understand the uphill battle faced by landowners when their property is taken for public use, we must understand the setting or environment in which condemnation occurs.  The Takings Clause of the Fifth Amendment to the United States Constitution states: “[N]or shall private property be taken for public use without just compensation.” While this clearly stated protection of one of our fundamental rights seems straightforward and easy, it is anything but simple.  In this essay, the author relies on nearly 40 years of experience of passionately battling for just compensation on behalf of property owners,   and looks at the environment in which the taking of private property for public use occurs.  It is a constant struggle to achieve anything approaching fairness for the property owner.    This is because the condemning agency holds a number of advantages that tilt the field greatly in the agency’s favor and which can be very difficult to overcome.     Let’s look at a few of the factors involved: 1. The Agency Holds Almost All the Power.    The agency says it wants to acquire the property for public use: The owner cannot say “no, it is not for sale”.The owner cannot say “I’m busy right now, come back in a couple of months”.The owner does not have the right to say how much property they will part with,or which property,or the terms of a purchase agreement.in most cases the agency will be…

We Americans jealously protect our personal liberties including the freedom to go where we wish and how to get there, and the right to receive just compensation when our property is taken from us for public use. At the time of this writing, we are in the middle of a global pandemic, and any of our liberties are temporarily backstage. Our personal rights become less important to us in times of widespread crisis, times when we are keenly aware that we are all in this together and that we all need to sacrifice and work for the common good.             All states have emergency powers, with statutes and constitutional provisions as to how those powers are to be administered. The Nebraska Emergency Management Act, Neb. Rev. Stat § 81- 829.38 et. seq. Authorizes the Governor to determine that an emergency exists due to imminent threat of serious damage, injury, or loss of life or property resulting from any natural or manmade cause. The Governor then has the authority to manage that emergency, including personal control of virtually all operations of state agencies. The Governor’s powers include control of the National Guard, suspension of regulations regarding the conduct of business, the authority to commandeer private property for public use if necessary to cope with the emergency, the power to compel the evacuation of persons from any threatened area, prescribe routes of transportation and control of the movement of persons in disaster areas, and dispensing or limiting the sale, dispensing or transportation…

            In Knick v. Township of Scott, 139 S. Ct. 2162 (2019), the United States Supreme Court restored the Fifth Amendment’s Takings Clause to the full-fledged constitutional status the framers envisioned when they included the clause among the other protections in the Bill of Rights.  The Takings Clause states that: . . . nor shall private property be taken for public use without just compensation.             While this bedrock of American property rights has long been recognized as one of our fundamental freedoms, a number of cases had made it seem virtually impossible for an owner whose property had been taken without compensation to seek justice in federal court.              Rose Mary Knick owned a farm on which was located in a small family burial plot.  When the township passed an ordinance requiring all cemeteries to be open to the public, Knick refused, claiming the township had taken a portion of her property without paying for it.  Knick sued in United States District Court, claiming the township had violated her civil rights under 42 U.S.C. §1983.  Such procedure is the standard way to seek redress of all civil rights, whether it be in state court or federal court.  The Court has long recognized that taking without compensation is a violation of the Fifth Amendment.  However, the high Court adopted an effective roadblock to seeking compensation in federal C in Williamson v. Hamilton Bank, 473 U.S. 172 (1985).              In Williamson, the Court held that a property owner could not sue…

                On August 23, 2019, the Nebraska Supreme Court cleared one of the final hurdles for the XL pipeline by affirming the decision of the Nebraska Public Service Commission’s to approve a route through Nebraska,   The project plan is to bury a 36-inch crude oil pipeline from Alberta, Canada to Southern Nebraska.   It was first announced in 2008 and has remained the focus of controversy and litigation for eleven years.   It has undergone two route changes through Nebraska after the acquisition of a majority of the needed corridor easements.  Many of the property owners who had signed those corridor easements were left laughing all the way to the bank.    Several efforts to acquire easements from other owners by condemnation were dismissed as premature, as there was not yet an approved route.       Finally, TransCanada filed an application with the PSC for approval by the PSC of its preferred route.   The PSC,  an administrative regulatory body with the power to determine whether a major oil pipeline route is in the public interest, approved a route, but not the requested route.   TransCanada had requested approval of its second proposed route, but that route met with substantial opposition.    In November 2017,  the PSC approved a different route closely paralleling the route of TransCanada’s earlier Keystone pipeline.   A number of farmers and ranchers along the approved route,  joined by several native American tribes and environmental groups,  appealed the decision to the Nebraska Supreme Court.    Every procedural, evidentiary, statutory and Constitutional argument imaginable was raised.   There…

When private property is acquired under threat of condemnation, it is not entirely about the dollars.        TransCanada is at it again, attempting to acquire right-of-way for the XL Pipeline. TransCanada has sent its negotiators out again to deliver easement proposals and related documents to property owners along the route approved by the Public Service Commission for the XL Pipeline through Nebraska.  This is the third time TransCanada has acquired easements for the proposed pipeline corridor.  Much of the first route was abandoned when TransCanada failed to obtain the necessary permit from the federal government.  That original route was through the Nebraska Sandhills, and environmental issues forced TransCanada to move the corridor further to the east in the northern part of Nebraska.  Of course, the landowners who had signed easements kept the money they had been paid by TransCanada. Then, in 2012, after re-routing approximately one-half of the pipeline corridor in Nebraska, TransCanada acquired much of the right-of-way for the second corridor.  However, in 2017 that corridor was rejected by the Nebraska Public Service Commission in favor of a third route.  Once again, the property owners along the abandoned route kept the money they had been paid. The new route as approved follows the route of the original Keystone Pipeline through much of the state.   Now, with the “approved” route still on appeal before the Nebraska Supreme Court with what must be recognized as serious questions regarding the validity of the Public Service Commission’s decision, TransCanada is attempting again to…

What is the Keystone XL Appeal about – and what is it not about? In November 2017, the Nebraska Public Service Commission surprised almost everyone when it approved a route through the state for long embattled Keystone XL Pipeline. However, it was not the route submitted or presented to the Commission by TransCanada, and it was not the route to which the opponents responded. The approved route veered off the proposed route in the Northern part of Nebraska and continued southeasterly to meet up with what the Commission called the Mainline alternative route, which is the same path on which the original Keystone pipeline was constructed in 2008. Of course, it is easy to suggest such a path (to everyone except many of the landowners in that path) with the idea that there is no need to reinvent the wheel. The primary problem with the mainline route and the primary basis for the appeal to the Nebraska Supreme Court is not whether it is a good route or whether the pipeline is even a good idea. It also involves no issue regarding the use of the power of eminent domain, with the exception that one requirement for filing a condemnation case is that TransCanada must be able to show to the court that it has obtained all needed permits. It cannot do so while the approved route is not final. The appeal issues on appeal involve questions of procedure, involving due process arguments and also the question of whether the…

William G. Blake, 4/25/2018. In determining the amount of just compensation an owner is to be paid when property rights are acquired for public use, a fair market value of the property is the fundamental focus of our search.  It provides the measure of compensation for the property as well as a basis for calculating the loss of value of the remainder of the property. Highest and best use is the foundation on which the determination of fair market value is built, but it is sometimes given little thought.  This is a mistake.  It is like any foundation.  It must be solid or everything built on it is doomed to failure.  Similarly, everything that does not rest on the foundation will be in peril. The landowner, appraiser and condemnation lawyer must always carefully consider highest and best use early in the process and must keep their efforts consistent with that use.  Indeed, highest and best use is a guiding principle in the valuation process. While fair market value looks at the probable result of an arm’s length transaction in the open market, highest and best use looks at the use on which reasonably informed buyers and sellers would base their negotiations.  It is the reasonably probable use of property that results in the highest value.  While it is not always correct that buyers and sellers will look at the transaction in this manner, it is logical that such will be the case most of the time.  Deviations will occur in…