Nebraska lawmakers look to grasp, curb potential abuses of eminent area

LINCOLN — Nebraska lawmakers dove into the idea of eminent area, or the taking of personal property for public use, throughout a Friday listening to to see if state regulation may very well be extra truthful or clear.

State Sen. John Cavanaugh of Omaha. (Zach Wendling/Nebraska Examiner)

State Sen. John Cavanaugh of Omaha launched Legislative Resolution 247 this spring for a broad look into eminent area after seeing quite a few non-public entities make the most of the regulation. Although he doesn’t have a particular final result in thoughts, Cavanaugh stated, he’s searching for extra transparency to curb potential abuses and to defend property rights.

“It is a broad mission, and totally different entities have several types of area and totally different duties,” Cavanaugh instructed the Authorities, Army and Veterans Affairs Committee on Friday. “There’s nonetheless plenty of work to be accomplished and rather a lot to study.”

Cavanaugh launched Legislative Bill 133 this 12 months as nicely, which might require public or non-public entities with eminent area authority to be topic to the Open Conferences Act. 

A number of organizations testified in February that the hearings may very well be onerous if they don’t seem to be arrange for them or if employees are unfold nationwide. The invoice didn’t advance from the committee.

“In fact, I didn’t count on that proposal to go anyplace and I launched it to only begin a dialogue,” Cavanaugh testified.

Eminent area has been controversial, notably in present efforts to construct carbon dioxide pipelines via a number of Midwest states, together with Nebraska. In these instances, non-public corporations have clashed with states, counties or particular person landowners.

Potential suggestions

William Blake, an eminent domain attorney, testifies before the Legislature
William Blake, an legal professional’s with 50 years’ expertise in eminent area. (Zach Wendling/Nebraska Examiner)

William Blake, an legal professional with greater than 50 years’ expertise with eminent area, supplied seven suggestions. He famous they may very well be accomplished on a piecemeal or complete foundation. 

Nonetheless, he stated, doing so may carry a “lengthy, troublesome course of,” comparable to within the courts.

Blake’s suggestions are to:

  • Require precise good religion negotiations between landowners and people using eminent area to be one thing helpful and “greater than being a pleasant individual.”
  • Require appraisal transparency, the muse of excellent religion negotiations, which ought to be shared with the proprietor on the first negotiation contract.
  • Change state regulation on what must be within the condemner’s petition from “ought to” point out all wanted approvals have been obtained to “shall” point out.
  • Require public oversight of pipeline routes, not simply {that a} pipeline firm can train eminent area.
  • Require that land titles don’t move to the condemner till the property is required. If the property isn’t used for the aim for which it was required, it’s returned to the proprietor.
  • Get rid of institutionalized condemnation blight introduced via Protected Corridors by not permitting value determinations to be based mostly on current gross sales of property throughout the scope of the mission.
  • Take into account an alternate methodology of figuring out compensation when it’s a non-public entity’s “for-profit” mission.

Ken Winston, who has 41 years of expertise as an legal professional, instructed requiring public hearings in counties the place there’s a proposed mission that will use eminent area. He additionally emphasised a necessity for extra uniform requirements within the utility of eminent area and a complete rewrite as some legal guidelines battle.

‘Simply compensation’

Eminent area can be utilized if house owners are given “simply compensation,” Blake stated, which the U.S. Supreme Courtroom has interpreted as truthful market worth. However this isn’t all the time the case.

As a substitute, some landowners are given just a few compensation, not truthful compensation.

Steve Halloran asks a testifier a question on eminent domain
State Sen. Steve Halloran of Hastings. (Zach Wendling/Nebraska Examiner)

State Sen. Steve Halloran of Hastings, a committee member, stated “simply compensation” is a relative time period and requested whether or not the Legislature is ready to outline the time period, comparable to 2.5 occasions market worth. 

“I don’t know that anyone has tried to do this, however you could possibly,” Blake responded. “You will have a large amount of latitude.”

John Hansen, president of Nebraska Farmers Union, stated that when landowners do go in for good religion negotiations, consumers generally misrepresent their authorized standing or standing, comparable to falsely claiming they have already got eminent area.

This “basically adjustments” the character of the negotiation, he added, asking for doable authorized cures for false illustration.

“It’s the distinction between whether or not or not I stroll as much as you on the road and ask you for $1 or whether or not I stroll as much as you with a gun in my pocket and you may see the gun and say, ‘Give me $1,’” Hansen testified. “It’s the distinction between a voluntary donation and a theft.”

‘It’s the risk’

Organizations that use eminent area — together with the Nebraska Public Energy District and Lancaster County — stated they do use good religion negotiations and attempt to use it as a final resort, which Cavanaugh stated ought to be a purpose.

Tom Brewer asks a testifier a question on eminent domain
State Sen. Tom Brewer of Gordon, chair of the Authorities, Army and Veterans Affairs Committee. (Zach Wendling/Nebraska Examiner)

Jill Becker of Black Hills Vitality stated to her information, the corporate has began however by no means carried out eminent area within the state. 

Cavanaugh instructed the Nebraska Examiner it’s a little early to consider doable laws although Blake’s suggestions to enhance negotiations and value determinations “sound fairly easy.”

“One of many largest offenses in eminent area isn’t the use, but it surely’s the risk,” Cavanaugh stated. “I admire people saying, ‘We infrequently use it,’ however that leaves out the purpose that you just do threaten it.”

Committee Chair Tom Brewer of Gordon, who additionally launched a invoice to restrict the usage of eminent area, instructed Cavanaugh the 2 may sit down, digest what they discovered and see what they might determine forward of 2024 “that helps get us in a greater place.”

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