Published March 25, 2022

What’s All the Fuss About Eminent Domain?

Written by
Greg Demme
| The Dakotan
In the opinion of Greg Demme
Greg Demme, columnist, The Dakotan
In the opinion of Greg Demme
Greg Demme, columnist, The Dakotan

The topic of eminent domain has come up again recently in the current discussions surrounding the carbon capture pipeline project. Many North Dakotans are at least tangentially familiar with the concept of eminent domain, but if you don’t own significant amounts of land, especially located in the western half of North Dakota, you may just be familiar with the term and not much more.

Even those who know a bit more about eminent domain, especially through hard experience, may not understand as much about it as they could. And some people think the concept should be completely eliminated.

I once heard a public personality who was known for supporting individual liberty say that eminent domain has no place in a free society. Many people feel similarly.

It may surprise some readers to learn that the concept of eminent domain is embedded within the U.S. Constitution’s original Bill of Rights. The very last guarantee within the Fifth Amendment to the U.S. Constitution states, “…nor shall private property be taken for public use, without just compensation.”

So, yes, the nation that historically has been the freest society on earth has included the concept of eminent domain within its original Bill of Rights.

What can we say about eminent domain then? First, the Founding Fathers didn’t attempt to ban eminent domain. They merely regulated it. That is to say, the government could not take an individual’s land for public use, without just compensation.

Many of us might be tempted to jump directly to disputing exactly what “just compensation” means. After all, words and concepts often change meaning over time. I wrote about such definitional drift in another recent column.

But North Dakota at least has a fairly established procedure for deciding just compensation. Instead, I will focus today on how widely varied the concept of “public use” can be.

According to North Dakota law, eminent domain can be exercised, the process of which is called “condemnation,” for a long list of items, including public buildings, cemeteries, parks, roads of all sorts, railroads, telephone lines, power lines, oil and gas (and carbon capture) pipelines, and much more. It might be fair to ask, “What can’t eminent domain be exercised for?” And that would be a reasonable question.

I think if North Dakota can make any headway in more fully respecting landowner rights when it comes to eminent domain, it lies in more narrowly constricting the concept of “public use.”

A landowner can generally understand why public use should include roads, and maybe power lines and water lines. Flood control is usually understandable as well. Many of these, while still not necessarily popular with landowners, are often considered on the level of “necessary evils.”

It gets harder for landowners to accept that companies that earn significant money, like oil and gas companies, should have condemnation power over landowners. And many people do not realize that there are some oil transmission lines, called “common carriers,” that are more heavily regulated and are limited in their profit margin, and thus are allowed to exercise condemnation authority. In that sense, they became at least a type of public utility, as opposed to a completely privately owned oil pipeline that carries only the oil from that company’s wells. Still, the less public and more private an entity seems to be, the harder it is for landowners to swallow the idea of having their land condemned and calling it for “public use.”

Another factor in this entire discussion is the “quick take” procedure. Certain government entities have the power to take the portion of land needed for a project before the actual compensation negotiations have been fully completed. This is most commonly seen with the Department of Transportation for the purpose of expanding highways and other roads.

Most landowners find quick-take condemnation especially galling. In fact, in 2019, Rep. Tom Kading, R-Dis. 45, Fargo, sponsored a bill to eliminate this quick-take provision. That bill failed by a wide margin.

Armed with this level of information, one can understand why numerous North Dakota landowners would bristle at the notion of having a portion of their land condemned for a carbon capture pipeline. Pipelines do disturb the land, even if they are well reclaimed afterward. And for an as-yet unproven technology, many landowners are having a hard time digesting the need for their land to be condemned for this purpose.

It may be time for the “public use” (and “quick take”) aspects of eminent domain to be reassessed in the next legislative session.

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