LINCOLN, Neb. (Nebraska Examiner) – Nebraska lawmakers dove into the concept of eminent domain, or the taking of private property for public use, during a Friday hearing to see if state law could be more fair or transparent.
State Sen. John Cavanaugh of Omaha introduced Legislative Resolution 247 this spring for a broad look into eminent domain after seeing a number of private entities utilize the law. Though he does not have a specific outcome in mind, Cavanaugh said, he is looking for more transparency to curb potential abuses and to defend property rights.
“This is a broad project, and different entities have different types of domain and different responsibilities,” Cavanaugh told the Government, Military and Veterans Affairs Committee on Friday. “There’s still a lot of work to be done and a lot to learn.”
Cavanaugh introduced Legislative Bill 133 this year as well, which would require public or private entities with eminent domain authority to be subject to the Open Meetings Act.
Multiple organizations testified in February that the hearings could be onerous if they are not set up for them or if staff are spread nationwide. The bill did not advance from the committee.
“In truth, I didn’t expect that proposal to go anywhere and I introduced it to just start a discussion,” Cavanaugh testified.
Eminent domain has been controversial, particularly in current efforts to build carbon dioxide pipelines through several Midwest states, including Nebraska. In those cases, private companies have clashed with states, counties or individual landowners.
William Blake, an attorney with more than 50 years’ experience with eminent domain, offered seven recommendations. He noted they could be done on a piecemeal or comprehensive basis.
However, he said, doing so could bring a “long, difficult process,” such as in the courts.
Blake’s recommendations are to:
Ken Winston, who has 41 years of experience as an attorney, suggested requiring public hearings in counties where there is a proposed project that would use eminent domain. He also emphasized a need for more uniform standards in the application of eminent domain and a comprehensive rewrite as some laws conflict.
Eminent domain can be used if owners are given “just compensation,” Blake said, which the U.S. Supreme Court has interpreted as fair market value. But this is not always the case.
Instead, some landowners are given just some compensation, not fair compensation.
State Sen. Steve Halloran of Hastings, a committee member, said “just compensation” is a relative term and asked whether the Legislature is able to define the term, such as 2.5 times market value.
“I don’t know that anybody has tried to do that, but you could,” Blake responded. “You have a great amount of latitude.”
John Hansen, president of Nebraska Farmers Union, said that when landowners do go in for good faith negotiations, buyers sometimes misrepresent their legal status or standing, such as falsely claiming they already have eminent domain.
This “fundamentally changes” the nature of the negotiation, he added, asking for possible legal remedies for false representation.
“It is the difference between whether or not I walk up to you on the street and ask you for $1 or whether I walk up to you with a gun in my pocket and you can see the gun and say, ‘Give me $1,’” Hansen testified. “It is the difference between a voluntary donation and a robbery.”
Organizations that use eminent domain — including the Nebraska Public Power District and Lancaster County — said they do use good faith negotiations and try to use it as a last resort, which Cavanaugh said should be a goal.
Jill Becker of Black Hills Energy said to her knowledge, the company has started but never carried out eminent domain in the state.
Cavanaugh told the Nebraska Examiner it is a little early to think about possible legislation though Blake’s recommendations to improve negotiations and appraisals “sound pretty straightforward.”
“One of the biggest offenses in eminent domain is not the use, but it’s the threat,” Cavanaugh said. “I appreciate folks saying, ‘We hardly ever use it,’ but that leaves out the point that you do threaten it.”
Committee Chair Tom Brewer of Gordon, who also introduced a bill to limit the use of eminent domain, told Cavanaugh the two could sit down, digest what they learned and see what they could figure out ahead of 2024 “that helps get us in a better place.”
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