EMINENT DOMAIN
IN WYOMING
November 15, 2012
WHAT IS EMINENT DOMAIN?
 Eminent domain is the power of the government to acquire
private property for public purposes.
 Eminent domain is authorized by Article I of the U.S.
Constitution and limited by the Fifth and Fourteenth
Amendments.
 The Fifth Amendment, which applies to the federal
government, states that “…private property (shall not) be
taken for public use, without just compensation.”
 The Fourteenth Amendment extends this limitation to state
governments.
ELEMENTS OF EMINENT DOMAIN
Private Property
Taking
Public Use
Just Compensation
HISTORY OF EMINENT DOMAIN
 Latter half of 19 th Century, courts in some states, applied a
narrow concept of public use in order to preserve rights of
property owners by allowing a taking that would benefit a
private party only if the project would actually be open to use
by the public.
 Early 20 th Century courts returned to a broad construction of
public use defining it as any “public purpose”
 1890 Wyoming Constitution declares private property may be
taken for private uses
 Many speculate that state and federal deference to economic
and natural resource development guided the next 100 years
of eminent domain case law
CORONADO OIL COMPANY V. GRIEVES
Court found “plain beyond any doubt”
that purpose of statute and constitution
“was to facilitate the development of our
state’s resources”
“Great public interest in an imminent
need for energy”
RECENT HAPPENINGS IN EMINENT
DOMAIN
 2005: Kelo v. City of New London
 Issue of what constitutes a public use for purposes of eminent
domain
 City of New London planned to redevelop a waterfront area “to
increase tax and other revenues and to revitalize an economically
distressed city”
 Proposed $300 million research facility for Pfizer
 New corporate headquarters to create jobs and help rejuvenate the
area
 City was unable to negotiate purchase agreements with all the
petitioner home owners in development area, so used statutory
authority to initiate a condemnation proceeding.
KELO CONT.
 United States Supreme Court Review:
 Determined whether “A city’s decision to take property for the
purpose of economic development satisfies the ‘public use’
requirement of the Fifth Amendment”
 5-4 decision: constitutional public use
No bright line rule comes from this decision
Justice Stephens emphasized, nothing in the opinion precluded any
state from “placing further restrictions on its exercise of the takings
power”
EMINENT DOMAIN AND THE WYOMING
CONSTITUTION:
 Article 1 , Section 32. Eminent domain.
 Private property shall not be taken for private use unless by
consent of the owner, except for private ways of necessity,
and for reservoirs, drains, flumes or ditches on or across the
lands of others for agricultural, mining, milling, domestic or
sanitary purposes, nor in any case without due compensation.
 Article 1 , Section 33. Compensation for property taken.
 Private property shall not be taken or damaged for public or
private use without just compensation.
2007 REFORMS MADE TO THE EMINENT
DOMAIN ACT IN RESPONSE TO KELO
 Section 1-26-509:
 Improved good faith negotiations to require a three part
negotiation system.
 Section 1-26-509
 Heightened accountability in the condemnor, requiring
payment of legal fees if responsibilities to condemnee are not
met.
 Section 1-26-704
 Improved compensation through a changed definition of “fair
market value”
WYOMING EMINENT DOMAIN ACT
 Wyo. Stat. §§ 1-26-501 to -817
 1-26-502. Definitions.
 (a) As used in this act:
 (i) "Condemn" means to take property under the power of eminent
domain;
 (ii) "Condemnee" means a person who has or claims an interest in
property that is the subject of a prospective or pending
condemnation action;
 (iii) "Condemnor" means a person empowered to condemn
1-26-504. REQUIREMENTS TO EXERCISE
EMINENT DOMAIN.
 (a) Except as otherwise provided by law, the power of eminent
domain may be exercised to acquire property for a proposed
use only if all of the following are established:
 (i) The public interest and necessity require the project or the use of
eminent domain is authorized by the Wyoming Constitution;
 (ii) The project is planned or located in the manner that will be most
compatible with the greatest public good and the least private injury;
and
 (iii) The property sought to be acquired is necessary for the project.
1-26-504(C) NOTICE PROVISION
 (c)When a public entity determines that there is a reasonable
probability of locating a particular public project on
specifically identifiable private property and that the project
is expected to be completed within two (2) years of that
determination, the public entity shall provide written notice of
the intention to consider the location and construction of the
project to the owner as shown on the records of the county
assessor……….
1-26-506. ENTRY PRIOR TO
CONDEMNATION ACTION.
 (a) A condemnor and its agents and employees may enter upon real
proper ty and make sur veys, examinations, photographs, tests,
soundings, borings and samplings, or engage in other activities for the
purpose of appraising the proper ty or determining whether it is suitable
and within the power of the condemnor to condemn if the entr y is:
 (i) Preceded by prior notice to the condemnee specifying the particular activity to
be undertaken and the proposed use and potential recipient of the data thereby
obtained and the condemnee has been given fifteen (15) days to grant written
authorization;
 (ii) Undertaken during reasonable hours, normally during daylight;
 (iii) Accomplished peaceably and without inflicting substantial injury to land,
crops, improvements, livestock or current business operations.
 (b) The entr y and activities authorized by this section do not constitute
a trespass.
 (c) The condemnor is liable under W.S. 1-26-508 for damages resulting
from activities authorized by this section.
1-26-509
Negotiations; scope of efforts to purchase.
- (b): Definition of Good Faith Negotiation
- (c) – (h): The Good Faith Road Map
ARTICLE 5
 1-26-510. Preliminary ef forts to purchase.
 1-26-511. Purchase ef forts waived or excused.
 1-26-513. Deposit at commencement of action.
 1-26-514. Interest taken; due compensation.
 1-26-515. Abandonment, nonuse or new use.
1-26-516. ACTION FOR INVERSE
CONDEMNATION.
 When a person possessing the power of condemnation takes
possession of or damages land in which he has no interest, or
substantially diminishes the use or value of land, due to
activities on adjoining land without the authorization of the
owner of the land or before filing an action of condemnation,
the owner of the land may file an action in district court
seeking damages for the taking or damage and shall be
granted litigation expenses if damages are awarded to the
owner.
WHAT IS INVERSE CONDEMNATION?
 Property Owner initiates the action
 The owner alleges that the government has acquired an
interest in his or her property without giving compensation,
such as when the government floods a farmer's field or
pollutes a stream crossing private land.
 An inverse condemnation proceeding is often brought by a
property owner when it appears that the taker of the property
does not intend to bring eminent domain proceedings.
WHEN IS THIS ACTION NECESSARY?
 Regulatory Takings:
 The Federal or State Government may create a regulation limiting
use, access or enjoyment to a parcel of property.
 If the regulation deprives land of ALL economically beneficial uses it
is a per se taking unless the government is acting to prevent a
common law nuisance (offends the public at large). A regulation that
destroys all economic value for only a limited time does not result in
a per se taking.
 A suit for compensation usually proceeds by way of an action
in INVERSE CONDEMENATION. For regulatory takings, the
government may be liable for interim and permanent
damages. If regulation is unconstitutional it is void.
ARTICLE 7 COMPENSATION STANDARDS
 1-26-701 . Compensation standards.
 (a) An owner of property or an interest in property taken by
eminent domain is entitled to compensation determined under
the standards prescribed by W.S. 1-26-701 through 1-26-713.
 (b) Unless otherwise provided by law, the right to compensation
accrues upon the date of possession by the condemnor.
 (c) Except as specifically provided by W.S. 1-26-701 through 126-713, compensation, damages, or other relief to which a
person is otherwise entitled under this act or other law are not
affected, but duplication of payment is not permitted.
1-26-702. COMPENSATION FOR TAKING.
 (a) Except as provided in subsection (b) of this section, the
measure of compensation for a taking of property is its fair
market value determined under W.S. 1-26-704 as of the date of
valuation.
 (b) If there is a partial taking of property, the measure of
compensation is the greater of the value of the property rights
taken or the amount by which the fair market value of the entire
property immediately before the taking exceeds the fair market
value of the remainder immediately after the taking.
 1-26-703. Date of valuation.
 The date of valuation is the date upon which the condemnation
action was commenced.
1-26-704.FAIR MARKET VALUE DEFINED.
 (a)Except as provided in subsection (b) of this
section:
 (i)The fair market value of property for which there is
a relevant market is the price which would be agreed
to by an informed seller who is willing but not
obligated to sell, and an informed buyer who is
willing but not obligated to buy;
 (ii)The fair market value of property for which there is
no relevant market is its value as determined by any
method of valuation that is just and equitable;
1-26-704.FAIR MARKET VALUE DEFINED.
 (iii)The determination of fair market value shall use
generally accepted appraisal techniques and may
include:
 (A)The value determined by appraisal of the
property performed by a certified appraiser;
 (B)The price paid for other comparable easements
or leases of comparable type, size and location on
the same or similar property;
 (C)Values paid for transactions of comparable type,
size and location by other companies in arms
length transactions for comparable transactions on
the same or similar property.
ARTICLE 8: POWER OF EMINENT DOMAIN
GRANTED
 W.S. 1-26-801-809: grants the right of eminent domain to any
state, county, municipal organization or public utility.
 W.S. 1-26-810-812: grants the right of eminent domain to
railroads and limits rights of way to 200 feet. Section 812
requires railroads to construct and maintain crossings.
 W.S 1-26-814: grants the right of eminent domain to
petroleum and other pipeline companies.
W.S. 1-26-815:
 Provides for a broad right of Condemnation:
 “Any person, association, company or corporation authorized to
do business in this state may appropriate by condemnation a way
of necessity over, across or on so much of the lands or other real
property of others as necessary for the location, construction,
maintenance and use of reservoirs, drains, flumes, ditches
including return flow and wastewater ditches, underground water
pipelines, pumping stations and other necessary appurtenances,
canals, electric power transmission lines, railroad trackage,
sidings, spur tracks, tramways, roads or mine truck haul roads
required in the course of their business for agricultural, mining,
exploration drilling and production of oil and gas, milling,
electric power transmission and distribution, domestic,
municipal or sanitary purposes, or for the transportation of coal
from any coal mine or railroad line or for the transportation of oil
and gas from any well.”
PRIVATE ROADS
 PRIVATE ROAD STATUTES
 WY's private road statutes provide a mechanism by which a
landowner may petition to exercise the state's eminent domain
power to condemn a private road across another's property in
order to establish access between his own landlocked property
and a public road.
 "NO OUTLET" Requirement:
 Any owner of land HAVING NO OULET TO OR CONNECTION WITH A
PUBLIC ROAD may file an application with the board of county
commissioners in the county where his land is located to obtain
access across the lands of another. Access to property via leased
adjacent land or an illogical, uneconomic, and unproductive road
is NOT an 'outlet to or connection with' a convenient public road.
ENERGY DEVELOPMENT AND EMINENT
DOMAIN
 Energy: mining, oil and gas, wind and other state natural
resources fall into a Kelo type “economic development taking”
 Statutes create a right to displace private property interests in
the name of economic development that ultimately benefits
the public at large by facilitating the operations of private
firms.
 Land condemned by an energy company is not subject to
public access or use, but rather is ‘public’ in the sense that
the resource development will add to overall growth of state
economy
WIND ENERGY
 Moratorium expires in June 2013
 Currently: private wind energy developers do not have the
authority to condemn private land for wind turbines, wind
farms, or wind energy collector systems; private wind energy
developers do have the authority to condemn private property
for interstate transmission lines and energy distribution
systems.
 Landowners still have the power at the bargaining table with
wind energy developers and can negotiate freely with them for
the lease of their lands for wind farms and collector systems
without the threat of condemnation.
PROPOSED LEGISLATION
 Seismic Exploration
 Create more compensation for landowners
 Will increase bond to be posted with the WOGCC
 Current bond is $2,000 minimum
 Eminent Domain- Wind Energy Collector Systems
 Requirement of 85% of landowners involved or landowners owning
85% of land owned in agreement to proceed
 Trying to enhance landowner negotiation possibilities
 Extends Moratorium till 2015
 Working to define wind energy parameters in an eminent domain context
HOW TO PROTECT YOURSELF
Know your rights
Negotiate with confidence
Advocate for protecting your
private property ownership
rights
THANK YOU
Stacia Berry
Hageman & Brighton, P.C.
222 East 21 st Street
Cheyenne, Wyoming 82001
Telephone: 307-635-4888
[email protected]
www.hblawoffice.com