Wyoming Joint Ag Committee discusses eminent domain
Torrington – Wyoming’s legislators serving on the Joint Agriculture, State and Public Lands and Water Resources Committee jumped into their interim session work for 2023-24 in Torrington, with a robust discussion on a topic which is controversial at best in Wyoming – eminent domain.
Chairman Sheri Steinmetz started the meetings with a quote, saying, “Leadership is not always about having the answer. It is about being willing to engage in the conversation and learn the answer together, so I think this is why we’re here today. And, to find solutions for our state, our landowners and everyone who is concerned.”
Priority Three for the committee, titled State Lands and Eminent Domain, directs legislators to “consider issues regarding the exchange and transfer of state lands, including streamlining the transfer process. The committee will study eminent domain and its effects on private property rights.”
“Wind collector systems is just one component of eminent domain we were assigned to deal with at this time and probably the most pressing component,” Steinmetz said. “However, solar has become an issue in some parts of the state as well.”
In particular, the committee is focused on the statutory provisions of eminent domain which provide for private corporations to be able to use eminent domain.
Steinmetz continued, “After we listen to testimony today, we can hear the issues facing our constituents and narrow our focus.”
Eminent domain history
Sen. Larry Hicks of Baggs said, “I think one of the most pertinent things this committee will need to understand as we get into this issue is the fact there was proposed legislation in 2018, 2019 and 2023, and they all failed to extend the moratorium on collector systems. Until we understand the nature of why those failed, it seems like it might be futile to come back and try the same bill again, with the same result.”
“It will be important to know what the hurdle is and how big it is to get over if we want to move forward,” Hicks continued, asking the Legislative Services Office (LSO) to characterize the nature of discussions from the past.
Rep. Allen Slagle of Newcastle noted his bill, HB 106, Eminent domain – wind energy collector systems, passed in 2023 but was vetoed by Gov. Mark Gordon.
“I think our biggest issue here is the whole idea of private property rights,” he said. “When our country was founded, our founding fathers considered private property rights on equal basis with life and liberty, but since this point in time, our Supreme Court has continued to take the right away. I don’t know how we can overcome what the Supreme Court has done, but the issue is in private property rights.”
Hicks further suggested engaging the Executive Branch in the discussion, in light of the 2023 veto.
Experiences
from landowners
Niobrara County Commissioner Patrick Wade commented, “My education on eminent domain began when my wife and I got a letter from a company notifying us they were ‘preparing to build a pipeline on or in the immediate vicinity of our property.’”
He noted the company declared they would build the pipeline on or near the property, rather than starting a conversation with the family.
Jim Willox, Converse County commissioner, said, “In Converse County, to my knowledge, the private entity has not used eminent domain around wind, but once eminent domain is there, it is a factor in all negotiations.”
Landowner concerns
Wade noted concern with landowners’ ability to negotiate important terms of an easement, including landowner liability and the term.
“When someone negotiates for a wind or solar farm, they have the ability to negotiate the term of the lease,” Wade said. “When the project is over, everything goes away and is cleaned up. A company who is putting in a power line is more likely to negotiate a permanent easement, since the powerline has another use.”
Former Speaker of the House Kermit Brown of Laramie added, “These questions of valuation of land for eminent domain are almost always settled by a fair market appraisal. There are negotiations, but my contention is the value ought to be two to three times the money – or at least more than the appraised value.”
He explained the imposition of projects often results in inconveniences for landowners, including changes to grazing rotations, which is difficult for the landowner to deal with at best.
Ken Lay, Converse County landowner and senior managing director of an asset management firm, added, “Existing statutes are pretty clear. When we look at requirements for the exercise of eminent domain, we find one of them is a planned project or located in a manner which will have the most public good and least private injury.”
“The people who benefit financially from these companies using eminent domain probably don’t even live in our state, and they may even be foreign owned,” Wade said.
Sen. Bob Ide of Casper noted statute requires eminent domain must occur “in the public interest,” further asking whether an industry which must be heavily subsidized to be solvent is “in the public interest.”
Project necessity
An additional requirement for eminent domain is land to be condemned is necessary for the project.
Lay explained, “Developers who may be able to exercise eminent domain are interested in the least-cost option for them, not the least private injury and greatest public good.”
He continued, “We need to have a discussion about the way eminent domain is exercised in this context.”
The big picture
“When landowners get a letter saying a company is coming with condemnation ability, landowners are in a potential no-win situation,” Lay said. “The people who negotiate these deals are professionals, and if landowners get legal help, they may spend more on legal fees than the easement would provide.”
The solution, Wade said, is working with landowner groups to make the costs effective.
“My wife said when you get a letter from a company with condemnation ability, something that wasn’t for sale, to anyone, for any price, is suddenly for sale,” Wade said.
“It is difficult to balance the public need or use for energy development and how we get this energy in Wyoming to where others are going to use it, while protecting private property rights. This is a delicate balance, and the legislature has undertaken efforts for it,” Willox summarized.
He added, “I don’t think one will ever find a perfect eminent domain process, because somebody loses, no matter what. Either the development or a resource is going to be harmed, or private property is going to be harmed. Both have value, and it is difficult to find this balance.”
Saige Zespy is a corresponding writer for the Wyoming Livestock Roundup. Send comments on this article to saige.zespy@gmail.com or roundup@wylr.net.
