MONTPELIER, IDAHO
— Bald eagles are the only residents
visible as Peter and Judy Riede drive the unplowed road to their
eastern Idaho ranch.
At the ranch, animal tracks stitch
their way across the early-January quilt of snow; ducks bob on a
spring-fed pond and a raptor circles overhead. A jet breaks the
snow-muffled silence and disappears over pine-covered mountains.
“It took us 10 years to find this,” says
Peter.
Now, the two retired engineers are fighting to
hang onto it. Idaho-based J.R. Simplot Co. plans to expand its
phosphate mine on nearby national forest land, and wants to build a
road across the ranch. The company offered to buy the Riedes’
land for $2.1 million. The proposed road would permanently scar the
hillside and generate heavy truck traffic near the site of their
future home.
The Riedes do not want to sell, and plan to
fight the mine expansion because they fear the mining upstream
could pollute the water on their ranch. They purchased their land
for around $645,000 in 1997, but say that replacing it with a
comparable parcel today — 467 acres with amenities such as
private trout-fishing streams — would cost closer to $6
million, triple Simplot’s offer.
But they might
have no choice. Idaho is one of five Western states —
including Washington, Wyoming, Colorado and Oregon — whose
constitutions extend powers of eminent domain to private entities,
such as railroads, mining companies, and oil and gas drillers.
Public use, private
profit
State and local governments
have long used eminent domain, or condemnation, to force landowners
to sell property to make way for schools and highways. In 2005, the
practice hit the national spotlight after a U.S. Supreme Court
ruling allowed local governments to condemn private land and
transfer it to other private entities, often to build malls or
big-box stores. The Kelo v. New London decision outraged private
property-rights activists, and spurred state legislatures to pass
laws specifically banning that type of condemnation.
But
in Idaho and Wyoming, private entities don’t even need the
government as a go-between. The two states’ constitutions
allow private parties to directly condemn private property for
“public use.” These provisions date back more than a
century, to a time when the fledgling states were trying to build
their economies. Idaho law considers mining to be a “public
use,” meaning Simplot can force the Riedes to sell.
More than just property-rights advocates are upset.
Environmen-talists, ranchers and legal watchdogs say these obsolete
provisions are worse than Kelo, undermining the free market, posing
a threat to the environment and degrading property rights. The
battle for reform is perhaps hottest in Wyoming, where the energy
boom has pitted industry against ranchers.
“It’s bad enough when government uses eminent domain to
benefit private entities. But to take that next step and not even
pretend to have oversight and to just give (private entities) the
authority is one of the worst cases of abuse,” says
property-rights attorney Jenifer Zeigler, who works for a nonprofit
involved in the Kelo case.
Historically, states granted
condemnation powers to private companies in order to prevent
“holdouts” — private landowners who might refuse
to sell or ask exorbitant prices — from impeding the
development of railroads, irrigation canals and other
infrastructure, according to James Huffman, a professor at Lewis
& Clark Law School in Oregon.
Railroads offered a
public benefit by transporting people, he says. But the public
benefit in the Riedes’ case isn’t so clear.
“The law shouldn’t be stuck in the 19th century if it
doesn’t make sense for us today,” Huffman adds.
“Where do you draw the line? If phosphate mining is a public
use, so is an Albertsons supermarket.”
Condemning for convenience
Eminent domain allows private parties to put “a thumb on the
scale” when negotiating the purchase price of land or
easements, undercutting the free market and opening the door to
abuse, Huffman says.
Buffalo, Wyo., rancher Steve Adami
agrees. One energy company halved the price it originally offered
for an easement to build a utility corridor across his land.
“They say, ‘Take this, or we’ll
condemn,’ ” he says. Condemnation didn’t occur,
but Adami had to put up a fight. Likewise, the Riedes say that
Simplot implied it would condemn before making an offer.
Adami is among ranchers pressuring the Wyoming Legislature to
protect property rights. A bill headed to the House floor for
debate in January would pressure companies to negotiate in
“good faith” and to give more notice to property owners
before condemning. But it “doesn’t do one thing that
property owners asked for to strengthen private-property
rights,” says Laurie Goodman of the Landowners Association of
Wyoming, a rancher-driven lobbying group. The group wants the bill
to allow jury trials to determine “public benefit” and
to prohibit condemnation for the sake of corporate convenience.
Petroleum Association of Wyoming President Bruce Hinchey
denies that industry abuses eminent domain. He says most landowners
are pleased with the extra money they make from selling easements.
“I think it’s a matter of saying, ‘Are you
getting a fair price for the land or the use of the land?’
” he says. “In most cases, ranchers are
satisfied.”
Not the Riedes, who say this land
battle has destroyed their dream of easing into retirement. They
have postponed their plans to build a home, and are bracing for a
fight.
“The injustice makes me just furious,”
Judy Riede says. “It’s not just our land. If we go, it
makes it that easy for the next person to go.”
The author is a Jackson, Wyoming, freelance writer
covering environmental issues across the Greater Yellowstone
Ecosystem.
This article appeared in the print edition of the magazine with the headline Condemned.
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