Issue Date: November 16, 2005, by Kate Campbell Assistant Editor, California Farm Bureau Federation

The U.S. Supreme Court's ruling that governments can take private property through eminent domain for the purpose of handing it over to private developers for profit has triggered a nationwide outcry.

In response to the high court's decision, a number of actions related to the Kelo vs. the City of New London eminent domain case are being taken at the federal, state and county levels, including congressional action. On Nov. 3, the U.S. House of Representatives passed H.R. 4128 by a margin of 376-38. The bill is being supported by the California Farm Bureau Federation.

Called the Private Property Rights Protection Act, the legislation is intended to prevent state and local governments from abusing eminent domain authority by prohibiting states that receive federal redevelopment money from exercising eminent domain for private economic development and financial gain. Violation of the new provision would result in a community losing all economic development funding for two years.

The bill also creates a private right of action for any landowner who suffers injury as a result of a violation of the act. In addition, the bill prohibits any use of eminent domain for economic development by the federal government.

The bill says: "It is the sense of Congress that the use of eminent domain for the purpose of economic development is a threat to agricultural and other property in rural America and that the Congress should protect the property rights of Americans, including those who reside in rural areas."

The bill's language also includes this statement: "Property rights are central to liberty in this country and to our economy. The use of eminent domain to take farmland and other rural property for economic development threatens liberty, rural economies, and the economy of the United States. Americans should not have to fear the government's taking their homes, farms, or businesses to give to other persons."

CFBF and the American Farm Bureau Federation have been calling for reforms that would curb the use of eminent domain in agricultural areas and provide better protections for property owners.

In a letter to Congress supporting passage of H.R. 4128, CFBF President Bill Pauli said, "Property rights are central to liberty in this country. … Though it is limited in its scope, we strongly support the intent of this bill to prohibit the use of eminent domain for economic development.

"We believe the concerns expressed with the recent U.S. Supreme Court decision are real. Whether eminent domain is used to force rural property owners off their land or urban landowners from their homes and businesses, it is wrong and creates a slippery slope in the erosion of all rights.

"As farmers and ranchers, we hold property rights dear, so we are following the progress of this legislation very closely."

The Stop Taking Our Property (STOP) campaign was launched by AFBF shortly after the U.S. Supreme Court's ruling in the Kelo case, calling the court's action a "sucker punch against private landowners." The decision upheld the right of the city to take the waterfront homes of Susette Kelo and her neighbors just to turn the property over to a developer for a hotel, retail shops and an upscale condominium project.

"If left unchecked, government's free and expanded use of the power of eminent domain could become its preferred method of balancing its books," said AFBF President Bob Stallman. "Property owners will continue to fall victim to this abuse of authority. Nowhere is the potential for this abuse greater than the farmlands bounding our nation's cities--farmland and open space that becomes more endangered with each passing year.

"The potential is real, especially if you consider which entity would generate more revenue and taxes: a cornfield or a condo? A strawberry farm or a shopping mall?"

Stallman said that Farm Bureau is not only on the front lines battling the Kelo decision, but also has expanded its services to be a resource for members who need legal or policy help and advice.

"Although the Kelo decision shook up a lot of people, it's surprising the extent to which this egregious Supreme Court decision has united Congress," said Jack King, CFBF National Affairs manager. "The decision seemed to anger as many liberal Democrats as conservatives. In part that's because of the implications for taking homes in the most impoverished neighborhoods in the guise of urban redevelopment."

King said a bill has been introduced in the U.S. Senate, S. 1313, authored by Sen. John Conryn, R-Texas, that addresses the issue from the Senate side. It already has 30 co-sponsors, including California Sen. Barbara Boxer.

"Although an initial hearing has been held, the legislation has not advanced," King said. "We need movement in the Senate. Too often, that deliberative body becomes the burial ground for critical legislation."

At the state level, there are currently two proposals pending in the Legislature to amend the California Constitution to strictly prohibit the taking of private property for private reuse. State Sen. Tom McClintock, R-Thousand Oaks, and Assemblyman Doug LaMalfa, R-Redding, also have been considering a statewide initiative campaign to place a constitutional amendment on the next ballot.

There also are a number of two-year bills pending that will be coming up for consideration in January, said John Gamper, CFBF director of taxation and land use. In addition a joint hearing in Sacramento of the state Senate and Assembly committees on local government, transportation, housing and the judiciary is being held this week to discuss eminent domain and redevelopment.

Two weeks ago the state Senate's Agriculture Committee held an informational hearing in Salinas on the impact of using eminent domain on agricultural land.

"There are a number of ways to tighten California's Community Revelopment Law in light of the Kelo decision," Gamper said. "The federal law making its way through Congress now would have a significant impact on redevelopment and the same is true for the proposed changes in law at the state level.

"There is, however, an even more insidious use of eminent domain on farmland, which is outside the redevelopment arena," he said. "It's a use that greatly concerns me."

Gamper was referring to Yolo County's effort to take 17,300-acre Conaway Ranch, which is privately owned and leased to local farmers, through eminent domain.

"In the case of Conaway Ranch, eminent domain is being used to take the ranch for an unspecified government use, but I believe it's to get control of the water," Gamper said. "That's the bottom line. They want the 150,000-acre-feet of water rights."

Gamper said that internal county memos discovered through a formal Public Records Request that show the consultant hired by Yolo County to help with the eminent domain action was specifically asked to look into the feasibility of selling water from the ranch outside the county to help finance its acquisition.

"The very purpose they say they want to acquire the ranch for--protecting its water from being sold--is the very thing they're considering doing," Gamper said.

Two weeks ago Yolo County farmer Joe Heidrick Jr. and former state Sen. Jim Nielsen announced formation of a local ballot measure committee, the Coalition to Protect Yolo County Farmland. The committee aims to submit, qualify and pass a county ballot initiative in June 2006 that will to protect private farmland from mismanagement and development.

"Downtown Sacramento is only a few miles away from Yolo County," said Joe Heidrick Jr. "In order to stop the sprawl of Sacramento into our county, it is imperative that we protect our farmlands."

The group's initiative calls for requiring the county to regulate farming through zoning regulation, not by actively buying, operating, managing or developing farmlands.

Sponsors of the initiative say Yolo County is not qualified to run and manage farms. If it gets into the business, the county could sell some or all of the property for casinos or private development to meet or avoid the significant financial costs and other risks associated with managing farmland.

The initiative also would prohibit the county from accepting loans or gifts from those seeking to develop farmland in the county. These types of arrangements create the possibility of conflicts of interest, and raise the question of whether locally-elected officials would make impartial decisions about land use development in Yolo County.

"Hopefully combined action at the federal, state and local level, as well as Farm Bureau's ongoing grassroots efforts, will reign in this unfortunate Supreme Court decision," Gamper said.

For more information on the impacts of eminent domain on agriculture, visit www.cfbf.com and click on "Issues." Information on AFBF's STOP program is available online at www.fb.org. The Web site address for the Coalition to Protect Yolo County Farmland is www.protectyolocountyfarmland.com.

(Kate Campbell is a reporter for Ag Alert. She may be contacted at kcampbell@cfbf.com.)

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