Controversial Eminent Domain Bill Passes Over Protests From Ag, Energy Industries

An eminent domain bill that would prohibit companies that are not public utilities from condemning land for electrical collection systems has advanced from the House Agriculture Committee over objections from representatives of both the agriculture and energy sectors.

The bill revives a moratorium that had been in place a decade or so ago over an incident in Weston County, said Rep. John Eklund, R-Cheyenne. 

“The state of Wyoming was brought into it as if we were going to run these power lines through people and through state land,” Eklund recalled. “And (the state) quickly defended that they were not involved in it.”

The Legislature sought to bring the moratorium back in the previous legislative session, but it was among bills vetoed by Gov. Mark Gordon, Eklund said.

“I think the history of why we’re here is probably more important than any other part of it,” he said. “I normally would not be too excited about stripping anybody of the ability to do eminent domain, because we don’t do it often in Wyoming, as was shown when the moratorium was in place. But, as it expired, there were people who became very concerned with what we were going to do.”

Rep. Dalton Banks, R-Cowley, added that the bill is meant to be an extra layer of protection for landowners. 

“We’re just offering some protections in the latter part of this bill, that nobody can come in and use an existing easement without agreeing upon (that) by landowners and the holders of that easement to add anything to it,” he said.

Wyoming Law Already Covers That

Most of the objections to the bill, which came from disparate groups, revolved around how existing law already precludes what the bill sets out to prohibit.

Jeff Pope, an attorney with the law firm Holland and Hart, speaking on behalf of a trade association for independent power producers called American Clean Power, said he’s represented both the oil and gas sector and renewable forms of electricity generation in eminent domain cases.

“This is a solution in search of a problem,” he told lawmakers during his testimony against the bill. “The renewable industry has never used the power of eminent domain to condemn for collector systems. I am in consultation with American Clean Power and its members, and we could not find any data to suggest that condemnation has ever been used.”

Wyoming law already requires, as part of its condemnation process, that companies must prove that their project has some public benefit, Pope added. And Wyoming statute and case law also already precludes using easements for anything beyond the original agreement. It also already requires reclamation.

Stating these things again in state statutes won’t preclude landowners from having to go to court to fight for their rights, Pope added, saying that was one of the rationales communicated to him for the bill during the interim.

“This bill doesn’t change that reality,” he said. “For someone to protect their rights under an easement, they have to go to court … and the court has to rule in your favor on that.”

Instead, Pope said, the law is injecting the state into negotiations between private parties.

“I think we can trust private parties to figure that out,” he said. “Having been involved in negotiations for over a decade with landowners in all parts of the state, the myth of the small, unsophisticated landowner is exactly that. It is a myth. These are sophisticated people who know their rights and are well represented by talented attorneys. They are well protected by the law as it exists today. We don’t need to reach in and try to change that.”

Wyoming Stockgrowers Object Too

Wyoming Stockgrowers Association Vice President Jim Magagna was also among those speaking against the bill, though with a different set of objections.

During the interim, Magagna had been in favor of bringing back a moratorium, he acknowledged, but the bill he had favored was much less absolute, looked after landowners better, and was a better balance of competing concerns.

“When the joint Ag Committee took this up at the interim this past year, after the one bill had been vetoed, we brought a bill to the committee that had actually been drafted back in 2012 but never introduced because this issue (with Wind) kind of went away,” he said. “That provided not an absolute prohibition, but provided that an entity couldn’t use eminent domain until they had negotiated voluntary agreements with 85% of the impacted landowners on 85% of the impacted land.”

That was a bill Magagna and Wyoming Stockgrowers strongly support. 

“We felt it recognized that an absolute prohibition means that one landowner, with perhaps just a few hundred feet that the line goes across, can prevent a whole array of landowners who have found this to be beneficial to them from being able to take advantage of that,” he said.

Magagna said he does know of occasions when companies have sent letters to landowners, stating right off the bat, that if they don’t agree to the easements, those companies will pursue eminent domain, and that’s why he felt some additional protections were needed.

“That threat is not acceptable,” he said. “So, we felt (the other bill) was a good balance. That bill was worked by the committee, as the members on here who were there are aware. It shocked us when the committee suddenly voted to just bring forward the absolute prohibition and not the other bill, which provided the 85%, and gives the legislature the option.”

Magagna said in its present form, he can’t support House Bill 91 and urged the committee not to move forward with it, even though he feels the rising prominence of wind again in Wyoming does warrant attention. 

Some Ag Interests Are For The Bill

The bill, to be clear, does not limit itself to wind energy. It applies to any electrical collection system, regardless of the source.

Speaking for the bill was Kelly Carpenter, policy advocacy director for Wyoming Farm Bureau Federation.

“Our policy set by our membership supports limiting entities, especially those that don’t go through the Public Service Commission to obtain a certificate for public convenience and necessity, from being able to use the power of eminent domain,” she said. “We favor and encourage companies to develop in existing corridors and explore alternate routes … so projects may go forward, instead of tipping the scale against landowners who don’t desire the development through their property, because that is their right as well.” 

She also said the group supports the idea of requiring similar payments for those allowing structures on their land to landowners whose property has the actual towers. 

“We believe this bill is a step in the right direction for protecting private property rights from our memberships’ perspective” she said.

Carpenter’s was the only testimony for the bill from members of the public.

Roll Call

Eklund, who had introduced the bill for the committee as a strong supporter, was among those whose opinion was swayed by the testimony against the bill, which ultimately attracted three no votes, one of them his.

“I presumed I would be an ‘aye’ vote on this thing,” he said. “But as we’ve gone through this … I think there was a better solution to it. This bill is probably a winner take all kind of bill, and the other bill had some concessions in there.”

Eklund said he is still concerned about companies throwing eminent domain around too lightly, using it as a kind of cudgel to force landowners to give into something they don’t want to do, and said he knows of instances where this has happened. 

“So that’s why my heart is saying, ‘Vote for this bill,’ but my head is saying, ‘Don’t vote for this bill,’” he said. “It’s just a tough dilemma that we’re in.”

The ending vote tally was 6-3 for the bill, which passed out of committee.

No votes were from Eklund, Rep. Karlee Provenza, D-Laramie, and Rep. Bob Davis, R-Baggs.

Voting yes on the measure were Reps. Banks; Steve Johnson, R-Cheyenne; Pepper Ottman, R-Riverton; Mike Schmid, R-La Barge; Tomi Strock, R-Douglas; and John Winter, R-Thermopolis.

Renée Jean can be reached at renee@cowboystatedaily.com.