Usually when we write a blog post it is based on something we’ve read from a news agency or an announcement from New York State or the City about Eminent Domain. It’s safe to say that we’ve never blogged about an Op-Ed from a dairy farmer. Ok, Leisa Boley Heelwarth also happens to be an attorney near Celina, Ohio. Either way, we found her thoughts interesting.
Note that we don’t like to get political on our blog either. Like they say, never talk about religion or politics if you want remain friends. This blog post is actually about how different people have a whole lot in common.
You may recall that on February 15, 2019 three landowners from Starr County, Texas and the Frontera Audubon Society filed the first lawsuit challenging the emergency declaration for the border wall. The grounds for the lawsuit were based on an objection to the process that the President used to gain the funding after Congress largely denied it to him. They claim that Trump cannot waive eminent domain. Eminent Domain requires the government to demonstrate a public use for the land and provide landowners with compensation by declaring a national emergency.
All four plaintiffs claim the wall would deny them access to their land. The plaintiffs contend that there was no real emergency as required by the National Emergencies Act. Even if there was an emergency, it does not “requires the use of armed forces” which is the critical condition in the budget statute that the President unlocked by issuing his emergency declaration. Technically then there should be no emergency authority to redirect military construction dollars toward a border wall.
Long story short… Even if there is a military necessity — those dollars cannot be spent on just anything Boley Heelwarth says. Money used to take property for a National Emergency would then belong to the military, not the government.
She says that we are likely to see intense litigation over a subtle but critical point. Can judges second-guess the president’s determination that there is an “emergency” under the National Emergencies Act? Can they at least second-guess the determination that the scenario “requires the use of the armed forces” as stipulated by the budget statute? It is a risky outcome either way, but landowners may want to watch for any ruling that chips away at eminent domain protections.
As is often the case, the issues spread to other issues and take years to untangle. Boley Heelwarth notes that while the plaintiffs are focusing on the public use requirement of eminent domain, a whole other fight can break out about determination of appropriate compensation.
Why does any of this even matter to a farmer in Ohio? (That’s what we want to know too!)
Regardless of your opinion of the current administration, any legal action that makes it easier for a governmental entity to acquire private property has to be watched carefully. Eminent domain, as established in Constitutional amendments and subsequent case law, spells out specific criteria enabling a government to take private property, including farmland. Why would we enable any official to ignore these protections by declaring an emergency? That is a slippery slope that citizens need to watch out for.
And if we can add our own Op-Ed to this piece, it would be that if you ever get an eminent domain notice in NY, make sure you call the right lawyers who know the complex issues involved. Getting good legal advice in an eminent domain proceeding is priceless.