Clearing Up Eminent Domain Misconceptions

A friend of trails wrote with the following brief statement regarding eminent domain in response to one of my Facebook posts:

“The use of eminent domain has been abused. The taking of private land for public purposes should be used sparingly as it is a tool for tyrants. There are many trails that exist in all states created without eminent domain. That should be your goal, not more government bullying of a purpose that only a minor percentage want or will use.”

I have taken the four sentences here one at a time, adding a response of my own.

  1. The use of eminent domain has been abused.

True, the use of eminent domain has been abused. But I know of only one segment of society who has figured out how to abuse it, urban real estate developers. Urban blight gave them an opening. The pitch to city commissions was quite simple. As cities grew, they often built around old and run down neighborhoods, unattractive places to live. And, not much of a tax base there. The pitch from real estate developers was simple: if the city commission used eminent domain to assemble small parcels in a blighted area, the developer would be interested in buying such a parcel and erecting a high-rise office building, condominiums, an apartment building or a sports stadium. The city gets a huge tax base out of the transaction, the developer got a huge income producing property, the city was made more appealing generally, but the former residents were removed for “just compensation.” Maybe they would prefer to stay put and leave the just compensation on the table.

This entire scheme erupted when a little old lady in New London, Connecticut stood her ground and wouldn’t vacate. She got a national non-profit interested in defending her and putting up the money. The lawsuit went all the way to the Supreme Court. The Supreme Court voted against her and the city of New London acquired the property with Pfizer behind them as the eager new tenant of the land. The acrimony over the transaction was so extended and well recorded that a national hue and cry developed, Pfizer backed down and nothing has ever been built. And at least half the states have erected legislative barriers to prevent this kind of thing from happening elsewhere. Most of the negative talk about eminent domain can be traced back to Susette Kelo vs. the City of New London.

  1. The taking of private property for public purposes should be used sparingly as it is a tool for tyrants.

We disagree. Tyrants in office earn that encomium by seizing the reins of government by force or overthrow. It’s democracies that resort to eminent domain. I have had property taken from me by eminent domain and have no gripe. I am free to go to court to defend my estimation of just compensation if I don’t agree with government appraisers. Once the government has identified the parcel, the process that unfolds is very democratic.

  1. There are many trails that exist in all states created without eminent domain.

Not so. Perhaps the author meant a trail a couple of blocks long, perhaps one through three or four private properties. Hikers include backpackers. They all want long trails. The iconic trails in America are long trails: The Appalachian Trail, over 2,200 miles long; the PCT, over 2,600; the Continental Divide Trail, over 3,200 miles; and my Florida Trail over 1,300.

The A.T. is continuous from end to end and secure for posterity because Congress provided eminent domain. All other long trails have issues with continuity and permanence. They all have gaps except the Arizona Trail, which runs entirely across federal land.

To complete the A.T. the Park Service had to buy up 2,550 parcels. One in six required the use of eminent domain.

In 2017 the Federal Highway Department acquired 33,779 properties, 5,969 of these required eminent domain. One in six.

In 2018 the FDOT acquired 27,506 properties, 4,532 required eminent domain. One in six.

In 2019 the FDOT acquired 32,598 properties, 5,371 required eminent domain. One in six.

In 2020 the FDOT acquired 29,580 properties, 4,640 required eminent domain. One in six.

If the sample is big enough one in six will require eminent domain. No one will complete a long trail without it.

  1. That should be your goal not more government bullying of a purpose that only a minor percentage want or will use.

We are not talking about a minor percentage. The number of people who identify as hikers has been consistently climbing for 20 years. The Outdoor Foundation, a creation of the Outdoor Industry Association, is tasked with the job of supplying manufacturers and retailers of outdoor gear and clothing with reliable data about this growth. According to the Foundation, in 2021 there were 47.9 million hikers who said they take 14 or more outings a year, the second largest cohort who recreate in the outdoors. Trails are inexpensive to build and inexpensive to maintain because volunteers to help are not difficult to find. For the first 17 years in the life of the Florida Trail, no one was paid to maintain our trail. This is not unusual; it’s typical of volunteerism in the trails community. During the pandemic hiking trails proved to be the best activity to get people outside but separated from each other.

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