2007 Eminent Domain Report Card: Alaska Gets A “D”

Matt Powers
Matt Powers · June 6, 2007

Arlington, Va.—Alaska home and small business owners have reason to be concerned according to a 50-state eminent domain report card released today.  In the two years since the infamous Kelo eminent domain ruling from the U.S. Supreme Court that allowed eminent domain for private gain, Alaska as done little to protect property owners across the state.

“Alaska homeowners are not much more protected from eminent domain abuse today than they were the day the Kelo decision was announced,” said Steven Anderson, director of the Castle Coalition, a national grassroots organization that examined and graded eminent domain laws for each of the 50 states since the Kelo ruling.  Read the report at:  www.CastleCoalition.org/publications/report_card.

According to the report, “Alaska’s state constitution contains almost the same language as the U.S. Constitution’s Fifth Amendment:  ‘Private property shall not be taken or damaged for public use without just compensation.’  For years, that statement protected property owners.  The general public understood what public use meant and no one worried that his home, business, farm, or church might one day be suddenly taken from him so that a private developer could build a mall.”

The report warned, “That all changed with the Kelo decision, as the constitutional provision that everyone trusted to protect their most fundamental of rights was suddenly ambiguous.  After all, once the federal Takings Clause was interpreted to allow eminent domain abuses, Alaskans realized that their state’s Takings Clause could be treated the same way.  Under Kelo, since ‘public use’ now also means ‘private use,’ Alaskans need more protection at the state level.”

The report explained, “In 2006, HB 318 sailed through both legislative houses with unanimous support.  The new law prohibits the use of eminent domain ‘to acquire private property from a private person for the purpose of transferring title to the property to another private person for economic development purposes.’”

Unfortunately, this language does not provide property owners solid protection.  In order to prevent authorities from taking private property from one person and turning it over to another private entity, states need to ban all private-to-private transfers (with a few narrowly tailored exceptions for common carriers and the like).  By focusing on the intent behind the transfer, rather than the transfer itself, Alaska’s Legislature provided a ready-made excuse for authorities to say that a private transfer was not their purpose when they originally acquired the property.

Additionally, snowcats could still drive through the loophole of the state’s blight statute.  Alaska’s vague definitions of “slum areas” and “blighted areas” are virtually identical to those that have been horribly exploited in many other states.  As currently written, the factors to determine blight could apply to virtually any home. And since the designations are made by “area,” only a few properties need to be blighted before officials can destroy an entire neighborhood.

Among the states that passed the strongest reforms protecting property owners are Florida, Michigan, Nevada, New Mexico, North Dakota and South Dakota, each of which received an A or A- grade.  States that received F’s were:  Arkansas, Connecticut, Hawaii, Maryland, Massachusetts, Mississippi, New Jersey, New York, Oklahoma and Rhode Island.

“In only two years since Kelo, 41 states have reformed their laws to offer greater protection to small property owners,” said Jenifer Zeigler, legislative affairs attorney with the Castle Coalition.  “But much more work remains if homeowners, small business owners and churches in Alaska and beyond are to be safe from the unholy alliance of tax-hungry governments and land-hungry developers.”

The report seeks to step back and evaluate the legislative work that has been done and is left to do.  It finds, “Some states have passed model reforms that can serve as an example for others.  Some states enacted nominal reform—possibly because of haste, oversight or compromise—and need to know what is left to fix.  And finally, there are those states that have failed to act altogether, leaving home, farm, and business owners threatened by Kelo-type takings and beyond.”

# # #

[NOTETo arrange interviews on this subject, journalists may call John Kramer, the Institute for Justice’s vice president for communications, at (703) 682-9320 ext. 205 or in the evening/weekend at (703) 527-8730.  For more information on eminent domain abuse, visit www.ij.org or www.castlecoalition.org.]