Public property for public use?

CARSON CITY – There’s nothing like a good constitutional debate to break up the tedium of legislative hearings, and the people attending or watching the Assembly Judiciary Committee Wednesday sure got one.

The occasion was Assemblyman Ed Goedhart‘s AB 186, a bill that seeks to allow the state to use the power of eminent domain to condemn land owned or controlled by the federal government to be used for renewable energy projects. The bill has a handful of Republican co-sponsors in the Assembly and in the state Senate.

As regular blog readers no doubt know, eminent domain is the power of government to take private land without the owner’s consent, provided that just compensation is paid. It springs from the final clause of the Fifth Amendment, which reads, “…nor shall private property be taken for public use without just compensation.”

And right there, we have our first problem: Federal land in Nevada isn’t private land. It’s public land, held in common ownership by the people of the United States, and controlled by federal land managers. (And there’s a lot of it, too: 87 percent of Nevada is federally owned and controlled, a higher percentage than in any other state.)

But it would still seem that the Fifth Amendment’s powers of eminent domain don’t apply. Not only that, but the federal government’s legal superiority in claims to the land would seem to bar state action in taking it, regardless of the intended use. That’s essentially what Judiciary Chairman William Horne said after Goedhart testified in support of the bill. Essentially, he said to Goedhart, you want the Legislature to ignore the Constitution in order to make a point?

“This is our land,” Goedhart replied. “This will send a message saying we are really serious about expanding our economic opportunities.” (It’s no mystery why Goedhart chose renewable energy as the use for the condemned land. It’s a top Democratic push, for environmental reasons as well as job creation.)

But Horne reminded Goedhart that he’d taken an oath to support and defend the Constitution of the United States when he became an assemblyman, and that the ends (more land for renewable energy) don’t justify the means (a probably unconstitutional bill that would very likely be put to death in the U.S. Supreme Court).

Goedhart gave no ground, however. He says he’s seen eminent domain used against private individuals, and that “what’s good for the goose is good for the gander.” (But the use of eminent domain against private land for public uses is precisely what the power was created for; Goedhart never really addressed the argument that he was seeking to condemn already-public land for a public use, something not contemplated in the Fifth Amendment.)

Things were just getting started, however. Janine Hansen, representing the Nevada Committee for Full Statehood, testified strongly in favor of the bill. “I think this is some of the most creative and innovative legislation I’ve seen in a long time,” she said. She answered Horne’s arguments about the dubious constitutionality of the bill by saying interpretation of the document is subject to change. The Dred Scott decision (Dred Scott v. Sandford, 1857) said slaves and their descendants were not U.S. citizens and were thus not entitled to the protection of the Constitution, a wrong that was later righted.

(Yes, you read that right: The nice white lady just lectured the black attorney who’s chairman of the committee about Dred Scott. Horne’s expression during the exchange was impassive but nonetheless priceless.)

“This is a wonderful and creative opportunity for you to right a wrong,” Hansen added. The wrong? Nevada allowing so much of the state to remain under federal control when it was admitted to the union in 1864, instead of demanding the land be made available to residents for their use. “We need to assert and reassert our constitutional authority over our land,” she said.

Assemblywoman Olivia Diaz asked a perfectly reasonable question: Since we can assume the federal government won’t simply take a look at AB 186 and surrender all non-military federal land, who’s going to pay the legal fees to argue the case before the Supreme Court? Hansen suggested other states with large tracts of federal land would join the legal fight, and that the expense was worthwhile.

“For us to sit back while this injustice is strangleholding our state would be a mistake,” she said.

It was left to Rebecca Gasca, a lobbyist for the American Civil Liberties Union of Nevada, to point out that a similar claim had already been adjudicated by the Supreme Court, back in 1917. In that case, Utah Power and Light v. United States, the high court rejected the state use of eminent domain against federal land.

Gasca suggested a much more reasonable alternative, a resolution urging the federal government to give up its claim to land for renewable energy projects in Nevada. (And there’s also an appeal to Nevada’s congressional delegation to help. It’s been said that Senate Majority Leader Harry Reid may have some influence in pressuring the federal government to get things done.)

Case closed? Probably. But Horne did ask one half-serious question that might be the only way AB 186 ever sees the light of day: Would Goedhart be willing to vote for taxes in exchange for the Judiciary Committee passing his bill? Goedhart didn’t offer a definitive answer.

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