The changing nature of eminent domain
There were two important stories today about things that are very likely going to alter the fundamental way that Louisiana has historically dealt with eminent domain. The first one I read was in Gambit, and talked about the prospect that Louisiana voters would be asked to alter how eminent domain payouts are figured in the narrow case of land seized for hurricane defense projects. Money quote:
Sen. Reggie Dupre leans in close, waving his finger over the aide’s notebook: “Tell them we want a constitutional amendment on the ballot that would allow the state to take private land for hurricane-protection projects, and we pay only fair market value for it.”
Dupre, who has been involved with most of the constitutional amendments related to natural waterways over the past five years, says he would base his new proposal on the 2003 model — only this time, it would apply to hurricane-protection projects, such as levees, seawalls and floodgates.
In short, such a proposal could translate into fewer dollars for landowners standing in the way of hurricane-protection projects. Legally, the measure would alter the way courts are allowed to compute the value of lands that are seized.
The “2003 model’ refers to the last alteration of eminent domain in Louisiana, in which fair market value was adopted as the standard for figuring payouts for coastal restoration projects.
My initial reaction is to reject such proposals, because the concept of private property is such a vital plank in our democracy. But one quote from the article gives me pause.
“This is a major concern,” [Newman Trowbridge, Jr., a Lafayette-based attorney and general counsel to the Louisiana Landowners Association] says of the proposal, which is still in its conceptual stage. “Hurricane protection levees are often placed in areas that are economically developable. In a lot of instances, this is very valuable land that could be income-producing for the owner.”
I tend to agree, with a caveat: without the hurricane protection levees, this isn’t very valuable land. So where do you draw the line? No matter where that line is, someone is going to get screwed, and, under the current situation, someone is going to enjoy a nice windfall on otherwise worthless property.
The problem with the current system is this: property owners in marginal areas have an incentive to be willing victims in order to collect that windfall. Whereas, in a scenario that lacks an artificially large payout, the locations of hurricane protection systems are likely to be based on logic and not political pull, which means that fewer landowners will likely ultimately be screwed by potential graft.
With a very narrow focus, I’m inclined to agree that a change resulting in lower payouts for seized land is probably more beneficial to Southeast Louisiana than it is harmful to landowners who will lose land that likely would remain worthless otherwise. Which isn’t to say that those landowners could not be compensated with other land seized by default within the confines of the levee system. Because there will surely be properties that are defaulted on that the state will seize. Which brings me to the next article.
The ever-so-Louisiana-loving White House has decided that it will NOT support the Baker plan. I know, what a shocker. The administration that dismissed a comprehensive coastal restoration project and rejected a fair revision of oil and gas payouts to Louisiana (which, ironically enough, were negotiated by politicians for their own gain way back when — remember my cynical comment about trying to collect that windfall and screwing other landowners above?) raises their middle finger in the general direction of New Orleans yet again.
The article explains how the failure of the Baker bill might impact the New Orleans area and why there might be property within the hurricane protection system with which to compensate landowners whose property is seized in the improvement of that system. Here’s the money quote:
But to accomplish the dual goals of creating population density and safer redevelopment of some low-lying parts of the city, a buyout of some property owners is seen as inevitable. A voluntary buyout program is viewed as needed to help homeowners who are willing to move to higher ground but otherwise will be forced to renovate their flooded properties where they sit, or walk away and face foreclosure, due to the limits of their flood insurance payouts.
Sadly, I think that the misery quotient in the metro area still has room to climb before it begins to drop. A failure to revise eminent domain payouts for hurricane protection systems, coupled with an administration that is happy to pay lip service to the value of the City and people of the region while lighting flaming bags of poo at their doorsteps, is going to seriously hinder the recovery and protection efforts.