Current Edition

current edition

Eminent Domain

An initiative that began in Platte and Goshen counties in March 2010 with a purpose of ensuring a high quality of life for residents for years to come now has some of those residents feeling that same quality of life has been threatened.
The High Plains Initiative began under the leadership of local economic development leaders in the two counties, and has support from Building the Wyoming We Want (BW3).
According to HPI information, the program contracted with Envision Utah to review data for both counties, work with the local steering committee and develop estimated growth trends for the two-county region. The baseline analysis provides a picture of the area’s projected fate if current development trends continue, and, according to the analysis, the 2040 projection for the region estimates a 24 percent growth in population and a 25 percent job growth.
Steering committee member and Lingle private property owner Cheri Steinmetz says she began to question the motives behind HPI when the public began to ask her if the initiative was related to SmartGrowth, an entity of the Environmental Protection Agency (EPA) that “helps create national, regional and local coalitions to support intelligent and sustainable growth,” according to the SmartGrowth website.
“I had never heard of SmartGrowth, and didn’t know what it was, but when I started looking into it all the premises were similar and the stakeholder councils were similar,” says Steinmetz of comparisons between HPI and SmartGrowth.
Steinmetz takes the connection farther, saying SmartGrowth has connections through EPA to the United Nations’ Agenda 21.
“This is the other prong of the Wild Lands Initiative, and the prong that’s meant to bring private property under control,” she states, continuing, “They have to do it this way, through envisioning processes and stakeholder councils, because our private property rights are so strong they have to get us to give them up to accomplish their agenda.”
“My argument is that we do not have the right to take out a map and plan over someone else’s private property,” she says. “Constitutionally, that right doesn’t exist, and that’s what’s being done.”
Through a series of meetings in the last year, HPI has sought to gain public input about where the counties’ citizens would like to see their region in 30 years. Steinmetz casts doubt on the survey techniques, saying members of the steering committee were allowed to participate more than once, and anyone who could type in the area’s zip code could take the survey online. She also says that high school students took the survey as part of a required classroom assignment.
Steinmetz is also concerned about the involvement of Envision Utah, which she says had a hand in zoning the state of Utah and commoditizing its water.
“These are my concerns, because they use their restrictive zoning to get the water off the land,” notes Steinmetz. “Private property rights are the best way of protecting our land and water, and if you zone the guy next to you, you’ve regulated yourself.”
“Any time some kind of document is formulated that may influence policy, there’s a risk of having it interpreted one way or another,” says Platte County Commissioner Steve Shockley of the planning. “As commissioners, we view this as a tool to look and see what people are interested in, and what they want things to look like in the future. Everybody does planning to some extent, and it’s not a bad thing.”
Platte County Commissioner Terry Stevenson is on the executive committee of the High Plains Initiative, and he says that, even if HPI was trying to overturn private property rights, it wouldn’t happen.
“One of the processes the Initiative goes through is to determine the values of local people, and why they like living where they live, and there’s a list that’s been created through their surveying, including things like small towns, low crime rates and low taxes. One of the things that’s been identified as a value from the beginning is property rights,” says Stevenson. “The idea of the Initiative is to look forward 30 years and make sure we maintain the values 30 years from now that we have right now, and if property rights are one of those values, they’ve got to be maintained, according to the parameters of the Initiative.”
“The main thing I saw, through going to the public meetings and exercises, was a core value of private property rights,” says Shockley. “They are near and dear to everybody in the state as a whole, and if this report comes out in the end with a list of the values of people in southeast Wyoming, and if property rights aren’t near the top of the list, it’s not an accurate reflection of how the people in this area feel.”
Stevenson says that what the HPI process does is set up different scenarios that are variations on the question: “If we did everything exactly as we are now and move forward, what would things look like 30 years from now?”
“The variations ask: ‘What if we are more restrictive on subdivisions, or less restrictive, what impact would that have on the way things would look?’ What we have been doing most recently is looking at the different scenarios that would come out of differences from where we are now,” explains Stevenson.
He continues that, eventually, the HPI committee will end up with a set of recommendations that will be provided to local governments – in this case those of Platte and Goshen counties and the 10 towns within.
“The recommendations will be handed over to the local government officials, and that’s the end of the project,” says Stevenson. “They have absolutely no authority to do any implementation of any kind. Any kind of implementation would go through the existing processes of local governments. For example, planning and zoning questions or recommended changes would have to go through the exact same process as any planning or zoning change under state statute, and it’s been that way since 1976.”
He says for a county that includes 45-day notice, public hearings and public input to the commissioners about whether or not the issue in question should be implemented.
In mid-March the county commissioners held a meeting that drew many landowners opposed to HPI and its methods. Sherri Cullen of Wheatland is one of those who attend the commissioner meeting.
“The overall concern is that the Initiative is something that could easily come in conflict with private property rights,” says Cullen. “We object to the way they conducted their meetings, with a little map where people could say whose place needs to stay open space, and whose needs to be a housing development.”
“As landowners, we don’t feel this planning process is in our best interest,” continues Cullen. “We are a group of people who feel like what we want will come about through marketing and the private enterprise system. We don’t see the High Plains Initiative as a grassroots system at all, and that’s one of their biggest claims. Something we have to be aware of is people who are coming in and telling us what we need to do with our property.”
“The simple statement is that anything still has to go through the county commissioners, and they must take specific action on any change before anything can take place,” says Stevenson, who expects an HPI recommendation to come before the county commissioners in the next two or three months. “The planning process is nearing the end,” he adds.
“Any document could be taken apart, with bits and pieces used for an agenda,” says Shockley. “In my view, I think it’s been made clear to the High Plains Initiative group that private property rights are very valuable to the people around here, and I imagine the final document would have to include those.”
For more information on the High Plains Initiative, visit Christy Martinez is managing editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

    Although the court case involving northeast Wyoming landowners and Dakota, Minnesota and Eastern (DM&E) Railroad has not moved very far within this state, the railroad has gained small ground in South Dakota.
    After a lengthy series of hearings and legal meetings, the South Dakota Transportation Commission mid-March granted DM&E the right to use eminent domain to gain control of land from Wall, S.D. west to the Wyoming border for use in a rail line extension that they’ve proposed to run to coal mines the Powder River Basin.
    Soon following the permission, however, was a notice of appeal from lawyers representing the affected South Dakota landowners. “The landowners in South Dakota will not evaluate the merits of an appeal and potentially pursue it,” says Gillette attorney Tad Daly of Daly, Davidson and Sorenson, who represents 14 of the 19 Wyoming landowners along the proposed route.
    “The decision of the Transportation Commission can be appealed to the state Supreme Court in South Dakota, and if the landowner appeal’s not successful, that gives DM&E the right to use eminent domain to take the landowners to court,” says Nancy Darnell, who ranches with husband Donley near Newcastle and is one of the affected Wyoming landowners.
    The Transportation Commission only granted DM&E the right to use eminent domain from Wall west to the state line, although they had asked for the whole state. Even though they’ve been granted the right to use eminent domain, Darnell says that doesn’t mean they will.
    “There’s lot of time to play out yet in this, and there’s a long way to go in the appeal process,” says Darnell. “Either or both sides may appeal, because neither side got what they wanted from the Transportation Commission decision.”
    She says the basis on which the South Dakota landowners may appeal is that they believe there were a number of irregularities in the proceedings before the Transportation Commission.
    In Wyoming DM&E’s case has been heard in federal court in Casper. “All the evidence has been heard in the case, and it’s awaiting the judge’s decision as far as I know,” says Darnell.  She says there have been several court sessions and attorneys submitted final arguments last fall.
    DM&E sued under Wyoming law to be a condemner, which is where state law is different from South Dakota. “Authority was never a question in Wyoming,” says Daly.
    “We’ve been litigating this for a little over a year and a half now,” says Daly. “We went to trial last summer in federal court and spent two weeks in trial on two of the three parts of eminent domain.” He says the two sides have not yet litigated the damage portion.
    “The judge required each side to submit findings of fact and conclusions of law, and those were due September 2008. Those have all been submitted to the court and now it’s under his review,” says Daly of the waiting period. “We’re waiting for the court to make a decision based on the evidence.”
    He says it’s very difficult to predict when a federal judge will make a decision.
    Further complicating the case is the purchase of DM&E by Canadian Pacific Railway. “Canadian Pacific will make the ultimate decision to develop this project or not, and the people making the decision aren’t even involved in the litigation,” says Daly. “We hope that makes a difference, and the judge is aware of Canadian Pacific’s stance as it pertains to the Powder River Basin.”
    Darnell speculates the railroad wants to pursue eminent domain to secure the right to develop so they have potential expansion projects to show to investors.
    “The official word is that Canadian Pacific has not made a decision,” says Darnell, adding that Canadian Pacific became the operator of DM&E in Fall 2008. “Prior to that, all their announcements were that they’d take from one to five years to decide if they want to follow through on the project.”
    Meanwhile, DM&E CEO Kevin Schieffer, who pushed the development, has been fired.
    “We have been in this particular controversy for almost 12 years,” says Darnell. “From time to time we’ve had to spend a huge amount of time and money defending our ranchland and defending against what we feel is wrong. It’s affected us greatly, because that was time taken away from our ranch operations.”
    “What DM&E has done to the landowners through all of this is encumber their property with the threat of condemnation through a federal lawsuit, which makes it hard to do anything with the land – market to sell or use as potential collateral for operating loans – because nobody knows what’s going to happen,” says Daly of harm already done to his clients. “What they’ve done is clouded the title to the degree the landowners can’t use it to the best of their abilities.”
    “If the railroad is truly built, a number of ranchers, including us, will have places and property completely cut off from the rest of the ranch,” says Darnell. “The large amount of uncertainty does affect us, even though our day-to-day operation has not been affected. We’re on hold.”
    Christy Hemken is assistant editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..
Northeast Wyoming – “Due to significant changes in the economic climate, DM&E cannot say that there is a reasonable probability that it will proceed with its Powder River Basin project in the immediate term,” reads the notice of dismiss without prejudice filed by the Dakota, Minnesota and Eastern Railroad Corporation (DM&E) on Aug. 26.
    In 2007 DM&E had filed in U.S. District Court in Casper for the use of eminent domain in northeastern Wyoming for a new rail line to the Powder River Basin. The case affected 14 landowners and has been in court for the past several years.  It would have given them rights-of-way to around 1,200 linear acres in Converse, Weston, Campbell and Niobrara counties.
    DM&E was able to secure the right to exercise eminent domain in South Dakota, but that regulatory decision had been appealed.
    In addition to the national economic situation, the railroad lists the regulatory climate as uncertain given the new administration and pending or proposed legislation affecting the coal and rail industries.
    “This has resulted in a longer timeframe for commencement of the project than anticipated at the time these condemnation actions were filed,” says DM&E in the dismissal document.
    “We really feel strongly that this is a win for the landowners because if they thought they were going to win they would have continued with it,” says Nancy Darnell of Newcastle, who was involved with the case along with husband Donley.
    Although the company says it plans to proceed with necessary milestones it dismissed the condemnation for now because they will not need the requested property in the immediate term.
    “We felt that DM&E never offered us anything we could accept,” says Darnell of negotiations. “At the moment we don’t yet know if they’ll come back and offer us something that we can.”
    “I was pleased, but not surprised,” she says of receiving news the railroad had dropped the suit. “We’re glad we don’t have the lawsuit hanging over us anymore.”
    Should DM&E renew its effort to implement eminent domain, it will now have to follow different statutes, which went into effect July 1, 2007, just a few days after the original lawsuit was filed June 28.
    “With the delays now occasioned by external circumstances, there is no need to engage in further litigation over that objection as dismissing the action will permit Defendants and DM&E to restart negotiations under the new statute when there is more certainty regarding those external circumstances,” write the DM&E attorneys.
    DM&E and Canadian Pacific, which purchased DM&E after the lawsuit began, remain vague about the company’s future plans to develop or not develop.
    Christy Hemken is assistant editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..