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Eminent Domain for Greenway Is Unconstitutional

  • Eminent Domain for Greenway Is Unconstitutional

  • 2 January 2011 by 0 Comments

Eminent Domain for Greenway Is Unconstitutional

By Richard Larsen

Published – Idaho State Journal, 01/02/11

There are fundamental principles upon which our republic was founded that are so critical that they are inviolate. Principles so primary, that the elimination or subordination of them diminishes and minimizes the nation, and even our community. Individual property rights are among those.

Our Declaration of Independence, which codified the Lockean Creed, declares, “We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The Lockean Creed substitutes “pursuit of Happiness” with “property.” Ownership and control of private property are at the very core of these principles, without which people are not citizens, but are merely subjects of whatever government is in power over them.

The Idaho State Constitution in Article 1, Section 1 embodies this when it declares in Article I section I, “All men are by nature free and equal, and have certain inalienable rights, among which are … acquiring, possessing and protecting property…”

In the context of the current debate over open spaces and completion of the Portneuf Greenway, that one line, “acquiring, possessing and protecting property” should discourage the city fathers from following the recommendations of special interest groups in the city from forcing greenway completion through the exercise of eminent domain. Especially when coupled with Idaho Code Title 7 chapter 7 section 701a which specifically prohibits the transfer of private property through eminent domain when it is used as a pretext to transfer that property to any private organization.

The ultimate determination in the issue should be the Idaho Constitution itself, which states in Article 1 Section 14, “RIGHT OF EMINENT DOMAIN. The necessary use of lands for the construction of reservoirs or storage basins, for the purpose of irrigation, or for rights of way for the construction of canals, ditches, flumes or pipes, to convey water to the place of use for any useful, beneficial or necessary purpose, or for drainage; or for the drainage of mines, or the working thereof, by means of roads, railroads, tramways, cuts, tunnels, shafts, hoisting works, dumps, or other necessary means to their complete development, or any other use necessary to the complete development of the material resources of the state, or the preservation of the health of its inhabitants, is hereby declared to be a public use, and subject to the regulation and control of the state. Private property may be taken for public use, but not until a just compensation, to be ascertained in the manner prescribed by law, shall be paid therefor.”

There is no allowance within that article that can be construed to include completion of a bicycle and pedestrian path! The property owners along the Portneuf are fully supported by the Constitution to preserve and protect their private property rights. As a blogger on the Journal website recently stated, “A nature walk doesn’t trump private property rights.”

Ours is a country of laws, and the primary codex upon which those laws are founded are embodied in the Constitution. That document, along with the State Constitution, clearly explicates and delineates the minimal authority of a government, and whatever powers of government were not identified in the Constitution were reserved unto the states or the citizens collectively.

George Swenson’s letter to the editor earlier this week provided great insight into how these unconstitutional concepts can grow and trump fundamental principles of property ownership rights. Based on his experience in California, before “escaping” to Idaho, he “had direct experience with this concept. Yes, it starts out innocently enough, an advisory board to recommend purchases of small amounts of land for nice things, like bicycle trails, parks, and other wonderful and popularly supported uses of land.”

“But, by design and not by accident, the concept grows. Large tracts of land are bought to preserve, you guessed it, open space . The “advisory” board is given taxing authority, special assessment districts are contrived in a way to force homeowners to pay for more purchases, and soon the Open Space Authority (so much for advisory) has more land than can be maintained — so fences are put up and the public is kept out.”

He concluded his letter, “I would strongly urge the mayor and City Council of Pocatello to reject this cute little reptile before it grows into the monster it was bred to become.”

This is just one more example of government, at any level, overstepping their constitutional and legal bounds for the sake of a “good idea.” Is the greenway a good idea? Yes, of course, but good ideas don’t trump legality and fundamental constitutional principles. It’s imperative that all levels of government revert to doing what is lawful and principled and not acting simply on “good ideas.”

AP award winning columnist Richard Larsen is President of Larsen Financial, a brokerage and financial planning firm in Pocatello, and is a graduate of Idaho State University with a BA in Political Science and History and former member of the Idaho State Journal Editorial Board.  He can be reached at


About the

More than anything, I want my readers to think. We're told what to think by the education establishment, which is then parroted by politicians from the left, and then reinforced by the mainstream media. Steeped in classical liberalism, my ideological roots are based in the Constitution and our founding documents. Armed with facts, data, and correct principles, today's conservatives can see through the liberal haze and bring clarity to any political discussion.

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