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Condemnation Litigation - the Sword and the Shield

Edward J. Blieszner, Surface Use for Mineral Development in the New West: Finding Good Ground

The use of eminent domain by state and local governments has received criticism in recent years. Following the United States Supreme Court's decision in Kelo v. City of New London1 some state legislatures have placed limitations on, or completely prohibited, the use of eminent domain where the sole purpose is to assist in economic development. Eminent domain nevertheless remains a very viable tool which can be used to serve a variety of public interests.

This paper discusses some of the principles governing the use of eminent domain and the general procedures that a condemning agency normally must follow. It outlines some of the ways in which a mineral lessee may consider “wielding the sword” of eminent domain to assist in mineral development and presents some considerations of which mineral developers should be aware should their interests become the object of eminent domain proceedings and it becomes necessary to “raise the shield” against eminent domain powers.

II. GENERAL CONSIDERATIONS

The power of eminent domain is an inherent attribute of the sovereign. City of Thornton v. Farmers Reservoir & Irrigation Company, 194 Colo. 526, 575 P.2d 382 (1978). The exercise of this right has been constrained by our federal and state constitutions. The Fifth Amendment to the Constitution of the United States provides that private property shall not be taken f