Crossing the Line? Nebraska Plans to Use Eminent Domain to Take Land in Colorado

by: Michael Realbuto
19 Jan 2022

We often think of eminent domain as the inherent power of the government to take private land for a public purpose. But what about when one sovereign entity intends to take land from another? Let’s look at a recent interstate taking story from the Nebraska-Colorado border, where Nebraska Governor Pete Ricketts plans to use Nebraska’s eminent domain power to take Colorado land in order to build a canal, asserting that a 1923 state agreement permits him to do it.

In April 1923, Colorado and Nebraska signed the South Platte River Compact which broadly addressed the rights and appropriation of the South Platte River. In particular, the compact permits each state to use eminent domain under certain limited circumstances. Nebraska, for example, is allowed to use eminent domain to construct and operate a canal to divert water in Colorado from the river to irrigate Nebraska lands. A portion of the compact reads as follows:

Colorado consents that Nebraska and its citizens may hereafter construct, maintain and operate such a canal and thereby may divert water from the South Platte River within Colorado for use in Nebraska, in the manner and at the time in this Article provided, and grants to Nebraska and its citizens the right to acquire by purchase, prescription, or the exercise of eminent domain such rights-of-way, easements or lands as may be necessary for the construction, maintenance, and operation of said canal.

Gov. Ricketts intends to raise that provision to build a canal because he contends that nearly 300 of Colorado’s proposed projects relating to the South Platte River jeopardize Nebraska’s water access. According to Gov. Ricketts, if Colorado follows through with all of the proposed projects, “they will reduce the amount of water coming to us by 90% and that would have a dramatic impact on [Nebraska].” While the applicability of the South Platte River Compact to the proposed canal project is still up in the air, the Governor argues that the compact should apply because Colorado’s projects would devastate Nebraska’s farming industry, in addition to reducing the water supply in the state’s two largest cities, Omaha and Lincoln. Nebraska’s proposed canal project is expected to cost nearly $500 million.

In response to Nebraska’s plan, Colorado Governor Jared Polis indicated that he “will continue to fight for Colorado’s water rights and interest in interstate compact and to oppose the diversion of precious water resources from Colorado.” Gov. Polis made it clear that Colorado has been in longstanding compliance with the South Platte River Compact and intends to include Nebraska in any discussions relating to projects that may alter either state’s water access. Stay tuned as we follow this interstate takings saga.

On the home front in New Jersey, government agencies have infrequently tried and sometimes succeeded in using eminent domain to take property outside of their jurisdictional limits.  In particular, the Local Lands and Buildings Law, N.J.S.A. 40A:12-1, et seq., expressly authorizes a municipality to acquire property outside of its own physical boundaries. Additionally, there have been several instances where our courts have recognized the ability of a municipality to exercise extraterritorial eminent domain powers for purposes outside the scope of the Local Lands and Buildings Laws. In each of these cases, the court focuses on the specific statute giving rise to the condemnation powers, as well as the legitimacy of the public need and purpose. See, e.g., Aviation Services v. Bd. of Adjustment of Hanover Tp. , 20 N.J. 275, 281-282 (1956) (Morristown Airport case relying upon state airport legislation allowing extraterritorial acquisitions for airport purposes based upon language mirroring Local Lands and Buildings Laws); Borough of Verona v. Tp. Of Cedar Grove, 49 N.J. Super. 293, 296 (Law Div. 1988) (municipality able to acquire property in a neighboring town for roadway purposes provided it complied with reasonable zoning requirements in the neighboring town). McKirdy, Riskin, Olson & DellaPelle, P.C. has successfully represented New Jersey property owners who were confronted with an extraterritorial taking. While the issue does not come up all that often, it is worthwhile to know that our experience and expertise in the field has you covered. If you believe your property is being wrongfully taken or undervalued by a condemning authority, please contact us to speak with an experienced condemnation attorney.