Can the Federal Government Take My North Carolina Land?

Yes, like the state of North Carolina, the federal government has the power to take land in North Carolina -- or any other state -- through the power of eminent domain. The federal government can take private land if two conditions are met — the land is taken for "public use" and if the government pays the landowner "just compensation" for the land. "Just compensation" is generally defined as the fair market value for the land. The process of taking private land by the federal government is called "condemnation." Condemnations are proceedings that can be done by almost any agency or department. For example, condemnations for public projects like the construction of dams are handled by the Bureau of Reclamation (“USBR”) which is part of the US Department of the Interior. Condemnations for federal highway projects are handled by the Federal Highway Administration which is part of the US Department of Transportation. Generally, the US Department of Justice handles the legal filings necessary when the federal government exercises its power of eminent domain.

As discussed here in the USBR's Handbook, the US Constitution does not explicitly grant the power of eminent domain to the federal government. Rather, the US Supreme Court has found the power of eminent domain to be "inherent" and implied by the wording of the Fifth Amendment which states, in part: "... nor shall private property be taken for public use, without just compensation." According to the US Supreme Court, the Fifth Amendment both assumes and limits exercise of the federal government's power of eminent domain. Kohl v. United States, 91 U.S. 367 (1875).

Aside from the constitutional limits that a taking of private land must be for "public use" and that "just compensation be paid, there are two other limitations on the federal government's power of eminent domain: Congress must specifically authorize a federal agency to take private land and Congress must appropriate money for the purpose.

As with condemnation procedures under North Carolina law, several steps occur before any official act is undertaken to initiate legal proceedings. In general, those steps are:

• Project planning -- such as for a federal building, highway, etc.
• Evaluation of land acquisition needs and alternatives for the project -- some projects like a federal courthouse or other building project may not need a specific parcel of land; thus, alternative available land units are evaluated; some projects like a dam or highway may require the acquisition of very specific parcels of land
• Determination if condemnation power is available under the relevant congressional statute
• Contact with the landowner and negotiations for non-condemnation acquisition of the land -- via purchase, trade or donation
• If negotiations fail, the federal government will issue a Notice of Intent to Acquire
• Condemnation papers are filed by the Department of Justice with the relevant federal court

The main federal law with respect to federal eminent domain is the Declaration of Taking Act. 40 U.S.C. §3114. The Taking Act governs the legal procedures when the federal government files a condemnation proceeding. Condemnation proceedings under the Taking Act are a form of "quick-take" condemnation. Pursuant to the Taking Act, official title to the land in question passes to the federal government immediately after the initial court papers are filed and the amount believed by the government to be "just compensation" is deposited with the court. However, the federal government is not entitled to possession of the land until an Order of Possession is issued by the court. Orders of Possession usually issue quickly, but, generally, extra time is given if there are persons that must vacate or property is to be removed from the land. This is the process used whether the federal government is taking the whole of a property or a portion thereof.

The Taking Act allows landowners to challenge the amount paid and empowers federal courts to require the federal government to pay additional compensation if the original amount is determined to be insufficient. Landowners may also challenge a taking of private land for other reasons like lack of congressional authorization or failure of “public use” justification.

For more information, and to schedule a confidential consultation with experienced and dedicated eminent domain and condemnation attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning and condemnation legal matters in federal court, in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.