Eminent Domain: Can the Federal Government Take Land Owned by North Carolina?

Under the current legal principles, the federal government has the power to take land owned by the various States (as long as just compensation is paid for the land taken). Here is a quick background and explanation.

Generally, governments possess what is called the power of eminent domain. This allows governments to take private land for public use. In less modern times, the power was unlimited and did NOT require payment by the government for the land taken. That has changed.

Arguably, the various powers granted to the federal government when the Constitution was ratified in 1789 did NOT include the power of eminent domain since those words were not contained in the Constitution. However, the Fifth Amendment (part of the Bill of Rights ratified in 1791) contains the words "nor shall private property be taken for public use, without just compensation." Courts have now long held that the Fifth Amendment recognizes that the federal government has power to take private land for public uses as long as just compensation is paid. Very shortly after the ratification of the Constitution and the Bills of Rights, the federal government began exercising its eminent domain authority in Washington, D.C., to, for example, begin construction of roads.

The next major legal question was whether the federal eminent domain authority could be used to take private land within state boundaries. In Kohl v. United States, 91 U. S. 367 (1876), the United States Supreme Court said "yes" and allowed the federal government to take private land in Ohio to construct a federal building. The court held that the federal government's power of eminent domain was granted when the States ratified the Constitution and the Bill of Rights. Further, the court held that the federal eminent domain power, "can neither be enlarged nor diminished by a state. Nor can any State prescribe the manner in which it must be exercised." More specifically, the court held that no consent from a state is needed for use of the federal eminent domain power to take private land.

The next major legal question involved whether the federal eminent domain authority could be used to take state-owned land. In Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U. S. 508 (1941), the United States Supreme Court said "yes." That case involved the construction by the federal government of a dam across the Red River within the boundaries of Oklahoma. Once completed, the dam would have -- and did -- submerge and destroy thousands of acres of lands, including highways or bridges, then-belonging to or under the then-control of Oklahoma. The Supreme Court held this to be a permissible use of the federal eminent domain power. The court explicitly stated: "[t]he fact that land is owned by a state is no barrier to its condemnation by the United States."

The Supreme Court recently reaffirmed this holding in PennEast Pipeline Co., LLC v. New Jersey, 141 S. Ct. 2244 (US Supreme Court 2021).

Indeed, PennEast took the question further, and ruled that the federal eminent domain power could be delegated to a private third party. PennEast involved a 116-mile natural gas pipeline being built from Pennsylvania to New Jersey by a private company under authority from the federal government. To complete the construction, the private company sought to use the federal eminent domain power to take various lands owned by New Jersey or in which New Jersey had some ownership interest. The Supreme Court held this to be a lawful use of the federal eminent domain power as delegated to a private company. According to the court, the delegation of the power of eminent domain has been accepted. For example, in Luxton v. North River Bridge Co., 153 U.S. 525 (US Supreme Court 1894), the Supreme Court stated that the federal government could delegate its eminent domain power authority to a private corporation for the purpose of constructing a bridge between New York and New Jersey.

On the other hand, it seems clear that the various states CANNOT use their powers of eminent domain to take federal lands. This is because of the Supremacy Clause contained in the US Constitution. See Utah Power & Light Co. v. United States, 243 U.S. 389 (US Supreme Court 1917).

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.