Log Cabin Democrat reporter digs into the details of the Jason Rapert bill on eminent domain | Arkansas Blog

Monday, November 3, 2014

Log Cabin Democrat reporter digs into the details of the Jason Rapert bill on eminent domain

Posted By on Mon, Nov 3, 2014 at 10:08 AM

One of the issues that emerged early on in the campaign between Conway Republican Sen. Jason Rapert and Democratic challenger Tyler Pearson concerned a piece of eminent domain legislation sponsored by Rapert and Rep. Nate Bell back in 2013, which Pearson claimed in a mailer would have enhanced the power of oil and gas companies to seize private land for building pipelines. It's a sensitive issue in light of the 2013 oil spill that happened just next door in Mayflower, especially with other major pipeline projects being considered in Arkansas.

click to enlarge TANGLED: It's not clear whether Jason Rapert's bill would have expanded eminent domain powers or restricted them.
  • TANGLED: It's not clear whether Jason Rapert's bill would have expanded eminent domain powers or restricted them.
Rapert has denied (angrily, of course) Pearson's charge that the bill helped pipeline companies. According to Rapert and Bell, HB 1042 was intended to strengthen property rights for landowners in the wake of a controversial US Supreme Court decision, Kelo v. New London, that sanctioned the use of eminent domain by property developers under certain circumstances.

Conway voters were left with two candidates pointing to the same legislation and saying it did diametrically opposite things. The back-and-forth was contentious and confusing enough to prompt Joe Lamb, a reporter at Conway's Log Cabin Democrat, to take a close look at the 2013 legislation earlier this month and try to puzzle out its actual intent. Lamb wrote about it at length for the Log Cabin in October, which prompted an unhappy response from Rapert that the article "stopped short of getting the truth." 

So, Lamb sent us a more unvarnished interpretation of exactly what HB 1042 would have done. He's critical of the Pearson campaign's simplistic criticism, but convinced that the plain language of the bill is bad news — at best a confusing jumble and at worst an attempt to transform a settled area of law in order to serve a narrow business interest.

But before getting to that explanation, it's important to note something about state legislation. Although most of the thousands of bills the legislature considers each session are fairly clear about their intentions, there are always a few that try to smuggle in unforeseen changes to law under the radar. It's happened on at least two occasions in recent years. Recall the "journey" bill from Republican Rep. Denny Altes in 2013 that may or may not have legalized open carry of handguns anywhere in the state with no need for a license. It passed the legislature with little controversy. Then there's Act 1050 of 2011, a portion of which prohibits public schools from getting cheap, fast internet service via the state-owned ARE-ON fiber optic network. Act 1050 was a stealth measure forwarded by the telecom industry to protect their narrow interests, and it too passed the legislature with little debate — not from legislators, not from education advocates and not from Governor Mike Beebe —  until this year. In committee, I've heard many legislators quietly mention that they have no recollection of Act 1050 (despite having voted for it).

Perhaps it's embarrassing for a legislator to admit that he or she voted for (or sponsored) a bill s/he didn't fully understand, but the fact is that it does happen. In an abbreviated legislative session with a crowded agenda, members sometimes endorse bad bills written by external interests. Lamb believes that's what happened in this case:

Here’s what happened: Sen. Rapert, on his own and without provocation, took issue in a public forum with the young Mr. Pearson’s attack ad mailer that said that Sen. Rapert sponsored a bill that would let “greedy pipeline companies take Central Arkansas homes for pennies on the dollar,” or somesuch nonsense.

The mailer was a bad move by Pearson. It did show immaturity, and it made me want to cuff Pearson’s campaign manager on the side of the head in a way that probably wouldn’t be received as either friendly or playful. There’s a difference in politics between asking your opponent to return the ball and tee’ing it up for them. 

It takes forever to explain why the bill in question was rotten, and reducing it to a single sentence like Pearson’s mailer did is a disservice to everybody.

Pipeline companies already have all the power they’ll ever realistically need to take easements through eminent domain, and they’ve had that power forever. I, and other right-thinking people, agree with eminent domain because, as a source I quoted in my story said, nobody would ever undertake drilling for minerals like natural gas if they weren’t assured that they’d be able to get the product to the marketplace. And nobody’s taking anything for pennies on the dollar; they’re taking it for fair market price as it’s decided in our circuit courts, and I’m not ready to lose faith in them yet.

Although HB 1042 includes "legislative intent" language that states the bill's aim is to protect property owners' rights, Lamb says, that section wouldn't have become statute. The part which would become statute is a little baffling, because it seems to run afoul of how eminent domain has always been defined in the United States:


The law in Arkansas, as set forth in the state’s Constitution in 1874 and mirroring the U.S. Constitution, says that, “The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.” Ark. Const. Art. II § 22 (emphasis added by me).

And here’s how the Arkansas Supreme Court interpreted this Constitutional provision in 2010: “[i]t is a well-established principle that the right of eminent domain cannot be exercised for the purpose of acquiring property for private use; the Legislature cannot exercise the power of eminent domain nor delegate its exercise except for public use.”

Forget the fancy window dressing in HB1042 about preventing some government takings of Arkansas homes for shopping malls or apartments that probably would never happen. When Sen. Rapert talks about the bill “protecting property owners’ rights,” remember that none of that “protection” business would have been codified — it would not have become The Law. Here’s the part of HB1042 that would have become The Law:

“Private property shall not be acquired by eminent domain for a private commercial enterprise, economic development in the private sector, or any other private use except use by:(1) Privately owned utilities; (2) Electric cooperatives; (3) Publicly owned utilities; (4) Utilities owned by improvement districts; (5) Pipeline companies; (6) Railroads; and (7) Other common carriers.”
HB1042 § 2(b).

Folks, listen to the law. The plain language of Sen. Rapert’s bill that he co-sponsored with Nate Bell just strikes out of the Laws of Arkansas the idea that pipeline companies and railroads and all the others have to prove a “public use” when they take Arkansans’ land; instead, they can do it for “economic development in the private sector” or “private commercial enterprise” or — I guess just to drive the point home — “any other private use.”

Please bear with me, dear reader. I promise we're getting close to the good part.

Now, the Arkansas Supreme Court handled a couple cases in 2010, called the “Midstream Cases,” that dealt with local “gathering lines” that run from a gas well on somebody’s property to other pipes leading to an interstate gas pipeline. Realistically these “gathering lines” will never carry any other than one company’s gas. The state’s Supreme Court held in 2010, over land owners’ arguments that a one-company pipeline couldn’t be for the “public use,” that the determination of whether a pipeline was a “common carrier” for the “public use” was measured by the existence of the right of the public (i.e. another company) to tap into it to flow their product, and not the actual use of that right.

Fair enough. A company can take your land for their own use so long as they recognize a theoretical or speculative right of the public to use it. That’s such an easy thing to establish that it can barely even be called a restriction. Still, Jason Rapert and Nate Bell apparently wanted to do away with this restriction, and they wanted to do it through the plain language of HB1042.

Why? I don’t know. But they did. And if you’ve read this far then maybe you’re ready to hear my good and educated guess as to why:

What HB1042 would have done, realistically, is allow a company like Centerpoint or Southwestern or some wildcatter to take a person's property for their private-use pipeline and assert a new right to charge whatever fee they want for their competing companies' wells to tap into it — or else force those other companies to run their own “gathering” pipelines through the neighbor’s land. This additional taking is something the competing pipeline companies would probably do, depending on the first company’s fee, because if you’ve drilled a producing well of course you’ve got to get it to market.

But as I said before, any bill that would allow this nonsense is so hilariously against the spirit of eminent domain that Surely It Couldn’t Have Ever Become Law. HB1042, co-sponsored by Jason Rapert and Nate Bell, would have been in utter and obvious defiance of the Constitutions of both Arkansas and the United States and probably the Magna Carta. Of course it didn’t become law because it was never even taken seriously by the House Judiciary Committee, which thank God is chaired by lawyers, and HB1042 died without a whimper.

In my educated estimation, HB1042 was an insane piece of legislation thrown at Arkansas as a hail-Mary by some energy interest via Sen. Rapert and Rep. Bell, who probably honestly didn’t know what they were doing. Probably they were convinced, and probably they will forever remain convinced, that the bill would have strengthened property owners rights because they were taken in by the bill’s flowery window dressing and they didn't or couldn't understand the rest of it. I will give those two men who are elected to represent us that much credit as a courtesy.

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