Excellent Eminent Domain Decision from Washington State

by Timothy Sandefur

The Washington State Court of Appeals issued a decision today in Cowlitz County v. Martin, holding that the state had not specifically authorized counties to condemn private property in order to create a "salmon passage" (i.e., to let salmon swim by in a stream). Writes Diana Kirchheim, director of PLF's Washington State office,

the Court of Appeals held that the Salmon Recovery Act does not grant a county, city or tribal government authority to condemn private property. The Court reached that conclusion reasoning that because the act specifically states that any habitat project that occurs on private property requires the express consent of all of the affected property owners, the Legislature did not intend to grant eminent domain authority by passage of the Salmon Recovery Act. Second, the Court reversed the trial court's finding that "fish passage" is a public use. The Court held that there was neither statutory nor constitutional authority for the trial's court's finding that "fish passage" constitutes a public use.

Here's the important language in the opinion. Of course, the state legislature could very easily change things by giving counties this power:

Courts generally give preference to a more specific and more recent statute that addresses the same issue as an older, broader statute. The Salmon Recovery Act directly addresses the public's need concerning salmonid fish passage restoration and protection. In doing so, our Legislature clearly elected not to grant eminent domain power to protect this public interest…. A county is bound by the provisions of the Salmon Recovery Act when seeking to protect salmonid fish passage and may not proceed under [eminent domain]. Furthermore, nothing in the record suggests that the people of Washington considered acquisition of private property for fish passage a public need at the time our constitution was ratified and thus there is no constitutional basis for this condemnation. In sum, there is neither statutory nor constitutional authority for the trial court's finding that "fish passage" constitutes a public use.