Originally aired April 6, 2001

PERSPECTIVE

NRD Eminent Domain:
Dam Debate
Reported by Statewide correspondent, Mike Tobias.

There are hundreds of small streams in Nebraska like Indian Creek. They run for a few miles before dumping into larger rivers, in this case the Big Blue. Most of the time Indian Creek is an anonymous line winding through the landscape of three counties.
But the Upper Big Blue Natural Resource District is talking about a multi-million dollar dam project on Indian Creek. Now this once quiet stream is making noise that's being heard as far as the state capitol.
[John Turnbull] "And I guess I'm the instigator of the current controversy."
John Turnbull is general manager of the Upper Big Blue NRD. Turnbull says if built the Indian Creek project would likely resemble the Smith Creed NRD dam that's just a few miles away.
[Turnbull] "It would be a large dam and a reservoir with multi-purpose benefits which means it could be… would be flood control, water conservation, sediment storage, erosion control, fisheries, wildlife habitat and of course public use, recreation.
"It's a good site. The topography is right. In other words we have an area where we have some… a defined valley, or a defined draw.
"If the stream is flowing from this way then it doesn't affect…"
The NRD has mapped a few possible sites for the project near the small town of Cordova. Although the Indian Creek dam has been on the Upper Big Blue board's agenda for years, Turnbull says it's still in the early stages of development.
[Turnbull] "Well, there's a general need for flood control in the basin. And there is some need in that area, yes."
[Fred Nickel] "Now these are going to be for sale before too long when I get a few more of them done and…"
Fred Nickel is a retired farmer and Cordova postmaster. These projects keep him busy. So does fishing. That's why he circulated a petition supporting the Indian Creek project.
[Nickel] "I think its progress and we gotta step aside for progress sooner or later.
"And there's been a lot of talk about, in the newspapers, that most of the people in this town are not for it and… that's not quite right. Over fifty percent of the people I've talked to in this town are for it."
[DeLayne Eberspacher] "This is a major road from the west that comes into Cordova."
Don't count DeLayne Eberspacher among that fifty- percent.
[Eberspacher] "NRD was founded on conservation purposes. And what has happened over the last thirty years is they finished a lot of their projects that they were meant for and now they're shopping for work and they've gone from more of a conservation practice to more of a recreation… They're continually evolving in that way, and we're saying that's not right."
DeLayne and his brother and father farm near Cordova. They say the Indian Creek project isn't needed because the creek rarely floods. They also say more recreation isn't needed because the Smith Creek dam is just a few miles north of town. They circulated a petition against the Indian Creek project.
[Eberspacher] "This farm would be the most irrigated ground that we'd lose right here."
The Eberspachers have a personal interest in the project. One site being considered for the Indian Creek dam includes about 400 acres of their land. If the NRD decides to build here, they'd first try to buy the land from the Eberspachers. But DeLayne says they don't plan to sell.
[Eberspacher] "I guess, you know, if they came out and offered us fair market value and we'd take out money what would happen is we'd have to reinvest and have to look for other land to buy. The problem is that all the other parties that are involved would be doing the same thing. So then when a piece of ground would come up for sale you'd pit neighbor against neighbor. The land price would go up."
The NRD might then be forced to use the power of eminent domain.
[Pepperl] "Eminent domain is actually the inherent right of the sovereign, in this particular case being United States government and the states to acquire property for their use. Early on in the English times and our law come from English times, if the king wanted something the king took it."
Don Pepperl specializes in eminent domain law. Pepperl says the Nebraska constitution provides some protection in eminent domain cases. Landowners must be offered fair market value for their land, as determined by appraisers. And this can be appealed. But fair market value is sometimes hard to determine.
[Pepperl] "Now that does not mean that they're going to be offering what's fair. Appraisers quite frankly vary considerably. I've got files here where the appraiser for the state has said eight thousand dollars and my appraiser says 115 thousand dollars. It's just a basic difference of opinion of the fair market value. Or more importantly, different elements of damage."
John Turnbull says the Upper Big Blue NRD rarely uses eminent domain.
[Turnbull] "We've built forty-some projects. We've used eminent domain authority on two of them. So mostly what we do is try to settle these things as we're doing the project design. Try to work with the landowners as we go through the design stuff."
[Eberspacher] "The threat of eminent domain is… is what they use I guess. And you know it's a double-edged sword. They can come out here and take the ground with eminent domain, or you get on board and cooperate with them and… they may give you a better price. Or, you know, it's all in how you cooperate with them."
That threat took Eberspacher to the office of State Senator Elaine Stuhr. She's sponsoring a bill that would keep NRDs from using eminent domain to develop recreational facilities.
[Senator Elaine Stuhr] "It is the feeling of some people that NRDs are straying from their original and main purposes of flood control, soil conservation, and management of water quantity and quality."
[Eberspacher] "I'm 29-years-old. I'm a farmer from Cordova. And the power of eminent domain is being misused to potentially force me off my farm."
Similar stories were shared at this Natural Resources Committee hearing. Dave Armstrong lives in Ponca. An NRD project that includes recreation may be built on his land, not far from a state park and other recreation facilities.
[Dave Armstrong] "But we question the right of them to condemn our ground to provide recreation for people in areas, which may not need recreation."
NRD leaders oppose the bill. They say eminent domain is a necessary tool that isn't misused.
[Stan Staab] "Eminent domain is not used unjustly by our NRD or any other district that I am aware of. This is a very powerful responsibility. It will not be abused by our NRD."
They also say recreation is part of their mission. Adding a recreation component helps fund projects.
[Staab] "Unfortunately, it is a fact that most flood control projects are not economically feasible without water based recreation. They simply are not in today's world."
[Turnbull] "And the reason for the recreation has to do with two things. One, our board philosophy is if we build a structure that costs, say, more than a hundred thousand dollars, that's public funds we're using. Tie up the local property tax and probably a combination of state and federal funds, or sometimes just all local property tax. That's the public's money. And if the public is going to build the structure, then the public ought to have the right to go out on that structure… and out on its ensuring lake. That's the board's policy."
Eminent domain issues are debated every year here at the state capitol. Besides the NRD bill, there are several other pieces of legislation this session alone. One deals with how railroads acquire property, another, utilities.
One broad question hangs over each specific piece of legislation. And that's should the government even have eminent domain power?
[Dale Kumpf] "I think it's stealing. And when I was raised up I was taught that if someone had something that I wanted and I took it from him, and I gave him money for it even though he didn't want to give it to me, that's still stealing. And to me that's what power of eminent domain is also."
[Turnbull] "Eminent domain is there for a purpose. And that is, if the community or if the district or the roads or whoever has that authority decides that its in the public good to build a public works project and you get the majority of the landowners to go with you and one doesn't, you don't want that one holding up the whole works."
[Pepperl] "It's necessary. I mean, an Interstate would never be built. I mean it's… nobody wants it in their backyard and I don't think that the government could begin to function. Now certain cases, like for instance do we want NRDs to have the power to build for recreation? That's a judgement call. But on some things like roads and utilities, they're necessary services to have a society… and organized society and I don't see how we can do it without eminent domain."
Whether eminent domain will be used to acquire land for the Indian Creek project remains to be seen. The Upper Big Blue NRD board has yet to give final approval for the project, let alone chose a specific location. If they do go ahead with the dam, it would still be at least three to five years before construction begins. It's unlikely the Legislature will take action on the NRD eminent domain bill this session. The Indian Creek project could die though if it passes.
What is likely is that this small creek will continue to spark discussion on the role of Natural Resource Districts and the use of the power of eminent domain.