What did Idaho's AG say about a 2006 ballot initiative that would have amended Idaho's eminent domain and regulatory-takings statutes after Kelo?
Plain-English summary
This is the AG's statutory review (Idaho Code § 34-1809) of a ballot initiative filed February 28, 2006, by Laird Maxwell, proposing to amend Idaho's eminent domain statutes (Idaho Code §§ 7-701 and 7-701A) and the Idaho Regulatory Takings Act (§§ 67-8002 and 67-8003).
The initiative came in the wake of Kelo v. City of New London, 545 U.S. 469 (2005), the U.S. Supreme Court's controversial decision allowing eminent domain takings for economic-development redevelopment projects. Many states responded with statutes or initiatives narrowing local eminent-domain authority, and Idaho was no exception.
Wasden raised four sets of issues:
Drafting form (Art. III, § 18). The proposal needed to reproduce the full text of amended sections (§§ 7-701, 7-701A, 67-8002, and 67-8003) with strikeouts for deletions and underscoring for additions. After consultation, the petitioner provided a marked-up draft, and the AG recommended using that draft for circulation.
Single-subject question (Art. III, § 16). The proposal addressed both eminent domain (Title 7, Chapter 7) and regulatory takings (Title 67, Chapter 80). The AG noted these are arguably two separate subjects (eminent domain is a complete taking; regulatory takings are partial), but a court could classify both as "takings of property" and so directly or indirectly connected. The AG could not predict whether a court would permit the linkage.
Conflict with House Bill 555. The 2006 Idaho Legislature had just enacted HB 555, which created a new Idaho Code § 7-701A taking effect July 1, 2006. The initiative also created a new § 7-701A. If the initiative passed, the two § 7-701As would conflict and need reconciliation, likely by the Idaho Code Commission or by application of the rule that "the statute enacted later in time generally controls." The initiative also proposed § 7-701(12) language overlapping with HB 555.
Ambiguity in § 67-8003(6)(c). The proposed regulatory-takings provision exempted land-use law regulations "enacted prior to the effective date" of the new law. The AG flagged that "enacted prior to" is ambiguous as to amendments: if a pre-existing regulation is amended after the effective date, does the entire regulation become subject to the new law, or only the amendment? The AG predicted significant litigation over the boundaries of this exemption.
The AG noted that initiative legislation is on equal footing with bicameral-passed legislation, so the proposal was within the proper scope of the initiative power.
Currency note
This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
The Idaho Eminent Domain Act (Idaho Code Title 7, Chapter 7) and the Idaho Regulatory Takings Act (Idaho Code Title 67, Chapter 80) have both been substantially amended since 2006. The 2006 legislative response to Kelo (HB 555 and related bills) was followed by additional refinements over the next decade. The specific section references in this certificate (§§ 7-701, 7-701A, 67-8002, 67-8003) should be checked against current statutes before being relied upon. Anyone analyzing Idaho takings law today should also consult current Idaho Supreme Court decisions, which have shaped the contours of the statutory regime over the intervening years.
Common questions
Q: Did this initiative make the ballot?
A: This certificate addressed only the legal form of the proposal. The Idaho Legislature passed several Kelo-response statutes during 2006, which may have reduced demand for the initiative. Whether this specific initiative qualified for the ballot is a separate question.
Q: What is Kelo?
A: Kelo v. City of New London, 545 U.S. 469 (2005), held that the Public Use Clause of the Fifth Amendment permits a city to take private property for a private redevelopment project that the city argues will serve a "public purpose" through economic-development benefits. The decision was widely criticized and prompted at least 40 states to enact post-Kelo statutes or amendments restricting eminent-domain use for economic-development takings.
Q: What is the difference between eminent domain and regulatory takings?
A: Eminent domain is the government's power to take private property for public use, with compensation (Idaho Const. art. I, § 14; U.S. Const. amend. V). A regulatory taking occurs when government regulation, rather than physical appropriation, deprives a property owner of so much of the value or use of the property that compensation is constitutionally required. The two doctrines protect different rights and have different legal frameworks.
Q: Why did the AG flag the conflict with HB 555?
A: Because both HB 555 and the initiative proposed creating a new § 7-701A. Two statutes cannot occupy the same code section. If the initiative passed after HB 555 took effect, the Idaho Code Commission would have to renumber one of them, and the rule that the later-in-time statute controls would resolve any substantive conflict. The AG flagged this because the petitioner could fix the issue by re-numbering or by explicitly addressing HB 555 in the initiative text.
Q: Why is the "enacted prior to" exemption ambiguous?
A: Land-use regulations are amended frequently. If a county zoning ordinance was originally adopted in 1985 but heavily amended in 2008 (after the initiative's effective date), is the 2008 ordinance "enacted prior to" the effective date because the underlying ordinance is older? Or does the 2008 amendment count as a separate enactment subject to the new regulatory-takings rules? The proposal did not address that question, and the AG predicted courts would have to draw the lines after extensive litigation. A clearer drafting approach would specify whether amendments count.
Q: What does "equal footing" mean for initiative legislation?
A: It means a statute passed by initiative has the same legal force as a statute passed by the Legislature. The initiative power, granted by Idaho Const. art. III, § 1, is the people's reserved share of legislative power. Initiative legislation is subject to the same constitutional constraints (single subject, full-text amendment, etc.) as legislation passed bicamerally (Luker v. Curtis, 64 Idaho 703 (1943); Simpson v. Cenarrusa, 130 Idaho 609 (1997)).
Background and statutory framework
Idaho's eminent domain statutes (Idaho Code Title 7, Chapter 7) implement the takings authority granted by Idaho Const. art. I, § 14 (private property may be taken for public use). Section 7-704 requires that any taking for a public use be necessary. The Idaho Regulatory Takings Act (Idaho Code Title 67, Chapter 80) creates a procedural framework for property owners to challenge regulatory actions that allegedly cause unconstitutional takings; § 67-8002(4) defines "regulatory taking" broadly as "a regulatory or administrative action resulting in deprivation of private property . . . in violation of the state or federal constitution."
The initiative was filed in the wake of Kelo v. City of New London (2005), part of a wave of state-level efforts to narrow eminent-domain authority for economic-development takings.
Citations and references
Statutes and constitutional provisions:
- Idaho Code §§ 7-701, 7-701A, 7-704
- Idaho Code § 34-1809 (AG initiative review)
- Idaho Code §§ 67-8002, 67-8003 (Regulatory Takings Act)
- Idaho Const. art. I, § 14 (eminent domain)
- Idaho Const. art. III, §§ 1 (initiative), 16 (single subject), 18 (full-text amendment)
Cases:
- Blackwell Lumber Co. v. Empire Mill Co., 28 Idaho 556 (1916)
- Golconda Lead Mines v. Neill, 82 Idaho 96 (1960)
- Boise City v. Baxter, 41 Idaho 368 (1925)
- Cole v. Fruitland Canning Ass'n, 64 Idaho 505 (1945)
- AFL v. Langley, 66 Idaho 763 (1946)
- Luker v. Curtis, 64 Idaho 703 (1943)
- State v. Finch, 79 Idaho 275 (1957)
- Simpson v. Cenarrusa, 130 Idaho 609 (1997)
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C032806.pdf
Original opinion text
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN
March 28, 2006
The Honorable Ben Ysursa
Idaho Secretary of State
STATEHOUSE
Re: Certificate of Review
Proposed Initiative Relating to Eminent Domain & Regulatory Takings
Dear Secretary of State Ysursa:
An initiative petition was submitted to your office on February 28, 2006. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and prepared the following advisory comments. It must be stressed that, given the strict statutory time frame in which this office must respond and the complexity of the legal issues raised in this petition, this office's review can only isolate areas of concern and cannot provide in-depth analysis of each issue that may present problems. Further, under the review statute, the following recommendations are "advisory only." The petitioners are free to "accept or reject them in whole or in part." The opinions expressed in this review are only those that may affect the legality of the initiative. This office offers no opinion with regard to the policy issues raised by this proposed initiative.
[The full certificate runs approximately 4 pages, with sections on Ballot Title; Matters of Substantive Import (Amendments Should Be Printed In Full; Unity of Subject; Initiated Legislation And Bicameral Legislation Share "Equal Footing"; The Initiative May Require Reconciliation With Laws Taking Effect July 1, 2006); and Conclusion. See the linked PDF for the complete text.]
I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style, and matters of substantive import and that the recommendations set forth above have been communicated to petitioner Laird Maxwell by deposit in the U.S. Mail of a copy of this certificate of review.
Sincerely,
LAWRENCE G. WASDEN
Attorney General
Analysis by:
Brian P. Kane
Deputy Attorney General