Can a West Virginia county commission use eminent domain to take private land bordering a county-owned gun club to address bullets that have spread onto the neighbor's property?

Plain-English summary

Putnam County's prosecuting attorney described an unusual fact pattern. The County Commission was deeded a 100-acre tract on condition that it be used for "public recreation and other public purposes," and the commission leased part of it to the Putnam County Gun Club. The Gun Club, built with a federal Land and Water Conservation Fund grant, has to remain in public use; it offers public membership, runs gun-safety classes, and trains state and federal law enforcement. A neighbor reported bullets landing on two pieces of his property, and a private lead-abatement company quoted around two million dollars to remove them. To save that bill and resolve the safety issue, the commission wanted to acquire the affected strips by eminent domain.

The AG said the commission has eminent-domain power (W. Va. Code § 54-1-1 plus the constitutional grant) and that the proposed take satisfies the public-use test set out in Gomez v. Kanawha County Commission (2016). Public safety is a public purpose; lead contamination is comparable to brownfield-blight conditions that other states have allowed condemnations to address; and the take protects the continued public function of the Gun Club. Caretta Railway (1907) and Horner (1939) establish that the broad "any and every other public use" language in § 54-1-2 gives counties wide latitude to identify their own public purposes.

The AG flagged two procedural pieces. First, even outside the formal slum-and-blight statute (§ 54-1-2a), the commission should negotiate in good faith before filing a condemnation petition; § 54-3-2's policy goals point that way. Second, the take must be no broader than necessary under § 54-1-6, and the petition should explain the public-safety rationale and confine the area to where bullets were actually found.

There are limits the property owner can press. Under Tucker (2019) and Gomez, a public-use take can be defeated only by "egregious bad faith" or "arbitrary and capricious motives." Nothing in the prosecuting attorney's letter suggested those defenses had traction here. The AG also added a footnote cautioning that condemnation can shift environmental-cleanup liability to the county, so the commission should consult an environmental attorney before pulling the trigger.

What this means for you

If you are a West Virginia county commissioner considering condemnation

You can take private land if the use is public and you pay just compensation. Public use is read broadly: anything with a "direct and certain" public effect qualifies. Public safety, especially when paired with a publicly-used facility, is squarely on the right side of that line.

Two practical steps the AG flags. First, try to buy the land before you file. Even when § 54-1-2a's slum-and-blight good-faith negotiation rule does not apply, the legislative policy in § 54-3-2 favors negotiation. It also helps your record if the case is contested. Second, narrow your take. Section 54-1-6 caps the area to what is actually needed, and a tightly drawn petition makes "bad faith" or "arbitrary and capricious" attacks harder to sustain.

Get an environmental attorney involved early. The AG's footnote points to a real risk: once the county owns contaminated land, you may inherit the cleanup obligation. Plan for that cost, not just the purchase price and the commissioners' awards.

If you are a private landowner facing condemnation

You can challenge the take in two narrow ways. First, you can argue that the commission's stated public use is a pretext (the take is really for private benefit). Second, under Tucker (2019), you can argue "egregious bad faith" or "arbitrary and capricious motives." Bad faith means a furtive, dishonest purpose; arbitrary and capricious means action with disregard for the facts. These are hard standards.

Your strongest use is in the just-compensation phase. Five disinterested freeholders set the initial number under § 54-2-5, and either side can object within ten days and force a jury trial under § 54-2-10. If you object, plan for an appraisal that captures any contamination-related value impact, and document any business loss tied to the strip taken.

If you are a gun club operator on county-owned land

This opinion is favorable for the public-use side of your operation. Public-recreation status, paired with offering law-enforcement and military training, makes the facility's preservation a legitimate public purpose for downstream takings or restrictions on neighboring land. Document those public uses (membership lists, training schedules, agency partnerships) so the public-use case is concrete if a neighbor challenge ever arises.

If you are a neighbor of a shooting range with stray bullets

Talk to the operator and the owning entity (often a county or municipality) before lawyering up. The operator may be willing to fence, raise berms, or buy the affected strip. If the public entity instead pursues condemnation, your remedy is just compensation, not a veto, unless you can prove bad faith or pretext.

If you are a county environmental attorney or risk manager

Run the post-condemnation liability scenario before the commission votes. Once the county owns the contaminated parcel, you may inherit obligations under federal CERCLA-style schemes and state cleanup law. The AG's opinion does not analyze those obligations and explicitly recommends a separate consult.

Common questions

Q: Does West Virginia let a county commission use eminent domain at all?
A: Yes. W. Va. Code § 54-1-1 extends the right of eminent domain to "every corporate body politic" in the State, and Gomez v. Kanawha County Commission (2016) confirms that includes counties. The constitutional source is W. Va. Const. art. III, § 9.

Q: What counts as "public use" in West Virginia?
A: Any project in which the public has "some direct and certain right, or interest in it, or control over it." The character of the use matters, not how many people use it (Caretta Railway, 1907). Section 54-1-2 lists examples (railroads, schools, cemeteries) and adds a catch-all for "any and every other public use."

Q: Can the county take land for an economic-development project?
A: Generally no. Section 54-1-2 specifically forbids takings whose "primary purpose . . . is economic development that will ultimately result in ownership or control of the property transferring to another private entity." Public-safety takings, like the one in this opinion, do not run into that bar even if a private lessee operates the facility.

Q: How much can the county take?
A: Only as much as is needed for the stated public use. Section 54-1-6 limits the acquisition to "such quantity as is necessary." Drawing the petition tightly is both required and tactically smart.

Q: How is "just compensation" determined?
A: Five disinterested freeholders are appointed under § 54-2-5 to determine compensation and damages. They file a report under § 54-2-9. Either side can object within 10 days under § 54-2-10, in which case a jury trial sets the amount, as required by W. Va. Const. art. III, § 9.

Q: Can the county skip negotiation and go straight to condemnation?
A: It can, technically, if § 54-1-2a's slum-and-blight rule does not apply. The AG still recommends good-faith negotiation first; § 54-3-2 establishes a state policy of "encourag[ing] and expedit[ing] the acquisition of real property" without litigation, and front-loaded talks reduce both record and morale problems if the case is contested.

Q: Can the property owner stop the take?
A: Only by proving "egregious bad faith" or "arbitrary and capricious motives" under Tucker (2019). Even questionable cost-benefit judgments are within the agency's discretion if there is a real public use and the take is sized to it.

Q: What about contamination liability?
A: A real risk. Once the county owns the parcel, it likely inherits cleanup duties. The AG's footnote flags this and recommends consulting an environmental attorney before the take.

Background and statutory framework

Eminent domain in West Virginia rests on three layers. The Constitution (art. III, § 9) authorizes the take for "public use" upon "just compensation," set by an "impartial jury of twelve freeholders." The state statutes in chapter 54 implement that authority, with § 54-1-1 extending the right to corporate bodies politic, § 54-1-2 enumerating public uses, § 54-1-6 limiting takings to necessary quantities, § 54-1-2a layering a good-faith negotiation rule onto slum-and-blight cases, and §§ 54-2-1 through -21 specifying the condemnation procedure. State by State Road Commission v. Professional Realty (1959) describes the right of the State to take property as "an inherent attribute of sovereignty, irrespective of any constitutional or statutory provision."

The "public use" inquiry is forgiving. Gomez (2016) confirms that "public use" is met whenever the public has a "direct and certain right, or interest in it, or control over it," and the Horner (1939) line gives agencies "wide discretion." Caretta Railway (1907) clarifies that the test is qualitative, not headcount-based. The Pennsylvania Commonwealth Court's Peters Township (2023) decision, cited by the AG for context, fits the same pattern: a connecting road condemnation passed because it created improved access.

The defenses are also narrow. Tucker (2019) requires "egregious bad faith" or "arbitrary and capricious motives" once a public use is shown. Gomez echoes that holding. Bad faith carries the Lustrelon gloss of "a furtive design or some motive of interest or ill will," and arbitrary and capricious draws on Malcomson Road Utility District (Tex. 2005), meaning "willful and unreasoning action . . . in disregard of the facts and circumstances." The Borough of Essex Fells (N.J. 1995) opinion appears for the proposition that even a valid public purpose can be voided if the real reason for the take is beyond the agency's authority.

The lead-contamination angle is novel but defensible. The AG ties it to the brownfield-redevelopment literature (cited via the Roger Williams law review article) and to the public-safety strand of public-use doctrine. The opinion stops short of endorsing the take outright; it concludes only that the public-use prong "likely" succeeds and that nothing in the prosecuting attorney's letter pointed to bad faith. The footnote on environmental liability is substantive: condemnation can shift cleanup obligations to the new owner, and the AG points the commission to specific resources before acting.

Citations and references

Statutes and Constitution:
- W. Va. Code § 5-3-2 (AG advice to prosecuting attorneys)
- W. Va. Code § 54-1-1 (Eminent domain to corporate bodies politic)
- W. Va. Code § 54-1-2 (Public uses; bar on private-economic-development takings)
- W. Va. Code § 54-1-2a (Good-faith negotiation in slum-and-blight cases)
- W. Va. Code § 54-1-6 (Quantity limit)
- W. Va. Code §§ 54-2-1 through 54-2-21 (Condemnation procedure)
- W. Va. Code § 54-3-2 (Land-acquisition policy)
- W. Va. Const. art. III, § 9 (Public use, just compensation, jury)

Cases:
- State by State Rd. Comm'n v. Pro. Realty Co., 144 W. Va. 652, 110 S.E.2d 616 (1959)
- Gomez v. Kanawha Cnty. Comm'n, 237 W. Va. 451, 787 S.E.2d 904 (2016)
- State v. Horner, 121 W. Va. 75, 1 S.E.2d 486 (1939)
- Caretta Ry. Co. v. Virginia-Pocahontas Coal Co., 62 W.Va. 185, 57 S.E. 401 (1907)
- State ex rel. W. Va. Dep't of Transp. v. Tucker, 241 W. Va. 307, 824 S.E.2d 534 (2019)
- Peters Twp. v. Snyder, 305 A.3d 228 (Pa. Commw. Ct. 2023)
- Lustrelon Inc. v. Prutscher, 428 A.2d 518 (N.J. App. Div. 1981)
- Borough of Essex Fells v. Kessler Inst. for Rehab., Inc., 673 A.2d 856 (N.J. Law. Div. 1995)
- Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d 257 (Tex. App. 2005)

Source

• Landing page: not separately published (the PDF is the official record)
• Original PDF: https://ago.wv.gov/media/37568/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
John B. McCuskey
Attorney General

Phone: (304) 558-2021
Fax: (304) 558-0140
June 24, 2025

The Honorable Kristina D. Raynes
Putnam County Prosecuting Attorney
Putnam County Prosecuting Attorney's Office
12093 Winfield Rd., Suite 2
Winfield, WV 25213
Dear Prosecutor Raynes:
Your office has asked for an Opinion of the Attorney General about whether the Putnam
County Commission may exercise the power of eminent domain to acquire two sections of
property bordering land owned by the County Commission, which it is currently leasing to a gun
club. This Opinion is being issued under West Virginia Code § 5-3-2, which provides that the
Attorney General "may consult with and advise the several prosecuting attorneys in matters
relating to the official duties of their office." When this Opinion relies on facts, it depends solely
on the factual assertions in your correspondence with the Office of the Attorney General.
You explain that the Putnam County Commission was deeded a 100-acre tract of land with
the condition that it must use the land for "public recreation and other public purposes." Currently,
the County Commission leases the land to the Putnam County Gun Club. The Putnam County
Gun Club is required to be of public use because it was built with a Land and Water Conservation
Fund Grant. You explain that the Putnam County Gun Club meets this requirement by offering
membership to anyone in the public, hosting gun safety training classes to members and
nonmembers, and serving as a location for training and qualification for local law-enforcement,
the military, U.S. Immigration & Customs Enforcement, and the State Police. The West Virginia
Department of Economic Development periodically checks the property to verify that the property
has continued to be used for public purposes.
You further explain that a property owner with land adjoining the Gun Club has reportedly
found bullets on two separate areas of his property. The property owner has said that a lead
abatement company will remove the lead from his property at a cost to the taxpayers of Putnam
County of approximately two-million dollars. Hoping to avoid the expensive lead abatement
process and mitigate any public safety concerns, the Putnam County Commission wants to acquire
the two portions of the property belonging to the property owner.
With these facts in mind, your letter raises the following question:
May the County Commission exercise the power of eminent domain to acquire two
portions of private property near a gun club that it believes poses a public safety
issue?
We conclude that, under the facts you have described, the County Commission may likely
exercise its power of eminent domain to acquire the two portions of property. The State—and its
political subdivisions—may take private property provided the State takes the property for a
"public" use and provides "just" compensation for the property. Based on your letter, the County
Commission would be taking the land to allow for the safe and economical running of the Gun
Club, which would qualify as a public use. So the County Commission may constitutionally take
the land provided it (1) is not doing so in bad faith or arbitrarily and capriciously; and (2) gives
just compensation to the property owner.

Discussion

Eminent domain is the power of the State to take or damage private property for a public
purpose upon payment of just compensation. The right of the State to take private property for
public purposes "is an inherent attribute of sovereignty, irrespective of any constitutional or
statutory provision." State by State Rd. Comm'n v. Pro. Realty Co., 144 W. Va. 652, 657, 110
S.E.2d 616, 620 (1959). The West Virginia Legislature has clarified that "every corporate body
politic" in the State has the "right of eminent domain," W. VA. CODE § 54-1-1, which includes
counties. See Gomez v. Kanawha Cnty. Comm'n, 237 W. Va. 451, 459 n.15, 787 S.E.2d 904, 912
n.15 (2016). So the County Commission has eminent domain power.

The West Virginia Constitution limits the State's eminent domain power to the taking or
damaging of private property for "public use." W. VA. CONST. art. III, § 9. The Constitution
provides that any taking requires "just compensation," which will be "ascertained by an impartial
jury of twelve freeholders." Id. The West Virginia Legislature has since established a procedure
for determining just compensation called condemnation. See W. VA. CODE §§ 54-2-1 to -21.

I. The Condemnation Process.

Before beginning the condemnation process, we recommend that the County Commission
enter good-faith negotiations with the property owner to purchase the land it wishes to condemn.
West Virginia law requires a "condemnor" (the County Commission) to enter good-faith
negotiations with the property owner before initiating condemnation proceeding under "slum and
blight." W. VA. CODE § 54-1-2a. Although your letter does not indicate "slum and blight,"
"theories supporting the use of eminent domain for the removal of blight can be applied to the
taking of private contaminated property." Colin M. McNiece, A Public Use for the Dirty Side of
Economic Development: Finding Common Ground Between Kelo and Hathcock for Collateral
Takings in Brownfield Redevelopment, 12 ROGER WILLIAMS UNIV. L. REV. 229, 231 (2006). And
negotiating before condemnation is consistent with the Legislature's goal "to encourage and
expedite the acquisition of real property," "avoid litigation and relieve congestion in the courts,"
"assure consistent treatment of persons," and "promote public confidence in the land acquisition
practices of any state agency." W. VA. CODE § 54-3-2; see also 2 PATRICIA E. SALKIN, AM. LAW.
ZONING § 17:21 (5th ed. 2025).

If negotiations fail, then the County Commission may start the eminent domain action. The
County Commission files the condemnation petition in the circuit court where the property is
located. W. VA. CODE § 54-2-1. The circuit court must then determine whether "the applicant has
a lawful right to take property for the purposes stated in the condemnation petition." Gomez, 237
W. Va. at 459-60, 787 S.E.2d at 912-13. An applicant may lawfully take property if the
"applicant's expressed use of the property is, in fact, a public one, and the condemnation is not
impelled by bad faith or arbitrary and capricious motives." Id.

Once the circuit court has determined the property can be taken, the circuit court appoints
five commissioners—"disinterested freeholders"—to determine the amount of just compensation
and any damages. W. VA. CODE § 54-2-5. The commissioners then file a report with the circuit
court, id. § 54-2-9, and the County Commission may pay the amount if no party objects. But any
party may object to the condemnation report within ten days after the report is filed, in which case
a jury trial will determine the amount owed. Id. § 54-2-10; W. VA. CONST. art. III, § 9.

In any challenge to a condemnation proceeding, courts look at two factors when
determining whether a property may lawfully be taken. First, the court considers whether the
government's expressed use of the property is a public one. Gomez, 237 W. Va. at 459-60, 787
S.E.2d at 912-13. Second, the court looks at whether the government's action to take property was
"impelled by bad faith or arbitrary and capricious motives." Id.

II. The County Commission May Likely Use Its Eminent Domain Power Here.

Applying the factors above, and based on the information in your letter, we conclude that
the County Commission can likely take the property because it would be doing so for a public
purpose. We cannot definitively say, however, whether the taking would be impelled by bad faith.

a. The County Commission would be taking the property for a public use.

In West Virginia, public use is broadly defined to encompass any project that the "public"
has "some direct and certain right, or interest in it, or control over it." Gomez, 237 W. Va. at 460,
787 S.E.2d at 913. So "[w]hether a use is public or private is to be determined by the character of
such use, and not by the number of persons who enjoy it, or avail themselves of it." Caretta Ry.
Co. v. Virginia-Pocahontas Coal Co., 57 S.E. 401, 62 W.Va. 185 (1907).

The West Virginia Legislature has enumerated several examples of public uses for which
private property may be taken, including for railroads, schools, and cemeteries. W. VA. CODE
§ 54-1-2. But the Legislature expressly authorized eminent domain for "any and every other public
use." Id. (emphasis added). So as the West Virginia Supreme Court of Appeals has recognized,
"agencies of the state are clothed with wide discretion in determining purposes for which right of
eminent domain may be invoked, and amount of property needful and reasonably necessary for a
particular project." Syl., State v. Horner, 1 S.E.2d 486, 121 W. Va. 75 (1939). For example, the
Supreme Court of Appeals found that a county commission could lawfully take property that was
to be used for depositing removed material for an airport renovation. Gomez, 237 W. Va. at 459-60, 787 S.E.2d at 912-13. The Supreme Court of Appeals found that the taking was constitutional
because it had "a direct and certain effect on the public: the improvement, maintenance, and
operation of a publicly-owned airport." Id.

Based on the facts in your letter, the County Commission would be taking the two parcels
of land for a public use. You explain that the Gun Club poses potential public safety issues for
anyone standing or traveling in those sections because bullets were found there. Improving public
safety benefits the public. See Peters Twp. v. Snyder, 305 A.3d 228, 236-37 (Pa. Commw. Ct.
2023) (finding that a condemnation to provide a connecting road to an existing development was
for a public use because its purpose was to provide "improved access"). And the lead bullets
themselves pose a safety issue due to the risk of lead contamination. See McNiece, supra, at 231.
The Commission's condemnation likely transfers any lead abatement duty to the County, and the
Commission may be more able than a private landowner to carry out any abatement obligations.*

The Commission would also be furthering the public use of the Gun Club because the
costly lead abatement process would likely endanger the Gun Club's existence. Simply, the costs
to maintain the gun range would be too high. And as you explain, the Gun Club already serves
the public by hosting gun safety training classes and serving as a training and qualification facility
for local law enforcement, military organizations, and the WV State Police. So acquiring the land
would advance a public use by allowing the Gun Club to continue operating and serving this
important function.

Our analysis does not change even though the County Commission has long-term leased
the property to the Gun Club. The West Virginia Code says that private property cannot be taken
"when the primary purpose of the taking is economic development that will ultimately result in
ownership or control of the property transferring to another private entity, other than one having
the power of eminent domain, whether by purchase agreement, long-term lease agreement or any
other mechanism whereby ownership or control is effectively transferred."
W. VA. CODE § 54-1-2 (emphasis added). Although the County Commission would presumedly
lease the taken property to the Gun Club, the primary purpose of the taking would not be for
economic development. Rather, it would be for public safety and saving the County money.

Your letter suggests that the County Commission would be taking the property for a public
use and is constitutionally permissible.

• Although your letter does not raise this issue, we note that condemnation may create additional liabilities
  for the County. See, e.g., Richard Herold & Patrick Paul, Eminent Domain: Be Careful What You Ask For,
  SNELL & WILMER (Feb. 05, 2016), https://tinyurl.com/3tkvnday; EPA, State and Local Government
  Activities and Liability Protections, https://tinyurl.com/3kp4pshr (last updated Apr. 30, 2025). If it has not
  already done so, the County may wish to consult with an appropriate environmental attorney to ensure that
  it understands the scope of these potential obligations.

b. Nothing in your letter indicates that the County Commission would be taking the
property in bad faith.

Once the County Commission shows a "public use," the only way its right to take property
can be overcome is if the property owner can show "egregious bad faith in the taking" or "arbitrary
and capricious motives." State ex rel. W. Va. Dep't of Transp. v. Tucker, 241 W. Va. 307, 310-11,
824 S.E.2d 534, 537-38 (2019).

"In the absence of egregious bad faith, if the use is a public one, the necessity for the
designated property is not open to judicial review." Gomez, 237 W. Va. at 460, 787 S.E.2d at 913.
Bad faith generally implies the doing of an act for a dishonest purpose. The term "contemplates a
state of mind affirmatively operating with a furtive design or some motive of interest or ill will."
Lustrelon Inc. v. Prutscher, 428 A.2d 518, 526 (N.J. App. Div. 1981). So although the public
purpose for taking land may be valid, the condemnation may be set aside if the real reason is
beyond the power conferred by law. Borough of Essex Fells v. Kessler Inst. for Rehab., Inc., 673
A.2d 856, 861 (N.J. Law. Div. 1995).

Courts may also set aside a condemnation if the motive is considered "arbitrary or
capricious." Tucker, 241 W. Va. at 310-11, 824 S.E.2d at 537-38. In the condemnation context,
arbitrary and capricious means "willful and unreasoning action, action without consideration and
in disregard of the facts and circumstances." Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d
257, 269 (Tex. App. 2005). Arbitrary or capricious does not mean, however, that the proposed
plan will accomplish the end proposed, or to what extent it will be beneficial to the public. Tucker,
241 W. Va. at 310-11, 824 S.E.2d at 537-38.

Nothing in your letter suggests that the County Commission would be using its
condemnation power in bad faith or arbitrarily and capriciously. Protecting public safety and
saving the County money are both legitimate interests, and it appears that the County Commission
has acted reasonably considering the facts and circumstances. Additionally, it appears that the
County Commission only intends to acquire portions of land where bullets were located, which is
consistent with the West Virginia Legislature's instruction that "[t]he land acquired by
condemnation … for any [] public use … shall be limited to such quantity as is necessary for the
purpose or purposes for which it is appropriated." W. VA. CODE § 54-1-6. Limiting condemnation
only to the land necessary for the County's stated public use suggests a lack of bad faith or arbitrary
and capricious taking.

So at least based on the facts in your letter, we find it unlikely that the landowner carries
his burden to show bad faith or arbitrary and capricious motives. Even so, the County Commission
could reduce the chance a court finds bad faith by thoroughly explaining in its condemnation
petition how it determined that condemnation was the appropriate action and only seeking to
condemn the land that it needs to serve its public use.

Conclusion

The Putnam County Commission may likely use its eminent domain power to acquire the
two areas of property provided that the Commission follows the proper procedures.

Sincerely,

John B. McCuskey
Attorney General
Caleb B. David
Deputy Solicitor General
Spencer J. Davenport
Assistant Solicitor General