Easy and Elegant

MAKING A POSITIVE DIFFERENCE

For Immediate Release:

A Local Issue Prompts a New State Policy

For Immediate Release: A Local Issue Prompts a New State Policy – Part II

May 14, 2010, Lincoln –As promised, when the 2009 legislative session ended, the Lower Platte South NRD and the Cass County Board continued discussions about an alternate route for the MoPac Trail extension, and the Legislature’s Natural Resources Committee and my staff studied issues such as NRD trail development procedures, the role of affected governmental subdivisions, information contained in Nebraska’s state trails plan, and policies and laws for recreational trail land acquisition in other states.

The Committee traveled to District 2 in September 2009 for a hearing, at which testimony was provided about this issue by landowners, representatives from county government and NRDs, and special interest groups like the Farm Bureau and the Nebraska Trails Council.

Guided by what we learned from the introduction of LB 134 in 2009, research data from all 50 states and Nebraska’s 23 natural resources districts, the state trail plan and testimony at the September hearing, the Committee’s staff and my staff outlined several proposals to modify the existing law that allowed NRDs to use eminent domain to take private land for trail development. District 21 Senator Ken Haar, who serves on the Natural Resources Committee and offered suggestions for modifying LB 134 last year, developed a fourth plan to assist affected landowners indirectly by addressing trail development disputes between NRDs and county boards.

When the 2010 session opened, three proposals were introduced. Senator Haar’s plan was offered in LB 1019, and I proposed LBs 1010 and 1011. LB 1011 and LB 134 from 2009 both proposed to eliminate the use of eminent domain by NRDs for optional recreational trails projects while maintaining the power for necessary flood control structures. The difference between the bills was that LB 134 was the sole vehicle, through which to address the issue last year, while LB1011 was introduced this year to serve as a strong alternative to the more moderate approach contained in LB 1010.

One of the strengths of LB 1010 was the statutory precedent on which it was based. The bill was modeled on a 2002 law, which created a process for resolving a similar problem. That is, the ability of a governmental subdivision to use the power of eminent domain to take land from a person or organization which, in turn, has no right to stop the action or ensure that it is used in a fair and just manner. Under LB 1010 NRDs would retain their power of eminent domain for trail development, but be required to do so through a structured process that would guarantee public notification and input, proof of a need not just a desire to use the power, some liability protection for landowners, a formal agreement of rights and obligations between an NRD and an affected landowner, and the right of a landowner to appeal the decision to use the power to a district court.

The response to the moderate solution proposed in LB 1010 was much more favorable among senators and other interested parties than the more extreme approach proposed by LB 134 in 2009. The position of LB 1010 was also strengthened by research data, which showed Nebraska to be one of only eight states that allowed unrestricted use of eminent domain to take private property for trails.


The move from one end of a range of options to the middle garnered stronger backing from the Natural Resources Committee, a genuine willingness to negotiation and compromise from the strongest opponents of LB 134 in 2009 and statements of support from senators, who in 2009 were unwilling to vote for the more extreme policy change. Even Senator Haar, who opposed LB 134 and introduced his own plan this year, decided that LB 1010 offered the best solution to this policy issue and gave his support to the bill.

LB 1010 moved easily through the three rounds of floor debate. Several senators commented that they supported the bill, in part, because the development of LB 1010 represented the best way to create new policy for our state. As I have said several times in the past few weeks, lawmaking happens through the interaction of people, processes, policies and politics. This was certainly true of the passage of LB 1010, and the legislature’s commitment to protect the rights of private landowners in Nebraska.

I appreciate the opportunity you have given me to represent District 2 in the Nebraska Legislature.
We welcome your contacts by mail, phone or email.
Senator Dave Pankonin
    State Capitol
    PO Box 94604
    Lincoln, NE 68509
    (402) 471-2613
dpankonin@leg.ne.gov