Real Estate & Property Law

Nevada's Battle against Kelo

By Alan Ackerman

Review Journal

In response to the U.S. Supreme Court's 2005 Kelo ruling -- in which the liberal justices formed a 5-4 majority to OK government land seizures on behalf of private parties -- local attorney Kermit Waters put together a ballot initiative designed to limit such outrageous abuses of eminent domain in Nevada.

The proposed constitutional amendment, known as the People's Initiative To Stop The Taking of Our Land (PISTOL), would have to pass twice -- in 2006 and 2008 -- to become law.

Well, you'd have thought that Mr. Waters had attacked baseball, apple pie or even double-digit pay raises for government workers. The howls from the state political establishment were loud and shrill. The measure, they argued, was so Draconian that governments would have a hard time seizing land for even legitimate purposes such as road building.

Opponents of the measure sued to prevent voters from passing judgment. While the Nevada Supreme Court did modify the initiative, the justices then let it go forward and it passed easily in 2006.

Realizing that they would likely lose again in 2008 -- they did, as the amendment was approved with 61 percent support -- opponents arrived in Carson City for the 2007 session with a plan. Craft a compromise with Mr. Waters, get lawmakers to approve the plan twice and put the new proposal in front of voters in 2010 as an effort to override the original amendment.

Mr. Waters eventually embraced a legislative proposal that he says contains 90 percent of his original initiative. It easily passed the Legislature in 2007 and will almost certainly win approval by lawmakers in 2009 before heading to voters the next year.

 Kelo offered the individual State the right to restrict takings within its jurisdiction. One can argue the Fifth Amendment's intendment was a national policy, but there is no support for the premise in the decision of the Kelo majority. However, Nevada is but one more example of an individual jurisdiction's decision to limit the all encompassing powers of the local takings power.

  The attached article notes the outstanding job done by Owners Counsel of America lawyer, Kermitt Waters, in 'tilting against the winds' and winning!

Full post as published by National Eminent Domain Blog on December 03, 2008 (boomark / email).