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Idaho's Eminent Domain Laws and Property Rights

Property Rights in the State of Idaho

Idaho landowners facing eminent domain are entitled to “just compensation,” but there is often a difference of opinion between condemnors and owners as to what that amount is. Owners are entitled to receive an offer from the condemnor, see the appraisal upon which the offer is based, and have at least 30 days to respond before any condemnation action can be commenced. The condemnor must also provide an “Advice of Rights” form, per Idaho Code §7-711A, which provides basic information to the owner about their rights in the process, including potential recovery of costs and attorneys fees. In some circumstances, business damages are recoverable, but damages caused by business interference during ordinary construction are not.

Meet OCA's Idaho Attorney

Heather A. Cunningham

Heather A. Cunningham is a shareholder at Schwabe, Williamson & Wyatt, P.C., and is admitted to practice in Washington, Idaho, and Oregon. Heather has been advising and representing citizens facing eminent domain issues since 1996. She has been involved in every aspect of eminent domain over the years, from pre-condemnation planning and egotiation through trial and, when necessary, appeal. She has assisted owners navigating entitlement, easement, access or other issues which impact their ability to use and develop their land. Heather works tirelessly to see that the compensation property owners receive when land is taken is the “just compensation” constitutionally required. Heather has also been involved in spearheading legislative reforms designed to correct injustices in the law and balance the playing field between property owners and governmental entities with the power to take private property through condemnation.

A SUMMARY OF IDAHO'S EMINENT DOMAIN LAWS

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

  • Who Can Exercise Eminent Domain Laws?

    In Idaho, the right of eminent domain inheres in the sovereign and “may be exercised in behalf of such uses as to the sovereign seems proper.” Bassett v. Swenson, 51 Idaho 256, 262, 5 P.2d 722, 725 (1931). Thus, the question of who may exercise the right of eminent domain depends in large part upon the purposes for which the property is being taken. See, e.g., Idaho Code § 7-707(1) (providing that a “corporation, association, commission or person in charge of the public use for which the property is sought” may initiate a condemnation proceeding). If the particular purpose for which property is being taken is an authorized “public use,” then the condemning authority possesses the right of eminent domain and may exercise that power for the specified public use. The Idaho Legislature has dispensed this power liberally, granting the power of eminent domain to counties, cities, urban renewal districts, irrigation districts, highway districts and a wide variety of other special purpose districts. There are also some circumstances where private individuals or entities can exercise eminent domain to advance the interests of the state (not for private benefit.

  • What Are the Legal Requirements for Exercising the Power?

    Idaho’s eminent domain laws require that four threshold requirements be satisfied before private property can be taken for public purposes. Idaho Code §§7- 701, 7-704, 7-705, 7-707. See also IDAHO CONST., art. I, § 14 (“Private property may be taken for public use, but not until a just compensation to be ascertained in the manner prescribed by law, shall be paid therefor.”). The threshold requirements are:

    1. Public Use: Private property can only be taken for a “public use” authorized by law. IDAHO CONST., art. I, § 14; Idaho Code §§ 7-701, 7-704(1), 7-705.

    2. Necessity: The property taken must be “necessary” for the authorized public use. Idaho Code § 7-704(2).

    3. Greatest Public Good/Least Private Injury: The property taken “must be located in the manner which will be most compatible with the greatest public good and the least private injury . . .” Idaho Code § 7-705.

    4. Good Faith Negotiations: The entity seeking to condemn private property must seek “in good faith, to purchase the lands so sought to be taken, or settle with the owner for the damages which might result to his property from the taking thereof . . . .” Idaho Code § 7-707(7).

  • What Limitations or Defenses Exist?

    It is very difficult to defend against a taking if the condemnor has a public purpose, and contesting the right to take counts against owners in the determination of whether or not attorneys fees and costs may be reimbursed. As a practical matter, most owners choose not to fight the taking as a result. If there is truly not a public purpose, a Court may not allow the taking, but courts will typically defer to a government’s determination that a taking is necessary. Also, the requirement to negotiate in good faith is very broadly construed. Showing that there is a better way or an alternative path also will not result in a Court ruling that the condemnor cannot proceed with a planned taking.

  • What Constitutes a Public Purpose?

    The uses for which the right of eminent domain may be exercised is set forth in Article I, Section 14 of the Idaho Constitution.

    The necessary use of lands for the construction of reservoirs or storage basins, for the purpose of irrigation, or for rights of way for the construction of canals, ditches, flumes or pipes, to convey water to the place of use for any useful, beneficial or necessary purpose, or for drainage; or for the drainage of mines, or the working thereof, by means of roads, railroads, tramways, cuts, tunnels, shafts, hoisting works, dumps, or other necessary means to their complete development, . . . is hereby declared to be a public use, and subject to the regulation and control of the state.

  • How is Just Compensation Determined?

    Idaho Code § 7-711 establishes how just compensation is determined. In cases involving a total taking of property, just compensation is established by determining the fair market value of the property and any permanent improvements taken. Idaho Code § 7-711(1); IDJI 2d 7.05; see State ex rel. Ohman v. Ivan H. Talbot Family Trust, 120 Idaho 825, 832, 820 P.2d 695, 702 (1991); State ex rel. Moore v. Bastian, 97 Idaho 444, 446, 546 P.2d 399, 401
    (1976).

    Additionally, Idaho allows for awards of business damages. Idaho Code § 7-711(2)(b). Under Idaho’s eminent domain statutes, business damages are available “to any business qualifying under this subsection having more than five (5) years’ standing which the taking of a portion of the property and the construction of the improvement in the manner proposed by the plaintiff may reasonably cause.” Id. Additionally, “[t]he business must be owned by the party whose lands are being condemned or be located upon adjoining lands owned or held by such party.” Id. To obtain an award of business damages, the landowner must comply with the procedures required under the statute, including making a timely demand.

  • How Is Fair Market Value Defined?

    The “fair market value” of property is the “amount which would be agreed upon by a willing buyer and willing seller.” Ada County Highway Dist. v. Magwire, 104 Idaho 656, 659, 662 P.2d 237, 240 (1983). The Idaho Jury Instructions (IDJI 2d 7.09) spell this out in more detail:

    The term “fair market value means the cash price at which a willing seller would sell and a willing buyer would buy the subject property, in an open marketplace free of restraints, taking into account the highest and most profitable use of the property.
    It presumes that the seller is desirous of selling, but is under no compulsion to do so, and that the buyer is desirous of buying, but is under no compulsion to do so.
    It presumes that both parties are fully informed, knowledgeable and aware of all relevant market conditions and of the highest and best use potential of the property, and are basing their decisions accordingly.
    It presumes that the market is open and competitive, and that the subject property has been exposed to the market for a reasonable time.

  • What About Recovering Damages to Remaining Property

    In cases involving partial takings, just compensation is determined by assessing the value of the property taken, plus the damages that accrue to the remainder property due to its severance from the property being condemned and the construction of the improvement as proposed by the condemnor. Idaho Code § 7-711(2). Basically, this means comparing the value of the property before the taking to the value of the property after the taking.

  • Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs

    An owner may be entitled to recover reasonable costs and fees at the conclusion of the case. The Court considers a number of factors to determine whether or not the owner was the “prevailing party” or not, and then a number of factors to determine the amount of costs and fees to be awarded. The considerations include whether or not the owner obtained a judgment at trial at least 10% more than the condemnor’s last timely offer made before trial, whether or not the owner contested the taking and/or possession. If a condemnation is abandoned or the take substantially changes, Idaho Code § 51-1104 provides for attorney’s fees and costs.

REFERENCES AND LINKS

Idaho

US Bank Centre
Suite 3400, 1420 Fifth Ave.
Seattle WA 98101
Tel: (206) 407-1568
hcunningham@schwabe.com | www.schwabe.com

Heather uniquely practices eminent domain law in both the State of Idaho and Washington State and is a proud designated OCA member of both states. Heather has been advising and representing citizens facing eminent domain issues since 1996. She has been involved in every aspect of eminent domain in Idaho over the years, from pre-condemnation planning and negotiation through litigation and, when necessary, appeal. In addition, she has assisted owners navigating entitlement, easement, access or other issues which impact their ability to use and develop their land. Heather has also been involved in spearheading legislative reforms designed to balance the playing field between property owners and governmental entities with the power to take private property and correct injustices in the law. Many bills which she drafted have become Idaho law. Heather has served as an instructor on eminent domain topics in legal seminars in Idaho and at the national level. She also regularly appears before the legislature to address eminent domain legislation, and has successfully drafted a number of bills which became law. Although her office is now in Seattle, she is in Boise part of each week and continues to handle cases throughout Idaho.

Significant Eminent Domain and Property Rights Representations and Reported Decisions

  • State of Idaho v. Jo Grace Jardine, 130 Idaho 318, 940 P 2d 1137 (1997) (Amicus Curiae)
  • Ada County Highway Dist. v. Sharp, 135 Idaho 888, 26 P.3d 1225 (2001)
  • Boel v. Stewart Title, 137 Idaho 9, 43 P 3d 768 (2002)
  • KMST v. Ada County Highway District, 138 Idaho 577, 67 P 3d 56 (2003)
  • C & G, Inc. v. Canyon Highway Dist. No. 4, 139 Idaho 140, 75 P.3d 194 (2003)
  • VFP VC v. Dakota Co., 141 Idaho 326, 109 P 3d 714 (2005)
  • VFP VC v. Dakota Co., 142 Idaho 675, 132 P 3d 432 (2006)
  • City of Boise v. Frazier, 143 ID 1, 137 P.3d 388 (2006)
  • State of Idaho v. Canyon Vista, 148 Idaho 718, 228 P.3d 985 (2010)
  • Wylie v. State of Idaho Transp. Board, 151 Idaho 26, 253 P.3d 700 (2011)
  • Ada County Highway Dist. V. Brookeview, Inc., 162 Idaho 138, 395 P.3d 357 (2017)

Professional Affiliations

  • American Inns of Court No. 130; 1997-1998
  • Omicron Delta Kappa
  • Pi Kappa Delta
  • National Forensic League
  • Owners’ Counsel of America, Board of Directors (2001-2009)
  • Appraisal Institute (Affiiate Member)
  • IRWA (International Right of Way Association)

Education

  • Hillsdale College, B.A. 1993
  • Pepperdine University School of Law, J.D. 1996
  • Trial Lawyer’s College, 2000

Bar Admissions and Memberships:

  • Idaho
  • Idaho State Bar
  • Washington State
  • Oregon
  • United States Supreme Court
  • United States District Court of Idaho
  • United States District Court of Colorado
  • U.S. Court of Appeals Ninth Circuit
  • American Bar Association

Heather uniquely practices eminent domain law in both the State of Idaho and Washington State and is a proud designated OCA member of both states. Heather has been advising and representing citizens facing eminent domain issues since 1996. She has been involved in every aspect of eminent domain in Idaho over the years, from pre-condemnation planning and negotiation through litigation and, when necessary, appeal. In addition, she has assisted owners navigating entitlement, easement, access or other issues which impact their ability to use and develop their land. Heather has also been involved in spearheading legislative reforms designed to balance the playing field between property owners and governmental entities with the power to take private property and correct injustices in the law. Many bills which she drafted have become Idaho law. Heather has served as an instructor on eminent domain topics in legal seminars in Idaho and at the national level. She also regularly appears before the legislature to address eminent domain legislation, and has successfully drafted a number of bills which became law. Although her office is now in Seattle, she is in Boise part of each week and continues to handle cases throughout Idaho.

Significant Eminent Domain and Property Rights Representations and Reported Decisions

  • State of Idaho v. Jo Grace Jardine, 130 Idaho 318, 940 P 2d 1137 (1997) (Amicus Curiae)
  • Ada County Highway Dist. v. Sharp, 135 Idaho 888, 26 P.3d 1225 (2001)
  • Boel v. Stewart Title, 137 Idaho 9, 43 P 3d 768 (2002)
  • KMST v. Ada County Highway District, 138 Idaho 577, 67 P 3d 56 (2003)
  • C & G, Inc. v. Canyon Highway Dist. No. 4, 139 Idaho 140, 75 P.3d 194 (2003)
  • VFP VC v. Dakota Co., 141 Idaho 326, 109 P 3d 714 (2005)
  • VFP VC v. Dakota Co., 142 Idaho 675, 132 P 3d 432 (2006)
  • City of Boise v. Frazier, 143 ID 1, 137 P.3d 388 (2006)
  • State of Idaho v. Canyon Vista, 148 Idaho 718, 228 P.3d 985 (2010)
  • Wylie v. State of Idaho Transp. Board, 151 Idaho 26, 253 P.3d 700 (2011)
  • Ada County Highway Dist. V. Brookeview, Inc., 162 Idaho 138, 395 P.3d 357 (2017)

Professional Affiliations

  • American Inns of Court No. 130; 1997-1998
  • Omicron Delta Kappa
  • Pi Kappa Delta
  • National Forensic League
  • Owners’ Counsel of America, Board of Directors (2001-2009)
  • Appraisal Institute (Affiiate Member)
  • IRWA (International Right of Way Association)
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