Eminent Domain Guide for Alaska

Alaska Eminent Domain Overview

If the government is taking your land, make sure that you become informed so that you know what you can and cannot do. Your initial question might be, can I stop the process? In most cases, you won’t be able to prevent the government from acquiring your land, but you are entitled to just compensation under eminent domain law. Learn more about eminent domain generally and what you’re entitled to receive, or continue reading to learn about the Alaska eminent domain process, your rights as a property owner and hiring an Alaska eminent domain attorney.

Did you know that in Alaska your attorney’s fees are paid for by the government if the statutory threshold is met? Even small claimants might be able to hire an attorney to help them pursue just compensation.

Alaska Eminent Domain Process

In the state of Alaska, the eminent domain process can only be stopped if the proposed taking does not meet the requirements for public purpose or public necessity. If you have determined that the proposed taking does meet these requirements, then you should learn more about the Alaska eminent domain process.

Remember, even if the government has the right to condemn your property, they cannot dictate the price they are willing to pay; compensation is determined by the highest and best use laws for your property.

Alaska Property Rights

The eminent domain abuse dialogue often centers on policy issues involving the right to take property for economic development and blight. Since the landmark case of Kelo v. City of New London in 2005, many states have taken measures to help curb eminent domain abuse. Some states were very successful at passing meaningful reform, and other states failed to pass any legislation at all. Most states fall in the middle by passing legislation that looks good on paper but does little to level the playing field between property owners and the government.

The Castle Coalition, a nationwide grassroots property activism project by the Institute for Justice, released a comprehensive report in 2006 that graded each state based on eminent domain legislative changes which expand and protect property rights.

Since the decision by the United States Supreme Court in Kelo v. City of New London many states across the country have taken measures to help protect the rights of private ownership.  The controversial Kelo decision held that a local government can take the private property of one person and give it to another private entity.  While the Court’s ruling was seen by many as a serious blow to citizen’s constitutionally protected rights of private property ownership, the decision prompted a number of states to initiate legislative reform to help curb eminent domain abuse.

The Castle Coalition has released a report, grading each of the states based on their efforts to protect private property owners and their rights based on changes in their respective state laws.  The Castle Coalition is the Institute for Justice’s nationwide grassroots property rights activism project that teaches home and small business owners how to protect themselves and stand up to abuse by governments and developers who seek to use eminent domain to take private property for their own gain. The Castle Coalition give the state of Alaska a letter grade of a D for property rights saying:

“Alaska’s state constitution contains almost the same language as the U.S. Constitution’s Fifth Amendment: “Private property shall not be taken or damaged for public use without just compensation.” For years, that statement protected property owners. The general public understood what public use meant and no one worried that his home, business, farm, or church might one day be suddenly taken from him so that a private developer could build a mall.”

“That all changed with the Kelo decision, as the constitutional provision that everyone trusted to protect their most fundamental of rights was suddenly ambiguous. After all, once the federal Takings Clause was interpreted to allow eminent domain abuses, Alaskans realized that their state’s Takings Clause could be treated the same way. Under Kelo, since “public use” now also means “private use,” Alaskans need more protection at the state level.”

“In 2006, HB 318 sailed through both legislative houses with unanimous support. The new law prohibits the use of eminent domain “to acquire private property from a private person for the purpose of transferring title to the property to another private person for economic development purposes.” Unfortunately, this language does not provide property owners solid protection. In order to prevent authorities from taking private property from one person and turning it over to another private entity, states need to ban all private-to-private transfers (with a few narrowly tailored exceptions for common carriers and the like). By focusing on the intent behind the transfer, rather than the transfer itself, Alaska’s Legislature provided a ready-made excuse for authorities to say that a private transfer was not their purpose when they originally acquired the property.”

“Additionally, snowcats could still drive through the loophole of the state’s blight statute. Alaska’s vague definitions of “slum areas” and “blighted areas” are virtually identical to those that have been horribly exploited in many other states. As currently written, the factors to determine blight could apply to virtually any home. And since the designations are made by “area,” only a few properties need to be blighted before officials can destroy an entire neighborhood.”

Castle Coalition

Hiring an Eminent Domain Attorney in Alaska

The most blatant form of eminent domain abuse occurs when the government or condemning authority makes a ‘low ball’ offer. This scenario invariably requires the property owner to hire an attorney to obtain just compensation. Fortunately, the vast majority of eminent domain attorneys work on a contingent fee basis, meaning they charge a percentage of the additional money they obtain for the property owner. Also, Alaska has passed legislation requiring the condemning authority to pay the property owner’s attorneys fees in eminent domain cases if certain criteria are met.

Pursuant to Alaska R. Civ. pro. 72(k)(3), if the court awards at least 10% more than the amount deposited by the condemnor or than the master’s award from which the appeal was taken, then the government is required to pay the property owner’s attorneys fees incurred while pursuing their claim.

If you’re affected by eminent domain, you should obtain a consultation so that you know and understand your rights before taking any action. Remember, the government is like any buyer, they will want to purchase your property as cheaply as possible, and their appraisers may neglect to consider damages that can lead to a larger amount of just compensation.

Very few attorneys can claim expertise in the area of eminent domain law. To determine if you have a case, make sure you consult with an eminent domain trial attorney who can effectively identify damages and select the necessary experts. Your attorney should also be able to interface with the condemning authority and be willing to take your case to trial if negotiations can not be reached.