Are Mineral and Subsurface Rights Subject to Eminent Domain Governmental Condemnation in Florida?
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By: Charles B. Jimerson, Esq. and Evan Reid, J.D. Candidate
Many times, mineral and subsurface rights are more valuable than the land or buildings that sit on top of them. Florida landowners facing eminent domain governmental condemnation must be compensated for the full extent of their ownership, including mineral and subsurface rights.
The Power of Eminent Domain
The Fourth and Fifth Amendments are designed to protect private property rights at the federal level and Article X, Section 6(a) of Florida’s constitution ensures similar protections at the state level. There are two primary requirements before a government can deprive property owners of their rights. First, the condemnation must be for public use. Second, the property owner must be paid “just compensation.” Florida courts have long recognized that compensation in the context of governmental condemnation, also referred to as eminent domain, must include the value of minerals, water, oil, and other assets that lie beneath the surface. Valls v. Arnold Industries, Inc., 328 So.2d 471, 473 (Fla. 2d DCA 1976) (overruled on other grounds by, Village of Tequesta v. Jupiter Inlet Corp., 371 So. 2d 663 (Fla. 1979)). But determining what “just compensation” requires when a seized property contains assets beneath its surface can prove difficult.
Federal, state, local, county, and municipal governments all have the power to exercise eminent domain. In addition, Florida’s state legislature can delegate the power to other non-governmental entities, including public utilities. Entities often exercise this power to build things like roads, hospitals, schools, power lines, and water and sewage facilities. While the scope of eminent domain power is broad enough to allow entities to seize tangible and intangible rights, each exercise of this power is unique and must be evaluated individually.
Identifying Property Ownership
A key step for landowners facing eminent domain governmental condemnation is identifying the extent of their property ownership. Many landowners do not actually own the rights to the minerals beneath their land. Sometimes developers or governmental entities retain the rights to them before selling the land. Landowners should review their property deed to determine the coverage of their ownership interests.
Florida courts require eminent domain compensation to take into account subsurface rights involving a wide variety of resources, including:
- Natural gas
- Shell marl
- Borrow mineral
Successfully Defending Against Eminent Domain
There are four main practices and strategies that a landowner can use to help stop or slow down governmental condemnation:
- Identify procedural errors. Any entity seeking to exercise its power of eminent domain must provide adequate notice of its intentions through written communication that it is filing an eminent domain lawsuit under Statute § 73.021. If the entity fails to do so, then a court may not allow it to exercise its power.
- Offer proof that compensation is inadequate. In Florida, the compensation for seized land is usually determined through negotiations between the landowner and the entity exercising eminent domain. Before entering negotiations, a property owner should seek expert appraisals of their property so that they start the process with well-founded expectations. Having multiple expert valuations that reach similar conclusions can provide leverage in the bargaining process.
- Challenge the intended public use. The power of eminent domain can only be exercised when the land will be of public use. If a landowner can show that that their property is being seized for some other purpose, then a court will prohibit the eminent domain action. Additionally, the entity seeking to exercise governmental condemnation bears the burden of proving that the specific piece of land in question is necessary to accomplishing its claimed public use.
- Hire a trusted attorney. Per Statute § 73.091(1), the entity seeking to exercise eminent domain must pay for all attorney’s fees and court costs incurred by the landowner in defending the action. Accordingly, landowners should retain counsel that will zealously advocate for their rights.
Mineral and subsurface rights are sometimes more valuable than the land itself that is seized in an eminent domain action. As such, it is vitally important that Florida landowners are aware of the appropriate steps to take when facing eminent domain governmental condemnation.