If you’ve not seen the second season and you want to avoid spoilers, you may want to get caught up before you return to this article. Below, we discuss how eminent domain was used in “Ozark,” and how it can be used in the real world, especially as it pertains to bodies of water, and how appraisers get involved.
What Is Eminent Domain?
Eminent domain refers to the right of the government, or municipalities, to take privately held land for public use. The specific processes for eminent domain actions vary from state to state, and cases can become complicated, particularly cases involving ownership rights over bodies of water.
How Was It Referenced in “Ozark?”
In the episode called “The Badger,” protagonist and anti-hero Marty Byrde is desperate to find a way to get his business partners, the Snells, to agree to give him right of way for his new casino boat. After doing a little digging, Marty informs the Snells that riparian rights and eminent domain could enable the government to seize land for the casino if the Snells don’t sell, as the casino could benefit the public. This does not sit well with the Snells—the insult is compounded by the fact that the Snell family ancestors had been forced to leave their land 75+ years prior due to an eminent domain action. At that time, the land the Snell family left behind was flooded to support the operations of a power company—a piece of backstory that isn’t that farfetched, given the last hundred or so years in the U.S.
Eminent Domain and Water in the Real World
Flooding for Energy Production
In the 20th century, land across the U.S. was flooded by entities including the U.S. Army Corps to supply water to nearby towns or to generate electricity (i.e., for public use). This happened at Falls Lake, North Carolina in 1978 and Lake Glenville in 1941, displacing the entire town of Glenville. Lake Hickory in North Carolina was created after private land was claimed for public use to construct the Oxford Dam on the Catawba River in 1927. The lake supplies electricity and water to the cities of Hickory and Longview. Lake Hickory, like many of the lakes in North Carolina, is a reservoir and has been controlled by Duke Energy since its construction.
Riparian Rights in the Eastern States
In the Eastern states, water laws, such as riparian rights featured in the “Ozark” episode, say that people with property adjoining a water frontage have the right of access to the water such as for building a dock, fishing, hunting, drinking water and irrigation. However, this has to be achieved without impinging upon equal rights and access to other neighboring property owners.
In the “Ozark” episode, the bed of the body of water in question belongs to the government, a nuance that can become complex, such as in recent cases like the 2020 case of oystermen taking the City of Suffolk in Virginia to the Supreme Court. The oystermen filed over the pollution by the city of their oyster beds. Harvesting of the oyster beds was halted and the oystermen argued (unsuccessfully) this was a “taking” or inverse condemnation by the Department of Health after the beds were deemed toxic from the raw sewage and waste being put into the Nansemond River. Read more about this decision here. The oystermen lost their first court case due to a 1919 law. The law held that “oyster bed lessees’ property rights are subordinate to the localities' right to pollute the waterways.”
City Vs. City
At times, one government entity may target another with eminent domain actions with the goal of improving public life. As recently as 2021, “the City of Sandy Springs may use eminent domain to gain control of its water system from the city of Atlanta,” Sandy Springs Mayor Rusty Paul said. Since Sandy Springs was incorporated in 2005, the city has used the Atlanta Department of Watershed Management to provide its water service. But Atlanta, which already has among the highest water rates in the nation, charges Sandy Springs customers an extra 21% fee for handling its service, which the City of Sandy Springs doesn't believe serves the public.
Waterway Laws Vary State-to-State
In various regions of the U.S., eminent domain can look very different. Interestingly, North Dakota law allows for private citizens as well as corporations or government bodies to exercise eminent domain, allowing this power when it comes to “the application of water to beneficial uses.”
This seems like a very broad category for such an immense use of power. North Dakota evaluates when an individual, or group, is beneficially using water. The state requires an issued water permit from a state engineer.
Environmental Contamination and Eminent Domain
According to a League of Michigan Conservation Voters analysis, in a 1990s court case involving a storm water retention pond, it was established that environmental contamination could be considered in the fair market valuation of property taken by the government under eminent domain. The analysis says this provides an incentive to property owners and purchasers to limit environmental contamination on their own property and to test for it when purchasing property, and that it also ensures that there are more funds available for governments to conduct pollution remediation activities after condemnation.
How Do Appraisers Get Involved?
What role do commercial appraisers play in the eminent domain process? Appraisers are unbiased third parties and are often called upon to inspect and value a property to be acquired by eminent domain proceedings. The appraisers will make an objective valuation on the property. The task is to determine the fair market value of the subject as if the project does not exist (before the taking) and as if the project is 100% complete (after the taking). This is often extremely difficult.
Sometimes appraisers are asked to appear in court proceedings as expert witnesses when eminent domain cases do go to court. In the example from “Ozark,” it is unlikely that the Snells would have challenged the eminent domain proceedings since all the characters involved were up to no good. But in the real world, property rights are a sensitive and complicated issue and elicit strong responses from the property owners and the communities in which these projects take place. This is why it is essential to have a third-party appraiser with right of way expertise to value the property fairly and competently.