Federal Eminent Domain: Process, Compensation, and Border Wall Takings

Federal eminent domain is the power of the United States government to take private property for public use, so long as the owner is paid just compensation. The authority comes from the Fifth Amendment, which the Supreme Court has described not as a grant of power but as a restraint on a power the sovereign already has. If the federal government wants your land for a project connected to one of its constitutional powers, it can take it. What the Constitution guarantees you in return is a public purpose for the taking and fair market value for what you lose.

The Supreme Court settled the federal government’s authority to condemn property in Kohl v. United States (1876), calling the power “as necessary to the National Government as it is to the states.”¹ The power operates independently of state consent and cannot be enlarged or diminished by a state. Its exercise, though, must connect to some legitimate constitutional authority: the government cannot condemn land for no federal reason.

What Counts as a Public Use

The public use requirement is the substantive limit on takings, and the Supreme Court has read it broadly. In practice, courts treat “public use” as roughly synonymous with “public purpose” and defer heavily to the legislature’s judgment about what qualifies.

The foundation for that broad reading is Berman v. Parker (1954), where the owners of a functioning department store in Washington, D.C., lost their building to an urban renewal plan even though their property was not blighted. Justice William O. Douglas wrote that the judiciary’s role in second-guessing a legislative public-purpose determination is “extremely narrow,” and that “public welfare” is “broad and inclusive.”² It did not matter that the condemned property would be handed to private developers, so long as the overall plan served a public purpose.³

That reasoning reached its most controversial extension in Kelo v. City of New London (2005). New London, Connecticut condemned 15 unblighted homes in the Fort Trumbull neighborhood as part of an economic development plan tied to a planned Pfizer research facility. By a 5–4 vote, the Court held that economic development alone qualifies as a public use.⁴ Justice Sandra Day O’Connor dissented, warning that the ruling left all private property vulnerable to seizure for the benefit of other private owners.⁵ The redevelopment project itself never materialized. Pfizer changed its plans and the condemned lots sat vacant.

Public reaction was sharply negative. Polls showed more than 80 percent of Americans opposed the decision, and 45 states passed eminent domain reform laws in response, the most widespread state legislative reaction to a Supreme Court ruling in American history. Researchers have characterized about half of those state laws as offering “little or no meaningful new protection,” often because they ban “economic development” takings but allow condemnation of property loosely labeled “blighted.”⁶ At the federal level, President George W. Bush signed Executive Order 13406 on June 23, 2006, directing federal agencies not to use eminent domain “merely for the purpose of advancing the economic interest of private parties.” The order expressly creates no enforceable legal rights.⁷ Congress has not passed substantive reform.⁸

Kelo remains the law. In March 2025, the Supreme Court denied review in Bowers Development, LLC v. Oneida County Industrial Development Agency, a petition that had directly asked the Court to overrule the decision.⁹

What Just Compensation Actually Means

If the government takes your property, the Fifth Amendment entitles you to “just compensation.” In practice, that means the property’s fair market value at the time of the taking.¹⁰ The Supreme Court has framed the guarantee as a bar against “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole” (Armstrong v. United States, 1960).¹

Value is normally set through professional appraisals using one of three methods: comparing recent sales of similar properties, capitalizing income the property produces, or estimating replacement cost.¹¹ For Army Corps of Engineers acquisitions, appraisals must be no more than six months old, and properties valued above $100,000 require at least two independent appraisals.¹²

Several things are excluded from the calculation. Sentimental value does not count. Neither does value the government itself created through its activities. In United States v. Fuller (1973), the Court held that when the government condemned grazing land, it owed nothing for the value increase attributable to the land’s proximity to adjacent federal property.¹¹ The government’s initial offer must also disregard any change in value caused by the project itself or by the likelihood the property would be acquired.¹²

If you reject the offer, the agency weighs a counteroffer against the range of appraiser opinions, the administrative cost of trial, and the risk that a court will award more than the appraised value.¹² If no agreement is reached, a court sets the compensation, and either side can request a jury.

How the Condemnation Process Works

Before filing suit, federal agencies must attempt good-faith negotiation. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (the Uniform Act) requires agencies to negotiate in a “prompt and amicable manner” and treat condemnation as a last resort.¹²

The Federal Complaint and Your Deadline to Respond

Federal condemnation is governed by Rule 71.1 of the Federal Rules of Civil Procedure. The government files a complaint in federal court identifying the legal authority for the taking, describing the property, stating the intended use, and naming all known owners as defendants.¹³ If your address is known, you must be personally served. You then have 21 days to respond, identifying your interest in the property and raising any objections. Failing to answer counts as consent to the taking and to the court’s authority to set compensation.

A jury demand, if you want one, must be made within the same time allowed for answering the complaint.¹³ Otherwise the court itself tries the compensation issue, unless it appoints a three-member commission. Either party can seek dismissal before compensation hearings begin and before the government has taken title, though the court must still award compensation for any possession the government has already obtained.

Quick Take: When the Government Takes Possession First

Under the Declaration of Taking Act, now codified at 40 U.S.C. § 3114, the government can take immediate possession of property without waiting for the compensation question to be resolved. The government files a declaration of taking and deposits its estimated just compensation with the court. Title vests in the government at that moment, and the land is considered condemned.¹⁴ No appeal or bond can delay the transfer of title. Your right to just compensation vests at the same instant, and you can apply to the court for immediate distribution of the deposited funds while litigation over the final amount continues. If the final judgment exceeds the deposit, the government pays the difference plus interest.

The quick-take procedure dates to 1931 and has been used heavily for time-sensitive projects, particularly military installations and border infrastructure.¹⁵

If You Have to Move

The Uniform Act also protects people displaced by federal projects. Agencies must provide relocation assistance, including payments for moving expenses and replacement housing.¹⁶ Occupants get at least 90 days’ written notice before they must move, and a residential occupant cannot be forced out until a comparable replacement dwelling has been available for at least 90 days.¹² The implementing regulations, at 49 CFR Part 24, were most recently updated in a final rule effective June 3, 2024.

When Regulation Amounts to a Taking

Not every taking involves a condemnation lawsuit. Sometimes government action effectively takes property without any formal seizure. When that happens, the owner can bring an inverse condemnation claim, asking a court to find that a taking occurred and to award just compensation.

Courts recognize several kinds of regulatory takings. A government-authorized permanent physical occupation of property is a per se taking regardless of size or economic impact (Loretto v. Teleprompter Manhattan CATV Corp., 1982).¹¹ A regulation that strips a property of all economically viable use is also a per se taking under Lucas v. South Carolina Coastal Council (1992), unless the restriction reflects a limitation already embedded in the property title.¹⁷

For regulations that fall short of those categorical rules, courts apply the three-factor balancing test from Penn Central Transportation Co. v. New York City (1978): the economic impact on the owner, the interference with reasonable investment-backed expectations, and the character of the government action.¹⁷

Permit conditions get separate treatment. When a government demands land dedication or a fee as a condition of a development permit, that condition must have an “essential nexus” with a legitimate government interest and be “roughly proportional” to the impact of the proposed development, under Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994).¹⁷

Recent cases have expanded these doctrines. In Cedar Point Nursery v. Hassid (2021), the Court held 6–3 that a California regulation allowing union organizers onto private agricultural property for up to three hours a day, 120 days a year, was a per se physical taking because it appropriated the landowner’s right to exclude. Chief Justice Roberts called that right “one of the most treasured” in property ownership.¹⁸ The majority rejected the argument that a taking must be permanent to qualify as per se; duration affects only the compensation owed.¹⁹ In Sheetz v. County of El Dorado (2024), a unanimous Court held that permit conditions imposed by legislation, not just those imposed by administrators, are subject to Nollan/Dolan scrutiny. George Sheetz had been charged a $23,420 traffic impact fee set by the county’s general plan to obtain a building permit.²⁰ Lower courts have since divided over how tightly a fee applied to a class of properties must be tailored.²¹

A related 2024 decision, DeVillier v. Texas, sidestepped a question many property owners had wanted answered: whether the Takings Clause itself gives you a direct federal cause of action against a state. The unanimous opinion noted that Texas conceded its own inverse condemnation law provides a vehicle for federal takings claims and remanded on that basis.²² The Court left the constitutional question for a future case “in which a property owner has no cause of action to seek just compensation.”²³

When a Private Company Can Take Your Land

The federal government does not always exercise eminent domain directly. Congress has delegated the power to private companies in certain regulated industries, most notably natural gas pipelines. Under the Natural Gas Act of 1938, a pipeline company that obtains a “certificate of public convenience and necessity” from the Federal Energy Regulatory Commission (FERC) gains the authority to exercise federal eminent domain.²⁴ FERC treats a Section 7 certificate as conclusively establishing that a project is a public use.²⁵ If the company cannot reach a voluntary agreement with a landowner, it can initiate condemnation in federal or state court.

The arrangement has generated persistent controversy. Critics have targeted FERC’s use of “tolling orders” that delay judicial review of pipeline approvals while allowing companies to begin seizing land. In Allegheny Defense Project v. FERC, the D.C. Circuit voted to reconsider that practice en banc, and FERC responded by reorganizing in February 2020 to prioritize landowner rehearing requests. Another line of challenge concerns whether pipelines primarily serving foreign export markets genuinely qualify as a public use. In City of Oberlin v. FERC (2019), the D.C. Circuit questioned whether FERC could justify its public convenience finding when a pipeline’s main customers were foreign shippers.²⁵

The Supreme Court reinforced private delegation in PennEast Pipeline Co. v. New Jersey (2021). New Jersey argued that a private pipeline company could not condemn state-owned land because of Eleventh Amendment sovereign immunity. By 5–4, the Court held that when states joined the federal system they consented to federal eminent domain, and that delegating the power to a private company includes the authority to sue states.²⁶

Border Wall Takings

Federal eminent domain for border infrastructure has become the power’s most visible modern application. The Secure Fence Act of 2006 authorized the Department of Homeland Security to construct hundreds of miles of border fencing, and land acquisition proved to be the critical bottleneck.

Beginning in 2007, DHS filed more than 360 eminent domain lawsuits in less than a year, seizing thousands of acres along the Rio Grande Valley. The agency paid $18.2 million to acquire land covering nearly half of a 120-mile segment, and the total border fence eventually reached 654 miles at a cost of $2.4 billion.²⁷ DHS relied on the Declaration of Taking Act’s quick-take procedure to gain immediate possession.

Investigations found serious problems. DHS used a loophole in the Uniform Act to waive formal appraisals for properties valued under $50,000, and more than 90 percent of seized tracts fell into that category. Evaluations were often performed by staff who were not certified appraisers, sometimes relying on Google Earth imagery instead of in-person assessments. Outcomes varied dramatically with legal representation. One attorney negotiated a government offer up from $233,000 to nearly $5 million. The median settlement for unrepresented landowners was $8,000.²⁷ More than a decade after the initial seizures, some compensation disputes remained unresolved.

The wave has continued. As of 2026, the Trump administration has targeted roughly 400 landowners in the Big Bend region of Texas for potential seizures tied to new border wall construction. U.S. Customs and Border Protection has sent letters requesting access for surveys, warning that refusal could trigger eminent domain proceedings.²⁸

One high-profile case involves the Catholic Diocese of Las Cruces. The Department of Justice’s Land Acquisition Section has sued to seize approximately 14 acres of church property at the base of Mount Cristo Rey in Sunland Park, New Mexico, for wall fencing, roads, vehicle barriers, and surveillance technology.²⁹ The government offered about $183,000 as fair market value.³⁰ The site features a 29-foot statue of Jesus Christ and draws an estimated 40,000 pilgrims annually. Represented by Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection, the diocese argues the seizure would violate its First Amendment right to free exercise of religion. The case is pending before U.S. District Judge Kenneth Gonzales, with blasting for wall construction on the mountain already underway as of April 2026.³¹

The border-wall experience illustrates a point the statute books do not spell out. Federal eminent domain guarantees you fair market value, a public purpose, and a legal process. It does not guarantee that any of these will work in your favor unless you press for them. The 21-day response deadline under Rule 71.1, the right to demand a jury, the right to reject an offer and force valuation before a court, and the practical decision to hire counsel are what turn constitutional guarantees into money and time.

1
Congress.gov. Fifth Amendment — Eminent Domain
2
Justia. Berman v. Parker, 348 U.S. 26
3
Oyez. Berman v. Parker
4
Justia. Kelo v. City of New London, 545 U.S. 469
5
National Constitution Center. On This Day: The Supreme Court Redefines Eminent Domain
6
State Court Report. Assessing the State Reaction to the Supreme Court’s Undermining of Property Rights
7
Federal Register. Protecting the Property Rights of the American People
8
Lincoln Institute of Land Policy. After Kelo
9
SCOTUSblog. Bowers Development, LLC v. Oneida County Industrial Development Agency
10
U.S. Department of Justice. History of Federal Use of Eminent Domain
11
Cornell Law Institute. Eminent Domain
12
U.S. Army Corps of Engineers. Real Estate Acquisition Guide
13
Cornell Law Institute. Federal Rules of Civil Procedure, Rule 71.1
14
Office of the Law Revision Counsel. 40 USC § 3114 — Declaration of Taking
15
U.S. Department of Justice. Land Acquisition Section
16
U.S. Department of Housing and Urban Development. Relocation
17
Minnesota House of Representatives. Regulatory Takings
18
Oyez. Cedar Point Nursery v. Hassid
19
Center for Agricultural Law and Taxation. Cedar Point Nursery v. Hassid
20
Justia. Sheetz v. County of El Dorado, 601 U.S. ___
21
Yale Law Journal. The Exactions Illusion: Sheetz’s Missing Dissent
22
U.S. Supreme Court. DeVillier v. Texas
23
Congressional Research Service. DeVillier v. Texas
24
Federal Energy Regulatory Commission. An Interstate Natural Gas Facility: What You Need to Know
25
Stanford Law Review. The Public Use Clause in an Age of U.S. Natural Gas Exports
26
U.S. Supreme Court. PennEast Pipeline Co. v. New Jersey
27
ProPublica. The Taking
28
Texas Tribune. Texas Big Bend Border Wall Property Rights Eminent Domain
29
NPR. Catholic Diocese Fights Federal Government’s Effort to Take Possession of Holy Site
30
Texas Tribune. Cristo Rey Mountain Border Wall Lawsuit
31
Source New Mexico. Las Cruces Diocese Fights Federal Effort to Seize Mount Cristo Rey Property for Border Wall