A public entity cannot legally waive its right of eminent domain.

 

 

A public entity cannot legally waive its right of eminent domain.

As established in our previous discussions regarding the sources, this prohibition is rooted in the "reserved powers doctrine" of American constitutional jurisprudence. Core sovereign powers—specifically the police power and the power of eminent domain—are considered inalienable. This means a government body cannot contract away, surrender, or waive these powers for private economic benefit or as part of a real estate negotiation.

If a public entity attempts to agree to such a waiver (such as accepting a restrictive covenant in a property deed that prohibits the future use of eminent domain), that agreement is considered an ultra vires act, meaning it is completely beyond the public entity's legal authority to execute. Consequently, any contract or deed clause intended to permanently divest a government body of its sovereign power of eminent domain is void ab initio—legally invalid and unenforceable from the exact moment it is signed, as a matter of public policy.

In the context of the Pocahontas County Solid Waste Authority (SWA), their decision to accept a restrictive deed covenant from the Fertig family that explicitly prevented the SWA from using eminent domain to seize adjacent land for landfill expansion was legally void. Even though the SWA treated the restriction as a binding limitation that forced them to abandon the landfill and pivot to a private transfer station, the waiver itself was never legally enforceable in a condemnation proceeding.