May 12, 2023

Sent via U.S. mail and Email

Butch Eley, Commissioner

Tennessee Department of Transportation
James K. Polk Bldg., Suite 700
505 Deaderick Street
Nashville, TN 37243
(615) 741-2848
[email protected]

Re: Support for Black Farmers in West Tennessee Facing Reported Eminent
Domain Abuses and Civil Rights Violations Due to BlueOval City
Construction

Dear Commissioner Eley:

The NAACP Legal Defense and Educational Fund, Inc. (LDF) writes to express
our serious concern following reports that the Tennessee Department of Transportation
(TDOT) is attempting to use eminent domain to seize farmland owned by Black farmers
in West Tennessee without fair compensation.1 As a nonprofit, nonpartisan civil rights
organization, our goal is to ensure that Black people are afforded equal opportunity and
fairness in all aspects of the economy so that they may work, live and thrive without
racially imposed barriers.

Accordingly, we write to urge TDOT to respect the property rights of Black

farmers and fairly compensate them for their land as required by the U.S. and Tennessee
Constitutions. In addition, TDOT should ensure that its highway construction projects,
including its proposed highway to BlueOval City, comply with applicable civil rights laws
and regulations. As explained below, economic opportunities are opening in West
Tennessee through business generated by the new Ford plant. Black individuals,
families, and communities should share in that opportunity and certainly not be
displaced or otherwise treated unfairly in this context.

Brief History of the BlueOval City Project

As you know, in September 2021, Ford Motor Company announced its decision to
build a 3,600-acre mega campus called BlueOval City, in Stanton, Tennessee, for the

1 This letter follows a letter sent to you by the Tennessee State Conference NAACP raising similar
concerns. See Letter Gloria J. Sweet-Love, President of Tennessee State Conference NAACP to
Commissioner Butch Eley, Tennessee Department of Transportation (Apr. 6, 2023).
purpose of manufacturing electric vehicles and batteries.2 The next month, the
Tennessee Legislature made the “single-largest investment in state history” when it
approved a nearly $900 million incentive package to clear the way for the mega campus,
which included $500 million in incentives for Ford to construct the mega campus.3 The
legislation also earmarked $200 million for the state to construct roads leading to
BlueOval City.4 In addition, the law established an oversight authority, which was
granted the power to use eminent domain to acquire the land needed for BlueOval City.5

Although the legislation passed with “overwhelming support” in the legislature,

some lawmakers and local community groups expressed concerns about the “sweeping”
list of powers granted to the state, including its right to condemn surrounding properties
with eminent domain for private use.6 Those concerns proved to be well-founded, as
recent reports indicate TDOT is using its eminent domain power to seize privately-owned
land from Black farmers who reside near the planned Ford mega campus. 7 To make
matters worse, TDOT is reportedly offering the farmers a fraction of the true market
value of their land.8

These recent actions follow other troubling efforts directed at Black communities
in West Tennessee. Just last year, LDF raised serious concerns with the State’s
unprecedented action in asserting complete financial control over Mason in neighboring

2Ford to Invest $5.6 Billion in Memphis-Area Megasite to Build Electric Vehicles and Batteries, Fox 13
Memphis (Sept. 28, 2021), https://www.fox13memphis.com/news/ford-to-invest-5-6-billion-in-memphis-
area-megasite-to-build-electric-vehicles-and/article_b60a7d9e-3099-54de-a45e-
d7696d4b7457.html#:~:text=The%20company%20will%20bring%205%2C800,be%20located%20in%20Sta
nton%2C%20Tennessee.

3Yue Stella Yu, Tennessee Legislature Gives Final Nod to $884M Ford Deal, The Tennessean (Oct. 21,
2021),https://www.tennessean.com/story/news/politics/2021/10/20/tennessee-legislature-gives-final-
approval-884-m-ford-deal/8538425002/.
4 Sam Stockard, Legislature Approves Ford’s Blue Oval City, Largest Investment in State History,
Tennessee Lookout (Oct. 20, 2021), https://tennesseelookout.com/2021/10/20/legislature-approves-fords-
blue-oval-city-largest-investment-in-state-history/.

5 Yu, supra note 2.

6 Id.

7 Joe Lancaster, Tennessee Will Use Eminent Domain to Evict Black Farmers for Ford E.V. Factory, Reason
(Apr. 4, 2023), https://reason.com/2023/04/04/tennessee-will-use-eminent-domain-to-evict-black-farmers-
for-ford-e-v-factory/.
8 Id.
Tipton County, which was inconsistent with state and federal law.9 LDF urged the
Comptroller of Treasury to reconsider that extraordinary decision and allow Black
residents of Mason to have an equal opportunity—as required by the state and federal
constitutions—as residents across the state to have decisions about local economic
development made by their locally elected officials. Mason officials and the Comptroller
subsequently reached an agreement to return financial power to the town.10

The numbers of Black farmers have dwindled both nationally and in Tennessee in
large part because of government-sanctioned discrimination. It is imperative that your
agency correct course and fairly compensate Black farmers for their land as the law
demands.

Black Land Loss Contributes to the Racial Wealth Gap

The need to ensure that Black farmers are fairly compensated is especially dire
given that millions of Black farmers have been dispossessed of their land over the last
century, stripping them of their ability to accumulate wealth. There were nearly a
million Black farmers across America in 1920, which constituted almost 14 percent of all
farmers.11 It was no small feat for formerly enslaved people to own the land they once
worked without compensation. Yet, today, the U.S. Department of Agriculture estimates
there are roughly 40,000 Black farmers in America, owning less than one percent of our
nation’s farmland as compared to roughly 95 percent of farmland owned by their white
counterparts.12

The number of Black farmers in Tennessee has severely declined over the last
century as well. In 1910, Tennessee was home to “nearly 11,000 Black farmers, 28
percent of Tennessee’s total, at a time when the state’s population was 21 percent
Black.”13 However, these numbers diminished to less than 2,000 Black farmers in the
state by 1980 due to a combination of factors including “violent racial animus, lynching,
9Letter from the Legal Defense Fund to Tennessee Comptroller of the Treasury (Mar. 31, 2022), available
at https://www.naacpldf.org/wp-content/uploads/NAACP-Legal-Defense-Fund-LDF-Letter-to-the-
Comptroller-re_MasonTN_3.31.22V2.pdf.

10 Predominately Black Tennessee Town Regains Financial Power After Surviving Hostile Takeover,
Atlanta Black Star (Dec. 9, 2022), https://www.yahoo.com/video/predominately-black-tennessee-town-
regains-233200608.html.
11 Id.

12Summer Sewell, There Were Nearly a Million Black Farmers in 1920. Why Have They Disappeared?,
The Guardian (Apr. 29, 2019), https://www.theguardian.com/environment/2019/apr/29/why-have-
americas-black-farmers-disappeared.

13 J.R.
Lind, The Rich History of Black Landowners and Farmers Here in the Upper South, The Nashville
Scene (Nov. 5, 2020), https://www.nashvillescene.com/news/coverstory/the-rich-history-of-black-
landowners-and-farmers-here-in-the-upper-south/article_5b40dd92-c18f-5e72-8203-c3bce1eab03f.html.
Jim Crowism, underhanded land dealing and intimidation,” and a campaign of systemic
discrimination by the U.S. Department of Agriculture.14 As a result, only one in every
100 Tennessee farmers was a Black person by 2020.15

The mass dispossession of farmland from Black people has greatly contributed to
the racial wealth gap. A recent study estimates that Black farmers lost roughly 90
percent of their farmland between 1920 and 1997—a loss of approximately $326 billion
worth of acreage and lost income.16

TDOT’s Eminent Domain Abuses Raise Constitutional and Civil Rights

Concerns

TDOT’s attempt to seize ownership of land from Black farmers raises serious
concerns that the agency may be violating the U.S. and Tennessee constitutions, as well
as established civil rights law.

A. The U.S. and Tennessee Constitutions Require TDOT to Provide Just

Compensation to Black Farmers Prior to Taking Their Properties

Ensuring that Black farmers are adequately compensated for their land is a
matter of constitutional import. The U.S. and Tennessee Constitutions prohibit the
government from acquiring private property for “public use” through the power of
eminent domain without payment of “just compensation.”17 Generally, the measure of
compensation for property taken under eminent domain is the property’s fair market
value.18 Fair market value is determined by considering the property’s “highest and best
use,” which is the “highest and most profitable use for which the property is adaptable
and needed or likely to be needed in the reasonably near future.”19

14 Id.

15 Id.

16 LeahDouglas, U.S. Black Farmers Lost $326 Billion Worth of Land in 20th Century Study, Reuters (May
2, 2022), https://www.reuters.com/world/us/us-black-farmers-lost-326-bln-worth-land-20th-century-study-
2022-05-02/.
17U.S. Const. amend. V; Tenn. Const. art. 1, § 21. See also er U.S. ex rel. Tennessee Valley Auth. v. 1.72
Acres of Land In Tennessee, 821 F.3d 742, 752 (6th Cir. 2016) (citing United States ex rel. Tenn. Valley
Auth. v. Powelson, 319 U.S. 266, 278–80, 63 S.Ct. 1047, 87 L.Ed. 1390 (1943)).

18United States v. An Easement & Right-of-Way Over 3.74 Acres of Land, More or Less, in Montgomery
Cnty., Tennessee, 415 F. Supp. 3d 812, 821 (M.D. Tenn. 2019) (citing United States v. Petty Motor Co., 327
U.S. 372, 377, 66 S.Ct. 596, 90 L.Ed. 729 (1946)).
19 Id. (citing Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 78 L.Ed. 1236 (1934)).
 Public reporting suggests that TDOT is severely undervaluing land owned by
Black residents and farmers. For example, TDOT reportedly offered one Black farmer
$8,165 for an acre of his ancestral land, despite land in the area selling for $200,000 or
more per acre.20 TDOT should correct course and uphold its constitutional obligation to
justly compensate affected residents in exchange for their land.

B. TDOT Must Comply with Title VI

We are also concerned that TDOT’s proposed highway to BlueOval City will
disproportionately impact Black communities in violation of Title VI of the Civil Rights
Act of 1964 and implementing regulations promulgated by the U.S. Department of
Transportation.

It is well established that many of our nation’s highways were historically shaped
by racially discriminatory decision-making.21 Indeed, numerous highways across the
country were specifically designed to run through and dismantle Black and Latinx
communities.22 As U.S. Transportation Secretary Pete Buttigieg recently explained,

We can’t ignore the basic truth: that some of the planners and politicians
behind those projects built them directly through the heart of vibrant
populated communities. Sometimes as an effort to reinforce segregation.
Sometimes because the people there have less power to resist. And

20Anita Wadhwani, Black Farming Community Fights to Get Fair Deal as State Takes Land for Ford Plant
Roadways, Tennessee Lookout (Apr. 3, 2023), https://tennesseelookout.com/2023/04/03/black-farming-
community-fights-to-get-fair-deal-as-state-takes-land-for-ford-plant-roadways/; see also Lancaster, supra
note 6.

21Alexandra Kelley, Transportation Secretary Pete Buttigieg Says ‘There is Racism Physically Built’ into
America’s Infrastructure, The Hill (Apr. 7, 2021), https://thehill.com/changing-
america/respect/accessibility/546946-transportation-secretary-pete-buttigieg-says-there-is.

22 For example, a once-thriving Black neighborhood on the southside of Syracuse, New York, was
decimated in the 1950s to build Interstate 81. See Robert Samuels, In Syracuse, A Road and Reparations,
The Wash. Post (Oct. 20, 2019), https://www.washingtonpost.com/nation/2019/10/20/how-crumbling-
bridge-syracuse-is-sparking-conversation-about-reparations/. Likewise, the construction of Interstate 94
cut through the Rondo neighborhood in St. Paul, Minnesota, destroying a bustling community recalled as
an “oasis” for Black families and a “haven for people of color and immigrants.” See How I-94 Ripped Apart
the Rondo Neighborhood and One Group’s Plan to Help Restore It, Fox 9 Minneapolis-St. Paul (Feb. 15,
2021), https://www.youtube.com/watch?v=lNprRpE97ng; Ehsan Alam, Before it was Cut in Half by I-94,
St. Paul’s Rondo was a Thriving African-American Cultural Center, Minn. Post (June 19, 2017),
https://www.minnpost.com/mnopedia/2017/06/it-was-cut-half-i-94-st-paul-s-rondo-was-thriving-african-
american-cultural-center/.
 sometimes as part of a direct effort to replace or eliminate Black
neighborhoods.23

Black communities in Tennessee have particularly been affected by

discriminatory infrastructure projects. The most prominent example is the construction
of Interstate 40 through Jefferson Street—a bustling, historic neighborhood in North
Nashville that served as a business hub for the city’s Black community. 24 The
construction of Interstate 40 displaced hundreds of Black families and caused numerous
Black-owned businesses to experience significant financial hardship or otherwise cease
operation.25 Interstate 40 and other highways across the nation often formed physical
barriers around those who remained, which served to further entrench patterns of racial
and economic segregation for people of color that persist to this day.26

The proposed highway to BlueOval City serves as another example of a

transportation project that threatens to disproportionately impact Black communities.
Indeed, the Tennessee Lookout reports that construction of the highway to BlueOval City
will require TDOT to use eminent domain to acquire land predominately owned by Black
farmers.27 Moreover, members of the community have raised concerns that TDOT
refuses to construct the roads to BlueOval City in a manner that would grant them
equitable access to the mega campus.

These findings raise serious concerns that TDOT is failing in its obligation to
ensure that its policies and practices comply with Title VI of the Civil Rights Act of 1964
(“Title VI”), which proscribes recipients of federal funds from disparately impacting
communities based on race. Title VI specifically provides that “[n]o person in the United
States shall, on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.”28 To effectuate Title VI, the
23Hope Yen, Buttigieg Launches $1B Pilot to Build Racial Equity in Roads, Associated Press (June 30,
2022),https://apnews.com/article/race-and-ethnicity-racial-injustice-transportation-pete-buttigieg-
48e09f253781c89359d875f19fc70f9d.

24Maranda Whittington, How Interstate-40 Changed the Face of Jefferson Street, WKRN-TV (Feb. 2, 2023),
https://www.wkrn.com/hidden-history/black-history-month/how-interstate-40-changed-the-face-of-
jefferson-street/.

Linda T. Wynn, Interstate 40 and the Decimation of Jefferson Street, Nashville Conference on African
25

American History and Culture (2019).

26See generally Deborah N. Archer, “White Men’s Roads Through Black Men’s Homes”: Advancing Racial
Equity Through Highway Reconstruction, 73 Vand. L. Rev. 1259 (2020).

27 Wadhwani, supra note 19.

28 42 U.S.C. § 2000d, et seq.

U.S. Department of Transportation has promulgated regulations that prohibit recipients
of federal funds, either directly or through contractual arrangements, from utilizing
criteria or methods of administration which have the effect of subjecting persons to
discrimination because of their race, color, or national origin or have the effect of
defeating or substantially impairing accomplishment of the objectives of the program
with respect to individuals of a particular race, color, or national origin.29

Because TDOT is a recipient of federal funds from the U.S. Department of

Transportation, your agency must comply with Title VI in “all of [its] operations,”
including the BlueOval City highway project.30 Accordingly, TDOT must make strides to
ensure that Black people and other communities of color are not disproportionately
impacted by the proposed BlueOval City highway project.

Conclusion

We recognize that BlueOval City holds the promise to provide significant financial
opportunities for the region. However, any economic development should benefit all
Tennesseans and must not come at the expense of disproportionately harming Black
communities. We are concerned that the land taking without fair compensation and
highway construction are poised to harm Black individuals and families. Accordingly,
we strongly urge your agency to reconsider its previous actions and fairly compensate
Black farmers for their land as required by the state and federal constitutions. In
addition, we urge you to take the necessary steps to ensure that Black residents are not
disproportionately impacted by infrastructure projects related to BlueOval City, as is
your obligation under Title VI and its implementing regulations.
Please feel free to contact Jason Bailey at (646) 877-7083 or by email at
[email protected] with any questions or to discuss these matters further.

Sincerely,

/s/ Jason Bailey

Jason Bailey, Assistant Counsel
Amalea Smirniotopoulos, Senior Policy Counsel

29 49 C.F.R. § 21.5. The Federal Highway Administration’s Title VI regulations similarly proscribe
disparate impact discrimination. See 23 C.F.R. § 200.

30 42 U.S.C. § 2000d-4a; see also Fed. Highway Admin. Legal Interpretation of Part 200 Provisions (Nov.
9, 2015), https://www.fhwa.dot.gov/civilrights/programsv/docs/FHWA%20Legal%20Interpretation
%20of%20Part%20200%20Provisions.pdf (instructing that Title VI applies to a “recipient’s activities
regardless of whether the specific activity is funded by federal dollars. If a recipient department receives
any federal financial assistance, Title VI applies to ‘all of the operations’ of that department.”).
 NAACP Legal Defense and Educational Fund, Inc.
700 14th St. NW, Suite 600
Washington, DC 20005
[email protected]
(202) 216-5566

About the Legal Defense Fund

LDF is the country’s first and foremost civil and human rights law firm. LDF was
founded in 1940 under the leadership of Thurgood Marshall, the first Black member of
the U.S. Supreme Court.31 Through litigation, advocacy, public education, and outreach,
LDF strives to secure equal justice under the law for all Americans and to break down
barriers that prevent Black people from realizing their basic civil and human rights.

Throughout its history, LDF has challenged racially discriminatory barriers that
destabilize Black communities, strip them of their wealth and undermine access to
opportunities. For example, LDF has been at the forefront of challenging policies and
practices that deny housing opportunities to Black people.32 In addition, LDF has fought
to protect Black people from the displacement and division of their communities caused
by the construction of highways and roads that promote inequality.33 LDF has also
challenged discriminatory tax foreclosure and water lien policies that disproportionately
impact Black communities by increasing the risk of losing their homes.34

31 LDF has been an entirely separate organization from the NAACP since 1957.

32 See, e.g., McGhee v. Sipes, 334 U.S. 1 (1948) (companion case to Shelley v. Kraemer, 334 U.S. 1 (1948))
(racially restrictive covenants); Cent. Ala. Fair Hous. Ctr. v. Lowder Realty Co., 236 F.3d 629 (11th Cir. 2000)
(racial steering); Comer v. Cisneros, 37 F.3d 775 (2d Cir. 1994) (racial discrimination in public housing and
assistance programs); NAACP v. Am. Family Mut. Ins. Co., 978 F.2d 287 (7th Cir. 1992) (redlining); Kennedy
Park Homes Ass’n v. City of Lackawanna, 436 F.2d 108 (2d Cir. 1970) (exclusionary zoning); Davis v. City of
New York, 902 F. Supp. 2d 405 (S.D.N.Y. 2012) (racial discrimination in policing public housing residences);
Thompson v. U.S. Dep’t of Hous. & Urban Dev., No. 95-309, 2006 WL 581260 (D. Md. Jan. 10, 2006) (federal
government’s obligation to further fair housing affirmatively); Brown v. Artery Org., Inc., 654 F. Supp. 1106
(D.D.C. 1987) (redevelopment plans that unfairly eliminate affordable housing); see also Novick v. Levitt, 108
N.Y.S. 2d 615 (1951) (challenging eviction motivated by tenants entertaining Black guests in their Levittown,
New York home); Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512 (1949) (challenging Stuyvesant Town’s racial
exclusion policy).

33For example, LDF has filed administrative complaints and court challenges to prevent highway extensions
that threatened communities of color. See e.g., Mothers of East Los Angeles v. California Transportation
Commission; Thomas v. City of Macon; Clean Air Alternative Coalition v. United States Department of
Transportation (N.D. Cal. C-93-0721).

34See Pickett v. City of Cleveland, No. 19-2911 (N.D. Ohio filed Dec. 18, 2019); MorningSide Cmty. Org. v.
Sabree, No. 16-008807 (Mich. Cir. Ct. filed July 13, 2016).
cc: The Honorable Pete Buttigieg
Secretary
U.S. Department of Transportation
1200 New Jersey Ave. SE
Washington, D.C. 20590