Not Textbook Eminent Domain
posted by Sarah Waldeck
Property professors spend so much time talking about regulatory takings and the post-Kelo definition of public use that it’s easy to forget about good old-fashioned eminent domain.
Here’s a scenario reported by the New York Times that is seemingly too straightforward to use on an exam. The National Park Service wants to build a park on the Pennsylvania site where Flight 93 crashed. The Park Service and a group representing Flight 93 families own or control approximately 1,300 of the 1,700 acres that the Park Service wants to acquire, and is in negotiations for roughly 430 acres, including the site where the plane actually crashed. Flight 93 families are eager for a transfer of the property because construction must begin by Fall 2009 for a memorial to be ready by the tenth anniversary of 9/11.
So just take the land, right? Not so fast. The 2002 legislation authorizing the memorial stated that no land could be acquired through eminent domain. (Perhaps because we value property rights more than extraordinary heroism which prevents a second terrorist attack on Washington, D.C.?) A provision in a September 2007 spending bill finally authorized the use of eminent domain, but the Park Service has continued to try to negotiate with the landowner. What a surprise that they can’t agree on a price.
Usually land is not transferred by eminent domain until a court decides its fair value, which can take a long time. Thus Flight 93 families have asked President Bush to issue an executive order that would allow the government to take immediate possession of the land and allow a court to determine fair market value after the fact. There is plenty of precedent for this sort of quick take procedure, which is supposed to be used when the government has an urgent need for the land.
I suppose we can argue about whether building a memorial by September 11, 2011 counts as urgent. But quick take procedures have been used in situations that are far, far more marginal than this one. (Remember Poletown?) Moreover, I’m not sure that quibbling about the definition of urgent is appropriate when one considers the final hour aboard Flight 93.
So just take the land. Or give the landowner whatever he is asking and consider it the price the federal government has to pay for being foolish enough to take the option of eminent domain off the table back in 2002, when there was plenty of time for a court to decide fair value market value.
January 12, 2009 at 12:45 pm
Posted in: Property Law
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Responses (5)
Grabby McGraberson - January 12, 2009 at 1:48 pm
Isn’t part of the problem here that the government wants to acquire 1700 *ACRES* for a memorial in the middle of nowhere? That’s an irrational amount of land, particularly for something that should be located somewhere more accessible in the first place.
Also, I’m not sure we really can argue about whether building this memorial by 2011 is “urgent.” If it is, the word has lost all meaning.
A.W. - January 12, 2009 at 2:30 pm
I don’t know, are they still talking about a “crescent of embrace” memorial?
If so, then i say let’s never build the stupid thing. And maybe that is much of what this problem is about. We might as well waive a white flag of surrender there, it would be only slightly less obnoxious.
krs - January 12, 2009 at 3:52 pm
I don’t understand your sympathy for the Flight 93 families’ argument on this particular issue.
Everyone’s sorry for the families’ loss and admires the courage of the passengers. There’s been a movie made, books written,
countless expressions of gratitude, sorrow and admiration from public figures, and the federal government has already allocated out money for a memorial.
This is apparently not enough. The families want the government to forcibly take the land of someone who’s done nothing wrong so that they can have a memorial ready in time for a party in 2011. It’s more than a little sickening, but apparently few people are above turning sympathy and victimhood into political leverage.
As for “urgent,” the comparison is apples and oranges. Yes, the situation was quite “urgent” when the passengers of Flight 93 realized that their plane was going to be used as a massive suicide bomb in Washington DC within the next 30 minutes or so if they didn’t do something about it. Here, what happens if the memorial isn’t ready by 2010…?
The families will have to grieve and commemorate without a finished memorial and they’ll just have to make do with the apparently insufficient deluge of gratitude that they’re currently stuck with.
If we’re going to throw the word “urgent” around, I’ll note that while the economy is collapsing around us, hundreds of thousands of people are being laid off every month, and Obama is telling everyone that they’ll have to sacrifice over the next few years, these families are complaining that the government has the temerity to hesitate to seize another person’s land in time for a party in 2011.
volunteer your back yard - January 12, 2009 at 6:01 pm
I’d have thought your years of legal training would have helped you see through trite emotional pleas, but I’d have been wrong.
Brett Bellmore - January 12, 2009 at 8:45 pm
“Perhaps because we value property rights more than extraordinary heroism which prevents a second terrorist attack on Washington, D.C.?)”
I find it hard to figure out how property rights and respect for heroism are mutually exclusive. It’s not like the heroes consoled themselves on the way down with the thought that somebody would have a couple thousand acres forcibly taken away from them.
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