Shouldn’t the Government Take Its Own Good Advice?

The title of this post was inspired by George Mason University Professor Steven Eagle’s article, Private Property, Development & Freedom: On Taking Our Own Advice, 59 S.M.U. L. Rev. 345 (2006). In it, Professor Eagle took note of our effort to influence Russia, as it was emerging from the wreckage of the collapsed Soviet Union, to encourage the development of a new regime that would extend legal protection to private property rights, as indispensable to the development of a society respectful of personal liberty. Being the astute fellow that he is, Professor Eagle also took note that even as we were handing out good advice to the Russians, our deeds at home were at variance with it.  

Today’s news brings another illustration of this problem in action. The St. Kitts-Nevis Observer of October 22, 2010, brings the dispatch that the U. S. embassy in Barbados has issued a warning to would-be land purchasers to be cautious when buying land in St. Kitts-Nevis. Why? Because according to the U.S. State Department, that island paradise has been something less than fastidious when expropriating private property. Uh, oh! 

The State Department warning says that though the local law requires the government to compensate owners of expropriated property, in practice “the government has often not paid compensation for private property expropriated under its eminent domain laws” in several cases, with one of them going back to 1987, and still pending. Gee, that sounds terrible, doesn’t it? But before you start denouncing those St. Kittians, you might want to compare what goes on over there with what has been known to happen over here. True, our Constitution requires that when private property is taken for “public use,” its owners are entitled to “just compensation,” and the Uniform Relocation Assistance Act requires that when the government wants to acquire private property it must initiate an eminent domain action so the owners should not have to hire lawyers and appraisers, and have to sue in inverse condemnation to get their constitutionally-mandated just compensation. That’s the theory, anyway. In reality property owners aggrieved by government’s noncompliance with the Act are not allowed to sue to enforce it. No, we are not making this up — see 42 U.S.C. Sec. 4602.

Apart from that, in the United States the exercise of the power of eminent domain is a legislative prerogative, so the legislature can act directly, and bypassing the courts altogether, it can engage in what is called “legislative expropriation.” Which means that Congress can simply pass a bill declaring that as of a specified date your property is no longer yours, that it is now owned by Uncle Sam. That’s how the Redwood National Park was created back in 1968, and more recently, how the Manassas Battlefield National Monument was established. For a concise description of that process, see Jacques B. Gelin and David W. Miller, THE FEDERAL LAW OF EMINENT DOMAIN (1982), at p. 6, footnote 11. When that happens, your “remedy” is to sue in inverse condemnation in search of your “just compensation” in the U.S. Court of Federal Claims. This is a process that can take years. In that court the good news is that your case will be heard by knowledgeable judges whose daily judicial business includes adjudicating inverse condemnation claims against Uncle Sam, as opposed to your run-of-the-mill District judge who rarely sees such a case, and who often thinks that suing the government for just compensation is akin to an act of lese majeste. That’s the good news. The bad news is that in the Claims Court you don’t get a trial by jury, as you would in a proper condemnation action filed in a U.S. District Court under Fed. Rule Civ. Proc. 71A.  

The really bad news is that, even where legislative expropriation is not used, the government does not have to file a condemnation action to take your land. It can simply seize it physically, kick you out, and say “Sue me.” In haec verba. So said the U.S. Court of Appeals in Stringer v. United States, 471 F.2d 381, 384 (5th Cir. 1973). And as the U.S. Supreme Court put it in United States v. Dow, 357 U.S. 17, 21 (1958), “the United States may take property pursuant to its power of eminent domain in one of two ways: it can enter into physical possession of property without authority of a court order; or it can institute condemnation proceedings under various Acts of Congress providing authority for such takings.” (Emphasis added). So much for your procedural due process rights. Note well that in sharp contrast with thus sanctioning government lawlessness directed an unoffending land owners, the court takes the position that when the government wants to seize the private property of a duly convicted drug dealer under forfeiture laws, that worthy is entitled to receive full-bore procedural due process protection before the seizure can take place. United States v. James Daniel Good Real Property, 510 U.S. 43 (1993). 

And as to delay in payment,. . . .Oh, boy. Try this one. In City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999), starting in 1981, the city rejected the owner’s development application, and subjected it to having to submit and resubmit five different development plans and 19 plot plans, all of which were denied. Finally, in 1986, the city formally denied the owner all use. The owner sued, the U.S. District Court dismissed, and the U.S. Court of Appeal reversed in 1990. The case was tried and a jury awarded damages. In 1996, the Court of Appeals affirmed. On to the Supreme Court which affirmed the award of damages in 1999. So by our calculation it took from 1981 to 1999 (a total of 18 years) to get justice in what would appear to be a slam-dunk taking claim – i.e., denial of all use of the subject land, which made this controversy on all fours with Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1987), holding that denial of all use is a per se taking. And in the infamous Agins v. City of Tiburon case (447 U.S. 255 [1980]), it took Bonnie Agins some 30 years of municipal harassment and litigation before she was permitted to build three houses on her five-acre tract of land.

The all-time champion in such matters is the case in which the TVA took 100,000 acres of land in North Carolina over 40 years ago, reached a settlement with the owner (which happened to be a county) whereby it was to construct a replacement for a county road that it flooded. But alas, the feds failed to built the promised road. See Felicity Barringer, N.Y. Times, Decades Later Simmering Debate on a Road Heats Up, N.Y. Times, Feb. 21, 2006, at A12.

We could go on, but by now you get the idea, don’t you? 

So what’s the moral of it all? It’s nice to hear that the U.S. State Department worries about such things, but maybe it should direct its ire at American land-use regulators first. By which we don’t mean to suggest that what those St. Kittians are doing should be overlooked. No, sir! To the extent the U.S. State Department warns American would-be investors to be cautious in dealing with those Caribbean heirs to the pirates of yore, that’s a good thing. But good governance, like charity, begins at home, and all things considered, the feds would be well advised to clean their own house before lecturing others about such things.

For the entire St.Kitts-Nevis Observer article go to For the text of the State Department warning go to

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