Monthly Archives: October 2008

Aloha, Y’all

We are back in the saddle after a week or so in Hawaii, which is a soujourn we recommend to restore one’s sense of tranquility. The Good Lord sure outdid himself when He created that place. It also didn’t hurt that during our stay there we got to lecture at the University of Hawaii Law School, and to join in the celebration of the 85th birthday of the matriarch of a local clan — a series of luaus extending over a period of three days. Wow! Those folks sure know how to celebrate.

Anyway, now that we are properly relaxed and refreshed, it’s time to continue delivering on our earlier promise to tell the stories, the real stories, of various past eminent domain and inverse condemnation cases that often turned out to be quite different from what the readers of court opinions may have been led to believe. Next in line is Agins v. City of Tiburon, an intellectual disaster of unparallelled proportions. You don’t have to take our word for it. Every single court that decided any facet of that controversy was held to be dead wrong and was eventually overruled, including the U.S. Supreme Court which in the end overruled itself and expressly disapproved its own opinion in that case.

So stay tuned.

A Good Read

       We recommend that you read The Real Story of Eminent Domain in Virginia: The Rise, Fall and Undetermined Future of Private Property Rights in the Commonwealth, by Jeremy P. Hopkins. The paper may be found at the website of the Viginia Institute for Policy; go to Google and type in


No Hobgoblinry at the New York Times

          “A foolish consistency is the hobgoblin of little minds,” said Ralph Waldo Emerson. No hobgoblinry at the New York Times, and no consistency, foolish or otherwise, either. In an Editorial of October 11th (The Navy, Whales and the Court), the Times has come out against the U.S. Navy’s position in the Winter case (see preceding post) and insists that judges, those wonderful folks many of whom come from non-technical backgrounds and don’t know a binnacle from a barnacle or a ping from a pong, are perfectly competent to pass judgment on anti-submarine warfare techniques, and to decide whether, in light of environmental legislation, the U.S. Navy must shut down its sonar when its operation might upset the whales, even though there are times when an enemy submarine is taking advatage of underwater temperature layers to avoid detection, and lurking in those layers happens to be the whales’ favorite pastime.

          Federal judges, says the Times, regularly pass on a variety of technical matters without deference to the judgment of the government’s technical  decision-makers. That’s the way of the law, so what’s all this judicial deference jazz all of a sudden?

          However, the editorialists at the Times seem to have short memories. It was only three years ago, on June 24, 2005, that the Times came out in favor of redeveloper robber barons in the Kelo case. There, the Times saw nothing wrong with judicial deference,  giving cities “wide discretion to determine whether a taking of property meets [the constitutional] standard [of ‘public use’]” and allowing those cities to engage in a do-it-yourself process of constitutional review. This in spite of the fact that what was (or should have been) before the court in Kelo was a matter of constitutional interpretation as opposed to mere statuory construction as in Wnter.

          So the bottom line appears to be that by the Times’ lights, judges must defer to any one-horse village’s self-serving determination that taking the land of others and giving it to a favored redeveloper who thinks he can build a private business on it and make oodles of money, some of which may (or may not) trickle down to the community, meets the constitutional “public use” standard with no effective review by the courts. But the same judges are free, indeed obliged, to overrule the considered judgment of military experts on highly technical matters of undersea warfare and the needs of national defense, and must not defer to them.

        It seems to us that the Times is confusing ideologically-motivated result orientation with law. Worse, the Times is exhibiting the sort of alienation from the values of a society that has nurtured it and conferred upon it an unprecedented degree of influence and power — a kind of alienation that we have come to expect from the New Left.

        Last but not least, a word on journalistic semantics. If you read that editorial you may notice that there is no federal government — there is only “the Bush administration,” and surely you must know that whatever the “Bush adminitration” wants has to be wrong — even if what it wants is to protect you from getting nuked.


Did Environmental Quibbling Facilitate the Attack on Pearl Harbor? You Tell Us.

          The U.S. Supreme Court has just heard arguments in Winter v. Natural Resources Defense Council, in which environmentalists seek to impose limits on the U.S. Navy’s use of sonar in anti-submarine warfare training, because they claim that sonar harms whales. You can find the story and some interesting links on Professor Robert Thomas’ blog, and we recommend that you take a look at it.

        We expect that much will be said about this case, and much has already been said, so we won’t trouble you with rehearsing all the pro and con arguments, some of which border on lunacy. Whatever the merits of this controversy may be (and we use the word ”merit” with caution), we think Justice Alito hit the bull’s eye when he asked in oral argument, “Isn’t there something incredibly odd about a single district judge making a determination on that defense question that is contrary to the Navy’s?”

         While this case may give rise to interesting lawyer stuff to the extent it deals with the interpretation of NEPA, the context in which this issue has been raised is a head-shaker. If ever there was a case of loss of perspective, this is it. The enviros are asking the courts not just to “balance” environmental benefits against national defense in some abstract sense, but to pass judgment on the specifics of anti-submarine warfare, and to the extent that any “balancing” is involved, to use environmental laws to trump the considered judgment of the Navy’s anti-submarine warfare experts concerning specific techniques of enemy submarine hunting. If you stop and think about it, this is lunacy, and to the extent it is being seriously considered by American courts, it surely must make the United States a laughing stock among the navies of the world.

          So we are pleased to note that common sense appears to be raising its head, and both wings of the court for once appear to be of one mind. As Justice Breyer put it in oral argument, “I think the whole point of the armed forces is to harm the environment . . . On a bombing mission, do they have to prepare an environmental impact statement?”

          These days, a single submarine can pack enough punch to flatten – and we do mean flatten, as in Hiroshima – several cities, so it would seem to be a no-brainer that any doubts should be resolved in favor of maximizing the effectiveness of anti-submarine defenses, which translates into maintaining the highest degree of skill and efficiency on the part of the anti-submarine warriors whose unenviable task is to keep you from being barbequed by a nuke launched by some rogue regime out to get the “Great Satan.”

          Worse, as Chief Justice Roberts observed during oral argument, the trial judge failed to give consideration to this unpleasant potential for mass annihilation, and he noted that the enviros’ brief failed to “spend a page” defending the merits of the trial court’s decision. Yikes!

         We could stop here but we won’t because there is a lesson of history to be recalled and pondered. Back in 1941, the U.S. Army wanted to install radar stations in Hawaii to provide warning of an impending air attack. This was a vital precaution because, as General Walter C. Short (who commanded the Army in Hawaii) unsuccessfully stressed in his correspondence to Washington, the Hawaiian islands are small, thus making it impossible to establish a far-flung early warning system. Their horizon was only 75 miles, giving precious little warning time to the anti-aircraft defenses. By the time conventional observers could notice incoming enemy planes it would be too late to launch fighter planes. So General Short wanted to install five radar stations, including one on Haleakala, one of the highest points in the islands, to provide maximum radar range. But to do that, the Army had to get permission from the National Park Service which had jurisdiction over that area. In his magisterial historical work, At Dawn We Slept (1981), Gordon W. Prange reports how General Short “asked that permission be obtained from the Secretary of Interior to construct the Haleakala [radar] installation without the necessity of submitting detailed plans for consideration by the National Park Service,” adding, “Defense of these Islands and adequate warning for the United States Fleet is so depending upon the early completion of this Aircraft Warning Service that I believe all quibbling over details should be stopped at once.” Prange goes on to relate:

“From the vantage of hindsight, the War Department reply, dated March 15, [1941], gives one the sensation of having wandered into the Mad Hatter’s party.


         “’The National Park Service officials are willing to give up the temporary use of their lands when other lands are nor suitable for the purpose, but they will not waive the requirements as to the submission of preliminary building plans showing the architecture and general appearance. They are also very definitely opposed to permitting structures of any type to be erected at such places as will be open to view and materially alter the natural appearance of the reservation.’”


        Nine months later the Japanese attacked Pearl Harbor and all but destroyed the Pacific Fleet.

        Would a five-station radar network including a functional radar station atop Haleakala have made any difference? Probably. As it was, on December 7, 1941, there was only one operating radar station, located at Opana, and it did spot the incoming Japanese planes. Unfortunately, when word of the radar sighting was relayed by its operators, a Second Lieutenant decided that this had to be a sighting of a flight of American B-17 bombers expected to come in from the Mainland, and so he told the radar operators not to worry about it. If you are interested, these events are depicted with accuracy in the movie “Tora! Tora! Tora!.”

        It is not easy to say that the Japanese attack on Pearl Harbor would have been frustrated but for the Park Service’s quibbling over radar station architecture and its abhorrence of interference with what in today’s California Coastal Commission’s newspeak is called the “viewshed,” but it seems clear that if the Army had its proposed five radar stations network in operation, including the one at Haleakala, the devastation might not have been as extensive a it was. Several simultaneous radar reports of hundreds of planes coming in would likely have gotten that Second Lieutenant’s attention and might well have provided a little time to man the defenses, or even to launch some fighter planes.

         We will let our readers draw their own conclusion as to what lesson is to be learned from those events of 1941, in the context of the Winter case. By our lights, that lesson is plain and grim.

UPDATE: On November 12, 2008, the U.S. Supreme Court has ruled in favor of the Navy.

If You Can’t Build It, They Won’t Come

With rhythmic regularity of the tides, the Los Angeles Times has again brought us the familiar dispatch that a plucky airline – this time United Airlines – that had given it a shot, has thrown in the towel and suspended operations at the – ta-da! – Los Angeles Intercontinental Airport, thus joining SkyWest, America West and God knows how many other smaller outfits that at one time or another have tried to operate their aircraft at that location, only to realize that it wasn’t feasible.

You haven’t heard about the Los Angeles Intercontinental Airport? Sure you have. You probably think of it – if you think of it at all — as the Palmdale Regional Airport, to use its current nom de guerre. But we old timers remember how your city boldly went where no man had gone before, or more accurately, where no rational, sentient being would think of going, and attempted to establish a major commercial airport — the Los Angeles Intercontinental Airport — in the middle of nowhere. In the 1970s the City of Los Angeles Airport Department decided to relieve pressure on growing LAX by establishing a new airport. Standing alone that sounded reasonable, but considered in context, it was an act of lunacy. To begin with, the chosen site in Palmdale is located in the high desert, over 60 miles from Los Angeles, with no direct freeway connecting it with the population centers that would presumably be served by it. Not to worry, said the city; a high-speed rail line would be built to take care of that little detail. Alas, the feds failed to ptovide funding and the high-speed railroad never made it.

Then there was the proximity to the next-door Air Force experimental flight test facilities at Plant 42 and Edwards Air Force Base, and the flyboys were not crazy about the idea of hot shot fighter jockeys doing their thing in untried, experimental planes next to the paths of big, commercial airliners, especially in a populated area. See Gilliland v. County of Los Angeles, 126 Cal.App.3d 610, 613 (1981). The local climate didn’t help either. It gets hot in the high desert and the air pressure is lower at higher temperatures and altitudes. We won’t get into all that Boyle’s law stuff here, and will confine ourselves to observing only that it may be a good idea to refrain from trying to lift off in a fully loaded, and fully tanked-up 747 headed for the Far East when the ambient temperature is over 100 degrees and the runway is 2600 feet above sea level.

And did we mention the brilliant idea that for a while it was thought that an “Intercontinental” Airport in Palmdale would be just the thing to accommodate the coming SST — the Super Sonic Transport. That one didn’t work out either. Its American designers sensibly concluded that its expensive technology and limited payload capacity would never justify its cost. So they said “thanks, but no thanks,” and so the French and British built the Concorde, which was able to use LAX. Chalk up another grand idea that didn’t get off the ground. Which is just as well because the time consumed travelling by car from Palmdale to Beverly Hills, would take nearly as long as a trans-Artlantic flight at supersonic speeds. Although, some people do prefer to travel by car or even in their own camper van as you get to absorb all of the scenery and your surroundings. That’s why more people are looking into motorhome training (in the UK) as instead of having to pay more money buy stopping at hotels, they can just sleep over in their transport.

But none of that stopped the intrepid folks at the Los Angeles Department of Airports. Starting in the early 1970s they began acquiring land near Palmdale for the “Intercontinental” airport. If you want to know how they went about is, read Stone v. City of Los Angeles, 51 Cal.App.3d 987 (1975). They would announce their intention to acquire land in the area, then file condemnation actions but refrain from serving them in the hope that the delay and associated uncertainty would lower values and enable them to pick up some bargains from distressed property owners. But that didn’t work out either. To the city’s consternation, in 1972 the California Supreme Court had decided Klopping v. City of Whittier, 8 Cal.3d 39, holding that for a would-be condemnor to depress property values in anticipation of condemnation is a constitutional no-no. Rats! Now the city had to pay not only the undiminished fair market value of the land it took for the “Intercontinental” airport, but also damages for the owners’ lost of interim use of their land.

Altogether, the city acquired between 17,000, and 17,750 acres of land, at the cost of some $100 million. And keep in mind that those were early 1970s dollars, which means that to adjust them to today you would have to multiply that sum by four or maybe five. So that in today’s dollars, somewhere in the neighborhood of a half a billion of your (or your Dad’s) hard-earned tax dollars went for the acquisition of a giant, nine by five mile swath of high desert land that had all the utility of the proverbial mammary glands on a bull. And as if that were not enough, the city had to pay taxes to the county, which at the time came to $750,000 per year – a figure that tends to add up to millions before you know it.

So what happened to all that land? We’re glad you asked. It’s sitting there, performing the vital function of holding the rest of the earth together. The city leased most of it to pistachio growers and some sheepherders – not exactly what you think of as highest and best use when someone says “Intercontinental” Airport.

The moral of it all: If you can’t build it, they won’t come, no matter how much of the taxpayers’ money you waste in the process.

UPDATE: This is not a news item directly related to eminent domain, but it does tell us about L.A. Airport Department’s handling of public money. The Los Angelse Times (Dan Weikel, Feds Probe L.A. Agency’s Allocation of $40 Million to Vistor’s Bureau, Oct. 8, 2008, at p. B2) reports that the feds (who provide federal airport aid to LA) are conducting an audit, and have discovered that LA has passed on some $6.8 million in federal airport funds to a private, non-profit outfit that promotes tourism in L.A. Mind you, we have nothing against tourists. “Keep California Green and Golden. Bring money,” has been our slogan for some time, but it’s hard to see why federal funds should be spent in this way. Particularly if you reflect on the fact that those wonderful folks who run LA Airports once threatened to shut down LAX — yes, they did — if the California Supreme Court did not deny compensation to homeowners whose homes were impacted by airport operations.

Nor is LA alone. “On a national level, a congressional study of 33 major airports in the mid-1990s found that $252 million in airport revenues had been diverted from 13 of them to pay for local government programs.” Id.

Your tax money at work.