Monthly Archives: April 2009

Er, Fellows, That Aspect of States’ Rights was Settled at Appomattox, Wasn’t It?

          Our perusal of this morning’s news made us feel like we had fallen into a time machine. It seems that some folks in Colorado are upset with the U.S. Army’s ambitions to acquire more land in the Piñyon Canyon area in southeastern Colorado. The local ranchers are understandably upset about the prospect of losing their range land on which they run some 400,000 head of cattle. The Army’s current Piñyon Canyon Maneuver Site covers some 250,000 acres, giving Fort Carson one of the Army’s highest land-per-brigade ratios. So the local ranchers figure that’s enough.

          But the Army thinks otherwise and is coveting additional land in the area. So the ranchers have turned to their state government which has responded by state legislation prohibiting the sale of land for that Maneuver site. Ah, but what about the feds’ power of eminent domain? The Colorado legislators have thought about that too (or at least they think they have) and have directed the Colorado Attorney General to “uphold Colorado law and to withhold [sic] any attempt by the Army to condemn” that land which has been state owned since Colorado became a state, and which is now largely leased to those ranchers.

          Alas, we have sad news for those plucky Westerners who don’t intend to take any crap from the feds. It’s been tried before, and the results weren’t pretty. In United States v. Carmack, 329 U.S. 230, 240 (1946), the Supreme Court was faced with a similar argument (that the feds could not take by eminent domain land being put to state public use), and it responded as follows:  

“The argument based upon the doctrine that the states have the eminent domain or highest dominion in the lands comprised within their limits, and that the United States have no dominion in such lands, cannot avail to frustrate the supremacy given by the constitution to the government of the United States in all matters within the scope of its sovereignty. This is not a matter of words, but of things. If it is necessary that the United States government should have an eminent domain still higher than that of the state, in order that it may fully carry out the objects and purposes of the constitution, then it has it. Whatever may be the necessities or conclusions of theoretical law as to eminent domain or anything else, it must be received as a postulate of the constitution that the government of the United States is invested with full and complete power to execute and carry out its purposes.”

          So stay tuned, folks. Piñyon Canyon is unlikely to become another Fort Sumter, but if those Coloradans stick to their guns (figuratively speaking, of course) this should prove to be an interesting controversy if and when it reaches the courts.

Haven’t Those Bozos Heard About the First Amendment?

          Some time ago we came reluctantly to the conclusion that there is some sort evil magic about eminent domain that causes otherwise intelligent and accomplished people to say silly things. Case in point: the ongoing University of Oregon billboard caper.

           It seems that the University of Oregon has had a sign on its land for some time, that says “Made in Oregon” in large neon letters. We leave the explanation of what that is supposed to mean, to the locals, but it does seem to us that the message thus displayed would seem more appropriate to an industrial concern than a University (no smart-ass double entendres about making coeds, please). Anyway, it seems that the University too came to wonder how a “Made in Oregon” sign is appropriate for an institution of higher learning, and, sensibly enough, decided to change it to “University of Oregon.”

          That sounds reasonable to us, but it only shows how little we know. The local NIMBYs went bananas. Why? We are not sure that we can explain, or even that their attitude is explainable, other than by invoking the observation that by these folks’ lights community stasis is the summum bonum — that greatest public good — and that changing anything that is there to anything they don’t approve of falls somewhere between a sin and a capital offense.

          Ah, but this is America, isn’t it? At least it used to be the land where Freedom of Speech is sort of like a fundamentalist religion, and where a fellow can say anything he damn pleases, short of treason, defamation and sexual harassment, none of which appear to be implicated here. So given that standard, you’d think that the University of Oregon can say whatever it damn pleases on its billboard located on its land, and that what it says is none of the city’s business. Right? Wrong.

          The city of Portland demanded that the “Made in Oregon” sign be left untouched. But when the university remained unpersuaded, the city threatened to use its power of eminent domain to acquire the sign and keep it as is. Just how that would constitute “public use” is obscure to your faithful servant, but hey man, our black-robed betters have decreed that anything that is “rationally related to the conceivable” is a public use, so this line of defense migh be problematic.

         Ah, but here there was a special wrinkle in the form of the First Amendment. The city took the position that it would take the University’s billboard in order to use it to convey the message preferred by it rather than the one preferred by the university. Uh, oh, problem. Even Wild Bill Douglas allowed in his expansive opinion in Berman v. Parker, 348 U.S. 26 (1954) that though the municipal decision to take for what it deems to be public use, is “well nigh conclusive,” the owner has a good defense if an explicit constitutional provision stands in the way of condemnation. So it seems to us that the university would have a pretty good First Amendment defense to the city’s attempt to take that billboard in order to replace the University’s message with its own.

          Alas, it looks like we won’t find out because the university and the city have reached a compromise — the university will keep the billboard, but will change its message to say “Oregon.”

         Being a unrecostructed consitution lover, we think that this agreement is unenforceable as being againt public policy. There is no way known to us whereby a city can tell the university what to say or not to say on its own billboard. Though the splintered Supreme Court’s decision in Metromedia, Inc. v. City of San Diego,  453 U.S. 490 (1981), was, in the words of Chief Justice Rehnquist,  a doctrinal Tower of Babel (or of babble, if you want to be more accurate), it did establish the rule that a city may not dictate to a billboard owner what may or may not be said on it by way of a non-commercial message.

         So what the university should do to strike a blow for the First Amendment and to show the city who’s who, is to erect a genuine Hollyood Angelyne billboard that has been cheering Los Angeles area motorists for lo these many years. Like this:

          Now that’s what we call a billboard that strikes a blow for freedom of speech, that the students might actually appreciate.

So You Want a Revolution?

           We just came across an interesting article in the April 2009 issue of the A.B.A. Journal — Steven Seidenberg, Where’s the Revolution? at p. 50. It’s not a law-review-style article, and though appearing in a legal publication, it is suitable for the lay reader. We recommend it.

           The author concludes that the statutory revisions of eminent domain law, that were inspired by a widespread popular reaction to the Supreme Court’s wretched Kelo decision have materialized only to some extent, with other revisions more cosmetic than substantive. Which goes to show that Mr. Seidenberg, either hasn’t been in the condemnation game very long, or that he lacks perspective. To give you an idea of what things were like then, in the mid-1970s when we served as a consultant to the California Law Revision Commission charged with improving eminent domain law, those worthies wanted to expand the power to take and had to be curbed by the California Legislaure. Verily.

          Moreover, in connection with editing Just Compensation, a monthly periodical on eminent domain and inverse condemnation law (click on the Just Compensation link), we have had to read every reported case of this kind at least since 1974 when we took over editing that publication which has been in print since 1957. In those not-so-good old days, cases challenging the right to take were so rare that we didn’t even have a section on that subject and we swept the rare right-to-take cases under the heading of Other Cases of Interest. Things were so bad that there were occasional cases where a property owner would plead a defense to the taking, only to have a judge dismiss it on the court’s own motion. 

         Then things started changing. By 1987 we had to add a Right to Take section to Just Compensation, to accommodate the trickle of right-to-take cases. Today, there are several such cases in every issue, and interestingly, the owners win a surprising number of them, usually on grounds other than lack of public use..

          To make a long story short, the fact that  the Kelo case produced such a vigorous split among the Justices was in itself quite significant. It made clear that some Justices at long last began to understand what informed and experienced practitioners   knew all along — that however parsed, redevelopment and kindred cases were doctrinally justifiable by a need to rectify some sort of social evil, like slums in the Berman case, or the title misalocation in the Midkiff case. But (except for New York which in this regard has pretty much been the sub-basement, if not the sewer of the law, where an owner’s substantive challenge to the right to take is usually blown off in a one-page opinion), just taking from A to give to B for the latter’s monetary gain was not considered a “public use.” Until Kelo.

          But even if you disagree with us and believe that Kelo represented nothing new doctrinally, it pushed the application of the law to a reductio ad absurdum extent and the people understood that at once. And so, Kelo inspired a popular push for reform. That such reform occurred at all was a cause for celebration, for the anti-Kelo forces were fighting a well entrenched and well financed lobbying machine. But what Kelo incontestably did accomplish was to educate the public and bring to its consciousness the fact that modern redevelopmemt has nothing to do with “slum clearance” and that the “blight” used in justification of redevelopment these days has in the hands of redevelopment agencies and their judicial groupies become so malleable that it can mean anything.

          So the fact that progress has been made to the extent is has, that states have been curbing the taking power albeit not to the degree that would be desirable in the best of all possible worlds, that state courts have increasingly been saying “No!” to redevelopment agencies, are all signs of a change that would have been unthinkable 40 years ago. The people, by and large, are pissed off at  redevelopers, their allies in city hall, and at judges who go along with such excesses. That the highest courts in some five states have recently declined to rubber stamp redevelopment is an encoraging sign in a field of law where encouragement is hard to come by.


Those Professional Sports Stadiums Again.

          We commend to your attention the first-rate column by Jim Dwyer, Breaking With History In the Bronx, N.Y. Times, Apr. 4, 2009, at p. A12. Dwyer contrasts historical financing of sports stadiums with today’s municipal profligacy in support of professional sports franchise owners — notably and most recently the new Yankee Stadium that we blogged about recently in Whatever Happened to Exactions in New York? March 28, 2009. Check it out.

          Dwyer gives us a concise insight into how the great stadiums were built in the past — with private money risked by those stadiums’ entrepreneur-owners, not by fleecing municipal taxpayers for the unabashed benefit of gazillionaiire sports franchisee owners and their multi-millionaire players.

          Probably the best part of Dwyer’s column is its review of accurate historical predictions that any financial support for professional sports stadiums would become a slippery slope costing the taxpayers of New York fortunes and resulting in ongoing city deficits. And that’s just what happened.

         We usually conclude such news items with the sarcastic observation “Your tax money at work,” but things have gone beyond anything that can be properly addressed by mere sarcasm — this is getting deadly serious. The cold fact is that our debt-ridden, bankrupt  society can no longer afford such feats of municipal profligacy. It adds insult to injury for city officials to relieve the stdium owners of their municipal tax liability, and then rattle a tin cup and demand federal rescue money, all for the benefit of billionnaire stadium owners who — if nothing else — neither need nor deserve such public handouts.

Not Again! Is the Palmdale “Intercontinental” Airport Rising From the Dead?

        Bear with us, readers. We know that if you have any knowledge of the background of this caper, and if you are reading this, you must feel that your credulity is being stretched to its breaking point, but it’s all too true. The City Council of Palmdale, California, “has authorized the creation of an aviation department and commission to oversee development of the now-closed Palmdale Regional Airport.” Dan Weikel, Palmdale Moves to Develop Airport, L.A. Times, Apr. 3, 2009, at p. A7.

         For the benefit of new readers, and those too weary to review our chronicles of the misadvetures of the City of Los Angeles’ 30-year effort to create and operate a commercial airport in Palmdale, here is a thumbnail summary: about 30 years ago, the city of Los Angeles took by eminent domain some 17,500 acres of land located in the high desert near Palmdale, about 60 miles north of Los Angeles, for what it modestly dubbed the Los Angeles “Intercontinental” Airport that was supposed to accommodate the growing traffic at LAX. That land acquisition alone cost the L.A. taxpayers some $100 million — and those were circa 1980 dollars, so in today’s money that sum must be around four or maybe five times that amount. But it turned out to be a boondoggle. To say that this “Intercontinental” airport has been a failure, would be to flatter it. Over the past 30 years, some eight airlines — one after another — have tried to operate out of there, but each of them eventually threw in the towel and terminated operations — the most recent airline was United which called it quits about four months ago. For more details, check out our posts of November 13, 2008, entitled Update on the Palmdale Airport, and December 17, 2008, entitled The Palmdale Airport Saga Goes On, and The Palmdale “Intercontinental” Airport — Is There Life After Death?  February 23, 2009. 

           What emerges from all that is that there simply is no market for economically viable commercial air transportation services out of the small, economically downscale, high desert community of Palmdale. So unless one assumes world class incompetence of the part of Los Angeles — which is possible but not proven — the problem appears to be insoluble. If nothing else, there are no direct freeways and no rapid transit services connecting Palmdale to the large population centers from which sufficient numbers of air passengers would have to come.

           As we noted, the city of Los Angeles finally acknowledged reality, shut down this airport, and surrendered its certification to te FAA. So you might think that this was the end of this saga. But evidently not — now, the city of Palmdale wants to take another shot at it. In fairness, perhaps we should wait and see if Palmdale accomplishes anything where Los Angeles couldn’t. Taking in that spectacle might even be amusing, if it weren’t for the fact that nine-figure fortunes have already been frittered away, with nothing to show for it, and Palmdale’s future efforts are certain to expend more public funds on . . .what?

         But what the hell? Let’s see what happens.

         Your tax money at work.


Good News From Delaware

         Rejecting intense lobbying by the City of Wilmington, the Delaware House of Representatives passed unanimously a bill reforming eminent domain by making it more difficult to take private property for economic redevelopment. We haven’t seen the bill, so i’s hard to tell if it represents real reform or whethet it’s like the California “reform” that is all show and no go.

         Delaware Governor Jack Markell said he will sign the bill, but as the bill’s sponsor put it, “It’s not over ’till it’s signed in Dover.”  Stay tuned.

Mississippi Again



Editor’s Comment

by Maggie Neff
April 1, 2009

During trips to my mother’s hometown of Oxford, it was customary for her to point out the areas of land, now heavily developed, that blacks owned when she was growing up. The long stretch of kudzu-entangled land along Highway 6 between Oxford “city” and Oxford “country,” as I called them, once belonged to her neighbors or people whose kids walked to the one-room schoolhouse down the road with my mom as children. There’s one particular area along the highway leading up to my Great Aunt Bee’s home that she talked about every time we passed it.

“All this,” she would say waving her arm from one end of the car to the other, “all this belonged to a woman who lived just down the road from us.”

After the woman died, her children sold the land for ridiculously less money than it was worth, and my mother silently chastised them as she shook her head with remorse. It was a trend, it seemed: poor blacks being swindled out of their land by smooth-talking, affluent land developers offering a fraction of the land’s worth. Back then, many didn’t know any better, or they didn’t have the resources to assess the value of their land themselves. Whatever the case, though, one party prospered while the other suffered a great loss.

These days, the government has taken over the job of procuring land for corporations and developers, and they don’t really give landowners an option in the matter.

Section 11-27-1 of Mississippi Code states: “Any person or corporation having the right to condemn private property for public use shall exercise that right as provided in this chapter, except as elsewhere specifically provided under the laws of the state of Mississippi.” The major problem with this qualifier for exercising eminent domain is that it includes “corporations.” Why do corporations need governmental power to take someone’s land? And what “public use” can a corporation offer that justifies taking people’s homes?

Over the years, many have used the phrase “public use” in this clause to justify taking—practically stealing—land from Mississippi residents, touting that new development will “create jobs.” That may be the case, but if you’ve lost your home—the one that’s been in your family for generations—what consolation is that?

In 2000, the state Legislature brokered a deal with Nissan to bring a new auto plant to Canton. Not only did the state offer them almost $300 million in tax exemptions and breaks, but in 2001, the state also exercised its right of eminent domain. Many Mississippians lost their homes in exchange for “fair” compensation, but some fought it. Lonzo Archie, whose family owned 25 acres in Madison County, stood up and said, “no.” And what did the state do? Sue the family, of course. Eventually, the Archie family won the right to keep their own land, and the Nissan plant redesigned the plant around their property; but what happens when the Toyota plant begins construction in Blue Springs?

Will we relive the nightmare?

Too often, eminent domain is the tool by which local government leaders entice large corporations into a poor community that, yes, needs jobs, but also are vulnerable to low wages and unfair representation. Let’s face it, Mississippi is a dream state for bottom-line-thinking corporations who want to keep labor costs down. And because the government sure as hell isn’t supporting the unions, you can almost guarantee that they can get away with things otherwise impossible in other areas of the country. This is certainly not to say that Nissan or all other corporations find this acceptable, but in today’s society, it happens.

In the 2009 legislative session, the House and Senate passed House Bill 803, which would limit the exercise of eminent domain. “[T]he right of eminent domain shall not be exercised for the purpose of taking or damaging privately owned real property for private development or a private purpose; or for enhancement of tax revenue; or for transfer to a person, nongovernmental entity, public-private partnership, corporation or other business entity,” the bill stated.

This was a huge step in moving closer to a more just system of deciding who is lucky enough to keep their home and who isn’t. Last month, however, Gov. Haley Barbour vetoed that bill, saying that it would “hurt job creation” and stifle “economic development.”

“If a legislator wants to hurt job creation in Mississippi during this recession and forever after, a vote to override this veto is the best way to achieve that terrible outcome,” Barbour stated in a release after vetoing the legislation. He also suggested that the legislation was unconstitutional. (Hmm. Unconstitutional to protect a citizen’s right to own property?)

Barbour has a corporate mind-set; after all, he’s a former corporate lobbyist. But what is perhaps more sad is that he was able to convince the Senate not to override his veto with this argument.

Eminent-domain restrictions don’t hurt job creation. Corporations have many other incentives to locate their properties in Mississippi, many of which I stated earlier. And don’t forget about the exorbitant tax exemptions the state offers. If corporations are interested in acquiring land, they can also negotiate with landowners—compromise; it doesn’t have to be an all or nothing situation. The government shouldn’t be the beginning and final say on the matter. The government should be the least involved in the process, in fact.

Corporations need to make up their minds, as do the conservatives who so strongly oppose government regulation. The idea of free enterprise—which is so many anti-regulation folks’ argument against bailouts and stimulus plans—exists independently of government involvement. This extends to the exercise of eminent domain for what essentially boils down to private, corporate use. You can’t have it both ways. It seems that Barbour and other conservatives only favor government involvement when it benefits them. And that’s not fair to the people of Mississippi, or anywhere else, for that matter.

How the Baltimore Colts Became the Indianapolis Colts

       We promised to tell the tale of the deeds of derring do of the Baltimore Colts, and here it is.  Also, for a detailed story on the Baltimore Colts fiasco click on

The Los Angeles Daily Journal

 FORUM (FORUM & FOCUS)  •  Apr. 02, 2009, p. 6
Revisiting Baltimore’s Failed Hail Mary

By Gideon Kanner

          Break out a bottle of the good stuff. It’s time to celebrate the 25th anniversary of the Baltimore Colts’ famous defeat of the city’s attempt to condemn its NFL franchise. In 1984, Baltimore sought to keep the team from moving to Indianapolis.

          Unable to negotiate an agreement with the Colts to keep them in town, Baltimore tried to emulate the bizarre accomplishment of the city of Oakland, which had earlier persuaded the California Supreme Court that to take the Oakland Raiders’ NFL franchise by eminent domain and convey it to another, more municipally favored person or entity who would promise to remain in Oakland, was not impermissible under the “public use” clause of the Constitution. City of Oakland v. Oakland Raiders, 32 Cal.3d 60 (1982). At the time, no one really thought that the courts, not even California courts, would buy into such a reductio ad absurdum interpretation of eminent domain law, so the Raiders boldly marched into court and somehow persuaded the Court of Appeal that under California law, only condemnation of real property was allowed. But this absurdly restrictive view of the eminent domain power was promptly trumped by an absurdly expansive view of the California Supreme Court, which, for all practical purposes, disclaimed any ability to pass judgment on the constitutionality of the application of eminent domain statutes, and gave an interpretation that stretched reason beyond its breaking point. Thus, the California Supreme Court, the most activist court in the nation, abruptly declared itself unable to interpret the constitutional requirement of “public use” independently of the Legislature. But hey man, this is California, the place where – in the immortal words of the nation’s land use dean, the late Richard Babcock – the courts have elevated government arrogance to an art form.

         Anyway, Baltimore thought it could do the same thing with the Colts, but it didn’t reckon with the fact that the Colts’ management wasn’t asleep and, having learned a valuable lesson from the Raiders fiasco, was ready for the city’s move. Whereas the poor Raiders justifiably thought that no court would buy into the city’s bizarre legal argument, the Colts knew better. So, as the Maryland Legislature was putting final touches in legislation that would permit the city to condemn the Colts’ NFL franchise, the Colts got ready to split. And split they did. They made secret arrangements with the Mayflower moving company, and during the night of March 29, 1984, a fleet of moving vans appeared at the Colts’ headquarters in Owings Mills, Md., loaded up and headed out. As the sun rose the next morning, the Colts were gone, lock stock and barrel, well on their way to Indianapolis, and safely out of the Maryland territorial limits.

         By the time the enabling legislation was passed by the Maryland Legislature the following day, the Colts’ franchise, the res that the city meant to condemn in its in rem eminent domain proceeding, was beyond the Maryland state courts’ jurisdictional reach. But being a sore loser, the city filed a condemnation action in the federal district court in Maryland, seeking to condemn the Colts’ franchise anyway. Nothing doing, said the court, and it granted summary judgment against the city. Mayor & City Council of Baltimore v. Indianapolis Colts, 624 F.Supp. 278 (D.Md. 1985). The court reasoned that the property sought to be condemned was no longer within the legal jurisdiction of the state of Maryland from whose laws the city claimed to derive its power to take the Colts’ franchise. Thus, the Baltimore Colts became the Indianapolis Colts, proving once again that the race is to the swift, and that being quick on your feet is not only a desirable attribute of football players but also of football team management.

         And as for California, the Raiders eventually did move to Los Angeles after California courts came to their senses and held that whether or not the taking of an NFL franchise was a “public use,” its condemnation by a city would be a violation of the Interstate Commerce Clause. City of Oakland v. Oakland Raiders, 174 Cal.App.3d 414. In yet another round of litigation, the courts awarded the Raiders’ attorney Moses Lasky, fees of $2 million, plus $200,000 in costs. City of Oakland v. Oakland Raiders, 203 Cal.App.3d 78 (1988). But in due course, the discipline of the market, not the courts, had the last word. After a few years in Los Angeles, the Raiders decided that the Oakland pastures were greener after all, and moved back to Oakland, where they continue playing until this day.

         And so, after the dust settled, things came full circle, returning to the status quo ante, except that California law of eminent domain was enriched – if that word can be used here without doing violence to the English language – with five, count ’em, five – appellate opinions, and the Raiders’ lawyers were enriched by that $2 million fee award.

          One might be tempted to observe that as far as the results are concerned, all this was in the nature of the Shakespearean bon mot – a tale told by an idiot, full of sound and fury, signifying nothing – except that the Raiders litigation provided much gainful employment to a multitude of lawyers whose earnings must surely count as more than nothing.

           So raise a glass to the Baltimore, er, Indianapolis Colts and celebrate their deft demonstration that Ambrose Bierce was on to something when he defined litigation as a process that you enter as a pig and from which you emerge as a sausage.


Gideon Kanner is professor of law emeritus at Loyola Law School in Los Angeles, and of counsel to Manatt, Phelps and Phillips. He was peripherally involved in the Raiders litigation, City of Oakland v. Oakland Raiders, 136 Cal.App.3d 566.

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