Monthly Archives: July 2009

The Gates Kerfuffle

          It appears that we may be the onliest ones not to say something in public about the Gates affair in Cambridge, Massachusetts. Since we allow ourselves to say something on matters outside of eminent domain and land use every now and then, here goes.

         To paraphrase Winston Churchill, never in the annals of human endeavor has so much been said by so many about so little. Further your affiant sayeth naught.


Not that Chinese Thing Again!

         No, Virginia, in spite of the old wives’ tales still circulating in the blogosphere, Hillary Clinton did NOT grant the Chinese the power to take property in the U.S. by eminent domain, as a form of security for the debt that the U.S. owes to Chinese buyers of Treasury bonds. No way.

        While we are not privy to what her Hillaryship may have said  to the Chinese folks with whom she spoke, she could not have validly committed the United States to such a deal. Why? Because only the legislature, the Congress, can authorize the use of eminent domain by anybody, and if it doesn’t, there can be no taking. The California Department of Transportation learned this lesson the hard way, some years ago. It tried to put a freeway through a cemetery only to  run smack into a statute that forbade the taking of property from cemeteries for roads. Nothing doing, said the courts.

         Though eminent domain is often said to be a “sovereign prerogative,” in the United States “the sovereign” is a tri-partite entity consisting of the executive, legislative and judicial branches. Thus, to speak of “the sovereign” in this context can be confusing to lay folks. In the United States, the power of eminent domain is primarily a dormant legislative power — it may not be exercised unless the legislature expressly authorizes it. Thus, Congress can exercise the power of eminent domain itself by an act of legislative expropriation, without filing a court action. It can pass a bill declaring that specifically described property has eo instanti been expropriated and title to it transferred to the government, leaving the owner free to sue for just compensation in the U.S. Court of Federal Claims. In fact, that is how the Redwood National Park and the Manassas Battleground Memorial were created.

         In the ordinary course of things, the legislature authorizes the exercise of the power for specified purposes, the executive branch of government then files a condemnation action in court, and the judicial branch determines what compensation is due, or, in rare cases, whether the exercise of the eminent domain power is lawful — i.e., whether it is for public use, and whether the condemnor has met the statutory preconditions to its exercise, and has followed the statutorily prescribed procedures.

         Since to the best of our knowledge Congress has not authorized any such Chinese expropriations, any supposed grant of the taking power to the Chinese (or anyone else) by the Secretary of State would be invalid on its face.

         So rest easy, folks. The use of eminent domain can be grossly unfair and immoral, but its use can only be authorized by the legislature. So keep that in mind when your congressional or legislative candidate asks for your vote.


Fish v. Dams (Cont’d.)

          We recommend that you read The Los Angeles Times article dealing with the controversy over hydroelectric dams’ impact on migrating salmon, Kim Murphy, Boom in Hydropower Pits Fish Against the Climate, Los Angeles Times, July 7, 2009, at p. A12. Check it out at:,0,2321552.story

         This time, it’s the Rocky Reach Dam on the Columbia River that is in the environmentalists’ sights. But what the article makes clear is that 90% of the young migrating salmon and 94% of steelhead trout are able to cross that dam, using new fish ladders. This has dispensed with the need to shut off the turbines (and waste water in the process) to allow the salmon to get across the dam without getting killed. It also added to the power production of the Rocky Reach Dam some 1.75 million additional megawatt-hours, the equivalent of 702,204 metric tons of carbon. Nonetheless, environmentalists are still demanding that dams be breached to restore rivers to their natural condition.

         For our earlier comments on this subject go to

Lowball Watch

        reports that a jury in Asbury Park, New Jersey, awarded $2,024,000 to owners of beachfront property taken by eminent domain, on the redevelopment agency’s offer of $500,000. The jury evidently accepted the the owners’ appraisal report based on five comparable sales. For the full story see Nancy Shields, Ruling in Eminent Domain Case Favors Asbury Park Property Owner, July 27, 2009


          The lawyer for the successful owners is quoted as saying that this was the third local verdict in which juries rejected the redevelopment agency’s evidence and came in with much higher verdicts. He explained that the city’s appraisal was low because it was based on the condition of the subject property that had been caused by precondemnation blight created over time after the agency designated the subject area for redevelopment in 1984. The agency evidently argued that without its redevelopment project there would have been no residential development on its oceanfront areas. The agency is expected to appeal.

The End of an Era in California

The Los Angeles times reports in a front-page story that from now on, solo motorists on selected California freeways will be able to buy their way onto the “carpool lanes” that are now restricted to cars carrying at least two people. The charge will be 25 cents to $1.40 per mile depending on traffic volume. See Dan Weikel, Tolls Will Take L.A. Freeways Into a New Era, L.A. Times, July 24, 2009, at p. A1.

We find it appropriate to note that in the bad old days, it was the condemnors’ mantra that people whose land was being taken for freeways should not receive full compensation for all their demonstrable economic losses because to do so would spell the end of civilization as we know it. The California Supreme Court went along with this nonsense and opined that to do so would bring about an “embargo” on the construction of public projects. When owners argued that if indeed there was a shortage of funds to build freeways (there wasn’t — the Division of Highways was running huge surpluses at the time) it should be made up by charging tolls — their suggestion that the beneficiaries pay for their benefits was greeted with professed horror.

But things change. Here is the proverbial Exhibit A, even if imposition of these tolls is motivated by a desire to regulate the volume of traffic rather than to provide true compensation to condemnees.

What Carbon Dioxide Production?

We just got back from Hawaii, and have several stories to tell. First, may we remind our readers that the country is in the throes of a major policy dispute concerning government regulations designed to impose limits on carbon dioxide emissions that are implicated in global warming that according to environmental doomsayers will do us in unless curbed. And carbon dioxide emissions come to a large extent from burning fossil fuels in generating electrical power. So you’d think that environmentally conscious folks would be down on unnecessary power consumption. Right? Not exactly.

The July 22-28, 2009, issue of the Honolulu Weekly, has a major story (at p. 6) entitled A Slow Earthquake, noting with alarm the climate changes in Antarctica and what they portend for the rest of the world. It comes compleat with a full-page (presumably photoshopped) color cover picture, depicting a polar bear disporting himself on a Hawaiian beach, captioned in big letters: Coming Soon to a Pole Near You: Arctic Rising. Speaking of rising, we rise above the urge to raise the niggling point that if masive global warming occurs, polar bears would move north in search of their accustomed cold habitat, not south where the weather is mild even today. Ah, but why quibble over factual details when Environmental Principle is at stake?

So what does all that have to do with our visit to Hawaii? Good question. Being an environmentally conscious state (just you try smoking in a hotel room — of which more presently) you’d think that the Hawaiians would be at the forefront of reducing their fossil fuel  consumption. Right? Not really. As we strolled down Kalakaua Avenue, the main drag of Waikiki Beach, we were struck by the fact that a host of upper crust luxury goods stores located there conduct business by keeping their front doors wide open, even as their interiors are kept cool by air conditioning that maintains interior temperatures suitable for hanging meat. And many Hawaiian hotels don’t have ground-level walls at all — their lobbies and restaurants are wide open to the breezes, which also means that they are wide open to air conditioned air flowing outward where it presumably entices well-heeled passersby to enter and spend lavishly. That may be good merchandizing — we wouldn’t know — but it’s a wretched way to conserve energy and reduce carbon dioxide emissions. Possibly, the Hawaii legislature repealed the first law of thermodynamics when we weren’t looking, but the bottom line seems to be all too familiar: the affluent folks there as here may talk a good environmentalist game, but when it comes to their own conduct, it’s a case of “Screw the polar bears; let’s go shopping.”

And what about that business of smoking in hotels? We’re glad you asked. Though no one mentioned it when we made reservations and checked in, during our stay we found a small notice in the hotel room advising that any evidence that tobacco has been smoked in the room would result in a $250 “cleaning fee.” The notice was silent as to whether a similarly draconian consequence would follow upon discovery that pakalolo had been smoked. Welcome to the environmentally-conscious future.

A Bureaucratized Bench

This is hardly news and we are hardly alone in taking critical note of it. Both former Chief Justice Rehnquist and the current one, Roberts, have complained about it in their respective State of the Judiciary statements. The problem is that new judges are increasingly coming from the public sector and fewer and fewer come from private practice. At the federal level, Chief Justice Roberts notes that only 40% of new federal judges come from private practice. Out here in California, it’s a lot worse than that.

In the most recent batch of judicial appointments by Governor Arnold Schwartzenegger, which is fairly typical, only one out of eleven newly appointed Lordships comes from private practice. The rest are former Deputy District Attorneys and Public Defenders, with a couple of court commissioners thrown in. See Schwartzenegger Appoints Eight to Los Angeles Superior Court, [Los Angeles] Metropolitan News-Enterprise, July 17, 2009, at p. 1.

Thus, by degrees our bench is becoming packed with government lawyers who often tend to see the government as a benign force and view with suspicion those who litigate against it. Which poses obvious problems to condemnees who have to depend on judicial impartiality in presiding over jury trials in eminent domain cases, particularly when judges get to make factual determinations and discretionary rulings. At least in criminal cases, former prosecutors are balanced to some extent by former public defenders. But not in eminent domain cases in which judges whose sensibilites were formed during years of service as government lawyers, often view the condemnees’ submissions with skepticism or outright hostility, thus undermining the perception of judicial impartiality.


Another Lowball

A Medford, Massachusetts, jury awarded $3,625,000 in a condemnation action in which the condemnor offered $280,000. The jury award drew interest at $400,000, for a total award of $4,025,000, which comes to about thirteen times the offer or almost fifteen times if you add the interest.

For details of the story as reported in the local press see

Another Notch in the Decline and Fall of the Redevelopment Project in the Kelo Case

         This isn’t one of the promised Hawaiian stories — those will come presently — but rather a report of yet another step down in the black comedy otherwise known as the Kelo case.

         Today’s issue of New London’s newspaper, The Day, reports that the onliest ongoing project on the Fort Trumbull land that was taken from Suzette Kelo and her neighbors, has gone down the tubes. It appears that construction of the Coast Guard Museum that was supposedly being built on a part of that propety, has been suspended. Given the economic situation and the decline of funds from private sources on which the museum project relied, work on it has ceased, and its president has left to pursue other activities in Oregon. See Jennifer Grogan, Plans for National Coast Guard Museum on Hold, The Day, Jul. 23, 2009.

          You just can’t make this stuff up, can you?