Is the Movie “Avatar” a Story About Eminent Domain?

Our colleagues at the Nossaman law firm run a blog on eminent domain, as they have every right to do. What makes theirs different from ours is that we are unabashedly property-owner oriented, being mindful of the fact that the “public use” limitation on takings is so much “hortatory fluff” as Justice O’Connor put it in her Kelo dissent, and of judicial confessions that the “just compensation” promised by the taking clause of the Fifth Amendment is neither just nor compensation. It’s sort of like the Holy Roman Empire, of which historians said that it was neither holy, nor Roman, nor an empire.

The U.S. Supreme Court has conceded that eminent domain is “harsh,” rather than just, and that the judicially-defined “fair market value” does not follow what the market actually does. Our own California Supreme Court has allowed as how anybody who takes the judicial “panoramic” expressions about fairness, justice and indemnity seriously, just plumb doesn’t understand eminent domain law.

The Nossaman folks, on the other hand, give every indication of being condemnor-oriented, which is also their right. 

But sometimes folks can get carried away by their own rhetoric, and the Nossaman post of January 27, 2010, Is Avatar Really a Political Commentary on Eminent Domain Abuse? is a case in point. Strangely enough, we are in agreement with Mr. Rick E. Rayl (the author of the Nossaman post in question) that the movie Avatar has nothing to do with eminent domain. Since a number of people have latched on to the idea that the cinematic conquest of the fictional plantet Pandora is an act of eminent domain, it seems only reasonable to dispel that mistaken notion.

Avatar is a story of conquest which under our law is governed by entirely different legal principles than eminent domain which is an inherent attribute of sovereignty, or of governance. You can check that out by reading Chief Justice Marshall’s opinion in Johnson v. M’Intosh, 21 U.S. 543 (1823), where he explained that when land is conquered, the conqueror not only displaces the sovereignty of the conquered entity, but actually acquires title to the conquered land. Thus, as the U.S. District Court explained recently in Delaware Nations v. Commonwealth of Pennsylvania, 2004 Dist. LEXIS 24178, aff’d. 2006 U.S.App. LEXIS 11085, the tribe’s aboriginal title was extinguished when its land was conquered and the justness of that sovereign act was not justiciable. 

So why are we going on about these things even as we agree with Mr. Rayl’s bottom line? Good question. In his post, Mr. Rayl offers four reasons for distinguishing Avatar from our eminent domain procedures, that, alas, fall short of an accurate representation of our law. They are (1) the “acquisition” in Avatar was handled by a private company, (2) There was no pretense of public use, the company seizing the mineral “unobtanium” wanted it for its value as a manufacturing component of some sort, (3) there was no established right to take because “there was no resolution of necessity,” and (4) there was no payment of just compensation. Unfortunately, none of these factors are wholly correct. 

First, one need not be a government entity to exercise the power of eminent domain. In California, anybody, yes anybody, including your grandma, may exercise the power of eminent domain for a public use established by statute. Linggi v. Garovotti, 45 Cal.2d 20, 286 P.2d 15 (1955). See California Civil Code § 1001, and if you want to have real fun, check out its pre-1975 version. In other words, it’s the use that has to be public, not the user.  

Second, The taking of minerals is not a “public use”? Sorry. Takings for the purpose of extraction of minerals are routine. Strickley v. Highland Boy Gold Mining Co., 198 U.S. 361 (1905). See United States v. Pewee Coal Co. 341 U.S. 114 (1951) for a discussion of valuation in such cases. In fact, that is one of the old established principles of common law of England – see The Case of the Kings’ Prerogative in Saltpetre, 77 Eng.Rep. 1294 (K.B. 1606) (taking of saltpeter for the manufacture of munitions was not tortious, as it was an act in defense of the realm, so there was no trespass, but the Crown had to pay for the removed saltpeter). 

Third, in California, a resolution of necessity is indeed required when one files a lawsuit in eminent domain, but not otherwise. As the U.S. Supreme Court held, the government may just take property, and then it is up to the property owner to sue if he wants to get paid. That’s what inverse condemnation is all about. The U.S. Courts of Appeals for the Fifth and Ninth Circuits phrased it by saying that the government may just seize property and say to its [former] owner “sue me.” In haec verba. Also, Congress may engage in “legislative expropriation” and pass a bill that transfers title to the subject property from the owner to the government, without due process of law, and here too it’s up to the owner to sue for compensation. That is how the Redwood National Park was created. 

Finally, “just compensation,” is required by the Constitution, but as any lawyer knows, constitutional interpretation is a many-splendored thing that can be slippery as an eel, so that in some cases property is taken without compensation. See City of Milwaukee Post No. 2874 VFW v. Redevelopment Authority, 768 N.W.2d 749 (2009), Redevelopment Agency v. Tobriner, 215 Cal.App.3d 1087, 264 Cal.Rptr. 481 (1989), and City of Los Angeles v. Ricards, 10 Cal.3d 385, 110 Cal.Rptr. 489 (1973). And let’s not forget cases like County of Los Angeles v. Ortiz, 6 Cal.3d 141, 490 P.2d 1142 (1971), where the California Supreme Court held that in a taking of modest homes, where the cost of litigation consumes the owners’ equity, leaving them with no property and no compensation, “just” or otherwise, it’s a case of “too bad, folks.”  

Bottom line: No, the Avatar plot is not about eminent domain, but that is so for entirely different reasons than those marshaled by our friends at the Nossaman blog. 

Now, it appears that we will have to go see the thing without awaiting the arrival of the DVD, even if it appears to be another exercise in political correctness. We can’t wait to see yet another story a la Dances With Wolves, in which the bad guys are white men and the victims are persons of color, even if the color is blue in this one. Where is Captain Kirk, the good white guy, when we really need him?

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Follow up. It seems that our brand of humor has had an unintended (make that semi-unintended) effect on Mr. Rayl who has written at length to refute the above post (make that semi-refute). See 

Yor faithful servant has no intention of offering a reply to Mr. Rayl’s views – we both have had our say about Avatar, and we agree on the bottom line, so let the best man in the eyes of the reades win. However, Mr. Rayl has — unintentionally no doubt — delivered two mortal insults that do call for a refutation.

          First he characterizes your servant as a “scholar.” Have a care, sir, and perish the thought! “Technician” would be more accurate. These days, legal scholars tend to produce impenetrable law review articles about meta-hermeneutics, and they explain to their bewildered students what was the influence of Kant on the critical legal studies movement, while the bewildered students are surprised to learn that Kant was person. O tempora, O mores. Your servant, on the other hand, taught the tads law and how to practice it — including the vital information on where to find restrooms in the courthouse.

          Second, Mr. Rayl appears to be laboring under the misapprehension that your servant’s knowledge of the field is — shudder! — “academic.” Perhaps the readers can run the names of the two of us through Lexis or Westlaw to find out what our respective practice credentials are. If that’s too much effort, click on the word “About” in the upper right-hand corner of this blog, though it won’t list the cases your servant has handled — for those you will have to go to Lexis et al.