Standing up to the government’s abuse of its eminent domain power
“Eminent domain abuse.” Thanks to Susette Kelo and her brave stand against the government’s taking of her now-iconic pink house, “eminent domain abuse” is a commonly understood and widely disdained government practice. In Susette Kelo’s case, Kelo v. City of New London, the City used its power of eminent domain to take her home (and over a hundred neighboring properties) to provide developable land adjacent to a proposed $350 million research facility to be built by Pfizer, a multi-national pharmaceutical corporation. Ms. Kelo challenged the City’s use of eminent domain to take her property and transfer it to another private owner, where the City’s only justification was that someone else would make more intense economic use than she was. But unfortunately, the U.S. Supreme Court held that the City did not offend the Fifth Amendment’s private property protections by acquiring her property to turn it over to another private owner.
But what could be worse than the government notifying a landowner that it is taking the landowner’s property and hauling the landowner into court? As exasperating as this is, at least the government is providing notice it is condemning the property and offers the landowner some level of compensation. Unfortunately, the government will often take a landowner’s private property—usually by opening private property to public use—without providing the landowner any notice and without any offer of compensation. In this situation—called “inverse condemnation”—the landowner’s only recourse is to sue the government, prove in court that the government took the property, and then establish the value of the property the government took.
Suing the government is not fun to do. It involves hiring a lawyer; paying attorney’s fees, court costs, and appraisal fees; initiating a lawsuit; and enduring months, if not years, of cumbersome and distressing litigation. And in most situations where a landowner successfully sues for compensation the Constitution requires the government to have paid in the first place, the government is not obligated to reimburse the landowner’s fees and litigation expenses. For these reasons, “inverse” condemnation could more fittingly be called “perverse” condemnation.
Shockingly, the government commits this type of eminent domain abuse all the time, forcing landowners to assume the burden of suing the government for redress. One of the most common ways governments carry out this abuse is by allowing, even encouraging, open public use of private property. For example, in Cedar Point Nursery v. Hassid, Pacific Legal Foundation represented a strawberry grower whose property was overrun by labor union organizers authorized under California labor laws to enter the property of private businesses unabated and unannounced and disruptively recruit the business’s employees to unionize. With the help of PLF, Cedar Point Nursery appealed to the U.S. Supreme Court and won. The Court ruled that if the State wants to allow public access onto private property, it must compensate the property owner as required by the Constitution.
Currently, in Sanchez v. Torrez, Pacific Legal Foundation represents landowners who are fighting the State of New Mexico’s recent edict that allows the public to enter and use streams on private property for public recreation, including fishing. These now-legal trespassers can use these privately owned waterways at will, taking fish from the streams and leaving trash in their wake. Faced with the State’s edict, the Sanchez family had no other recourse but to sue the State of New Mexico to overturn this public-trespassing policy. This continuing litigation illustrates how pervasive government “inverse condemnation” abuse can be. (The Sanchez family’s property is pictured at the top of this post.)
Landowners willing to pursue inverse condemnation actions against the government have the odds stacked against them in litigation. The government often pursues a win-at-all-costs litigation strategy—vociferously fighting inverse condemnation lawsuits filed by landowners—and these efforts, sustained by salaried lawyers and ample government resources, are often effective and inevitably make the litigation more costly and lengthy.
In Medeiros v. Virginia Department of Wildlife Resources, for example, the Medeiros family sued the Commonwealth of Virginia because Virginia allows hunters to enter private property—without notice to the landowner—to retrieve their hunting dogs. After enduring repeated hunting incursions, the Medeiros family sought help from Virginia wildlife officials to eject the trespassers. Those officials, however, informed the Medeiros family that they cannot exclude trespassing hunters and dogs, despite the safety risks imposed by the hunting dogs and the damage the dogs had inflicted on the family’s cow-milking business. Adding insult to injury, after the family filed an inverse condemnation action, the State used every legal tactic at its disposal to defeat the landowners’ property rights. In a twist of logic, the State argued it was not liable for taking the Medeiros family’s property rights because the State was not affirmatively granting public access onto the Medeiroses’ private property at all—the State had simply “decriminalized” a very specific forms of trespass and, therefore, it had not taken the Medeiros family’s property and owed no compensation for the damage to the property.
The government asked the trial court to dismiss the Medeiros family’s lawsuit, and the trial court agreed. When the Medeiroses appealed the dismissal to the Virginia Court of Appeals, which also ruled against them, and finally to the Virginia Supreme Court, the State exploited a legal technicality to defeat the appeal, arguing that the Supreme Court could not overturn the trial court’s dismissal of the lawsuit because the Medeiros family, as the plaintiff, hadn’t provided the Court of Appeals with a transcript of the parties’ original argument to the trial court judge. The State argued that a transcript of the trial court argument on the government’s motion to dismiss was needed to accurately interpret the trial court’s final order. By so doing, the State was taking advantage of the fact that no such transcript existed (the trial court argument was not on the record because no facts were in dispute and the trial court’s order turned purely on a question of law). The State’s tactic succeeded, and the Medeiros family was left without a way to appeal the dismissal of their lawsuit.
The government justifies eminent domain abuse and its win-at-all-costs litigation strategy because it believes that private property rights must yield to the desires of the majority. After all, the government rationalizes, it is only acting to promote economic development and prosperity by increasing tax revenue, and its lawyers must be vigilant in protecting the public fisc (at all costs) against greedy landowners. Disappointingly, the government’s mentality is dangerous to liberty.
The government’s litigation strategy is tragically displayed in Susette Kelo’s case. Just five years after the City won its hard-fought victory in the Supreme Court against Ms. Kelo, vindicating the City’s power to take her house, Pfizer pulled the plug on its project, leaving the land where Susette Kelo’s pink house once stood derelict and deserted ever since. Faced with the embarrassment of the project’s ultimate failure, what did the victorious City do? As legal scholar Richard Epstein observed, the City demanded that Ms. Kelo pay the City years of back-rent (for the period of time she continued to live in her house after the City’s condemnation until the litigation concluded), plus interest, totaling $57,000.
Fortunately, there are intrepid and stalwart property owners, like Susette Kelo, Cedar Point Nursery, and the Sanchez and Medeiros families, who refuse to accept their fate as bestowed upon them by the government, even if they have no choice but to sue the government in its own courts to vindicate their rights.
