Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“They (the emperors) frequently abused their power arbitrarily to deprive their subjects of property or of life: their tyranny was extremely onerous to the few, but it did not reach the greater number; .. But it would seem that if despotism were to be established amongst the democratic nations of our days it might assume a different character; it would be more extensive and more mild, it would degrade men without tormenting them.”     Alexis de Tocqueville

May 11, 2009

Park Service Honors Freedom’s Heroes By Stomping On Property Rights

by Brad Warbiany

The passengers of United Flight 93 were heroes. Scared, unsure of what the future held, and in the face of everything that passengers previously understood about hijackings, they knew that it was their duty to try to overcome the odds and take down the hijackers on that flight. They didn’t turn to a sky marshal, or rely on nonexistent “authorities”, they courageously got up and fought. While they were ultimately unsuccessful at bringing Flight 93 to a safe conclusion, and paid a heavy price for their efforts, they’ve saved countless lives through their actions. They saved those who were the intended target of Flight 93 that day. But more importantly, more than anything the TSA and airport checkpoints could have done, the simple knowledge that passengers won’t sit idly by and acquiesce to hijacker’s demands are IMHO the reason that we haven’t seen an attempted hijacking since 9/11.

I would love to see the courage and bravery of those passengers memorialized. But not like this. Not at the cost of freedom:

The government will begin taking land from seven property owners so that the Flight 93 memorial can be built in time for the 10th anniversary of the 2001 terrorist attacks, the National Park Service said.

In a statement obtained by The Associated Press, the park service said it had teamed up with a group representing the victims’ families to work with landowners since before 2005 to acquire the land.

“But with few exceptions, these negotiations have been unsuccessful,” said the statement.

Landowners dispute that negotiations have taken place and say they are disappointed at the turn of events.

“We always prefer to get that land from a willing seller. And sometimes you can just not come to an agreement on certain things,” park service spokesman Phil Sheridan said.

And when government cannot come to an agreement, they resort to their final tool: the barrel of a gun. What they want, they’ll simply take, if it comes down to it. Sure, they offer “just compensation”, but if they’re the ones deciding what is “just” without you able to refuse, they can give you whatever pittance they choose. All this to meet an arbitrary 10-year deadline. They claim it’s necessary to move this quickly because they can’t stand the idea of not completing this in time for 9/11/2011. Anyone want to take odds on them actually completing in time, even if they do get the land quickly?

The passengers of Flight 93 stood up to defend themselves and the intended victims of the intended crash site. They also stood up to defend the freedom we cherish in America from those who would attack it. They deserve to be honored, but we need not sacrifice the freedom that they were trying to protect in doing so.

Hat Tip: Positive Liberty (via email from reader Tom R)

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13 Comments

  1. “Sure, they offer “just compensation”, but if they’re the ones deciding what is “just” without you able to refuse, they can give you whatever pittance they choose.”

    That is not correct, Brad. Calm down with all the hyperbole.

    First, a minor quibble – it is a lawsuit initiated by the government, called a “petition in eminent domain” not via “the barrel of a gun.”

    Obama hasn’t hopey-changituded us THAT much yet.

    That minor quibble aside, once the government has met its burden of proof to show that the “taking” meets the standards of public purpose and public necessity (or whatever the new watered down standard Kelo imposes – its been a lot of years since I practiced in eminent domain), it must deposit a “good faith” estimate of the fmv value into the registry of the court. It can only meet the good faith standard if it is supported by appraisals conducted by licensed property appraisers (the state’s litigation “experts”). It can’t be what the state’s emindent domain lawyer says the value is.

    Then the valuation goes into litigation, and the property owners will counter with their own expert witnesses such as appraisers; perhaps civil engineers describing what could have been built on the land; if agricultural land, perhaps ag economist experts giving their view on the business loss damages. If revenue producing commercial property, CPA’s will also opine.

    Then, as in any other lawsuit involving the value of a damages claim – if the case does not settle, a JURY of fellow citizens, and NOT the judge or the government, will decide whether the state’s numbers or the property owner’s numbers are the correct measure.

    In some states (like Florida) the state must pay for the property owner’s experts, and depending on the type of “take” and damages involved, the state must pay for the property owner’s attorneys fees too. So it is NOT a case of David trying to fight Goliath in the battle of experts, by any means. At least not in Florida. I can’t imagine PA being that much different.

    Yes I have sympathy for a property owner who just flat out does not WANT to sell his land, and who subjectively wants to proclaim that his property which may have a FMV of say $100,000 is “worth” $1 million to him. And that may or may not be the situation here, for all I know.

    But we’ve had eminent domain since day one – this is nothing new. Nor is it nefarious.

    So, what is happening is not quite so bad as the government being able “to give you whatever pittance they choose.” Not true at all.

    There is an orderly legal process that takes place. And my experience has been that the compensation paid usually ends up being fair (“just”) in the end. Even if the seller was unwilling to part with his land.

    Comment by southernjames — May 11, 2009 @ 12:19 pm
  2. What a great way to taint a memorial by using “imminent domain”. Just stupid and sad.

    Comment by Red — May 11, 2009 @ 12:39 pm
  3. It may be “sad” that willing buyer and willing sellers could not be matched up…but why is it stupid?

    If the government (and the survivors, and the local surrounding populace who are not the specific landowners in question, and other residents of the state or tourists who come visit such sites) desire to build a memorial to Flight 93 – what is supposed to happen if the property owners who own the land in question either a) try to extort a ridiculous sum from the government – (meaning from US, the fellow taxpayers) or b) flat-out refuse to sell at all, and say “screw you, we’re not selling at any price.”

    Options?

    1. Not build the memorial at all. “Sorry folks, one of the farmers wanted $3 million for farm land valued at $500,000, and we can’t stick the taxpayers with that kind of bill. And the other one, won’t sell at all, at any price.”

    2. Build it elsewhere. That means trying to buy other land nearby – close enough for it to have relevance…..but what if THOSE owners refuse to sell? Or are unreasonable?

    3. Find a piece of Federal land already owned by the govt – again hopefully close enough to the site of the crash to have relevance and meaning. Is there such a site? Do they have to use some national park or forest -even if it is 100 miles away – in order to avoid being “sad or stupid.”?

    Which option do you choose?

    Comment by southernjames — May 11, 2009 @ 12:55 pm
  4. Southernjames, thanks for the primer on basic eminent domain. I didn’t know a lot of that process, and it sounds like a very reasonable way to take citizens’ property. It’s kind of like a mugger with excellent manners.

    I would, of course, opt for your first suggestion above: Don’t build a memorial at all.

    I’m not a huge fan of tax-supported monuments to begin with. I don’t remember any constitutional authorization for the federal government to use tax money for things like that. I’d be happy to contribute to such a monument personally. I’m extremely moved by the action of the people on that flight. However, I don’t think my interest in it should be license to take money from all citizens via taxes.

    Even if I were to stipulate that the monument should be built at government expense, the feds should not have to resort to eminent domain. If the government cannot reach a voluntary arrangement for sale at a budgetable price, they should forgo the idea until a voluntary arrangement can be made, or forever if not. This is not a military base in the interest of national security, or a vital right-of-way or resource. This is a monument.

    I agree with Brad that it’s a bit ironic to build a monument to heroes who exercised their freedom to act (predicated on the ownership of their own bodies), using land which was ultimately stolen from its rightful owners.

    Comment by Akston — May 11, 2009 @ 1:23 pm
  5. I don’t have a problem with a decision to not build it at all. It is certainly a viable option.

    But THAT is when this situation meets my own definition of “sad.” The honor we have and would like to show, for the brave and heroic passengers (“Let’s roll”) who took matters into their own hands and prevented the terrorists from crashing that jet into the White House, Capital, or some commercial building full of people — gets shoved down a memory hole.

    Just because Farmer John won’t sell the back 20 acres. Or is demanding twice what he’d get if he hired Century 21 and stuck it on the open market.

    The inequity of it all too, sort of strikes me – if no memorial at all is built – between what ends up getting memorialized and honored for generations, and what doesn’t. Have you ever seen the memorial they built in Oklahoma City after that McVeigh bombing? No disrespect to the memory of those victims because none is intended -but it is like something I would expect to see in Hiroshima. It’s not exactly what one would call modest and unassuming – its real…out there.

    But for Flight 93, we should scrap the whole thing altogether?

    Comment by southernjames — May 11, 2009 @ 1:45 pm
  6. James,

    Regarding the barrel of a gun thing, I’m trying to find something online by Stefan Molyneux called “The Gun In The Room”… And can’t seem to find it (any other readers with a link, by all means let me know). EVERYTHING government does is at the barrel of a gun. It is, by its nature, coercive force. Whether or not you ever see the “gun in the room” depends whether you resist.

    But that aside, what it really comes down to is a question of property rights, and whether the desires (not needs, mind you, desires) of the collective outweigh the property rights of an owner of property. And while it will be a bit crass to state it this way, whether that calculation changes materially just because an airplane fell onto the land.

    As Akston points out, we’re not talking about a critical military base here, or a highway that can’t easily be routed through another area. This will undoubtedly fall under Kelo’s (and likely earlier) standards of “public use”, but then again if I take a dump on my lawn and some National Endowment for the Arts lobbyists convinces a local bureaucrat that it’s an artistic piece and deserves landmark protection, the local government will probably get a seizure upheld by the Supreme Court.

    In this case, though, I think what is sad is that this doesn’t even appear to be a case of good faith negotiation between the Park Service and the owners of the property. It seems that in February, they decided to impose a deadline of 9/11/2011, and suddenly that meant that they had to go the legal route of eminent domain rather than continue negotiations. Several of the owners had already been working with the Park Service, but the Park Service is short-circuiting that in order to force the issue.

    Comment by Brad Warbiany — May 11, 2009 @ 3:26 pm
  7. Freedomain has a copy of “The Gun in the Room” posted here.

    And for what it’s worth, I’d be more than happy to personally donate to such a monument erected on land voluntarily acquired by a private group. I never fail to be moved by the story. I bet there are millions more who are also moved and would donate freely.

    I just don’t want my gesture to be sullied by theft from other folks.

    Comment by Akston — May 11, 2009 @ 4:57 pm
  8. All will be surprised at the amount 12 independent juror determine to be just compensation. That’s the process. The property owners will have their day in court and their neighbord will determine JC, not the barrel of a gun and the government does not “take” land. They do condemn the land for “public good”. If not for the porcess of eminent domain, we would not have an Interstate Highway system and you would still be driving local and state two lane, black top roads and traveling at the rate of 45 mph.

    Comment by Jim Strotman — May 12, 2009 @ 5:08 am
  9. Oh, yes. And one other point. The attorney for the property owners, in most cases, is the big winner. They take the lions share of the award; no wind-fall in this process. Far better from my 30 years of testifying in court in condemnation cases is to negotiate the best deal possible and settle without the assistance of an attorney. Even if the property owners gets a 50/50 split award from a generous jury, the attorney still wins and the PO goes home disappointed.

    Comment by Jim Strotman — May 12, 2009 @ 5:37 am
  10. So Jim, what you are saying is the gov’t has you over a barrel, or maybe that is a barrel of a gun, since the best you can do is get 50% of the split from the award from a generous jury if the gov’t takes it to a eminent domain process. If the gov’t knows this and they obviously do, then why would they offer anything that resembles a fair amount for the property they are wanting to take. So you would have to admit that they have you over a barrel (of a gun).

    Do not compare the interstate highway to a memorial. A memorial is certainly not a public necessity. They are not even remotely similar other than the gov’t possibly taking by force property to get them accomplished.

    Comment by TerryP — May 12, 2009 @ 6:32 am
  11. I’m sorry, but worrying about the oppressiveness of eminent domain, for me ranks right up there with the debates on this site as to the “legality” or “illegality” of succession. Or whether Lincoln was really for or against slavery.

    I may get slimed for saying that, and on a less civilized site I’m sure I would. But that is just the way I feel.

    I spent the first 5 years of my legal practice back in the 90s’ spending 80% of my time representing property owners in an area of the country developing faster than almost any other. In cases where the opposing party plaintiff was typically named “The Florida Department of Transportation.”

    In Florida, the property owner attorney is NOT the “big winner” getting “the lions share of the reward.” Fees are computed and awarded separately from the amount the jury awards for the property value. I can not speak to other states.

    The answer as to why would the state offer anything reasonable or approaching FMV? In Florida, two reasons: 1) the amount of the fee award can go through the roof if the difference between the final offer pre-suit and the amount awarded by the jury for the value of the property is too large. In other words, the State can get really hosed on fees, if they try TOO hard to get out on the cheap, pre-suit. It can come back to bite them later on. Real bad. And they all have budgets to work under and performance reviews, etc., too. Not good for the junior govt. DOT lawyer’s upward mobility and job security, when his case valuation budget is off by 6 figures.

    And, 2) Who is the JURY going to sympathize with when evaluating the numbers presented by Big Bad Govt appraiser, and Grandma Sally Lou, who will cry on the stand about her grandpappy homesteading, and who will then present HER appraiser’s expert numbers (which are as inflated in her favor as the State’s experts are deflated)….come on, think about it. The State runs a HUGE risk of getting slam-dunked by the jury. So the State DOES have an incentive to cut a mid-range, reasonable deal, before the suit gets past the point of no return.

    The power of eminent domain, which English Kings have had since the beginning of time, was memorialized into our Constitution. By the Founders. This is not some new fangled evil thing thunk up by those darn Socialists or Evil Karl Rovian waterboarders.

    As for Monuments – whether it be the Battle of Bull Run, or to our first “African American President” or to Iraq War Veterans, or to Flight 93, or to honor our Italian American Immigrants, etc., etc. …monuments/memorials/statues, etc. have been, like it or not, a part of our landscape and culture since the founding. Whether the power of eminent domains should be strictly limited to highways is a matter of debate and opinion.

    But I’m just not getting all this hyperventilating about “barrel of gun,” and “mugging” and “theft,” etc. I’m as paranoid a gun nut, hoarding up on my ammo, as the next “right wing extremist” (as defined by DHS), but this just isn’t one of those issues that makes me fear for my freedoms.

    If Uncle Sam want to take my house and bulldoze it in order to install a Bronze Bust to Honor Obama, they can have it. In exchange for fair and just compensation, as written into the Constitution.

    Comment by southernjames — May 12, 2009 @ 7:10 am
  12. Secession, not succession. Pass it on.

    Comment by Nicolas — May 12, 2009 @ 3:30 pm
  13. Thank you, Mr. Spellchecker. Everyone needs a purpose for living, and we now know what yours is.

    Comment by southernjames — May 13, 2009 @ 2:58 am

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