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U.S. Army May Use Eminent Domain to Take 418,000 Acres of Colorado Ranchers' Property:

A few days ago, the Washington Post had an extremely interesting article about the US Army's efforts to potentially use eminent domain to take some 418,000 acres of property belonging to Colorado ranchers in order to expand a key training area for its troops (hat tip - VC reader Howard Owens, whose relatives are among those who may lose their land):

The U.S. Army wants 418,000 acres of private ranch land to triple the size of its Piñon Canyon Maneuver Site, a training area considered suitable — some would say essential — for preparing American warriors to do battle in the Middle East and Afghanistan. The 1,000-square-mile facility would be 15 times the size of the District.

Several dozen ranchers and members of 15 county commissions that voted to oppose the project find themselves pitted against the Pentagon and Colorado business interests in a struggle over property rights, personal heritage and the contested priorities of national security.....

[T]he government's appeal to patriotism when ranchers could be forced to sell property that has been in their families for generations leaves many landowners cold. They remain skeptical of the claims of national security and frustrated by the lack of answers....

The land under discussion is an arid plateau that occupies a sparsely populated slice of Colorado near the New Mexico border.....

Brian A. Binn, president of the military affairs committee of the Colorado Springs Chamber of Commerce, said the benefits to the state economy and national defense are clear. If the ranchers triumph and the training site is not created, he added, other states would be all too willing to accept the troops and the business.

"We have to look sometimes at what's better for the national defense, the greater good," Binn said. "It is a national security issue. The men and women of our armed services deserve nothing less."

Bob Hill, a rancher forced to sell his land to the Army 25 years ago, said caustically, "I find the city people are really patriotic with our property."

As a legal matter, there is no doubt that this potential use of eminent domain is constitutional. Even those - like myself - who favor a narrow interpretation of the Public Use Clause of the Fifth Amendment agree that the government may condemn property in a case where it intends to retain ownership of the land itself rather than transfer it to a private party.

However, the fact that the Army's plan is constitutional doesn't necessarily mean that it is equitable or efficient. Undoubtedly, military training is an urgent national priority, particularly in a time of war. Thus, if the ranchers' property is the best available site for an expanded training facility and the land can't be obtained through voluntary transactions, there would be some justification for using eminent domain.

Nonetheless, there remains the question of whether a facility of comparable quality could be built without resorting to condemnation. The U.S. government already owns hundreds of millions of acres of desert property in the Western states, much of which is not being used. Perhaps the Pentagon could build a new training facility on land the federal government already owns; if so, that would be far preferable to displacing private property owners.

It is of course possible that the Colorado site really is superior to any potential alternative. I lack the expertise to judge that issue. If so, there is a strong case for paying the owners compensation above the market value of the land. According to the Supreme Court, the Constitution's requirement of "just compensation" only mandates that the government pay the owners of condemned property "fair market value." However, market value compensation often fails to fully replace the owners' losses. If they valued the land at the market price or less, they presumably would have sold it already; their decision to hold onto it is an implicit signal that they place a "subjective value" on the property above its market price.

In this case, subjective value concerns are particularly serious. Many of the owners' families have lived on the land for generations, and would lose most of their livelihood if forced to move. Even if the Court is right to hold that fair market value compensation is all the Constitution requires, this is one case where the feds should pay more.

Related Posts (on one page):

  1. Subjective Value, Alternatives to Eminent Domain, and the Colorado Military Condemnations:
  2. U.S. Army May Use Eminent Domain to Take 418,000 Acres of Colorado Ranchers' Property:
dfinberg (mail):
Shorter Ilya: I believe dutch auctions are economically inefficient, and the winner should in fact pay the highest price bid, not the second highest.
11.12.2007 10:10pm
SWH:
Sounds like this.
11.12.2007 10:17pm
Ilya Somin:
Shorter Ilya: I believe dutch auctions are economically inefficient, and the winner should in fact pay the highest price bid, not the second highest.

In no way is this silly conclusion implied by my argument.
11.12.2007 10:17pm
Christopher M (mail):
It seems to me that the often-bruited idea that the government should pay "subjective value" in eminent domain proceedings is, at least, a conclusion reached much too swiftly. Why are subjective valuations the proper measure of payment in eminent domain cases, when they are so rare in general? Should subjective valuations be the measure of damages in private tort lawsuits? (I understand that in certain very limited ways they already are -- the question is whether subjective valuation should be the general, default principle from which deviation needs to be justified?) Libertarians may oppose the welfare state generally, but would they agree that, to the extent that we're going to have it, we should make welfare payments on the basis of subjective valuations, so that someone who is likely to enjoy their welfare payments more gets more of them?

I don't ask this as a "gotcha," but as a sincere question: it seems very difficult to say when we should take people's subjective attachments and estimations of value into account, and thus at least undertheorized to say that subjective valuations should be taken into account in eminent domain proceedings. Especially when -- as we are often reminded -- it's your and my money that the government is spending to pay people for their property.
11.12.2007 10:37pm
Cardinal:
I may need tp brush up on my constitutional law... if this case causes a public outcry and the Colorado legislature responds by (hypothetically) abolishing eminent domain within the state, could the Army still be able to take the ranchers' land? Clearly Congress could authorize the taking regardless of how the Colorado legislature felt (Supremacy clause), but could the Army take land in violation of state law without specific Congressional authorization?
11.12.2007 10:37pm
Brett Bellmore:
I am generally dubious about the very idea of a "fair market value" for something the owner won't voluntarily sell. The notion is theoretically defined in terms of a "willing buyer, and willing seller, neither under compulsion"; It's clearly undefined in cases of eminent domain, where the seller is neither willing, nor uncoerced. In such applications it's nothing more than a conscience soothing buzzword to blur the fact that something very unfair indeed is taking place.


Even those - like myself - who favor a narrow interpretation of the Public Use Clause of the Fifth Amendment agree that the government may condemn property in a case where it intends to retain ownership of the land itself rather than transfer it to a private party.


But it would seem to me, based on a quick reading of the relevant passage in Article 1, Section 8,

"and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;"

That the federal government need the permission of a state legislature in order to exercise the power of eminent domain. Has this been secured in this instance? Could the seizure be challenged on this basis?
11.12.2007 10:47pm
DiverDan (mail):
Two points. First, it seems to me that requiring the Government (or any purchaser, for that matter) to pay more than fair market value results in economic inefficiency.

Second, that having been said, it must be remembered that in any eminent domain case the very definition of "fair market value" (which assumes a willing buyer and a willing seller, both acting with full knowledge of all relevant and material information) fails, since if there was a "willing seller" there would be no need for a court to intervene. Thus, the court cannot determine a "fair market value" with any degree of certainty -- the best it can do is make a reasoned estimate of fair market value by evaluating the evidence before it, usually expert appraisals (which are themselves subject to faulty data and faulty analysis and, even in the best of cases, based upon imperfect comparable sales, which the appraiser attempts to adjust based upon his or her own evaluation of differences in relevant characteristics) and recent "comparable" sales (though what sales are comparable and how they are compared are also judgment calls, subject to uncertainty).

While I do not agree that this is a special case where the Army ought to be required to pay "above market value", as Ilya suggests, since the appraisal process involved in eminent domain cases is, even in the best of cases, an imperfect "guess" at what the true "fair market value" of a unique parcel of land is worth, my own view is that the Government ought to be required to pay a premium over the Court-determined estimate of value (which is NOT the same as "fair market value") in EVERY eminent case, with the size of the premium to be determined based upon the level of uncertainty in the appraisal process. That way, the unwilling seller is fully compensated, and the risk of uncertainty in valuation is placed upon the buyer who insists upon a compelled sale.
11.12.2007 10:48pm
PatHMV (mail) (www):
Cardinal, the Army has no independent constitutional authority to expropriate property. If the Army has the power of eminent domain, it is only because some statute passed by Congress gives it to them. If it does, then the state law will be immaterial and without any impact, unless for some policy reason Congress chose to defer to state law for purposes of that statute.
11.12.2007 10:50pm
Ilya Somin:
It seems to me that the often-bruited idea that the government should pay "subjective value" in eminent domain proceedings is, at least, a conclusion reached much too swiftly. Why are subjective valuations the proper measure of payment in eminent domain cases, when they are so rare in general? Should subjective valuations be the measure of damages in private tort lawsuits?

It probably is impossible to fully compensate all "subjective" value losses in eminent domain cases (in part because such losses are so hard to measure). But the key reason for at least trying to do so is that eminent domain is an involuntary transaction deliberately initiated by the state supposedly for the benefit of the general population. Thus, the latter - not the owner - should bear the full costs of their action. By contrast, a voluntary market transaction is not similarly coercive, and neither side would participate if they didn't think the benefits to them outweighed the costs (including subjective ones).

As for tort suits, it probably depends on the nature of the tort in question. But many measures of tort damages (e.g. - pain and suffering) do in fact try to incorporate subjective value).

Libertarians may oppose the welfare state generally, but would they agree that, to the extent that we're going to have it, we should make welfare payments on the basis of subjective valuations, so that someone who is likely to enjoy their welfare payments more gets more of them?

The goal of the welfare state (to the extent that it has a defensible goal at all) is not to maximize recipients' happiness but rather to establish a minimum floor of material well-being below which the poor are not allowed to fall. This logic suggests that those with a particularly high capacity for enjoying benefits should get fewer of them, not more (assuming, of course, that we could accurately measure their enjoyment capacity, which I doubt).
11.12.2007 10:50pm
Ilya Somin:
Two points. First, it seems to me that requiring the Government (or any purchaser, for that matter) to pay more than fair market value results in economic inefficiency.

Not necessarily. If government can forcibly acquire property at fair market value that the owner values above that level, than the government may end up creating inefficient transfers by acquiring property that it actually values less than the current owner does. This is not a problem with voluntary property markets because if the would-be buyer values the land less than the seller does, the latter can simply reject the former's purchase offer.
11.12.2007 10:55pm
Brett Bellmore:

If it does, then the state law will be immaterial and without any impact, unless for some policy reason Congress chose to defer to state law for purposes of that statute.


As I pointed out above, that's not what the Constitution itself says about the matter. On the contrary, it would appear to take considerable hand waving to justify the idea that state laws are irrelvant, in the face of that clear "by the consent" language.
11.12.2007 10:55pm
PatHMV (mail) (www):
Brett, it's been awhile since I had to look at that provision (when the feds erected a prison in my state while working for the governor), but I believe that deals with sovereign authority (i.e., jurisdiction) over the land, not acquisition of and title to the land. If the state gives permission, then the land essentially becomes sort of like a foreign embassy. If you commit murder on such land, you will be prosecuted under federal law, not under state law. The federal government can acquire land without state consent for other purpose, which remain lands within the jurisdiction of that state, with merely the title being in the U.S.

I think. Like I said, it's been awhile.
11.12.2007 10:55pm
Brett Bellmore:
Rather a dubious interpretation, if you ask me, when that's the only clause in the entire Constitution which even suggests that the federal government has the power of eminent domain.
11.12.2007 10:58pm
HappyConservative:

this is one case where the feds should pay more


How much more?

And why should the government pay for the emotional attachments here, but not pay for disruptions it causes to the emotional attachments of others in different contexts?

The idea that the government should pay more than free market value is ridiculous. These people are being called on to make some sacrifice for the greater good. They should be glad to have the opportunity. If they don't like it, may I suggest they revoke their citizenship and live in a country that they find more to their liking. But for the much greater sacrifices of countless others defending our nation, these ranchers would not have any property to begin with.
11.12.2007 11:02pm
Brett Bellmore:
Mind, the 5th amendment acknowleges it, in the process of requiring just compensation, and for public use. But adding a requirement for just compensation could hardly erase a requirement for state permission. I understand it took nearly a hundred years before the federal courts decided that state permission wasn't really necessary.
11.12.2007 11:04pm
theobromophile (www):

The idea that the government should pay more than free market value is ridiculous. These people are being called on to make some sacrifice for the greater good. They should be glad to have the opportunity.

Then why even pay FMV for the land? Why not sell it at a discount as part of the sacrifice for the greater good? Why not just turn it over for free?

There is no reason to compel a small segment of the population to sacrifice for a larger segment. That allows us material gain at the expense of others, simply because our interests are aligned with the interests of the majority of persons, or are not implicated in the particular transaction. That has very little to do with the greater good and everything to do with a very perverse Roulette wheel.
11.12.2007 11:42pm
Guest12345:
But for the much greater sacrifices of countless others defending our nation, these ranchers would not have any property to begin with.


I know it's veterans day and all, but come on. If it weren't for these ranchers those countless others won't have a nation to come home to. This country exists mainly through the actions of those who are not in the armed services.

Living in, buying property in, or raising a family in this country is a greater patriotic an act than joining the armed services. Given that we have an all volunteer army, the concept of sacrificing to be in the services is a bit of a stretch. How much sacrificing is happening when people join up fully expecting to receive significant pay and benefits. Yes, I know that people get killed in the armed services, but so do loggers and garbage collectors. The difference is is that loggers and garbage men don't have an entire wing of the government looking out for their interests long term.

Being in the armed services isn't the most dangerous job in the country. According to this data there were 822 fatalities in Iraq in 2006 and this table shows 98 US military fatalities in Afghanistan for 2006. The total for the two is 920. With 1.4 million people in the armed services, that's 66 fatalities per hundred thousand. Which, according to this puts them in fourth place, just barely ahead of iron workers.

Maybe you should be tipping some malt liquor for the fishermen and commercial pilots instead?
11.12.2007 11:42pm
John (mail):
Actually, 418,000 acres is only 653 square miles, not 1,000.
11.12.2007 11:52pm
EH (mail):
I assume there's no way to stretch the 3rd Amendment to cover this!
11.13.2007 12:03am
G'Kar (www):
Speaking as a soldier who has actually served at Fort Carson and has been to Piñon Canyon, this sounds like a very bad deal. We used Piñon Canyon for maybe a few months out of the year while I was there. It's a good training area, but using it requires units to ship all of their equipment via rail, line haul, and convoy (a 3-4 hour drive). Given those requirements, it just doesn't get used that much. Even if they increase its size (which would be a good thing, as the current site is also not large enough for most operations), I don't see it getting that much more use. It's one thing to take private land for a base that is used all the time; quite another to take private land that will lie vacant for months at a time.
11.13.2007 12:16am
Randy R. (mail):
I love this argument: Seems that when Americans are forced to choose between patriotism and self-interest, they'll choose self-interest every time. Nothing wrong with that, but it's pretty funny that no one wants to support Bush with his call for sacrifice for this war of his.

And I think the comment about city interests being patriotic isn't quite accurate. I live in the city, and I had nothing to do with this! Blame the army for this one, not me.

But we do know several things: The army votes heavily Republicans, especially the top brass. Our entire administration is Republican. Republicans always cry about big gov't dictating their lives, and about the sanctity of private property. We wouldn't need to train our troops for fighting if the Republicans knew how to fight a war in the first place, or if Bush actually had a plan for Iraq and Afghanistan. Republicans keep telling us that the war is really really going well -- which makes me wonder why we need to train the troops.

And then we have this. Pretty comical if it weren't so tragic.
11.13.2007 12:22am
Bill2007:
No need to add to what's already been said on the issue of subjective vs objective value. I would like to propose looking at this from another angle: I wonder to what degree the ranchers have been net beneficiaries of the federal government through various direct and indirect subsidies (e.g., dams, subsidies for corn that cattle eat, etc.). Thinly populated Western states in general get more from the federal trough than they put into it, and those hardy, independent, freedom-loving yeomen often turn out to be subsidized by their soft and degenerate urban cousins. I don't know what the particular facts are here, but it's something worth thinking about in considering the equities of the situation.
11.13.2007 1:15am
pireader (mail):

[M]arket value compensation often fails to fully replace the owners' losses. If they valued the land at the market price or less, they presumably would have sold it already; their decision to hold onto it is an implicit signal that they place a "subjective value" on the property above its market price. ... Many of the owners' families have lived on the land for generations, and would lose most of their livelihood if forced to move. ... this is one case where the feds should pay more.

The whole point of compensating owners at market value is that they can use it to buy functionally-equivalent property elsewhere. So they need not 'lose most of their livelihood' or suffer any other economic loss.(Although we can discuss whether owners are actually compensated to that level, generally or in this case.)

So your argument rests on the emotional loss that owners commonly feel when forced to part with a particular property. That has merit. Perhaps we should all agitate for legislative changes to recognize that loss in setting compensation (and the higher taxes needed to pay for it).

But why single out these particular owners for special treatment? Why believe that the emotional loss was greater for them than for anybody else who loses a home to eminent domain?

Perhaps because farmers and ranchers have such a close linkage to their land? That was a better argument in the 19th century, when farmers actually walked their fields behind a plow.

Or perhaps because they inherited the property rather than buying it? But that slights those of us who sweated to earn the money to buy our own homes.

And so on.

Any systematic attempt to compensate for emotional loss in eminent domain cases would quickly get mired in such differing subjective assessments. And the potential financial rewards for exaggerating the pain one does feel.

Which is (I suspect) why we stay with the market value standard.
11.13.2007 6:27am
dearieme:
What happens if the Army gets the land and then finds it doesn't need it after all? Would the Federal Government sell it? Must it offer it back to the original owners?
11.13.2007 6:39am
Public_Defender (mail):
The local chamber of commerce leader inadvertantly gave a strong argument against using eminent domain here:


If the ranchers triumph and the training site is not created, he added, other states would be all too willing to accept the troops and the business.


If this is true, and the military has the option to buy other suitable land voluntarily, then there is no need to use eminent domain here.

The irony is that my local chamber of commerce regularly uses property rights arguments to argue for zoning variances that are destructive to the residents living near the chamber's members.

Basically, the Chamber of Commerce believes that its members have absolute property rights while the rights of everyone else must yield to the whims of the Chamber of Commerce.
11.13.2007 6:54am
Bruce Hayden (mail) (www):
I frankly don't see the difference here between this sort of eminent domain takings and most others. It seems like almost every day we hear of some poor black family being evicted from their home so the city can have a Wal-Mart, etc. Who is to say that that Colorado rancher is any more emotionally attached to his land than is that poor black family in the inner city?

The big difference, as I see it, is that the political process has a say here. I haven't been following this that closely, but would be quite surprised if the entire Colorado delegation were aboard. The governor might at some time had some say, but after allowing state workers to unionize by fiat a week or two ago, he is currently taken as a liberal wacko totally in hoc to the Democratic party in order to keep its national convention next year.
11.13.2007 7:51am
J. F. Thomas (mail):
Ahh, yes as Ilya types away his screeds against the evils of big bad government on his computer bought with government money in his government supplied office probably with software supplied to him by the state of Virginia.

Why on earth should anyone be overcompensated for their property, for which the government has a need--in a time of war no less--just because they have an emotional attachment to it. I may think my Chevy Chevette is worth a million dollars because that is where I first got laid but that doesn't change the fair market value of the the vehicle.

To pretend that ranchers, especially those in the mountain west are rugged individualists who have no need, and little use for the government is patently ridiculous. First of all the very land they own was obtained through conquest (from the Mexicans or the Indians depending on your perspective) thanks to the U.S. government. Whoever first got it (I say got not bought because it might have been homesteaded originally) from the U.S. Government, whether it was the direct descendents of the current owners or not, almost certainly obtained for a fraction of its market value. The land would have no value if not for federal and state roads and water projects. It is likely that the ranchers belong to a rural electrical cooperative, which of course is a legacy of the evil FDR's rural electrification program. And I bet they also utilize federal leases to graze some of their cattle.

How about this, instead of buying their land, the federal government simply ends any kind of federal subsidy to the families, including letting their cattle eat subsidized corn when they go to the feedlot. Let's see how long they last in their libertarian paradise. Perhaps Ilya could go live with one of the families this winter and report back--if he doesn't freeze to death or they don't kill and eat him a la the Donner party.
11.13.2007 9:47am
J. F. Thomas (mail):
Given that we have an all volunteer army, the concept of sacrificing to be in the services is a bit of a stretch. How much sacrificing is happening when people join up fully expecting to receive significant pay and benefits.

You, sir, are despicable human being who has no idea of the sacrifices that our all-volunteer military is being forced endure (more than any since World War II) for selfish bastards like yourself and Ilya in order to maintain the illusion that Bush's wars are no-cost affairs that can be carried out without the least sacrifice by anyone--not by those who support the war, or even by a few ranchers who are asked to sell their lands so the Army can be properly trained.
11.13.2007 9:54am
Brett Bellmore:
<blockquote>
all-volunteer military is being forced
</blockquote>

LOL! Some people can't see a contradiction, even if it's contained in a single sentence.
11.13.2007 10:01am
Bama 1L:
It's quartering! Quartering, I tells ya!
11.13.2007 10:12am
Happyshooter:
This is the best reason for eminent domain. The government should pay what the law requires.

As for judging whether the .mil really needs the land, I know how you can find out. Go ask a military professional officer who has devoted his life to the .mil, and ask him. Better yet, ask several. Sort of what the military did in deciding to take the land.

It is a source of some confusion for me when lawyers and worse judges and try to substitute their judgment for what the military needs.

1. The navy wants one type of sonar? Hell, us lawyers know what they need better. We'll sue and let some federal judge decide.

2. The Army wants to station a brigade of armored vehicles in Hawaii? We lawyers know better, and some federal judge can decide.

3. A base commander wants to keep protesters away from his troops because in his professional judgment it would effect good order and discipline? We lawyers know better, and some federal judge will decide the issue.

4. The US military captures illegal combatants in the field, and is holding them outside the United States? Absolutely federal district judges should be the sole authority of what to do, given their vast military experience and proven ability to command.
11.13.2007 10:24am
Happyshooter:
Being in the armed services isn't the most dangerous job in the country. According to this data there were 822 fatalities in Iraq in 2006 and this table shows 98 US military fatalities in Afghanistan for 2006. The total for the two is 920. With 1.4 million people in the armed services, that's 66 fatalities per hundred thousand. Which, according to this puts them in fourth place, just barely ahead of iron workers.

You forgot about all the other deaths in training and operations, including accidents. You numbers are WAY too low.
11.13.2007 10:29am
byomtov (mail):
Being in the armed services isn't the most dangerous job in the country. According to this data there were 822 fatalities in Iraq in 2006 and this table shows 98 US military fatalities in Afghanistan for 2006. The total for the two is 920. With 1.4 million people in the armed services, that's 66 fatalities per hundred thousand. Which, according to this puts them in fourth place, just barely ahead of iron workers.

In addition to the deaths happyshooter mentions, there's the matter of serious injury. Care to compare things like brain damage, loss of limbs, etc., among members of the armed services with those among other workers?
11.13.2007 10:51am
Swede:
"We wouldn't need to train our troops for fighting if the Republicans knew how to fight a war in the first place, or if Bush actually had a plan for Iraq and Afghanistan. Republicans keep telling us that the war is really really going well -- which makes me wonder why we need to train the troops."

That statement makes sense if you hit yourself really hard on the head with a hammer. Twice. Or if you're just ignorant about the military.
11.13.2007 10:53am
lindaseebach (mail):
The additional 418,000 acres would be added to the existing facility, which is 235,000 acres, making the total just over 1,000 square miles.

At least two representatives, Marilyn Musgrave and John Salazar, are actively opposed, I'm not sure about the others.

In 2006 the Colorado House passed a resolution urging that the army seek a plan that would accommodate local issues, but it stopped short of refusing state consent, and in any case it didn't pass the senate before the 2006 session ended.
11.13.2007 11:19am
Per Son:
This use of eminent domain must be a tough issue for conservatives. I do not mean to convey any snark, but eminent domain is a big issue (the right of big bro to take), but in this case it runs smack dab into having a strong military. It is where two major issues for conservatives clash. No to takings, yes to big strong military.
11.13.2007 11:19am
J. F. Thomas (mail):
Being in the armed services isn't the most dangerous job in the country. According to this data there were 822 fatalities in Iraq in 2006 and this table shows 98 US military fatalities in Afghanistan for 2006. The total for the two is 920. With 1.4 million people in the armed services, that's 66 fatalities per hundred thousand. Which, according to this puts them in fourth place, just barely ahead of iron workers.

Well, of course working for a steel or construction company is entirely different than being an iron worker. Being stationed in Afghanistan or Iraq (even in a non-combat role), rather than just being a member of the military, raises your chances of being seriously injured or killed considerably.


all-volunteer military is being forced

This is not a contradiction. Even though nobody is forced to join the military, once you are in you can not quit simply because you find a better job, don't like your boss or your new assignment. You are in for whatever commitment you have made (a minimum of four years). And if they decide they need you longer (or your commitment happens to expire halfway or even one day into a deployment to Iraq), they can extend your service involuntarily through a stop-loss. Even if the military promises you all kinds of fancy training, they can break that promise if they determine "military necessity" requires your skills (or body) elsewhere.
11.13.2007 11:29am
J. F. Thomas (mail):
all-volunteer military is being forced

In any other job you care to name, refusing to do what your boss tells you or not showing up for work can, at worst, get you fired. Refusing to do what your boss tells you or not showing up for work in the military can lead to serious criminal penalties, up to and including, in the most extreme cases, the death penalty.
11.13.2007 12:09pm
r78:
Don't those landowners know that we are at war?
11.13.2007 12:17pm
wfjag:
Who gets the water rights? As I recall, in the western Mountain states, frequently the water rights are more valuable than the land. This is an aspect of determining FMV there that differs greatly from determining FMV in other parts of the country.

G'Kar wrote:


We used Piñon Canyon for maybe a few months out of the year while I was there. It's a good training area, but using it requires units to ship all of their equipment via rail, line haul, and convoy (a 3-4 hour drive).


Those may be excellent reasons for expanding the training area. The experience at the NTC and JRTC is that units usually are up to combat tasks, but fail when their logistics and engineering assets fail to provide adequate support. See, e.g., "Dragons at War: Land Battle in the Desert" by Daniel P. Bolger, who wrote about one of the early NTC rotations. Loggies may be REMFs, but, if they don't know how (and Commanders don't ensure they know how) to get spare parts, fuel, ammo, food and water to the combat troops, a M1 Abrams is only a very hot, steel and ceramic coffin, an Apache is only a very large paper-weight, and a M16 is only a third rate plastic club. There is no better way to learn how to do your MOS than having to do it, and not merely having to paper-whip an inspection.
11.13.2007 12:31pm
Zathras (mail):
What's good for the goose is good for the gander. for years tort reform advocates have been pushing for caps on or elimination of non-economic damages in products cases, med mal, etc. If a tort plaintiff cannot receive these damages, I don't see why a property owner should be entitled to "subjective value" damages.
11.13.2007 12:57pm
Alaska Jack (mail):
As an ignorant layman, I'd like one of you experts (not being sarcastic here) to address what is to me the interesting issue: Brett Belmore pointed out, above, that the plain language of the constitution requires the consent of the state legislature for something like this.

Or is that a dead issue for some reason? As a resident of a state owned 6/10s by the federal government, I cannot help but notice that the courts have defined "forts, magazines, arsenals, dockyards, and other needful buildings" somewhat, er, expansively.

- Alaska Jack
11.13.2007 1:34pm
J. F. Thomas (mail):
As an ignorant layman, I'd like one of you experts (not being sarcastic here) to address what is to me the interesting issue: Brett Belmore pointed out, above, that the plain language of the constitution requires the consent of the state legislature for something like this.

Without the Fifth Amendment it may have, but now it doesn't. I guess it still is up in the air whether once the federal government purchases the land whether it needs the state's consent to exercise full sovereignty over the land. Generally on military bases the federal government has full sovereignty--the land is owned and operated by the federal government and patrolled by federal or military police (if you get a ticket you see a federal magistrate, not a local judge) and state and local taxes are not collected--which is why gas is so cheap on military bases.
11.13.2007 1:43pm
J. F. Thomas (mail):
As a resident of a state owned 6/10s by the federal government, I cannot help but notice that the courts have defined "forts, magazines, arsenals, dockyards, and other needful buildings" somewhat, er, expansively.

Even though the federal government owns lots of land and buildings in lots of states (in fact in all of them), there is nothing in the constitution that prevents them from doing that. What the constitution prevents it from doing is exercising complete sovereignty over those lands without the consent of the state. Local police still have arrest and law enforcement powers in national forests, national parks and other federal lands, they generally do not on military bases. State and local sales tax is collected at the gift shops and hotels in national parks and forests, not so on most military bases. That is the difference.
11.13.2007 1:53pm
Adam J:
I thought the whole idea of the takings clause was to prevent the individual from holding out on the government when the government values the land far more then the individual.

If that's the case then subjective value should be considered because insures that the taking is economically efficient. If no subjective value is given, the government could take the land even when it values the land less than the ranchers. Obviously the rancher values the land more then fair market, and the government won't take the land if it values it more then fair market, but who's to say the government values the land more than the rancher. For instance, suppose the government values one parcel of land at 1100 dollars, the rancher values is at 1200, and the fair market value is 1000. The government will have a clear incentive to take the land (it nets 100), even though they value the land less then the rancher. However the net result is an economically inefficient taking that only gives the government 100 and costs a person 200.
I think the only really legitimate value against giving subjective value is it's inherently very difficult to measure. You can't exactly just ask the ranchers how much they value the land, they'd overestimate and hope to make a profit.
11.13.2007 1:59pm
Elkanah:
In cases like this, I am inclined to think that fair market value is completely off the mark.

Bruce: the problem with your analogy of the black family is that we are only talking about their residence. Even if the residence is also a place of business (such as a home based e-business), it is hard to believe that there is no other home in the area that they could obtain for that fair market price that could equally accommodate them. That is not the case here.

In this case, we have a livelihood that depends on the land. The only estimates for a single rancher's land in the article is 9000 acres, "more than two thirds" of which could be taken. By taking only ~7000 acres, you are eliminating this person's ability to support their family but then not providing the means for them to recover. For them to continue their way of life, they must purchase another ~7000 acres adjacent to their remaining property or another 9000 uninterrupted acres elsewhere. If there were ~7000 acres right there, the military probably would have purchased that instead of harassing the rancher. So there isn't which means that purchasing new land is now a necessity. Now they have to sell their remaining ~2000 acres which will probably be undervalued and not appealing (i.e.: not readily sellable) because it isn't suited for ranching, which is why they were there in the first place and now part of an even busier (we should hope) military training facility.

So now the rancher has the money for ~7000 acres and is stuck with possibly unsellable ~2000 acres and now cannot procure property equal to what was taken (which, as I understand it, is the premise behind providing fair market compensation).

In my opinion, eminent domain needs to be reformed so as to provide "replacement cost" and not "actual value" or purchase the rancher another 9000 acres equitable in rights and features and pay to move the rancher and his stock to that land before taking his land. That might begin to approach anything "fair" in my views.
11.13.2007 2:02pm
J. F. Thomas (mail):
If that's the case then subjective value should be considered because insures that the taking is economically efficient.

The "subjective value" Ilya is referring to is not some economic value. He is not talking about a subjective value imparted by the disruption caused by the disruption to the landowner's livelyhood and difficulty in procuring suitable replacement property that is roughly equivalent to the property taken. That argument would be a reasonable and colorable, although I still think not valid one, to make (i.e., that the landowners should get more than the value of the land and improvements to compensate for the hardship suffered).

No, Ilya goes further and argues that the government should compensate people affected for their sentimental losses. Would he have FEMA pay flood victims in New Orleans for the sentimental value of their lost photographs? It is just shocking that someone who believes that the market drives everything things that such a foolish emotion as sentiment should ever contaminate the market for goods and services, even when the government is involved.
11.13.2007 2:33pm
Gideon Kanner (mail):
There is a lot of misinformation being peddled here. First, there is nothing wrong with condemning land and conveying title to it to private individuals or corporations. IS IS THE USE, NOT THE USER THAT HAS TO BE PUBLIC.

The problem with eminent domain is NOT nonpayment of subjective values, however real a problem that may be, but rather the noncompensability of a variety of demonstrable economic, objectively deerminable, and often conceded losses that are inflicted on condemnees without compensation. Prime examples: business losses and impairment of access in part-taking cases. In federal law and in most states a valuable business can be entirely destroyed by a taking with no compensation being required. The Uniform Relocation Assistance Act allows a maximum of $20,000 as business compensation, and these days for that you may not be able to buy a successful lunch wagon, much less a real business.

The other problem of equal or greater magnitude is that the courts explicitly define fair market value (FMV) restrictively so as to exclude factors that would be considered in private sales transactions. Beyond that, how do you determine FMV? There is no such thing as evidence of value -- there is only evidence (testimony) of a qualified witness's OPINION OF VALUE, and these opinions are arrived at through a subjective process of appraising. This isn't rocket science! Some appraisers are generous in resolving market ambiguities and others are conservative. Guess which ones are usually hired by the government. Expert opinions, like all others, are what makes horse races and lawsuits. And I am assuming here that the appraisal is in good faith. Even so, appraisals for rights of way and large, multi-poarcel redevelopment projects are mass-produced by busy people striving to be low bidders (to garner futuire business), and working with the knowledge that the vast majority of property owners will accept the offers in spite of their deficiencies, and that their appraisals won't be closely scrutinized, unless the matter goes to trial. Few do, and when it happens new appraisals re prepared by condemnors. In real life government appraisals often fall short of FMV which is why condemnation lawyers charge on a contingent fee basis calculated ON THE OVERAGE, not on the entire award as is done in tort cases. Studies done over a period of decades show that the government tends to lowball its offers and often offers less than its own appraisals indicate.

Finally, to obtain the FMV (which the courts CONCEDEDLY define restrictively in order to keep condemnation awards down -- as the California Suprme Court expressly conceded) the condemnees have to hire lawyers and appraisers, as well as engineers, planners etc. whose testimony may be indispensable. Such litigation expenses are not recoverable in federal law nor in most state jurisdictions. After paying all these people out of the FMV award (remember there are no general emotional damages in eminent domain and no collateral source rule -- this ain't tort law, folks) the condemnee winds up with "just" compensation that is inherently incapable of allowing him to buy replacement property of the kind that was taken from him, and restore him to his economic status quo ante.

Welcome to my world.
11.13.2007 3:06pm
C Thomas:
I disagree with Brett Belmore's constitutional reading.

Brett Belmore's quote omitted significant language. The full text is:

The Congress shall have the power [t]o exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;

This provision addresses only the scope of Congressional legislative authority over land acquired by eminent domain. Importantly, it does not address the scope of Congress's eminent domain powers, either by definition, implication or limitation. Regardless, I suspect that the government's Article I argument in support of its takings power in this instance would involve a combination of "provid[ing] for the common Defence," the Necessary and Proper Clause, and principles of delegation. To impose limits over the ambiguous language and expansive catchalls in A1S8, there needs to be a precise limitation, which does not appear to exist in my version of the Constitution.
11.13.2007 3:13pm
Russ (mail):
Ilya, the difficulty of going after land in "other western states" is one of time. Training area land is more than saying "There's some empty land. Now go play Army on it." There are facilities that must be built, ranges that must be monitored, and many other considerations.

Will you move the entire base from Ft. Carson to the "other" land? If so, then look to construct housing and support facilities as well(hospitals, commissaries, PXs, etc) that are all associated with opening up a new base.

If not, then look to the rail lines and moving costs that occur EVERY time you go there for training, which makes the expense anything but fixed.

Then, the Army will, inevitably, deal with the environmental lawsuits that will arise when someone says it threatens the habitat of some bug. You're looking at 10-15 years before a new training area could be up to standard. That's great for the soldiers who are in 10-15 years from now, but does little to train those who are about to deploy now.
11.13.2007 3:19pm
Kenneth C. Brooks (mail):
I always thought that the military could not rely upon the 5th Amendment to use private land during peacetime, because the 3rd amendment. Specifically, the combination fo the Takings Clause of the 5th Amendment and the prohibition recited in the 3rd amendment together stand for the proposition that the use of private land by the military is only for the public good in time of war.
11.13.2007 3:27pm
Elliot123 (mail):
1. Fair market value demands a market. A market exists to facilitate trade. If there is no trade, there is no market. If there are no sellers but only bidders, there is no market. Is there actually a market for this property?

2. If I was an owner, I would offer to lease the land to the Army for the next 100 years, with the price a function of some variable index.
11.13.2007 3:38pm
Adam J:
J. F. Thomas - I think you are confused- "subjective" value indeed is part of an item's economic value. I don't know why you would think otherwise. Subjective value merely is an economic value that only one individual holds for the item- hence why it is "subjective". Also- "subjective value imparted by the disruption caused by the disruption to the landowner's livelyhood"- I believe these would be considered transaction costs in economic terms, they are certainly not part of the lands subjective value.

"Subjective" value are one of the main reasons we have a free market, so that you are free to sell at whatever price you want to- no matter how subjective that price might me.

I'm also a little confused by what you think is overcompensation. I don't think any economist would agree with your argument that attempting to compensate for subjective value is overcompensation- heck even making a profit isn't typically considered overcompensation. The whole idea of the free market is to insure a sellers are compensated for subjective value- I don't understand how you can suddenly argue this is overcompensation. The only justification I know of for not compensating for subjective value in a coerced transaction like a taking or a lawsuit/insurance recovery is that subjective value isn't measurable.
11.13.2007 3:38pm
J. F. Thomas (mail):
The whole idea of the free market is to insure a sellers are compensated for subjective value- I don't understand how you can suddenly argue this is overcompensation. The only justification I know of for not compensating for subjective value in a coerced transaction like a taking or a lawsuit/insurance recovery is that subjective value isn't measurable.

Well this might be a wonderful theory and nice in an economics textbooks but people are required by circumstances to sell things that are of high "subjective value" (if by that you are including sentimental value) to them every day. If you don't believe me, hang out in a pawn shop for a day or two. Hell, even I overcame my sentimental attachment to my Chevy Chevette and was forced to sell it for considerably less than the $1 million asking price (in fact I discovered the stories of my sexual exploits in it actually made it less attractive to potential purchasers). Additionally, every day, people are forced to sell homes that they have emotional attachments to, that they grew up in, that their parents may even have lived their whole lives and died in, for much less than the "subjective value" just because some stupid appraiser and real estate agent, not to mention those callous buyers, just doesn't appreciate the value of all the precious memories in the home. Yet that is the kind of subjective value Ilya is urging compensation for.
11.13.2007 4:12pm
Elliot123 (mail):
JF Thomas,

Ilya said nothing about emotional attachment. Here's what he said:

"Many of the owners' families have lived on the land for generations, and would lose most of their livelihood if forced to move."
11.13.2007 4:24pm
J. F. Thomas (mail):
Elliot,

If not an appeal to some emotional attachment to the land, why the reference to multigenerational ownership? Rangeland is fairly fungible and if a provided a FMV could be arrived at that included the value of the improvements, the herds could be moved to the new ranch and there is no reason their livelyhoods need be destroyed.
11.13.2007 4:45pm
Adam J:
J. F. Thomas- I don't really understand what point you're trying to make. That you don't think much of subjective value isn't a very good argument- we have a free market for a reason, and it works pretty well. Value is relative to every person. The whole reason we have the free market is to see that property is owned by the people who value it most- which necessarily also requires insuring that owner doesn't have to part with his property for less then he or she values it.

Obviously, in a consensual transaction the seller feels adequately compensated for his subjective value, otherwise he wouldn't sell. A seller is free to ignore your "stupid appraiser" or "callous buyer". In a free market, a seller only sells when he'll recieve an amount greater than what he values the property- and a buyer only buys when he will pay less then what he values the property. Also, selling a home because of one's financial troubles is not "being forced." You can't compare a consensual transaction to a taking (even if you add the words "forced to sell"). The value of an individual's home obviously lowers for that individual when they can't also afford necessities like food, hence they sell. Being forced to sell property because of a taking is an entirely different animal, one where an owner is getting an amount back that is obviously less then what he values the property, and the "buyer" does not necessarily value that property more (he only values it more than the "fair market value").
I should think you would want takings to be conducted in a fashion that best replicates free market conditions- so that property lands in the hands of owners who value it the most, which obviously includes "subjective value." But then maybe you're a socialist (your apparent distaste for strong property protections would seem to indicate so) and disagree that a free market is the best system.
11.13.2007 5:18pm
Public_Defender (mail):
Happyshooter writes:


As for judging whether the .mil really needs the land, I know how you can find out. Go ask a military professional officer who has devoted his life to the .mil, and ask him. Better yet, ask several. Sort of what the military did in deciding to take the land.

It is a source of some confusion for me when lawyers and worse judges and try to substitute their judgment for what the military needs.


It's called civilian control of the military. The military serves the country and its laws, not the other way around. Civilians should not lightly disregard the advice of military professionals, but in the end, the Constitution reserves big decisions for people who don't wear uniforms.

As to lawyers, the rule of law, and the military, I'm proud that the American military is subject to the rule of law. And one critical way we enforce the rule of law is by going to court. I guess Happyshooter might look at Pakistan with admiration. That General Musharraf really knows how to put lawyers in their place, doesn't he?

* * *

As to the original topic, if the federal government decides that putting this training ground on this spot makes sense, it seems like a textbook example of the correct use of the takings clause.
11.13.2007 6:19pm
Alaska Jack (mail):
Wow.

The Constitution says:

The Congress shall have the power [t]o exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;

To me, the framers of the Constitution were saying:

The role of the federal government, properly understood, is not to own and/or manage property. Therefore, the federal government is prohibited from owning property, except for two exceptions: (1) The U.S. Capital, and (2) property which is absolutely necessary for the federal government to function -- and even then, it must be purchased; and even then, only with the free consent of the state in which the property exists.

C Thomas seems to read this as saying:

If Congress purchases an area with the consent of the legislature in that state, and intends to use it for needful buildings, then only Congress shall exercise authority in that area. In areas which it simply seizes -- or for which Congress plans a different use than "needful buildings" -- Congress can, presumably, share or delegate authority.


Again, I'm not a professor, a lawyer or even a law-talkin' guy. But I have been a professional editor, and am pretty attuned to words and their meanings. Allow me to suggest that C Thomas's assertion (If I understand it correctly, which I can hardly believe I do) represents a remarkably strained interpretation of the passage in question.

I, for one, would love to read a historical analysis of the founders' attitudes toward federal land ownership. Jonathan, are you listening?

- Alaska Jack
11.13.2007 8:03pm
Alaska Jack (mail):
Apologies for the screwed-up italics in the above post. I hit "post comment" when I meant to hit "preview." Shows how smart I am.

- AJ
11.13.2007 8:06pm
godelmetric (mail):
Hmm. As Ilya says, this is a clear example of a Constitutional taking, but I think that "subjective value" is clearly not the right measure here, nor is "fair market value."

The key here, I think, is suggested by Ilya's post and G'Kar's comment -- this land is not interchangeable with other land elsewhere, because it's attached to a military site that is desirable for a certain type of exercise and whose utility is impaired by poor access.

That being the case though, that means that the land is in fact worth more to the government than "fair market value," and perhaps even more than the "subjective value" it's worth to the landowners, because it has a positive effect on the value of the land the government already owns, but only for the government.

A fascinating case, as it seems to me that the fair interpretation of "just compensation" in this case should clearly be based on the unique value of this land to the military, and that should redound to the benefit of the current owners -- otherwise the government is merely using their power of eminent domain to leverage the value of their current property in a way that others can't.
11.13.2007 8:34pm
Adam J:
Alaska Jack- that's a provision set up creating a federal capital (aka Washington D.C) subject to exclusive federal jurisdiction (so the state cannot exercise concurrent jurisdiction). It also lets the federal government get exclusive jurisdiction of "needful" buildings with the states consent. C Thomas is indeed mistaken- that provision isn't at all relevant to takings, it relates to jurisdiction (who gets to make the law). The takings clause has to do with mere ownership of property, not who gets to write the law that applies to that property.
11.13.2007 8:46pm
godelmetric (mail):
Actually, my argument probably makes more sense phrased as an exam hypo:

The government has a parcel of land in Colorado that is very suitable -- perhaps essential -- for training exercises. To purchase equivalent land elsewhere would run in the millions, if not billions of dollars.

However, this land is useful because it is similar to the terrain in Afghanistan -- that is, inaccessible, infertile, and good for nothing besides military use. As such, its "fair market value" is practically zilch.

There is only one suitable access route to the land, which runs directly through a ranch owned by a private landowner. The "fair market value" for this land is a couple of hundred thousand dollars.

The government would like to condemn this land under its eminent domain power. Assume that the courts have already found this to be a legitimate public use and the only question is the amount that the government should pay the landowner.

1. What amount should the government pay if the "subjective value" of the land to the landowner is twice its "fair market value"?
2. What happens if the landowner is emotionally attached to this land and would not sell it at any price?
3. Is it significant that the government's land is worth nothing without the access route, yet is extremely valuable with the access route?
4. Is it significant that the land has potential value only to the government, since it is only useful for military training?
5. Would the result differ if the land was exploitable -- e.g., it contains a silver deposit -- but only to the current owner and only if there is an access route?
11.13.2007 8:52pm
godelmetric (mail):
Here's an even better one:

The City Hall in Galt's Gulch desperately needs to expand its office space. There are three parcels of land on each side of the City's property that would be equally suitable.

Parcel One is owned by a cantankerous former railroad owner whose brilliant advances in metallurgy were appropriated by the government some years ago. He harbors a deep grudge as a result, and refuses to sell his land at anyone at any price, though the "fair market value" of the land has been independently (and assume fairly) assessed at $100,000.

Parcel Two is owned by a South American playboy with an inflated ego, who believes that his somewhat tasteless decoration of the land (mainly consisting of a somewhat garish statute of Atlas) makes it uniquely valuable. Although its "fair market value" has been assessed at $200,000, he has placed it on the market at $400,000 and refuses to negotiate.

Parcel Three is owned by a developer in New York who has never actually seen the land, but has had it independently assessed as worth $300,000 and has placed it on the market at that price.

Stipulating that the state Supreme Court will affirm the city's pressing need to expand (although the City does not need more than one parcel), which parcel can/should the city take and at what price?

Does the result differ if the fair market values of Parcels One and Two are swapped -- i.e., the land which the owner refuses to sell is worth $200,000, and the land the owner still overvalues at $400,000 is actually worth $100,000?
11.13.2007 9:10pm
godelmetric (mail):
Ooh, I'll add two other wrinkles:
1. City Hall is located downtown and space is at a premium -- therefore, the addition of the new parcel of land to the current land owned by the City would increase the total value of the entire plot by $150,000, since the larger, contiguous plot is now much more useful.
2. The cost to the City of using substitute land or splitting the office space up into two locations, etc., is estimated to cost $1M at a minimum.
11.13.2007 9:21pm
Joe Bingham (mail):
Well this might be a wonderful theory and nice in an economics textbooks but people are required by circumstances to sell things that are of high "subjective value" (if by that you are including sentimental value) to them every day. If you don't believe me, hang out in a pawn shop for a day or two. Hell, even I overcame my sentimental attachment to my Chevy Chevette and was forced to sell it for considerably less than the $1 million asking price (in fact I discovered the stories of my sexual exploits in it actually made it less attractive to potential purchasers). Additionally, every day, people are forced to sell homes that they have emotional attachments to, that they grew up in, that their parents may even have lived their whole lives and died in, for much less than the "subjective value" just because some stupid appraiser and real estate agent, not to mention those callous buyers, just doesn't appreciate the value of all the precious memories in the home. Yet that is the kind of subjective value Ilya is urging compensation for.

Surprisingly, Mr. Thomas is very confused. If they're selling the homes, they're obviously selling it because they subjectively value their object in selling it more, whether that's to avoid bankruptcy, to move and take another job, or to buy a new car. That's as a general rule. Perhaps you literally sold your "chevette" to accomplish something you valued less... that's called irrationality, and it's not what people who value "economics textbooks" like to think is the universal norm.
11.13.2007 11:23pm
Happyshooter:
It's called civilian control of the military. The military serves the country and its laws, not the other way around. Civilians should not lightly disregard the advice of military professionals, but in the end, the Constitution reserves big decisions for people who don't wear uniforms.

The military serves the laws, so as a lawyer you get to decide how to best defend America? Yep, you were the lawyer I was posting about (you and some others)

Scene: The trendy coffee shop near the courthouse.

[Random Enviro Girl] "ZOMG! The Army is going to put new armor thingies in Hawaii! I was there a few years ago and some bird may get too close to the exhaust"

[PD] "Quick, let me use the net! The new deployment is based on Asian deployment projections....but some left wing think tank says that training in the desert will only make our troops 33% less trained for Asia, and will only add a week to deployment times."

[REG] "What shall we do?"

[PD] " I will sue to enjoin, and file 10 federal suits and dismiss all but the most liberal anti-mil judge."

[REG] "Great, I will start a fundraiser to pay for your time."

Scene: Court

[PD] "So judge, the military doesn't need this baseing very much, and not only I say it, but also a left wing think tank and the American Bird Watchers Society."

[Military Lawyer or DOJ] "Judge, this is the best place for this unit based on the military's best projections."

[Judge] "The military is a bunch of baby killers who I was scared would draft me. I am going to enjoin the deployment because you don't need it, and direct you stop using ugly armored tanks anywhere because they are warlike."

[PD] "Good thing the lawyers rule the military because we are smarter, stupid officers trying to tell us what they need.....hey, is that another 9/11 on TV? Why didn't the evil stupid military stop that attack? They must hate America and the democratic party!"

[REG] "ZOMG! The military is letting the environment be harmed by not stopping the enemy!"

[PD] "I am going to sue again and order them to save us!"

As to lawyers, the rule of law, and the military, I'm proud that the American military is subject to the rule of law. And one critical way we enforce the rule of law is by going to court. I guess Happyshooter might look at Pakistan with admiration. That General Musharraf really knows how to put lawyers in their place, doesn't he?

Weak, see above for good sarcasm. However, please note that I would much rather have a strongman ruling by force and a lukewarm ally against islam terror— then the corrupt women back in office and a harbor for islamic terror like it was before.
11.14.2007 9:24am
J. F. Thomas (mail):
Surprisingly, Mr. Thomas is very confused.

I am not confused at all. Someone made the ridiculous assertion above that the free market is driven by "subjective value". I always thought it was supply and demand.

I understand that some items do have a subjective value due to their rarity or uniqueness (e.g. artwork, historical items, collectible stamps and coins). Real property also has a subjective value because you simply can't move it from one place to another (location, location, location). A business may also have a subjective value based on the goodwill and reputation it has acquired. But the vast majority of items in ordinary commerce have no subjective value at all, they are fungible (or practically fungible) and are priced based on supply and demand and the cost of manufacture.

But what Ilya seems to be advocating is that these ranch owners deserve to be compensated because of their emotional attachment to the land. This type of "subjective value" is not compensated for in the ordinary market place. It doesn't matter how much my wedding band means to me or how much value I place on it, if I am short on cash and need to pawn it the pawnbroker is going to throw it on a scale and give me a loan based on the net weight of gold. Likewise, if I am transferred and have to sell my house, the sale price will be based on the condition of the house and comparable properties in the neighborhood. I will get absolutely nothing extra for all the happy memories I have for the house. Nor will I be penalized if my wife is a total bitch and I am selling the house because we are getting a divorce and I hate the damn place.

It is true that often we choose not to sell things we have an emotional attachment to (I have a grandfather clock that I would only sell if I was starving). But that doesn't mean that my clock, or Chevette, is actually invaluable. It has a real value in the marketplace.
11.14.2007 9:35am
J. F. Thomas (mail):
Weak, see above for good sarcasm. However, please note that I would much rather have a strongman ruling by force and a lukewarm ally against islam terror— then the corrupt women back in office and a harbor for islamic terror like it was before.

This sounds so much better in the original German.
11.14.2007 9:41am
godelmetric (mail):
If I can restate my point more simply and in terms of what J Thomas just said -- the issue here is that the government is capturing land that is uniquely valuable to the government and only to the government (note that this land is useful because it's similar to Afghanistan -- gives you some idea of its value), so allowing them to purchase it at either FMV or "subjective value" is essentially bestowing a windfall on the government by virtue of their eminent domain powers.

This is a relatively unique case where there should be a premium (over FMV) given to the landowners, based not on the "subjective value" to them, but based on the benefit that will accrue to the government by being able to use what they've identified as a "uniquely" useful site.

In other words, this is a way of removing the land's value to the gov't from the FMV calculation simply because they're the government -- but it's not being bought as ranchland, so it shouldn't be valued as ranchland just because the government can use eminent domain on it.
11.14.2007 9:45am
Happyshooter:
This sounds so much better in the original German.

I am American. My homeland first. Once we and our interests are secured we can worry about free will and fairness for others. Until then we come first, last, and always.

Here is an idea, though. All of the nations like that could choose something besides total corruption or absolute strongman.
11.14.2007 10:11am
Joe Bingham (mail):
I am not confused at all. Someone made the ridiculous assertion above that the free market is driven by "subjective value". I always thought it was supply and demand.

That's where you're confused. Supply and demand are driven by subjective value.

But the vast majority of items in ordinary commerce have no subjective value at all, they are fungible (or practically fungible) and are priced based on supply and demand and the cost of manufacture.

The problem here is simply that you don't know what "subjective" means. It does not mean "emotional," although emotions can play a part in subjective value.

But what Ilya seems to be advocating is that these ranch owners deserve to be compensated because of their emotional attachment to the land. This type of "subjective value" is not compensated for in the ordinary market place.

Thank you. He stated this in his original post. Please reread the post and try to follow his argument. He's offering reasons why the case of forcible takings may require different compensation from voluntary transactions.

It is true that often we choose not to sell things we have an emotional attachment to (I have a grandfather clock that I would only sell if I was starving). But that doesn't mean that my clock, or Chevette, is actually invaluable. It has a real value in the marketplace.

You keep accidentally making Illya's point. You don't sell the clock because the subjective value you place on it is higher than the value other people place on it. If the state took it from you because they wanted it only enough to take it at the market price, it would be an inefficient transaction because you're losing more than the state gains. One way to prevent these inefficient transactions is to require them to compensate you at an enhanced rate, since the fact that you still own it implies that the subjective value you place on it is higher than the market price.
11.14.2007 10:22am
Adam J:
J.F. Thomas- there's nothing ridiculous about that statement, subjective value is what determines whether a person buys something or not. When I walk into a McDonalds, and see nothing I like because I hate Mcdonalds, it means I have a low subjective value of McDonalds food. It also means I'm not going to buy McDonalds food because they sell at a price above my subjective value. However, my friend who likes McDonalds food has a much higher subjective value of the food, so he will buy McDonalds food because its sold below its subjective value. I value a big mac less then McDonalds, so ownership stays with McDonalds, my friend values a big mac more than McDonalds (alot more, since sellers typically sell at a price well above the seller's own subjective value in order to make a profit), so ownership is sold to my friend. All property's value is subjective.

Also, your statements show your confusion- "Nor will I be penalized if my wife is a total bitch and I am selling the house because we are getting a divorce and I hate the damn place." Of course, if you have a low subjective value of your home, you would likely have found someone to sell it to. Takings don't happen to people who value property below the "fair market value"- they would sell it voluntarily then slick. Likewise, if you had really valued your car at a million dollars you would have never sold it. People don't sell things for less then they value it- unless they are irrational... maybe you are though, that would explain alot.
I don't understand how you can discount subjective value. The whole reason the Government supposedly wants the land is because it had tremendous subjective value to them.

"Fair market value" is an artifice created by accountants and lawyers, and has little to do with the real value of property- the real value of property is simply how much the owner values it. You might not think much of subjective value because it's hard to quantify, and of course sellers exagerate how much they value the property they're selling, in order to turn a profit, that doesn't change the fact that value is inherently subjective.
11.14.2007 10:40am
Adam J:
Joe- thanks for making my point much more clearly then I did.
11.14.2007 10:42am
Gideon Kanner (mail):
Very amusing and insightful scenario, Happyshooter.
Alas, here is another dispatch from the real world. Necessity is not a part of the federal law of eminent domain and hasn't been since at least 1912. Necessity is determined solely by the condemning authority before the case is filed. Therefore necessity (including economic feasibility) for the taking is not justiciable in federal condemnation cases, and the inquiry whether the government needs this land or whether there are other tracts equally or more suitable for its stated purpose is irrelevant.

However, you make a valid point. In spite of the above rule, if you file a lawsuit and label it an environmental one, you won't have trouble finding federal judges ready to fall all over themselves in an effort to adjudicate matters that in eminent domain cases they say they are not competent to adjudicate, and to second-guess the government determination. Ain't law just swell?
11.14.2007 10:59am
J. F. Thomas (mail):
However, my friend who likes McDonalds food has a much higher subjective value of the food, so he will buy McDonalds food because its sold below its subjective value.

Well, no you are being obtuse. Food at McDonalds has an objective value determined by the marketplace. Not everyone likes McDonalds, but the free market determines what a Big Mac is worth by supply and demand. That is the objective value. If McDonalds charges too much for it, even your friend won't buy it, too little and they won't make a price. No matter what the price, you're not going to eat there, but that doesn't mean that a McDonalds hamburger is worthless, because there are millions of people who are willing to pay good money (but not too much) for it.

The purpose of eminent domain is to prevent selfish landowners from holding the government hostage and preventing projects that benefit society as a whole. In this particular case this land is unique and very valuable to the government (it has a high objective value). It is contiguous with an existing training area, similar to land we are currently fighting a war on, close to a major Fort (Fort Carson). Relative to that the objective value of the land to the ranchers is rather low. If they decided they didn't want to ranch anymore and wanted to sell the land (so they could retire to Vail and ski) to another rancher for raising cattle, one could probably determine with fairly good certainty what the land is worth. The fact that their family had lived on the land for 100 years would not result in a premium. Rangeland and improvements out west are not in short supply (water rights are often the controlling factor rather than the land itself). It is perfectly reasonable for the government to compensate the ranchers at a price they could expect to get if they were selling to a private party and no more. It is called being part of the society.

If you think the government should pay a premium in compensation because the person is being forced to sell that is fine, but don't pretend it makes any economic sense or that it is a normal part of the functioning of the market, it isn't.

Takings don't happen to people who value property below the "fair market value"- they would sell it voluntarily then slick.

Of course they do. If the government wants to put a highway through your neighborhood and buys you out, even if you are glad to get out of there, it is still a takings. Sheesh. Takings aren't always involuntary, they just describe the process of condemning public property for public use.
11.14.2007 12:11pm
J. F. Thomas (mail):
McDonalds won't make a profit.
11.14.2007 12:12pm
J. F. Thomas (mail):
Of course, if you have a low subjective value of your home, you would likely have found someone to sell it to.

Well no, my point is whatever subjective value (how good or bad my memories in the house were) I place on my home, I am going to price it based on the market (comparables in the neighborhood, etc.) and unless I extraordinarily bitter or completely unable to put my love of the house aside I am going approach the sale of the house rationally and consider offers based on objective factors only. I might shed a tear or two at closing or slam the door one last time, but I will try not to let my emotions (the subjective value I place in the house) determine the sale price.
11.14.2007 12:20pm
Adam J:
J.F. Thomas- Maybe it only seems obtuse because you're confused.

What do you think creates demand in "supply and demand"? Demand is created by when a person's subjective valuation of property is above the properties market price. I'll use another Mcdonalds example, despite the fact that you might find it "obtuse".

Suppose Mcdonalds sells big macs for 3.99. My belief that big macs are less valuable then 3.99 leads to me not purchase a big mac, which lowers demand. My friends belief that big macs are more valuable then 3.99 leads to him purchase the big mac, which raises demand.

Also, takings under emininent domain are always involuntary - I don't know how you could conclude otherwise.
11.14.2007 1:32pm
Adam J:
"Well no, my point is whatever subjective value (how good or bad my memories in the house were) I place on my home, I am going to price it based on the market (comparables in the neighborhood, etc.)." Um... no you're not- what kind of logic is that? The price on the market is only a basis for comparison to your subjective valuation. If the price on the market is below your subjective valuation, if you were logical, you would not sell the home. If the price on the market is above your subjective valuation, if you were logical, you would sell the home.
11.14.2007 1:37pm
Adam J:
"Well no, my point is whatever subjective value (how good or bad my memories in the house were) I place on my home, I am going to price it based on the market (comparables in the neighborhood, etc.)." Um... no you're not- what kind of logic is that? The price on the market is only a basis for comparison to your subjective valuation. If the price on the market is below your subjective valuation, if you were logical, you would not sell the home. If the price on the market is above your subjective valuation, if you were logical, you would sell the home.
11.14.2007 1:37pm
Adam J:
oops, sorry for the double post
11.14.2007 1:38pm
Joe Bingham (mail):
Food at McDonalds has an objective value determined by the marketplace.

Vocab assignment #1 was "subjective." #2 is "price". Food at McDonalds has an objective price determined by the marketplace. In economics, value is always subjective and price is always objective. Food at McDonalds does not have an objective value; it has an objective price determined by the subjective value it holds to various parties.

If you think the government should pay a premium in compensation because the person is being forced to sell that is fine, but don't pretend it makes any economic sense or that it is a normal part of the functioning of the market, it isn't.

No one's pretending it's part of the normal functioning of the market... did you miss the entire discussion? The whole question is how to handle an exception that's immune to the market forces that normally promote efficiency.

In this particular case this land is unique and very valuable to the government (it has a high objective value). It is contiguous with an existing training area, similar to land we are currently fighting a war on, close to a major Fort (Fort Carson). Relative to that the objective value of the land to the ranchers is rather low.

You're throwing around the word "objective" like you mean something by it. The government values the land subjectively, for its own purposes, and assigns a price it would be willing to pay based on that subjective value. That price is different from the objective price that's the market value, and presumably different from the subjective value that's marginally lower than the price for which ranchers would be voluntarily willing to sell the land.
11.14.2007 2:28pm
Elliot123 (mail):
JF Thomas: "If not an appeal to some emotional attachment to the land, why the reference to multigenerational ownership? Rangeland is fairly fungible and if a provided a FMV could be arrived at that included the value of the improvements, the herds could be moved to the new ranch and there is no reason their livelyhoods need be destroyed."

The reference to multiple generations indicates that a business has been built up over many years. This is something that cannot be easily duplicated by simply moving down the road. An acre of land considered in isolation may be fungible, but not when considered in relation to water, roads, railroads, fences, out buildings, wells, etc.

This is where the FMV fails. The value of the land to a particular going concern can be considered to be a subjective evaluation. And the value to the current operator can be more than the value asisgned by someone who simply sees the land as a fungible good. There is far more to agri-business than emotion.
11.14.2007 3:04pm
C Thomas:
Adam J, I'm not sure that we disagree. The "DC Clause" relates only lawmaking jurisdiction and not to the scope of the federal government's taking power. I believe that other commenters relied on the DC Clause for substantive takings limits and this was what I objected to.

Alaska Jack believes this reading to be strained, for reasons that are not articulated. First, to read this clause in a manner that limits the federal takings power ignores the phrase "power [t]o exercise exclusive legislation," which is the sole subject of this clause. Second, it is reasonable to read this as only addressing the division of lawmaking authority over taken property. It says that the state must consent to foreit its sovereignty over property within its boundaries. A state's failure to consent means that sovereignty defaults to the model otherwise applicable under the constitution. This seems to be both a sensible arrangement and a plausible reading of the provision.

Aside from this, what is the basis for your assertion that "the role of the federal government, properly understood, is not to own and/or manage property"? I would contend that the Constitution agrees with you in principle, but that it also recognizes, via the necessary and proper clause, that government may very well need to own property to carry out its enumerated powers.
11.14.2007 3:06pm
Elliot123 (mail):
JF Thomas: "I am not confused at all. Someone made the ridiculous assertion above that the free market is driven by "subjective value". I always thought it was supply and demand."

Perhaps you can tell us what drives supply and demand? Is there a subjective element to an individul's tastes and preferences? Does that play a part in the individual's demand for particular goods?

How about the supplier? If an individual's tastes and preferences incline him to like the idea of operating a coffee shop, does that play a part in his decision to open a coffee shop and increase the supply of sit-down coffee?
11.14.2007 3:24pm
Adam J:
C Thomas, sorry I made the mistake of reading Alaska Jack's post without reading yours- I believe we substantially agree on the interpretation of that clause. Anyways- I don't think I made that assertion, however I see governmental property ownership as only being proper as a means to accomplish other goals (national defense, etc.), not as an end itself.
11.14.2007 3:39pm
Joe Bingham (mail):
Elliot123, you should remember that this (JFT) is the guy who argued, when Steven Landsburg was here, that implicit federal disaster insurance doesn't affect housing prices. (I kid you not. You can go back and read his posts.)

That suggests that this discussion is an exercise in futility. =)
11.14.2007 3:47pm
Alaska Jack (mail):
C Thomas -

I have been puzzling over this, and false-starting several posts for at least 20 minutes now. I am fully prepared to concede that, from the tone of your posts, you know more about this then I do.

So please look on this post as a plea for enlightenment. I sincerely want to understand this, but I need some things clarified.

* Particularly this:

It says that the state must consent to forfeit its sovereignty over property within its boundaries.

The statement "A state must consent" can be read one of two ways. Are you saying "A state is required to comply"? Or "The federal government needs the state's consent"?

* And this:

A state's failure to consent means that sovereignty defaults to the model otherwise applicable under the constitution.

Which is what? I'm just trying to get a clear idea of the process model you are describing here.

- Alaska Jack

PS I suspect ultimately we are going to disagree based on the degree to which we are fans of the Necessary and Proper Clause. I've always wondered why proponents -- Chief Justice Marshall, for example -- thought we needed a constitution at all. Why not just have a one-line constitution: "Congress shall have the power to make all laws necessary and proper for the effective functioning of the United States." Not being sarcastic here: Plenty of well-run countries have followed that model.
11.14.2007 5:01pm
Adam J:
Alaska Jack- The consent line means that the Fed needs the states consent.

"A state's failure to consent means that sovereignty defaults to the model otherwise applicable under the constitution."- What this means is that dual sovereignty applies, where both federal gov and state gov have lawmaking authority. If the state chooses to consent to giving the Federal exclusive jurisdiction, the state no longer has any lawmaking authority over that property.

That provision is called the "DC provision" because it was created mostly for the purpose of having a national capital over which no state had jurisdiction to create laws.
11.14.2007 5:26pm