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Eminent Domain Battle over Flight 93 Memorial Continues:

CNN has an interesting article describing the ongoing battle over the federal government's plan to use eminent domain to acquire some 500 acres of private property for the construction of a memorial at the site where Flight 93 crashed on September 11, 2001.

I previously wrote about this controversy here and here. As I explained in those posts, I think that these takings are clearly constitutional, even under the relatively narrow interpretation of the Public Use Clause of the Fifth Amendment that I favor. However, I am somewhat skeptical that the government really needs to use 2200 acres of land, including 500 taken by eminent domain, to build an appropriate memorial to the fallen.

J. Aldridge:
It would be constitutional if the Constitution gave the federal govt exclusive legislative powers within state jurisdiction. Only way for them to acquire the property is through purchase, and if that failed, the State would have to be the party to exercise eminent domain (if they desired).
6.1.2009 1:40pm
Ilya Somin:
It would be constitutional if the Constitution gave the federal govt exclusive legislative powers within state jurisdiction. Only way for them to acquire the property is through purchase, and if that failed, the State would have to be the party to exercise eminent domain (if they desired).

The feds don't "exclusive jurisdiction." They just need some ability to use eminent domain against private property. They have had such authority since the founding of the republic, and no serious scholar or jurist has - to my knowledge - denied its existence.
6.1.2009 1:45pm
DiverDan (mail):
2200 Acres for a Memorial for the crew and passengers of a single Airplane? Oh PLEASE, this has got to be gross overkill in just about EVERYONE's book. I realize I fall on the far end of the spectrum - I object to the use of valuable real estate for Cemetaries on the grounds that the dead shouldn't tie the hands of the living. But just who is that thinks that a 2200 Acre Memorial is going to do a significantly better job of reminding us of the sacrifices of this plane load of people than a simple tasteful Granite Monument on a quarter acre?

If Flight 93 needs and deserves 2200 Acres, then Abraham Lincoln really got shortchanged - I vote for condemning the entire state of New York (Manhattan and all) to rededicate the Lincoln Memorial. Plus, this gets us the added advantage of: (1) getting rid of Chuck Schumer; and (2) eliminating the need for any Hilary Clinton replacement. We can then think about what other States we can do without when we start rededicating appropriately large Memorials for George Washington, Thomas Jefferson, Teddy Roosevelt, FDR (OK, for him, I'd support just an old flooded outhouse in some inundated portion of the Tennessee Valley), Reagan, and so many other Americans of Note.
6.1.2009 1:48pm
Oren:
But I like Gillibrand!
6.1.2009 1:52pm
guy # 1 (mail) (www):
Whats that, about ten aceres per person?
6.1.2009 1:52pm
Splunge:
We need a memorial for the Constitution, and a still bigger one for common sense.
6.1.2009 1:58pm
prosa123 (mail) (www):
Realistically, this memorial is likely to attract very few visitors, especially as the years go on. A simple monument on a couple acres would be more than enough.
6.1.2009 2:06pm
Soronel Haetir (mail):

We need a memorial for the Constitution, and a still bigger one for common sense.


Don't expect the government to honor either of these any time soon. More like relics of a bygone age, tucked away in the dusty corner of a small town mueseum.
6.1.2009 2:07pm
rosetta's stones:
That plane was headed for Congress, so the passengers who fought back saved the destruction of that institution, and quite naturally the congresscritters are pleased they didn't get toasted, and are memorializing that fortunate circumstance.

And it needs to be a very, very big memorial, to properly symbolize the citizens' obvious gratitude that Congress was spared.
6.1.2009 2:11pm
aces:

Whats that, about ten aceres per person?


Actually, 55 acres per person, if you don't count the hijackers.
6.1.2009 2:21pm
http://volokh.com/?exclude=davidb :

They have had such authority since the founding of the republic, and no serious scholar or jurist has - to my knowledge - denied its existence.

J. Aldridge is not, generally speaking, swayed by such arguments.
6.1.2009 2:22pm
A Law Dawg:
As long as that 2200 acres consists of a very large parking lot, with a proportionally huge drive-in-theater at one end that shows United 93 on loop, I'm fine with it. That movie is a better testament to those passengers than any museum.

They should condemn and consecrate the actual impact area, erect a statue or two, put up a memorial wall with the names of the passengers, and be done with it.

Let's be honest. Nobody is going to care about this memorial in 40 years.
6.1.2009 2:22pm
J. Aldridge:
They have had such authority since the founding of the republic, and no serious scholar or jurist has - to my knowledge - denied its existence.

You make it sound as though it is a broad authority.

The question really is how does building a monument fully carry out the objects and purposes granted to Congress by the Constitution? Congress can claim no sovereign power to take property to build monuments within another independent sovereign power.
6.1.2009 2:23pm
Jam:
After reading many comment in the past with regards to eminent domain, I am still of the opinion that the Feds have no direct eminent domain power and that the FedGov can only purchase (force the sale of) land, when given permission by the State's government. Once land is forcibly purchased, and the forced sellers justly compensated, then the FedGov can build the necessary buildings to accomplish the Constitutionally limited purposes for which the FedGov can acquire the land.

But, what do I know? I am not a lawyer.

I guess the FedGov could completely take over using eminent domain, debt and currencty minting authorities. All in the name of the public "good."
6.1.2009 2:31pm
J. Aldridge:
P.S. It took an act of the legislature of Maryland to empower the United States to acquire land for Washington D.C. to use as an aqueduct. Congress could not just take the land!
6.1.2009 2:31pm
Bill Poser (mail) (www):
I agree with DiverDan. 2200 acres is insane, overkill by at least two orders of magnitude. With all due respect to the victims, this was a relatively minor incident that doesn't require a lot of space to honor the dead (you don't need a large memorial to record their names) or a lot of space for archives, a museum explaining it, etc. Nor is a huge amount of space needed for something that looks nice. On all counts (records, explanation, number of visitors, significance of events) Yad Vashem has a far greater need for space yet it occupies only a few acres. This memorial hardly needs over 100 times the space occupied by Yad Vashem.
6.1.2009 2:38pm
Fub:
DiverDan wrote at 6.1.2009 1:48pm:
But just who is that thinks that a 2200 Acre Memorial is going to do a significantly better job of reminding us of the sacrifices of this plane load of people than a simple tasteful Granite Monument on a quarter acre?
That's the kind of monument that marks an emergency landing by only one obscure (at the time of the landing) mail pilot.
If Flight 93 needs and deserves 2200 Acres, then Abraham Lincoln really got shortchanged - I vote for condemning the entire state of New York (Manhattan and all) to rededicate the Lincoln Memorial.
I like that idea!
6.1.2009 2:42pm
David M. Nieporent (www):
After reading many comment in the past with regards to eminent domain, I am still of the opinion that the Feds have no direct eminent domain power
The Takings clause would have seemed somewhat superfluous then, don't you think?
6.1.2009 2:53pm
J. Aldridge:

We think a proper examination of this subject will show that the United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory of which Alabama or any of the new States were formed, except for temporary purposes and to execute the trusts created by the acts of the Virginia and Georgia legislatures, and the deeds of cession executed by them to the United States, and the trust created by the treaty with the French Republic of the 30th of April, 1803, ceding Louisiana.

Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212
6.1.2009 2:54pm
Sid the warmonger (mail) (www):
The size of the memorial is not as big as one would think. Besides the debris field and actual point of impact, the tract of land needed for the memorial is large due to needed right of ways for vehicle traffic and buffer zones.

If you don't approve of eminent domain, I realize that this reasoning falls on deaf ears. But if you are in favor of a memorial, then the size has to be understood. Getting people into the location and having services at the location take up a lot of space. Also, a decision to retain the debris field took up more space.
6.1.2009 2:55pm
corneille1640 (mail):
As a non-lawyer, I have been perplexed about what "eminent domain" is. It had been my understanding that if the government condemns and takes someone else's land, it still must compensate the land owner. Some of the comments here, however, seem to suggest that by condemning the land, no compensation by the government is necessary. Is my or the other commentators' understanding closer to being correct?

Also, when "eminent domain" is resorted to, why is the word "condemned" used? Does it mean that the government made a determination that the property is without value?
6.1.2009 3:06pm
Malvolio:
To put it in perspective, Central Park is 843 acres. Plus, the site is pretty much in the middle of nowhere.
6.1.2009 3:21pm
Oren:
Aldridge, fine, tack it on the highway funding bill -- the state will get no Federal highway dollars unless the legislature passes it. In fact, just have the Ways &Means committee chair talk about it and the legislature will jump however many acres high they need to.

Form over function.

[ PS. Agree that the project is a foolish exercise. ]
6.1.2009 3:46pm
Leland (mail):
The size of the memorial is not as big as one would think. Besides the debris field and actual point of impact, the tract of land needed for the memorial is large due to needed right of ways for vehicle traffic and buffer zones.


For perspective, the National WWII Memorial uses 7.4 acres. Vietnam War Memorial is about 3 acres. The D-Day Memorial in Normandy, France (including right of way) is less than 500 acres.
6.1.2009 3:59pm
http://volokh.com/?exclude=davidb :

As a non-lawyer, I have been perplexed about what "eminent domain" is. [1] It had been my understanding that if the government condemns and takes someone else's land, it still must compensate the land owner. [2] Some of the comments here, however, seem to suggest that by condemning the land, no compensation by the government is necessary. Is my or the other commentators' understanding closer to being correct?

Also, when "eminent domain" is resorted to, why is the word "condemned" used? [3] Does it mean that the government made a determination that the property is without value?

I'm a lawyer who doesn't do condemnation work, but I'll take a stab -- one thing about the VC, you'll be corrected soon enough when you get something wrong...

(1) Your assumption is correct
(2) The government will have to pay
(3) good question -- it's just the word they use. It doesn't mean the property has no value.
6.1.2009 4:04pm
rick.felt:
2,200 acres is 3.43 square miles. That's a square 1.85 miles on a side. I know that sounds big, but if you papered the entire area in $100 bills, the assembled currency would only come to about a ninth of the value of the stimulus package. So it really isn't that big of an area.
6.1.2009 4:14pm
Sid the warmonger (mail) (www):
Leland,

Are you seriously being obtuse? The war memorials inside DC are urban memorials. There is no need for stand alone services and access. The Normandy location is part of an expanse of memorials and is hallowed ground. Size of the entire preserved area (to include a lot of beachfront) is much larger.

Also, those of you considering the size must read the accompanying reports. Some of the land needed required the government to purchase additional parcels of land. The government is not grabbing land because it can. It is purchasing the land necessary to create a memorial. Right of way and buffer zones were part of the original plans. If you are interested, dive into the rhetoric around the sale of land around Gettysburg.
6.1.2009 4:16pm
Constantin:
As an aside, I'd disagree with the sentiment that this was a minor event, or even that it'll be one people forget. I'm 35, and this is the single historical happening in my lifetime that made me the most proud to be an American.

I'm not even coming close to saying a memorial to it should need 2200 acres; I'd think simpler is better when it comes to memorials. (Faster would be nice, too, since we're 8 years out). But what these people did was not only amazing, it also pretty much negated the ability for terrorists to carry out attacks using the 9/11 playbook. That won't be forgotten.
6.1.2009 4:29pm
Oren:

Does [using the word 'condemn'] mean that the government made a determination that the property is without value?

Condemn has a large number of meanings, such as "We condemn the murderers to life in prison".

Second, if the property were without value, surely there would be no compensation needed!
6.1.2009 4:32pm
Oren:

Right of way and buffer zones were part of the original plans.

By my estimate, in order to take up just 1000 acres (half the memorial) the highway will need to be 50 miles long and 6 lanes wide.

A simpler road might be more appropriate.
6.1.2009 4:36pm
krs:
These families seem determined to use up every last drop of sympathy they might deserve. This is disgusting.

I doubt that the "heroes" of Flight 93 would have wanted their families to use their memories as an excuse to drive people off of their land for a mile radius around the crash site.

The "labor of love" idea rings hollow once you add government force and consider the people you need to step on to accomplish your purpose. Isn't the point of Flight 93 that the passengers were against using your fanatical beliefs as an excuse to go after innocent people?
6.1.2009 6:08pm
Leland (mail):
Are you seriously being obtuse? The war memorials inside DC are urban memorials. There is no need for stand alone services and access. The Normandy location is part of an expanse of memorials and is hallowed ground. Size of the entire preserved area (to include a lot of beachfront) is much larger.

The location of the Flight 93 crash is 2 miles from a state highway. That's about the distance from the Lincoln Memorial to the Capitol Building. If we took an area equivalent to the National Mall to build a road from Highway 30 to the Flight 93 crash; you would still have 1,000 acres left for the actual memorial without the need of additional 500 acres. With the amount of land in question, that area doesn't have to remain rural.

To put in another perspective, 2200 acres would cover an area from K street to the north, 2nd street to the east, Independence Ave on the south, and the Potomac river. That's includes the Lincoln Memorial, the Capitol, the National Mall, the White House, and the Supreme Court.

But if calling me obtuse helps build your argument; good luck with it.
6.1.2009 6:14pm
krs:
According to this, the grounds of Versailles are only 1800 acres.

Good enough for Louis XIV is apparently not good enough for Families of Flight 93.
6.1.2009 6:40pm
FWB (mail):
Please point out the delegation of the federal power of eminent domain in the Constitution.

Of course, no one can point to such a power. It is not there. It does not exist.

There are no implied powers. That is Hamiltonian double speak. Contrary to current popular opinion, our experiment with government did not produce a sovereign nation. Ours is a system whereby the only legitimate transfer fo power must be through a written delegation. Those who spend time reviewing the delegated powers and their relationships will easily see that the concept of implied powers is as big a lie as Washington throwing a dollar across the Potomac.

Tiochfaidh ar la!
6.1.2009 7:32pm
Jam:

David M. Nieporent:
The Takings clause would have seemed somewhat superfluous then, don't you think?


No. Passing laws that deprive people of property, or control of property are takings. For example, widgets are legal but a law (and would argue an amendment too) is passed making widgets illegal to possess. The law must include just compensation.

The Territories were/are FedGov controlled. The 5th will definitely apply in those areas.

Does anyone believes that if the Bill of Rights did not exist the FedGov could confiscate, for example, guns? And then without just compensation?

And remember that once a State Legislature approves the forced sale (condemnation) according to the FedGov's proposed and Constitutionally purposed plan it is the FedGov that enters into the "negotiations" to determine just compensation with the property owners.
6.1.2009 7:55pm
Jam:
Without a 5th amendment, could the FedGov confiscate property?
6.1.2009 7:58pm
Jam:
To clarify; I used Territories as in those lands ceded to the FedGov by Virginia and Britain (Oregon) and the Louisianna Territory. Don't forget DC.

I do consider the Louisianna Purchase unconstitutional, btw.
6.1.2009 8:19pm
Splunge:
That plane was headed for Congress, so the passengers who fought back saved the destruction of that institution, and quite naturally the congresscritters are pleased they didn't get toasted, and are memorializing that fortunate circumstance.

Couldn't we just back up to the Capitol building some 40 or 50 cement mixers full of that liquid plastic stuff used to preserve museum specimens, let fly, and preserve Congress itself as the memorial? Maybe saw them in half, along various axes, so scientists and visitors can observe the inner workings, try to figure out what made them tick.
6.1.2009 8:24pm
Gonzer Maven (mail):
This discussion is getting a bit out of hand, folks. The power of eminent domain is an inherent attribute of sovereignty -- i.e., by virtue of existing, of being a sovereign state, a governing entity possesses certain inherent powers which is what makes it sovereign. Like the power to wage war, to conduct foreign relations, the taxation power and the police power. What the constitution does is limit these powers, some more than others. And the ostensible limits on eminent domain are public use and just compensation. Necessity is not an element of federal eminent domain law, but it may be under state law.

As the Kelo case demonstrated, the public use limitation is a joke. The just compensation clause has been interpreted by the courts to provide less than indemnity, though judges talk a good game about "fairness and justice" and putting the owner in the same position "pecuniarily" that he would have been in had there been no taking of his property. But it's all talk and the courts concede that. Some conceded damages (notably loss of business goodwill when a business is destroyed by a condemnation and cannot be reestablished) are noncompensable.

And the feds can take private property located within states, as well as state property, including property whose title is vested in a state or local government entity. That was the Carmack case decided in the 1930s, as I recall.

Interestingly in the early days it was believed that the feds lacked the power of eminent domain, and when they needed land the states would condemn it for them (e.g. the old California case of Gilmer v. Lime Point). Later SCOTUS explained that the power was inherent in sovereignty, and the feds cut out the middleman.

And by the way, condemnors are not required to provide owners with due process -- they can just physically seize the property they want and say to the owner "sue me." So that a convicted criminal whose property is subject t forfeiture is entitled to notice and hearing. But innocent propert owners who wind up in the way of a public project or a redevelopment, are not. Like it says over the entrance to SCOTUS: "Equal Justice Under Law." Right?
6.1.2009 8:35pm
Alec Rawls (mail) (www):
Ilya is failing to take into account the most important part of the Flight 93 condemnation: the unconstitutional purpose. The giant Islamic-shaped crescent (originally named Crescent of Embrace) points to Mecca. That makes it a mihrab, the Mecca-direction indicator around which every mosque is built. (Mihrabs don't HAVE to be crescent shaped—they can also have a pointed arch shape—but the archetypical mihrab is crescent shaped.)

The planned memorial will be the world's largest mosque by a factor of a hundred. (The Sacred Mosque in Mecca would fit three times over just inside the mihrab of the Flight 93 mosque.) Numerous other mosque-like features prove intent (like the minaret-like Tower of Voices that has an Islamic-shaped crescent at the top and turns out to be a year-round accurate Islamic prayer-time sundial).

It is unconstitutional to build a mosque on public land with public money (and given the memorial's fund raising difficulties, largely because of the controversy over the crescent shape, most of the money at this point is from the government).

They call it a broken circle now, but the circle is still broken, and in the same places as before. The unbroken part of the circle, what symbolically remains standing in the wake of 9/11 is still a giant Islamic-shaped crescent, still pointing to Mecca.

For 2 years I have been working with Tom Burnett Sr. (father of Flight 93 hero Tom Jr.) to stop this abomination. If any lawyers are interested in helping on a pro bono basis (neither I or Mr. Burnett has a lot of money), please contact me (alec@rawls.org). One of the landowners might be willing to make a constitutional case in their condemnation hearings, and if they don't step up, Mr. Burnett would like to sue himself, if he can get the necessary help.

Last summer Mr. Burnett traveled to Shanksville to address the Project and on television asked all Americans to please help him stop this "terrible insult" to his son and the other heroes. Video here.
6.1.2009 9:06pm
Sid the warmonger (mail) (www):
And the Washington Memorial is too damn tall. And they took up all of the island just to put a gift from France on it and it was only one statue. Did we really need to strip all of Robert E Lee's land to make a cemetery?

I realize that Kelo and other decisions have most rational Americans upset about the use of eminent domain. I agree that it should be rarely used and great thought put into the decision.

I am temporarily managing construction projects for mobilization center prior to my unit's deployment. When the federal government begins to deal with land-owners, projects often grow because each parcel has to be individually acquired. Farmer Mike is holding on to the last 100 acres his great-great-great-great-whatever staked out the day he stepped off the Mayflower. The government needs to acquire 4 acres to perform wetland remediation on a much larger project because the voters approved the Save the Old River Proposal. Farmer Mike doesn't want to sell your team 4 acres at fair market value. He doesn't want to sell you half the acreage. He calls his cousin Jimbo at the local paper and they run the dark headline "Government to force local farmer from historic family farm".

The local agency head assures Channel 5 that he/she will look into the matter immediately. The farmer then demands that the government buys the whole parcel at an elevated cost.

Then, Aunt Paula wants to donate the plot her parents left her but she would be landlocked with no access to her land and it is a worm-farm that has been in her family since Mugwah crossed the Bering Strait.

The county of course wants to donate the right of way but of course the federal government has to enter a Memorandum of Agreement/Understanding that USDOT will build 4 bridges and 2 extra lanes.

And it goes on and on.

They, whoever the hell they are, decided that the impact site and the debris field would be the memorial grounds. Add in service facilities, parking, and a buffer zone around the site. Then account for all the land that had to be purchased to get the needed parcels.

If you are opposed to eminent domain in all but the most necessary moments, I agree. But the size of the monument is not about eminent domain. The size of the memorial site is the sum total of all decisions and deals and bargains and agreements and necessary takings that result in the actual land designated for the site.

If you don't want a memorial, that is your choice.
6.1.2009 9:08pm
Bill Poser (mail) (www):

As an aside, I'd disagree with the sentiment that this was a minor event, or even that it'll be one people forget. I'm 35, and this is the single historical happening in my lifetime that made me the most proud to be an American.


Constantin,

Without meaning any disrespect either to the victims or to your sentiment, I wonder why this event strikes you as such an overwhelming example of heroism? The facts as we know them are that some of the passengers realized that the terrorists intended to use the plane as a weapon and attacked them in the hope of crashing the plane where it would do no damage. While I agree that these people showed a greater ability than most to face their impending death, I still have to ask, exactly how heroic was this? They knew that they were about to die one way or the other - their action did not really put them at any greater risk of death or suffering.

Let us take as a more-or-less random example for comparison the late Irena Sendler, a hero of the Polish resistance. A Catholic, she saved thousands of Jewish children by obtaining false papers and smuggling them out of the Warsaw Ghetto. Over a period of four years, she put herself at daily risk of capture, torture, and death. She was in fact captured, severely tortured by the Gestapo, and sentenced to death, surviving only by bribing the German guards taking her to her execution. Isn't it more heroic to put yourself at risk of torture and execution over and over again than to choose slightly different circumstances of certain death? And isn't it more heroic to risk yourself for people different from yourself than for your own government?

As I said, I don't mean to put down the passengers on flight 73 who attacked the terrorists. They died well. And perhaps, in other circumstances, they would have exhibited the kind of heroism that Irena Sendler did. Perhaps some of them were heroes in other aspects of their lives in ways that we don't know about. But insofar as there is a calculus of heroism and we ask by whose lives we are most impressed, what makes the passengers of flight 73 stand out against a background that includes not only Irena Sendler but many like her?
6.1.2009 9:09pm
Jam:
Gonzer Maven: I understand how things are. I am arguing how things ought based of my reading of the text of the Constitution.

To disagree with you, just because it has been done does not mean it ought to be done. Ultimately, the authority that the FedGov has is that which is expressely delegated.

From where do you get that a sovereign implicitly has eminent domain authority? Do we or do we not have private property?

Does the FedGov, absent the Bill of Right has the authority to confiscate private property? If no, then, what new grant of authority the 5th gives?
6.1.2009 9:14pm
Oren:

Please point out the delegation of the federal power of eminent domain in the Constitution.

Read more closely

To exercise exclusive Legislation in all Cases whatsoever, [... over the DC ... ] 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, dock-Yards, and other needful Buildings;

Actually, I agree with Alridge on this one -- the PA legislature needs to sign off on it. Of course, as I wrote yesterday, even mentioning that Congress is maybe goig to consider withholding some loot ought to do the trick there.

Oh, anticipating the next line of argument, I don't think any Court is going to parse "needful" as being a substantive restriction above what Congress says is needful. If the SCOTUS in Kelo thought that "public use" is in the eye of the legislature, "needful" will be too.
6.1.2009 9:30pm
rosetta's stones:

And by the way, condemnors are not required to provide owners with due process -- they can just physically seize the property they want and say to the owner "sue me."


Boy did you ever say a mouthful, Gonzer. Go to Oak Ridge, Tennessee, and visit the nuke museum, on the site where they developed much of the Manhattan project. When the feds decided to greenlight that project in the 1940's, they sent notices to all the property/home owners and told them to un-ass those properties like right now. Cash waiting at bank account "__________", but you better be gone when the dozers show up, mofos, and they'll be on your property in less than 2 weeks... from date of notice, as I recall.
6.1.2009 9:41pm
Oren:
Surely the Manhattan project was "needful"!
6.1.2009 10:31pm
David M. Nieporent (www):
Ilya is failing to take into account the most important part of the Flight 93 condemnation: the unconstitutional purpose. The giant Islamic-shaped crescent (originally named Crescent of Embrace) points to Mecca. That makes it a mihrab, the Mecca-direction indicator around which every mosque is built. (Mihrabs don't HAVE to be crescent shaped—they can also have a pointed arch shape—but the archetypical mihrab is crescent shaped.)
Yeah; it's not a mihrab, not a crescent, not a mosque, and doesn't point to Mecca, but other than that, your theory makes perfect sense. May I suggest that if you've spent two years on this, you really need to find a hobby? Collecting stamps is nice and peaceful, I hear, although I'm sure one can find a secret Muslim conspiracy in postage, if one tries hard enough.
6.2.2009 6:59am
PersonFromPorlock:
Gonzer Maven, the US government isn't sovereign with respect to We The People, who are the sovereign. That's why WTP retain the power to restrict acts of the government.

This idea is welcomed like a fart in a crowded elevator by the government, but it's still true.
6.2.2009 9:21am
devil's advocate (mail):
Sid


Right of way and buffer zones were part of the original plans. If you are interested, dive into the rhetoric around the sale of land around Gettysburg.


Sid this and your later red herring anecdote:


The government needs to acquire 4 acres to perform wetland remediation on a much larger project because the voters approved the Save the Old River Proposal.



have something in common. These are self imposed infirmities. There is no necessity for buffer zones. There is no necessity for wetland remediation. Sovereign is as sovereign does.

What you're saying is that popular sentiment for walden like contemplation at memorials (at least the end not served by the 6 lane highway which probably also gets it's own buffer zone so noone on the super highway can gain the notion that there is any other human activity with a hundred miles of the joint) and for generally needless trumped up angst over wetlands takes public policy priority over the minority interest of a few landowners in the way.

Of course landowners may play their strategy against the government to their best ends and while eminent domain is often a crushing imposition it can represent a windfall also.

But a negotiating stategy that the taking of a small area (I cannot countenance such nonsense for "wetlands remediation") that is needed for actual function, i.e. the access road will run across it, it was the actual crash site (I'm lukewarm on the debris field idea although I get it so I'm not rendering a judgment on what size is the crash site itself), etc. I have seen the government make quite targeted takings.

While the property owner may react by saying, if you're taking that 4 acres you gotta buy the whole 100, that is not the law. They may however have a compelling argument how the 4 acres the govt. is taking devalues the remnant, e.g., you took the road frontage and they can't access it, you took the access to water and they can't irrigate, etc.

I accept that one can be cynical about the heroic motives of all property owners in such condemnation actions and frustrated even from the govt. side with inefficiencies of the process.

But I think one has to counterbalance this with an abiding cynicism about the capture of government prerogatives as you yourself describe by preservationists and environmentalists leveraging 2ndary or indirects concerns, in this case buffer zones and wetlants, off the sympathetic concerns for a memorial to heroic Americans.

Brian
6.2.2009 9:23am
Sid the warmonger (mail) (www):
Brian,

If I am reading the run-on sentences correctly, I think we basically agree.

My point - the size of the project is not dependant on eminent domain. Eminent domain is only being used at this point (8 years later) to attain the last needed parcels of land.

I do not like eminent domain and want to ensure the government's use of ED is a rare practice for needful purposes.

For this memorial, the committee which represents the families and government entities decided that the crash site and debris field would be the memorial site. That is a large land decision. After that original decision, the projects grow because local municipalities, county governments, state governments, and federal agencies have legally mandated interests. The memorial cannot be allowed to pollute the local watershed. Powerlines must be run to the site which requires right of ways and easements.

When the accounting is done, it is what it is. Eminent domain is being used on 166 acres out of 2200 acres. The government has reached an agreement with most of the landowners.

Calling this a land grab or abuse of government power because of the size of the site is arbitary.
6.2.2009 4:54pm
Alec Rawls (mail) (www):
Don't know who this David Dav Nieporent is, but he claims above that the Crescent of Embrace memorial to Flight 93 is not crescent shaped, that the crescent does not point to Mecca etc, contradicting my assertions about the memorial.

Anybody care to do a little fact checking and find out which one of us is telling the truth? It takes literally 2 minutes to verify that a person facing directly into the giant crescent (now called a broken circle) will be facing almost exactly at Mecca. Just use an online Mecca-direction calculator to print out a graphic of the direction to Mecca from Somerset PA, then place this graphic over the Crescent site-plan on your computer screen. You will see that the Islamic prayer-direction almost exactly bisects the crescent.

The fact that the planned memorial is actually a terrorist memorial mosque (we hosted an open design competition in time of war) makes for a fabulously interesting legal case. That IS the purpose of this blog, right?
6.2.2009 6:06pm
devil's advocate (mail):
Alec


The fact that the planned memorial is actually a terrorist memorial mosque (we hosted an open design competition in time of war) makes for a fabulously interesting legal case.


Without delving into the substance of these allegations, I feel duty bound to observe that I see no legal case whatsoever here. This is essentially a cultural argument and any remedy would be sought through political, not legal means.

Sid


Eminent domain is being used on 166 acres out of 2200 acres.


I can't view these kind of statistics as evidence of the probity or equanimity of the government undertaking. As long as the threat of eminent domain exists, it affects the calculus of the parties. So the fact that it is not actually exercised on a majority of the acres is not persuasive, although differing situation of property owners may readily account for a willingness or even desire to sell on the part of some that is not mirrored by others.

In fact , this reveals a basically insidious nature of these undertakings to begin with. If the memorial is really a worthy undertaking and necessary public project on the scale it is proposed, there should be no hesitancy at the exercise of eminent domain.

Having decided on the memorial scope, the condemnation ought to operate on its full footprint, so as to give notice to the entire targeted body of property owners allowing their organized opposition or cooperation, to force all negotiations into public; and to focus public attention on the impacts of this plan being carried on in their name. Instead, these tend to be divide and conquer affairs.

If we accept, for the sake of argument, that the federal government can actually undertake such projects then the state regulations are moot - and there are various approaches to satisfying federal regulations including agency or legislative forebearances. As a practical matter, of course, what the feds do is negotiate with the states, other federal agencies and NGOs to gain cooperation and thus they end up bargaining away individual property rights. The political cost of disturbing a few property owners is far less than capitulating with well organized factions.

I agree that my concerns are not so much about eminent domain as about a willingness to use it to honor other policies and interests that would not withstand a direct comparative benefit paradigm.

So, if the only way to have a memorial was the loss of wetlands, then have that argument.

This is not a concept that may be rendered as offering precise definitions. If you're going to build a road you're going to need to provide for drainage, in other words for some ancillary effects besides simply a driving surface. But the creep is for the awesome power to be used to solve ever more ephemrally connected priorities that are hung around the neck of public projects.

It is likely legal and constitutional, but is a policy that demeans property and augurs economic decline associated with undermining property (see also bond holders of mortgage backed securities and car companies).

Brian
6.3.2009 8:44am
Jam:
If an area of a proposed government land is called "sacred ground," is it not prima facie evidence of a religous motive?


sacred
4 entries found.

sacred
sacred baboon
sacred cow
sacred mushroom

Main Entry: sa·cred
Pronunciation: \ˈsā-krəd\
Function: adjective
Etymology: Middle English, from past participle of sacren to consecrate, from Anglo-French sacrer, from Latin sacrare, from sacr-, sacer sacred; akin to Latin sancire to make sacred, Hittite šaklāi- rite
Date: 14th century
1 a: dedicated or set apart for the service or worship of a deity [a tree sacred to the gods] b: devoted exclusively to one service or use (as of a person or purpose) [a fund sacred to charity]
2 a: worthy of religious veneration : holy b: entitled to reverence and respect
3: of or relating to religion : not secular or profane [sacred music]
4archaic : accursed
5 a: unassailable, inviolable b: highly valued and important [a sacred responsibility]
— sa·cred·ly adverb
— sa·cred·ness noun
6.3.2009 11:35am
Nicklaus Michael (mail):
I think its all bullshit.... build a memorial there in New York where the buildings were.. or you know what better yet.. the government cant counter attack a nuclear fuckin warhead or missle before it enters our air space.. but had no knowledge of possible terrorist attack.... the richer get richer the poorer get poorer... I think if they are to make a memorial they should pave over government property... what have they done for us anyways.. still land.. tell us false stories to cover up their fuck ups.. or engagements.. but yah.. as a ppl we forget UNITED WE GIVE THEM THEIR POWER UNITED WE CAN TAKE IT.. this is their game and we are playing into it like puppets.. and I have to say alot of us are suffering.. Our children will suffer and I think its time we all come together to put the smack down on some dirty ways that we allow everyday cause we accept a authority... their badge or M.O. says I have authority .. but damn dude out of of respect I gave them authority to do these things ALL OF US DID.. and we can all take it back if we came together... take back what our fathers gave to us.. and wanted.. I bet if they were alive today they would be horrified by everyones cowardness.. to allow these things to go on.. ATLEAST RIOT I MEAN COME ON!.. no.. of course not you all are weak and pathetic and will never stand for whats right in the name of your love ones and future love ones if there is a future for us all....
6.6.2009 3:13am

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