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.