Real Estate & Property Law

The Ames Brothers On Eminent Domain Negotiations

By Robert Thomas (inversecondemnation.com)

Remember that song Undecided, recorded by the Ames Brothers (and countless others)?

First you say you do, and then you don't
And then you say you will, and then you won't
You're undecided now
So what are you gonna do?

Now you wanna play, and then it's no
And when you say you'll stay, that's when you go
You're undecided now
So what are you gonna do?

That looks to be the situation shaping up in the federal government's attempt to acquire land near Somerset, Pennsylvania for the United 93 memorial (for background see this post).

Initially, the land was to be taken by eminent domain after negotiations broke down, prompting two panel members to resign. Then, the headline "Gov't reverses course on Flight 93 memorial land" (June 5, 2009) which reported "The federal government has backtracked and decided not to take the western Pennsylvania property needed to build a Flight 93 memorial. Interior Secretary Ken Salazar and Sen. Arlen Specter met Friday in Somerset with landowners. They say the government will try to negotiate instead of using eminent domain to take the land." 

The next day, however, the AP reported "Deadline set for Flight 93 memorial land talks" (June 6, 2009), which included this news: "[The federal government says it will negotiate with landowners for one week in an attempt to get property needed to build a Flight 93 memorial without using eminent domain."

Summary of negotiations: "Let's talk without the threat of us using eminent domain. You have a week to sell." 

For two examples of how the feds often "negotiate" with landowners, see here (the Bureau of Land Management: "the federal government does not negotiate") and here (where the Border Patrol asserted that its casual contacts with the landowner and conversations with her qualified as bona fide "negotiations").

Now don't get us wrong: we're not saying that exercising eminent domain to take land for a national memorial to honor the UA 93 passengers who fought back wouldn't be a public use -- it sure looks like a taking that would be upheld, if challenged.

But it's one thing to be legal and another to be wise (as the New London Development Corporation found out).

Full post as published by inversecondemnation on June 08, 2009 (boomark / email).