Property professors spend so much time talking about regulatory takings and the post-Kelo definition of public use that it’s easy to forget about good old-fashioned eminent domain.
Here’s a scenario reported by the New York Times that is seemingly too straightforward to use on an exam. The National Park Service wants to build a park on the Pennsylvania site where Flight 93 crashed. The Park Service and a group representing Flight 93 families own or control approximately 1,300 of the 1,700 acres that the Park Service wants to acquire, and is in negotiations for roughly 430 acres, including the site where the plane actually crashed. Flight 93 families are eager for a transfer of the property because construction must begin by Fall 2009 for a memorial to be ready by the tenth anniversary of 9/11.
So just take the land, right? Not so fast. The 2002 legislation authorizing the memorial stated that no land could be acquired through eminent domain. (Perhaps because we value property rights more than extraordinary heroism which prevents a second terrorist attack on Washington, D.C.?) A provision in a September 2007 spending bill finally authorized the use of eminent domain, but the Park Service has continued to try to negotiate with the landowner. What a surprise that they can’t agree on a price.