Eminent Domain Report

Yesterday, Professor Gideon Kanner, a well-known eminent domain scholar, wrote a critique of my post about Avatar on his "Gideon's Trumpet" blog.  It is an interesting response, in that it spans two full pages of printed text, and his fundamental point seems to be that he agrees with my premise that Avatar is not a film about eminent domain.  

How, then, does he spend two pages responding to my January 26 post, "Is Avatar Really a Political Commentary on Eminent Domain Abuse?"  Well, he begins by "trumpeting" the fact that he writes from an "unabashedly property-owner oriented" perspective, and proceeds to explain that I apparently write from a "condemnor-oriented" perspective -- which he is kind enough to concede is my right. 

Unfortunately, his "unabashedly property-owner oriented" perspective -- coupled with his years in academia, rather than as a full-time eminent domain attorney -- may be clouding his vision a bit. 

First, let me say that I do not view eminent domain from a "condemnor's" perspective.  Yes, a large part of my practice over the years has been representing condemning agencies.  And I am admittedly proud of the work I have done to help build desperately needed roads, schools, and other infrastructure projects.  However, the majority of my eminent domain practice has been on the property owner's (and business owner's) side, and this continues to be a key focus of my practice. 

Second, while Professor Kanner takes issue with each of my four premises, he does so in a way that can only be described as, well, academic.  To summarize the issues:

1. Professor Kanner disputes my claim that eminent domain is conducted by the government, not by private companies (as happens in Avatar).   He even cites a 55-year old case that apparently says anyone can condemn property.  Is he right?  As a technical matter, yes.  In the real world, however, eminent domain is almost always conducted by a governmental entity, and Professor's Kanner's need to resort to a 55-year old case to prove otherwise demonstrates that.  And, tellingly, Professor Kanner apparently missed the part of my post in which I stated that private companies sometimes do have the right to condemn.  (This is odd, as I thought my reference to Disney's eminent domain power in Florida was a colorful, interesting example -- yet he somehow missed it.) 
2. Next, Professor Kanner takes issue with my supposed claim that mineral extraction is not a public use.   Again, he cites some cases showing this is wrong -- this time, stretching all the way back to a 1606 case from jolly old England.  Oddly, however, when I read my post, it doesn't appear to say that mineral extraction cannot qualify as a public use; it says that the mineral extraction in the movie was not portrayed as a public use.  Rather, the company in Avatar was unequivocal in its position that it was seeking the "unobtanium" purely for private profit.  I'll concede that Professor Kanner may have missed this point simply because he has admittedly not seen the film, but I'm still having trouble equating a 1606 case with what took place in the movie.
3. Professor Kanner then moves on to question my premise that eminent domain cases in California are initiated with the adoption of a resolution of necessity.   This time, he's pretty sure he has me, explaining that the government always has the option simply to seize property, forcing the property owner to sue in inverse condemnation.  I'm pretty sure he's right about this one, since he uses a fancy Latin phrase, "In haec verba," to prove his point (someday, I'll have to look that one up).  Again, however, Professor Kanner reveals his academic perspective.  This simply isn't the way things happen in the ordinary course.  Government agencies do not routinely seize property without offering compensation.   If they did, they would always be charged with paying attorneys' fees to the other side and, more importantly, the public outrage over such behavior would make the response to Kelo seem like a celebration of the right to condemn.   
4. Finally, Professor Kanner takes issue with my claim that in eminent domain, the condemnor must pay just compensation, explaining that the concept is "slippery as an eel," which presumably means that he does not think property owners receive enough money.  This time, he must be right, since he even has a recent 2009 case to back him up.  Of course, ensuring that property owners are fairly compensated is what most eminent domain cases are all about, and it is what I have spent much of my career trying to accomplish.  And, even when the condemning agency "wins," it still doesn't seem quite the same as sending in massive gunships to blow up the property with the owners still in it.  

In the end, I suspect Professor Kanner is poking fun at me a bit, much like this response pokes fun at him.  Ultimately, our true positions likely are not too far apart, though I imagine his one-sided perspective does cause him to come down at a more extreme place than my more moderate perspective allows.  Still, we can agree that (1) Avatar is not an eminent domain film, and (2) that when eminent domain does occur, our legal system should take care to ensure that property owners are fairly compensated -- and that they do not bear an unfair share of the cost of an infrastructure project designed to benefit the public as a whole. 

And, just to ensure there are no hard feelings, I have sent Professor Kanner passes to see Avatar for himself (in 3-D, on the IMAX, no less), and I hope he enjoys the film for what it is -- not what it is not.