Daily Development for Tuesday, April 1, 2003
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
dirt@umkc.edu

CONSTITUTIONAL LAW; TAKINGS; INVERSE
CONDEMNATION; "NATIONAL SECURITY:" National security
interests of the federal government are an essential part of the federal
government's  police power; and physical occupation of land in connection
with military exercises is not a violation of due process and is not
compensable as a taking.

U.S. Marine Corps.  v. Hussein, 401 F.S. 3rd 1776 (S.D. Cal. 2003)

Landowner owned land inland from the U.S. Marine Corps Reserve at
Camp Pendleton, California. just across from the U.S. highway that marks
the eastern boundary of the reserve.  The land was undeveloped and
unoccupied.  A portion of the land was an exposed limestone outcropping
that had some natural caves and other features that mimicked similar terrain
in Afghanistan.  It was accessible through a culvert that passed under the
highway from the camp.   The formation was unusual for that area, and
there was no similar formation within the confines of the base itself.

For at least twenty years, marine trainers had surreptitiously entered
plaintiff's property through the culvert and had used the outcropping to train
soldiers for reconnaissance and rock climbing exercises.  In recent years, the
area had been used more heavily for training in evaluating foreign terrain
for hidden enemy forces.  There had been significant wear on the area
during this period of time, and evidence of the military activities would
have been obvious to any observer.

Plaintiffs finally became aware of this usage and brought suit to enjoin the
trespass by the military and for damages for past trespasses.  The first
response by the government was to argue that a prescriptive easement had
been established.  After the new administration took office, however, the
U.S. Attorney General's office amended its answer to introduce a new
theory - national defense.

The Government argued that military exercises as part of the national
defense were part of the fundamental war powers of the federal government
and that the right to make "non-invasive trespasses" of private property
constituted a fundamental exception to the title held by any American
landowner.  The government argued that such uses were analogous to the
"emergency exception" to the integrity of property boundaries available for
police and emergency services or for control of fires similar public needs.
In each case, the government argued, there was no absolute right of the
owner to be free of government trespass, but a balancing test should be used
- balancing the benefits of the particular use to the government, taking into
account available options to serve the government's need, against the injury
to the landowner.

Here, the landowner had made no use of the property and had made no
argument that it had any immediate need for the property.  On the other
hand, recent developments in military assignments of the Marine Corps
made the property particularly valuable for training purposes, and it
constituted a unique asset.

The court acknowledged that there was no "emergency" here in the sense
that pressing circumstances prevented more normal procedures of
acquisition of the property through eminent domain, but noted that the
requirement for taking by eminent domain would apply only if the federal
government right to conduct necessary military exercises were not already
part of the "background principles" of how property rights are defined.

Plaintiffs argued that this analysis was inconsistent with the Constitutional
protections against forced housing of soldiers, one of the few specific
property rights outlined in the Constitution, but the court responded that the
very specificity of that protection demonstrated its limitations.  As a
consequence of that Constitutional provision, landowners have a
constitutionally protected interest in improvements to the property, the court
held, and would be protected against damages to such improvements carried
out by the government training.  But there were no such improvements at
issue here.  The Marines had staked their claim.  They had no liability for
past injuries and, under present circumstances, no injunction would issue
because, in effect, due to the "national security" exception, there was in
effect no trespass.

Comment 1: The argument is analogous as well to government identified
rights of access to historical trails recognized in Hawai'i and, arguably, to
government required access to polluted sites owned by landowners who
were innocent of the pollution and bought without knowledge of it, but now
must permit government invasion of their land and, in fact, must pay for it.
The police power is indeed far ranging, and one could imagine that, if this
were not an April Fool DD, we might find a decision like this before long.

Comment 2: The important Supreme Court decision in U.S. v. Causby,
where the government was held liable for the "taking" of an easement over
the landowner's property when warplanes on training missions flew so low
that they scared the chickens, obviously runs counter to the theory
introduced here.  But the role of government regulation, historical
preservation, environmental preservation, and pollution clean up, was very
different at the time of Causby, and one wonders whether the Supremes
would go the same way today.

Readers are encouraged to respond to or criticize this posting.

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