Condemnations add to discontent over outlying landing field

In the world of news, property rights press releases rarely make it past an assignment editor’s circular file. Complex and lacking charisama, such issues often yield to simpler and more immediate news of the day.

But in the days leading up to today’s federal outlying landing field hearing in Raleigh, the news has been filled with such coverage.

Over the weekend, three regional television stations found reporters examining property rights following the Navy’s confiscation of the Harry McMullan III property, 1,572 acres at the core of a proposed OLF site in Washington County.

Local and state newspapers, think tanks spanning the political spectrum and the Web have reported on land rights, as well.

And at least one organization has assigned its legislative liaison to the OLF beat.

“The condemnation issue along with forced annexation is really beginning to catch on fire,” said Allen Page, Citizens for a Sound Economy state chapter director. “A good portion of our membership here in North Carolina had joined our organization because of property rights. … It’s only been recently, thanks to the OLF issue, that we’ve had an increase in membership in the eastern part of the state.”

The chapter’s Web site has drawn widespread interest.

“When we posted our first article on the OLF issue on our Web site back over a year now,” said Page, “it was the number 4-read issue of the week, and we had people from all over the country responding, ‘Keep up the good work.'”

On Tuesday, NC Right Stuff, an activist Web site, sent an e-mail to its subscribers stating, “Although most people think of the Fifth Amendment in terms of guards against forced confessions and self-incrimination — such as ‘taking the Fifth,’ in fact, the Fifth is a broad and complex amendment. An entire body of legal argument has been built around its role in protecting the rights of property.”

CSE followed suit in its e-mail newsletter, citing expansion of condemnation into the private sector.

“This is a Fifth Amendment issue. The laws of eminent domain have been used in (municipal) districts to condemn property in neighborhoods to be leased to condominium and office building developers.”

Penned in 1791, the Fifth Amendment closes with “nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Just compensation,

due process

In condemnation cases, some perceive the method of determining just compensation as adding insult to injury. And when land is acquired through a federal “declaration of taking” — once papers are filed, land instantly transfers to the government — such action can leave landowners bereft and confused.

“You’ve lost your property already,” said Don Carrington, John Locke Foundation vice president. “They’re just going to bicker over price.”

And that’s where former landowners are faced with difficult decisions — and an uncertain financial future.

“It’s always hard to establish value, too, on land,” added Carrington. “It really is a challenge to establish what just compensation is. It’s worth a lot to the Navy, right? Not from what they’re offering but from their willingness to pursue it.”

What’s ‘national

security’ worth?

McMullan received a condemnation price of $1,803.23 per acre, about half the bottom-dollar figure he had expected from his property sale to the Navy.

The Navy, however, repeatedly has cited an obligation to taxpayers in keeping purchase prices at a “reasonable” level. Bitter landowners have pointed to the $12-million risk the Navy has told the federal court it is willing to take even if its OLF is not built in Washington County. The relative cost of acquiring property at a market price, say landowners, is not going to break the bank.

Following a rash of Super Hornet crashes, the Navy, — at a loss of about $60 million per crash — said those incidents were “not unusual” for the number of missions flown; it chalked off the losses as operational costs.

One bitter landowner pointed out that replacement costs for two Super Hornets would fund a purchase price of about $3,600 per acre for all 33,000 acres the Navy says it will buy, through voluntary transactions or otherwise.

“Is it depriving without due process?” asked Carrington. “I think the OLF opponents have attacked the process, and it look like there is something wrong with the process.”

Lobbyists and activists are honing their pitches for the upcoming legislative session, preparing to give members of the General Assembly an earful on a broad spectrum of property rights issues, including making another stab at amending a 1907 state law that automatically ceded to the federal government all say over state land it acquires, whether through purchase or condemnation.

The bill is slated for introduction by state Rep. Bill Culpepper of Edenton, who will lead a discussion on G.S. 104-7 at 7 p.m. Thursday at Roper’s Windows on the World center.

Legal scholar and former law professor Tom Earnhardt spearheaded the effort to have the law amended, publishing a paper on the rationale:

“This concession is unnecessary,” wrote Earnhardt, “and, as the OLF matter reveals, it is unwise for the State to put itself in the position where an enormous land acquisition and major land use change can occur without the State having a chance to utter a word about what happens. Regardless of the pros and cons of the OLF proposal, there is no justification for the State of North Carolina to bow out of participation in such major federal actions.

“An amendment of the statute would restore some balance in federal-state relations by taking away the advance consent in at least some if not all situations, and it poses no downside risk or loss to the State. An amendment would simply require that the Navy in this matter and other federal agencies in other matters sit down with State officials and discuss the State’s granting of consent for the OLF or other major federal actions.”

Regarding the extensive body of thought that undergirds modern law, Earnhardt summarized, “I do not believe the founding fathers would recognize the law of condemnation as practiced by the Navy.”