Saturday, February 09, 2013

Wartime or Peacetime at the Flight 93 Crash Site

Mary L. Dudziak

From the AALS Panel on The Concept of Peace in Law, Culture and Society

Peacetime or wartime? Just Compensation Puzzles from the United Airlines Flight 93 Crash Site
Mateo Taussig-Rubbo, SUNY Buffalo Law School

United Airlines Flight 93 —one of the four airplanes hijacked on 9/11—crashed into a vacant parcel of land in rural Pennsylvania, killing all on board. For many, including family members of those killed in the attack and the Park Service that now manages the national memorial at the site, the former strip mine was transformed into ‘sacred’ ground. In 2009, unable to settle on a price with the landowner, the government took the property through eminent domain.

Focusing on the ongoing effort in United States of America v. 275.81 Acres of Land to determine the amount of compensation due the owner under the Fifth Amendment, I tell the story of this piece of property (in an article just posted to SSRN). Even if the attack increased the monetary value of the site fifty-fold, as the landowner’s stigma appraiser contends, it seems to me that the government should not have to pay that enhanced amount. While just compensation is typically understood to mean market value at the time of taking, the Supreme Court has repeatedly stated that just compensation is grounded in equity. Unlike other windfalls, there are equitable reasons, I argue, why this increase should not accrue to the landowner.

An encounter with Mary Dudziak’s work suggests that the dispute around the economic value of the Flight 93 site expresses an uncertainty about whether the context is one of wartime or peacetime. Judging by the pre-trial motions in the Western District of PA, the attorneys are applying the usual formula: market value at the time of taking, and thus any 9/11-related enhancement is included. The dispute has come down to whether the appraisals demonstrate the 9/11enhancement with sufficient certainty. In other words, the legal analysis is business-as-usual, and all the creativity has gone into the debunking of the expert’s appraisals (which, it must be admitted, do make fascinating reading). Should we call this a “peacetime” approach?

The market value at the time of taking is limited by the scope of the project rule, according to which the effects of the government’s own action should be excluded from the measure of compensation. And there are wartime takings cases that extend the scope of project rule to war, since the enhanced value created during wartime could itself be said to be due to the government project of war. But these cases don’t seem to be of much help in the Flight 93 context.

The enhanced value—if we assume it is due to the attacks and the resulting public interest in visiting the site of a national tragedy—is hardly a government project. Flight 93 is not a “wartime” case like Cors where the Court found the government did not have to pay for the increase in the price of tug-boats due to war. On the other hand, it seems odd that there is not some other way to take into account the “war” context if we assume that the enhanced value does come—in an admittedly more complex and symbolic way than in Cors—from the attacks and acts of war.

It seems that neither peacetime nor wartime will quite do the job—not an unsurprising lesson in the annals of 9/11-ology. My suggestion is to return to explicit considerations of equity. The usual formula—of market value at the time of taking and the scope of the project rule—should be seen as derivative of the injunction to provide just compensation. Now, not all will agree on what equity requires—I contend that it requires excluding the 9/11-related enhancement since the landowner never really “owned” the enhanced value. Many of the interested parties call the land “sacred”—which captures the sense that the new value created in the attack does not and perhaps should not belong to anyone. For those who disagree with my position, at least we might have a more upfront debate about the burdens (on the taxpayer and the landowner) of war and the memorialization of war, a debate akin to what Mary calls war politics. Otherwise, the danger is that we will get caught in the intricacies of competing appraisals, without stepping back and asking exactly what should be included or excluded from the appraisal.