Route 10's Judicial Pothole Swallows Constitution

When engineers design a new highway, they try to balance the quantity of excavated dirt and rock (the cuts) with the quantity of dirt and rock needed to fill in the valleys (the fills). Needless to say, our hills and valleys are never in direct proportion with one another.

Usually there is an excess of dirt from the cuts, and that excess is "wasted" in an off-site waste pit. When cuts fail to provide enough dirt and rock, dirt and rock are "borrowed" from an off-site borrow pit. Oftentimes, waste pits are needed for disposing unsuitable material, such as clay, marl, very thin coal or slate seams and other such material that you cannot use to build a road.

Ever since time began, it was up to the highway contractor to secure waste pits from landowners near the highway right-of-way. The system has worked very well because the landowner ended up with a few acres of level land as well as some income from what had been unproductive land. It goes without saying that, in nearly all cases, the land appreciated in value.

And in return for the waste pit rights, the landowner also had the flexibility to work with the contractor and negotiate for improvements, such as straightening a creek bed, building an access road to the ridge top and so on. It doesn't cost the contractor much to make these improvements with heavy equipment, but it would cost the landowner a tidy sum if he had to hire the work separately.

One other note applies here: Waste pits are designed by engineers and approved by the contracting owner. The land, therefore, is not laid to waste. But the excavated material placed in a waste pit is said to be wasted because it will not be used in the future.

This all changed on Dec. 15, 2006, when someone at the Division of Highways got the bright idea to have the state condemn private property for a waste pit. Ostensibly, the state wanted to provide a waste pit for the construction of state Route 10 in Logan County. However, to skirt federal law, the state could not mandate contractors to use the waste pit.

The feds have been down this road before. In every state, at one time or another, the politically connected just happened to own land in the path of a new highway. Need I say more as to why the feds frown on state-mandated waste pits? If I do, then let me call the applicable federal law a coincidence-management measure.

On Nov. 14, 2008, the West Virginia Supreme Court of Appeals issued its approving opinion of the Logan County property condemnation (West Virginia Deptartment of Transportation v. Contractor Enterprises Inc., et al). The court relied heavily on established state law that allows the highway commissioner to condemn property for a variety of purposes to build highways. In this case, the purpose is that the commissioner can condemn property for the storage of road-building materials.

What puzzled me was that the court's opinion equated wasted dirt with stored materials. To drive this point home, the word "storage" is emphasized in italics so as to make it interchangeable with waste.

Waste is "damaged, defective or superfluous material produced by a ... process" or "to expend idly or without return." Store means "something that is kept or stored for future use" or "to place or leave in a location for later use."

There can be no confusion that these words (whether as nouns or verbs) are opposites, and, further, that based on these definitions, state law does not even contemplate the highway commissioner condemning property for waste pits let alone authorize the commissioner to do so.

Former State Highway Commissioner Fred VanKirk gave expert testimony in this case. VanKirk, a civil engineer who spent a four-decade career with the Division of Highways, testified that he knew of no instance of the state condemning private property for waste pits and explained (rather lucidly) that the state had no bona fide reason for making such a condemnation. His testimony alone would convince any reasonable person as to why the Division of Highways need not be in the waste pit business.

VanKirk also pointed out that the state's ownership of waste pits may result in some future liability, albeit unknown and undeterminable, that any landowner faces and that state ownership of waste pits removes that property from the tax rolls.

The Supreme Court of Appeals has erred in this matter. In reading the court's majority opinion, it was obvious to me that the justices misunderstood the issue at hand and misinterpreted state law concerning highway condemnations. The two dissenting opinions offered to rebut the majority lack the passion necessary to describe this outrage.

This decision allows for the unjustified taking of private property by the state for non-public use and should be reversed immediately.

West Virginia is not a Judicial Hellhole. No, it is a Judicial Pothole -- a condemned waste pit in the making.

Majority Opinion; http://www.state.wv.us/wvsca/docs/fall08/33869.htm

Dissent (Maynard); http://www.state.wv.us/wvsca/docs/fall08/33869d.htm
Dissent (Benjamin);  http://www.state.wv.us/wvsca/docs/fall08/33869d2.htm

Will West Virginia Lose the Potomac River? (part 2)

Part Two of Two

As many as a dozen federal regulatory agencies have some responsibility for the health of the Chesapeake Bay. Six states and the District of Columbia are responsible for the health of the Bay’s 64,000 sq. mi. watershed. I assume that none of the responsible bureaucracies are doing their job very well or one-third of the Bay would not have been declared "dead" in July of this year.

The usual suspects-light rainfall and agricultural runoff-were indicted in press releases. The EPA trumpeted that "new limits" agreed to by the states would further reduce nitrogen and phosphorous discharges in an effort to reduce dead zones. Then it was back to business as usual.

When you rub a dog’s nose in his own mess, he gets the message. When it comes to government, however, the lesson fails. In fact, the opposite happens. Regulators always respond with puppy dog faces; that they have neither the funds nor the manpower to fulfill their mandate. Whimpering gets them off the leash for another budget year.

Eventually, this do-nothing attitude will change because the people who draw their drinking water from the Potomac will begin to get jittery about intersex fish. As it is now, a dead crow in the Maryland suburbs creates hysteria about West Nile virus. Imagine the panic if a human health connection is made to endocrine-disrupting compounds in drinking water.

In a worst-case scenario, the Potomac watershed in eastern West Virginia is at risk of either being condemned in the public interest or declared a federal territory. Or perhaps, the federal courts would impose some form of environmental easement to accomplish the same. My belief that this could happen sounds far-fetched-hyperbole if you will. But in light of the recent Supreme Court decision on eminent domain, the rules of logic have changed.

The March 2002 issue of California Law Review contains the 100-page article "Is West Virginia Unconstitutional?" The last two sentences in the article read: "West Virginians may rest secure in the knowledge that their State is not unconstitutional. Probably."

If your lawyer wrote you a 100-page memo regarding your own legitimacy, how would you feel if he ended it by saying, "Probably."?

The authors also asked themselves, "Why would anyone care?…Given that…West Virginia is not…going to be absorbed back into old Virginia…" In other words, without a plaintiff with standing, nobody is going to force the issue of West Virginia’s statehood in court. I would like to see this article updated in light of Kelo vs. City of New London. For it appears to this non-lawyer that either the federal government or the municipal water districts of metropolitan Washington, DC have a unique opportunity to do exactly what New York City did to the Catskills--condemn a faraway watershed to provide drinking water.

Okay, that’s enough shock and awe.

West Virginia does have a window of opportunity to get out in front on the issue of intersex fish. But our attitude and response must be positive and inquisitive rather than the predictable role of regulators satisfied with assessing penalties and tinkering with discharge limits.

West Virginia is developing a promising biometrics industry through research and development. Thus, why can’t we use the R&D model to move to the forefront on stream and river research? The Potomac, more than any other river, ought to be a powerful magnet for federal research grants for our universities.

Thomas Jefferson was so inspired when he visited Harper’s Ferry that he wrote, "The passage of the Patowmac through the Blue Ridge is perhaps one of the most stupendous scenes in Nature." This is the same inspiration that we must embrace if we intend to clean up the river. But instead, we find ourselves living in an age when vandals have painted the very rock upon which Jefferson dipped his quill pen.

The Potomac River is under attack.


Dr. Robert E. Putz, Founder of the Freshwater Institute at Shepherdstown, WV contributed to this article.

Eminent Domain Has Become Imminent Domain

The theory of the Communists may be summed up in this simple sentence: Abolition of private property.
Karl Marx and Frederick Engels, The Communist Manifesto, 1848
--------------------------------------------------------------------------------
 
In the annals of property condemnation by the government’s exercise of eminent domain, there are winners and losers. And in rare cases, the status quo held.

The winners, of course, are easy to spot. You see their land every time you exit the interstate. While ten houses on one street might have been cleared away for a new highway, the untouched adjoinder properties soared in value when the exit ramps opened to traffic.

As for the status quo being unchanged, I invite you to travel US 50 in Harrison County. Just east of Salem stands the Bristol United Methodist Church, a rather substantial brick structure that originally sat alongside old US 50 until it was condemned for construction of Appalachian Corridor D, the present four-lane superhighway.

The Bristol congregation was not ready to see their church demolished, so they used their condemnation check to hire Goff Brothers Co. of Pullman, WV to move the church up on the hillside. If you had witnessed the church being lugged uphill to its present site, you would believe in miracles. Not a brick was lost nor a window cracked in the ascent.

The big losers in eminent domain condemnations tend to be the landowners whose property is partially taken. The William Kester farm in Harrison County is the best example of the ruinous effects of a partial taking that I know of.

Nearly every acre of Mr. Kester’s bottomland was condemned to build the Saltwell interchange of Interstate 79. That left him owning only hillside land on each side of the interchange. And as if done in a fit of spite, the new highway snipped five feet off of one corner of the Kester’s house, leaving it uninhabitable. But rather than tear his house down, Mr. Kester sawed off the small wedge that the state could not do without, and then he nailed siding boards across the diagonal to close the opening.

The Kester house overlooks Exit 125 from the southwest and remains as a monument to the cruelty that the government’s power of eminent domain can inflict on a proud farmer.

The well-connected and certain politicians have enjoyed their own version of eminent domain. These scurrilous cheats either had the new highway built to their land or knew years in advance where the highway was headed and bought the right land before the public was allowed to see the plans.

In the 1960’s, LOOK magazine featured an expose about a South Carolina Congressman who owned a large tract of rural land. By coincidence, if we are to believe the congressman’s story, the new interstate just happened to access his land with an interchange.

Do the well-connected still take advantage of inside information? Perhaps. The mayor of Erie, PA faces trial for a land deal related to a race track and redevelopment project in that city.

In 1954, the Supreme Court expanded the power of eminent domain when it ruled that blighted urban land could be seized for redevelopment. It was just a matter of time before the court reached its 5-4 decision in Kelo vs. City of New London which allows the taking of private property for "public benefit." We will have to wait for a future decision (or decisions) for the court to set the limits of "public benefit."

At present, the federal court system consistently restricts land use by humans whenever the Endangered Species Act comes into play. Even our national borders cannot be walled off because that would interfere with the migration of some of the animals and birds on the endangered list. Along with the Kelo decision, it is now fair to say that you, as a property owner, have almost no standing in the courts. The pygmy cactus owl or the colossus shopping mall can take your land on a whim.

Central planners decide which animals are classified as endangered species. Central planners decide the curricula that your children study in the public schools. Central planners decide the size of your local airport. Central planners even decide which military bases are to be closed. And with the high court’s blessing, central planners are defining the words "public benefit" as they have already done for New London, CT.

Central planners also decide where the highway exits are built. But as Nobel economist F. A. Hayek pointed out in The Road to Serfdom, it is the route that central planners invariably choose, and not the actual pavement, that gives the book its name.