Thomas D. Horne Judge
A. Hugo Blankingship, Jr., Esq.
Paul B. Terpak, Esq.
Benjamin D. Leigh, Esq.
4020 University Drive, Suite 312
Fairfax, Virginia 22030 William C. Mims, Esq.
101 N. King Street
Leesburg, Virginia 20176 A. E. Dick Howard, Esq.
627 Park Street
Charlottesville, Virginia 22902 E. William Chapman, Esq.
44084 Riverside Parkway, Suite 300
Leesburg, Virginia 20176 Grayson P. Hanes, Esq.
3110 Fairview Park Drive, Suite 1400
Falls Church, Virginia 22042 Edward Faggen, Esq.
44 Canal Center Plaza
Alexandria, Virginia 22314 Gentlemen:
In their Amended Bill of Complaint, the Fairchild Corporation and RHI Holdings, Inc. once again challenge the right of the Metropolitan Washington Airports Authority to proceed with the condemnation of a portion of the leasehold interest obtained by Fairchild from the Federal Government and assigned to RHI. Reference is made to the letter opinion of this Court of June 23, 1999, for an earlier discussion of the statutes and documents relevant to many of the issues raised in the instant proceedings.
The Amended Bill of Complaint contains eight numbered counts. In those counts it is asserted as follows:
Count I. The delegation of eminent domain to the authority violates the Virginia Constitution because it surrenders Virginia's sovereign power.
Count II. Any Federal requirement that Virginia grant eminent domain power improperly commandeers Virginia's sovereign powers.
Count III. The creation and structure of the Authority violates the United States Constitution.
Count IV. The Virginia enabling legislation is unconstitutional as applied to Fairchild because the delegation and exercise of eminent domain powers will impair Fairchild's contract.
Count V. The Authority has no power to condemn Federal lands.
Count VI. Under established rules of strict construction, the Airports Authority's power to condemn is limited and expressly subject to honoring Fairchild's leases.
Count VII. There is no necessity for the taking of Fairchild's property.
Count VIII. Injunction against defendant's repeated trespasses.
In response to the Amended Bill, the Airports Authority filed a demurrer, motion to strike, and answer. It requests that the Court strike and dismiss Counts I and VI as these counts contain substantially the same allegations as those previously dismissed by the Court. By order entered on August 6, 1999, the Court did dismiss certain counts set forth in the original Bill of Complaint for the reasons set forth in detail in its letter opinion of June 23, 1999. Complainants have been permitted to reargue these issues as if raised by a motion for reconsideration.
The Airports Authority has demurred to Counts I, II, III, and VI. There being factual issues raised with respect to the claims asserted in Counts IV, V, VII, and VIII, the Court proceeded to take evidence as to such claims, excepting the complaint of trespass.
In its earlier letter opinion, this Court observed that the Authority is a creature of a congressionally sanctioned compact between the Commonwealth of Virginia and the District of Columbia. Art. I, § 10, cl. 3, Constitution of the United States. Thus, this agreement "is a federal law subject to federal construction, notwithstanding its genesis in the enabling acts of Virginia and the District of Columbia." Alcorn v. Wolfe, 827 F. Supp. 47, 51 (1993). In accordance with the terms of the agreement, the Virginia General Assembly was charged with defining the limits of the power of eminent domain to be exercised by the Authority as a matter of federal law. It did so through enabling legislation that provided for a grant to the Authority of the "full power to exercise the right of eminent domain in the acquisition of any lands, easements, privileges or other property interests which are necessary for airport and landing field purposes." 1985 Va. Acts, Ch. 598, § 9(C). The Court sees no reason to depart from its earlier position in this regard.
The power to take private property for public uses is an essential attribute of sovereignty. Evans v. Smyth-Wythe Airport Commission, 255 Va. 69, 72 (1998). But for the existence of the compact, it may be fairly argued that the General Assembly of Virginia could not independently delegate to the Authority the power of eminent domain where the only limitation placed upon the exercise of the power would be for "airport purposes." Such a delegation may very well offend the Constitution of Virginia. However, it is not the Commonwealth's power that the Authority seeks to exercise, but that which is derived from a compact sanctioned by Congress. Washington Metro. Area T. A. v. One Parcel of Land, 706 F.2d 1312 (1983).
Complainants then posit the following hypothesis: If the Court determines that the power of eminent domain was not voluntarily relinquished by Virginia (an act that would violate the Virginia Constitution), then it must have been mandated by Congress. Such a commandeering of state sovereignty by the Federal Government could not then survive Constitutional scrutiny under the Tenth Amendment to the United States Constitution, complainants argue.
The Tenth Amendment provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." An act of Congress that mandates or commandeers action by a state legislature violates the Tenth Amendment. New York v. United States, 505 U.S. 144 (1992). The Court noted in New York that
"the Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the states. . . . In providing for a stronger central government, therefore, the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States. As we have seen, the Court has consistently respected this choice. We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts."
Id. at 155, 156, and 166.
Accountability to the people is a significant characteristic in distinguishing a proper federal regulation from an impermissible mandate. The Supreme Court observed in New York that
"[w]here Congress encourages state regulation rather than compelling it, state governments remain responsive to the local electorate's preferences; state officials remain accountable to the people. By contrast, where the Federal Government compels States to regulate, the accountability of both state and federal officials is diminished."
Id. at 168.
However, here the power of eminent domain that the Authority seeks to exercise is not the product of a federal mandate. No federal commandeering of action by the Commonwealth has occurred. Although the limits of accountability are obscured, such a blurring of the object of responsibility is inherent in compact agencies.
The Authority's power to pursue eminent domain proceedings against the complainants' leasehold traces its origins to the Compact Clause of the Constitution. It has been observed that
"[b]ecause Compact Clause entities owe their existence to state and federal sovereigns acting cooperatively, and not to any 'one of the United States,' their political accountability is diffuse; they lack the tight tie to the people of one State that an instrument of a single State has: 'An interstate compact, by its very nature, shifts a part of a state's authority to another state or states, or to the agency the several states jointly create to run the compact. Such an agency under the control of special interests or gubernatorially appointed representatives is two or more steps removed from popular control, or even of control by a local government.' In sum, within any single State in our representative democracy, voters may exercise their political will to direct state policy; bistate entities created by compact, however, are not subject to the unilateral control of any one of the States that compose the federal system."
Hess v. Port Authority Trans-Hudson,
513 U.S. 30, 42 (1994) (citations omitted).
It is congressional consent that "is at the heart of the Compact Clause." Cuyler v. Adams, 449 U.S. 433, 439 (1981).
"Congressional consent is not required for interstate agreements that fall outside the scope of the Compact Clause. . . . But where Congress has authorized the States to enter into a cooperative agreement, and where the subject matter of that agreement is an appropriate subject for congressional legislation, the consent of Congress transforms the States' agreement into federal law under the Compact Clause. Congress may consent to an interstate compact by authorizing joint state action in advance or by giving expressed or implied approval to an agreement the States have already joined."
Id. at 440, 441.
In the instant case, Congress gave its consent in the Transfer Act to the exercise of the power of eminent domain by the Authority as provided for in the Virginia enabling legislation. As noted earlier, the creation of the Authority and the leasing of federal lands were appropriate subjects for congressional legislation.
Based on the reasoning applied by the Supreme Court in New York, supra, this Court need not concern itself with whether the test applied in Columbia River Gorge United Protecting People and Property v. Yeutter, 960 F.2d 110 (9th Cir. 1992), should be applied in analyzing the instant complainants' Tenth Amendment-related arguments. The Court in Columbia River held as follows:
"We have already determined that the Act is within Congress' power under the Commerce Clause. For a similar reason, the Act cannot be a violation of the Tenth Amendment. Since the Act is within the powers granted to Congress under the Commerce Clause, it cannot constitute an exercise of a power reserved to the states."
Complainants' Tenth Amendment claim would fail such a test. However, the power of eminent domain to be exercised by the Authority is derived from the Compact Clause. Article I, § 10 of the United States Constitution.
In granting its approval to the contract, Congress merely sanctioned what the other parties had already agreed upon, or set conditions for its approval. Metropolitan Washington Airports Act (Transfer Act), 49 U.S.C. §§ 49101, et seq. The Commonwealth was neither commandeered nor commanded by Congress to grant such power to the Authority.
Accordingly, the Court affirms its earlier decision on this matter as contained in the June 23, 1999, letter opinion and will dismiss Count I.
Count VI of the Amended Bill contains a claim that is substantially the same as that stated in Count IV of the original Bill of Complaint, which was previously ruled upon by this Court. The Court sees no reason to vary from its earlier opinion. Thus, for the reasons previously stated in its letter opinion of June 23, 1999, the motion to dismiss will be granted as to Count VI.
In addition, the Court finds that the "plain statement rule" is inapplicable to this case. As counsel observed in their papers, the "plain statement rule" is a rule of statutory construction which requires Congress to make its intention "unmistakably clear" when it seeks to legislate with respect to an essential state interest. Gregory v. Ashcroft, 501 U.S. 452 (1991); BFP v. Resolution Trust Corp., 511 U.S. 531 (1994). As the Court noted in Gregory:
"Congressional interference with this decision of the people of Missouri, defining their constitutional officers, would upset the usual constitutional balance of federal and state powers. For this reason, 'it is incumbent upon the federal courts to be certain of Congress' intent before finding that federal law overrides' this balance. We explained recently: '[I]f Congress intends to alter the "usual constitutional balance between the States and the Federal Government," it must make its intention to do so "unmistakably clear in the language of the statute.". . .' This plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere."
501 U.S. at 460, 461 (citations omitted).
As counsel for the Authority have observed, the grant of the power of eminent domain to the Authority was not a condition imposed by federal mandate but instead a condition voluntarily agreed upon by the parties and submitted for approval by Congress. Congress did not, in expressing its consent in the Transfer Act, intend to alter the constitutional balance between the States and the Federal Government.
In Count II of the Amended Bill, complainants contend that, contrary to the command of the Tenth Amendment of the United States Constitution, the Federal Transfer Act compels a delegation of the power of eminent domain by the Commonwealth. As noted earlier, the power of the Authority to institute eminent domain proceedings against the complainants' leasehold interest is derived from an Article I compact. Accordingly, the demurrer to Count II of the Amended Bill will be sustained and the count dismissed.
Complainants contend in Count III of the Amended Bill that the creation and structure of the Airports Authority violate Article IV, Section 4 of the Constitution of the United States. They assert that the structure of the Authority conflicts with the principles of a republican form of government. The Authority suggests that judicial review be foreclosed by the political question doctrine.
The Supreme Court has noted with respect to issues relating to the Guarantee Clause as follows:
"We approach the issue with some trepidation, because the Guarantee Clause has been an infrequent basis for litigation throughout our history. In most cases in which the Court has been asked to apply the Clause, the Court has found the claims presented to be nonjusticiable under the 'political question' doctrine."
New York,
505 U.S. at 184.
If the Supreme Court approaches this issue with "some trepidation," it is with an abundance of caution that this Court rules upon this issue. Nevertheless, even if the Court were to assume that a justiciable claim exists as to Count III, which it does not, the structure of the Authority does not affect the Commonwealth's form of government. Instead, the instant case relates to a Compact agency, one in which political accountability is, as previously noted, "diffuse." Accordingly, the demurrer to Count III will be sustained and the count dismissed.
The Court earlier identified factual issues relating to the complainants' assertion that Federal lands might be affected by the exercise of the power of eminent domain. As counsel for the Authority have observed, the provisions of the lease between the United States and the Authority are sufficiently broad to permit the Authority to construct a garage on the leased premises without affecting its reversionary interest. During the period of the lease, the Authority may use the property for airport uses, whether or not such uses may require, involve, or have an impact on the construction, alteration, or removal of structures. Based upon the evidence before it, the Court will find for the defendant and against the complainants as to Counts IV, V, VI, and VII. The Authority may proceed to condemn the interest in the leasehold without affecting the reversionary interest of the United States.
Lastly, the complainants assert that the Authority failed to follow the necessary procedural requirements antecedent to instituting condemnation proceedings. They contend that an amendment to the master plan for the airport requires that the same notice be given as that required for the alteration, amendment, or modification of a regulation. This contention is predicated on the conclusion that the master plan is a rule or regulation "pertaining to the use, maintenance and operation of its facilities." Va. Acts of Assembly, Chapter 598, § 6 (1985); Va. Acts of Assembly, Chapter 665, § 6 (1987) (amending and reenacting §§ 1, 4, 5, 6, 7, and 27 of Chapter 598); Va. Acts of Assembly, Chapter 610, § 6 (1991). A failure to follow the necessary procedural steps applicable to the amendment of a regulation is, according to complainants, fatal to the amendment. Such action would, in their view, be both arbitrary and capricious.
Pivotal to a determination of this issue is whether an amendment to the master plan for the airport would require the notice necessary for the adoption of a rule or regulation. The Court finds that it does not. A review of the enabling legislation and of the Federal Transfer Act indicates a legislative intent inapposite to the complainants' position. The language of the enabling legislation does not specifically identify the master plan as a regulation. Authority rules and regulations "having the force and effect of law" are identified as Class 1 misdemeanors unless otherwise specified by the enabling legislation or unless a "lesser penalty" is set out by the Authority in the rule or regulation. Va. Acts of Assembly, Chapter 610, § 6(F). The Court finds such a penal provision to be inconsistent with the master plan as a land use development tool. This distinction is noted in the Federal Transfer Act, Title VI, Public Law 99-500, as reenacted in Public Law 99-591, October 18, 1986, as amended by Public Law 102-240, Title VII, 49 U.S.C.A. App. 2451, et seq.
The Court finds, therefore, that amendments to the master plan for the airport do not require the notice necessary for the adoption of a rule or regulation. Accordingly, the failure to give such notice does not invalidate the board's decision relative to the condemnation of the complainants' leasehold.
This Court would be remiss if it did not thank all counsel for their arguments and written submissions. They serve as a standard of scholarship and professionalism that others would be well served to emulate.
The Court finds that the Authority may proceed with the condemnation of the leasehold interest of the complainants. Mr. Chapman may draw a Final Decree consistent with this opinion to which counsel may note their exception.
Very truly yours,
Thomas D. Horne
Judge