Sneaking Suspicions
Archives-- December 22-28, 2002

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This page includes posts from December 22-28, 2002 in the usual reverse order. Each week's postings on the home page are perma-linked to these pages.

December 27, 2002
Blogging Break

Time to take a break from blogging for a while. In the meantime, click around in the Table of Essays for your favorites, or catch on ones you somehow missed.

For those interested, here's the latest golf book review, of George A. Finn's Lazy Days at Lahinch.

Back in a bit. Thanks for stopping by!

December 26, 2002
All dolled up

The debate over the social merits of the Barbie® doll and her amazing commercial success continues.

The current controversy is centered on a not-so-new offering, in which the famous doll is dressed in sexy lingerie. A piece in the Washington Post recently commented on the upcoming sixth edition in the lingerie series, which apparently began a few years ago. In fact, a website devoted to the collectibles notes that a few prior editions are no longer available.

Few people seem to have noticed, however, that Cross-Dressing Ken® might also enjoy the opportunity to feel oh-so-pretty on certain special occasions.

Sometimes a fella just doesn't feel like dressing up so formally.

Sorry, big boy. This outfit is sold out, and I'm not sure it would have been your size, anyway.

December 26, 2002
A sharp reminder of the way others spend the holidays

This morning my father came over to help out with a routine post-holiday chore. As we stood on the driveway, loading his pickup truck, we suddenly heard the roar of airplane jet engines overhead.

These weren't the familiar sounds of commercial airliners, however. The screaming was much closer, and we soon saw why.

A pair of A-10 Thunderbolts flew over the house at very low altitude and at fairly high speed. I assume they were headed offshore for a little practice.

The incident served as short, sharp reminder of the way others spend their holidays, protecting the rest of us.

My dad and I talked about these jets and their performance characteristics, and the fact that for some reason other military planes seemed to gather more favorable press coverage.

The conversation reminded me of something I saw recently about P-61s during World War II, and I told my father.

That triggered his own memory of the Black Widow night fighters.

During the latter part of the war, he served on the LSM-312 in the Pacific. His duties included operating the primary weapon on the landing ship, a 40mm gun near the bow.

One early evening, the ship's crew had just shut down their weapons after an air raid, and were returning to their quarters.

Suddenly a Japanese Betty Bomber appeared, heading for their LSM and the other ships anchored nearby.

Dad and the others scrambled back toward their gun.

At nearly the same instant, they saw a pair of Black Widows take up positions on either side of the Betty. After flying alongside the doomed bomber for a few seconds, the two fighters then split off, one above and one below. In very short order the Betty was a ball of flames.

Just for my own sake, I'd like to say thanks very much to those two P-61 pilots, whoever they were.

December 25, 2002
Merry Christmas

It's pretty quiet around here this morning. The women of the house are still asleep, while our guests are quietly sipping their coffee and completing their daily crossword puzzle routine.

I plan to browse my way through a traditional Christmas favorite of our family: Brian Rice's Pictorial History of Santa Claus.

According to the book flap, Rice is a painter and lecturer at the University of Brighton, an archeologist, and a sheep farmer. He also appears to be an expert on the role of Santa Claus in art, to judge from this little book.

It's filled with great representations, including Velasquez' "The Rokeby Santa", Botticelli's "Birth of Santa" (eerily similar to his "Birth of Venus"), and this painting by Giotto di Bondone (1266-1377):

Have a great holiday!

December 24, 2002
Shameless self-promotion

This morning's statewide newspaper carried a story about blogging.

It included a very kind description of this site, among several other noteworthy blogs by fellow Delawareans.

Just thought I should take official notice, as it were.

December 23, 2002
A takings case is not a trespass case, no matter how much you might wish otherwise

Harvey and Doris Madison and several other Montana property owners really don’t care much for their state’s Stream Access Law.

Enacted in 1985 after a Montana Supreme Court decision on the issue, the law basically sets out the in-country version of the public trust doctrine to which those of us living in coastal states are accustomed. In other words, the public has a right to float on the water, as well as the right to walk on the adjacent stream edge up to the high water mark.

Other citizens filed suit against the law’s constitutionality in 1986, but the access law was upheld for the most part.

The Madisons and their fellow property owners apparently were not content with trying their luck at the political process to amend or eliminate the law. With help from the Mountain States Legal Foundation, they filed in Federal Court to have the law declared in violation of their substantive due process rights under the Fourteenth Amendment, as well as void for vagueness on a related issue related to portaging.

(Portaging involves picking up your kayak or canoe and carrying it to the next spot where it will float.)

The access law did not address whether persons using the streams under the Act could also use property beyond the high water mark to portage, if the reason they couldn’t stay within the normal limits was because of natural barriers.

In any event, the really intriguing part of this lawsuit was what was missing from it. The plaintiffs made no claim that the Stream Access Law acted as a taking of their private property rights, in violation of the Fifth Amendment or the Montana Constitution’s equivalent takings law.

The District Court apparently reads Sherlock Holmes, and also noticed the dog that didn’t bark.

It dismissed the lawsuit for failure to state a claim.

On appeal, the Ninth Circuit reminded the parties of its recent public trust doctrine decision, discussed here last October.

Writing for the unanimous panel, Judge Stephen Trott noted that the right to exclude others is a fundamental property right. Claims alleging governmental interference with those rights are addressed through Takings Clause litigation. In fact,

this court has consistently held that substantive due process claims are precluded where the alleged violation is addressed by the explicit textual provisions of the Fifth Amendment’s Takings Clause. See, e.g., Esplanade Properties, LLC v. City of Seattle, 307 F.3d 978, 983 (9th Cir. 2002) (affirming dismissal of federal substantive due process claim) [other citation omitted.]

The court dismissed the plaintiffs’ attempts to distinguish this case from prior decisions affirming that these sorts of lawsuits must be dealt with as takings claims. For example, the Circuit panel noted at least one other decision in which takings plaintiffs sought only injunctive and declaratory relief.

Given the legal limitations on how to seek relief, therefore, the next issue was whether this lawsuit should have been kept alive.

Apparently not:

[I]n light of the appellants’ steadfast disclaimer that they do not rely on the Takings Clause as the predicate for this lawsuit, we do not construe their claims as takings claims. This leads to the inevitable conclusion that not only did the appellants fail adequately to allege a substantive due process claim, but also that the district court correctly dismissed their complaint with prejudice.

In addition, the fact that the Montana law didn’t deal with natural obstacles to portaging didn’t make the stream access law void for vagueness. In the first place, the court held that the plaintiffs failed to allege that they actually had any such barriers on their streamside properties. Even more important, there was nothing vague about what was in the statute: “The state legislature simply decided not to address the issue of natural barriers.”

In short, boom goes the lawsuit.

From my perspective, it’s pretty obvious why the plaintiffs in this case didn’t want their claims treated under the Fifth Amendment’s takings jurisprudence. Many people only like the first part, where it essentially says “no property shall be taken for public use,” and sometimes try to ignore the second part, where it says “unless just compensation is paid.”

If this was a private trespass case, the plaintiffs could obtain a court order telling the trespassers to stay off the property. Because this is a takings case, however, the plaintiffs can’t obtain the same relief. Instead, they are entitled to damages for their diminished property values as a result of the government’s depriving them of their property right to exclude others from their land. 

Nonetheless, there can be no takings claim at all, if neither the state nor the federal constitution recognize the initial existence of a private property right that pre-empts the public trust doctrine. To the extent that Montana’s Stream Access Law only codifies the common law allowing others to walk or float beneath the high water mark, for example, the Madisons and similarly situated property owners are simply out of luck.

December 22, 2002
Fun with Switching

One of my nephews shares an interest in finding cool stuff on the Internet.

He tipped me off to this funny satire on Apple's new Switch marketing campaign.

Apple® users whose zeal surpasses their sense of humor may not be amused.

December 22, 2002
When you're flush with cash, build a new flush. When you're not, don't.

A Washington Post article today suggested a slight variation on the project prioritization process used by the Virginia DOT:

If you're running low on cash, don't worry about the folks with the runs.

Staff Writer Michael Shear wrote about the fact that VDOT is putting the finishing touches on a brand-new $7 million rest stop on Interstate 64, between Richmond and the Williamsburg/Jamestown tourist attractions. The impressive facility, 90% Federally-funded, was part of a series of rest stop renovation projects initiated in the prior administration.

Now that the money's really tight, others are suggesting that work on the rest of these buildings should be halted, and that the freed-up cash should be spent on more pressing needs.

On the other hand, when all the toilets are blocked at a dilapidated rest stop along the Interstate, about 1,000 folks per hour with their own pressing needs may feel differently.

Shear's article also makes the point, albeit indirectly, that $7 million just doesn't go very far when it comes to transportation projects. For example, he describes one proposal in Northern Virginia on a long list of relatively low-cost concepts:

[W]ith the same amount of money, VDOT could pay for access improvements at the Ballston Metro station and proposed streetscape enhancements on Vienna's Maple Avenue, and still have about $1.6 million left over to expand the Interstate 95 commuter parking lot at Lorton Road.

As DOT projects go, that's not much.

Considering this story's focus, the quote from one official provided some unintentional amusement:

Del. John A. "Jack" Rollison III (R-Prince William), who chairs the House Transportation Committee... said, "we want to put our best face forward for visitors, because tourism is a major industry in Virginia."

And where exactly would one put that face forward, eh?

Of course, this story also brings up other nagging issues.

For example, why are these places called "rest" stops? In all my years of driving, I've never heard anyone ever say, "Can we pull over? I've really gotta rest."

If anything, folks tend to use the word "go" in connection with this necessary biological function.

While I recognize the inherent conflict of meaning if the phrase "Go Stop" were used instead of "Rest Stop", surely a better euphemism for these facilities can be found.


Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969


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Official small print disclaimer: This is, after all, a personal web site. Any opinions or comments I express here are my own, and don't necessarily reflect the official position of my work as a government attorney or any of my clients.

That fact may become obvious later on, but it needs to be said here anyway.

© Frederick H. Schranck 2002