The question now is, is the court’s statement merely a bump in the road or a roadblock? The United States filed the eminent domain action seeking to condemn certain access rights so it could increase its profitability when it sold vacant federal land in Alameda County, California. In its complaint and declaration of taking, the United States alleged that it needed to condemn the property interest for the “continuing operations” of the Alameda Federal Center. In support of the taking, the United States relied on the General Service Administration’s general authority. The federal court found, however, that while the General Service Administration’s general authority did authorize certain condemnation actions, it would not support the use of eminent domain in this specific situation. (See United States of America v. 1.41 Acres of Land (N.D. Cal. Nov. 10, 2014).)

In order to streamline the litigation, the United States moved to strike two affirmative defenses: (1) that the taking is not authorized by Congress; and (2) that the taking is not for a valid public purpose. In support of the motion to strike, the United States argued that Congress authorized the General Service Administration to condemn land when it will increase the profitability associated with the disposal of federal land, and that the courts have held increased profitability is a valid public purpose.

As to the first issue, the federal court found that in various disposal statutes Congress did authorize the General Service Administration to condemn land when it would result in a more profitable sale of federal land. However, the United States did not cite that authority in its complaint and declaration of taking. Instead of citing the disposal statutes, the United States cited the General Service Administration’s general authority. While this authority would be adequate if the access easement was necessary for the operation of federal property, the court found that it could not reach this conclusion because there was evidence demonstrating that the condemnation was intended to benefit the vacant lot, and there was an existing access easement to service the vacant lot for so long as it was owned by the United States.

As to the second issue, after noting that increased profitability was a valid public purpose, it found that in light of the stated basis for the condemnation (continuing operations), and the existing access easement “already owned by the United States for exactly that purpose, the supposed rationale for condemnation would appear to be a sham — or so it is alleged — and at this stage, that defensive allegation will not be stricken.”

While the deficiency appeared to be nothing more than a scriveners error, the court expressly declined to decide whether the United States could amend its declaration to correct the error.