Pacific Rim

If you take legendary anime franchise Neon Genesis Evangelion and strip out the pseudo-oedipal pop psychology, crushing angst, fan service, crypto-Judeo-Christian imagery, and enormously surrealistic endings, you can get a pretty good idea of what Pacific Rim is like: ten-story mecha beating up gigantic biological monsters. Good times.

For our purposes, there is a legal issue raised by the movie. We’re going to just sort of hand-wave the Jaeger project as a necessary plot device. But the concept of the “Life Wall,” a massive coastal wall combined with a multi-hundred kilometer safe zone around the Pacific coastline does raise an interesting question about eminent domain and Fifth Amendment takings.

I. Set up

At the beginning of the movie, we learn that “kaiju” Cthulu-like monsters (or Angel-like, if you will) have been emerging from an inter-dimensional portal located in the western Pacific Ocean. The portrayal of the exact location is inconsistent, but it’s suggested to be at the bottom of the Challenger Deep. The first attack hit San Francisco and leveled much of the city. It took the US armed forces several days to take it out using conventional weaponry, as there was apparently no political will to nuke SF. Fair enough. After several more monsters attacked, the governments of the world united to build the Jaegers, enormous mecha controlled by a pair of neurally-linked pilots. The Jaegers proved to be able to defeat the kaiju on a fairly regular basis, and for some time, things appeared to be going okay. Then the kaiju seemed to evolve, and Jaegers started to be defeated. After a series of defeats, the governments of the world decided that the Jaeger project was just too expensive, and anyway, the kaiju were destroying Jaegers faster than they could be constructed. Another option was required.

That option was the construction of a coastal wall around basically the entire Pacific Ocean. There are offhand references to a safety zone behind these walls as well, perhaps three-hundred kilometers. We don’t ever really get to see the wall or the safe zones, but the global governments decide to redirect Jaeger funding to the wall project. Our heroes are basically running an unauthorized operation using the last handful of surviving Jaegers, funded by private monies.

II. Eminent Domain and the Fifth Amendment

So the question here is whether the federal government would actually be legally capable of doing something like this. We’re talking about seizing the entire Pacific coast. Some of the most expensive real estate in the country is there, not to mention strategically valuable natural resources and harbors. Can it even do that?

Well it would represent the largest eminent domain taking in history, but yes, it probably can. The Environment and Natural Resources Division of the Department of Justice actually has a Land Acquistion Section devoted solely to the federal government’s exercise of eminent domain. An excellent summary of the history of federal eminent domain is on their website suffice it to say that eminent domain has been recognized by the Supreme Court as “requir[ing] no constitutional recognition; it is an attribute of sovereignty.” Boom Company v. Patterson, 98 U.S. 403 (1878). So there really isn’t any question that takings are possible.

The question is whether the Takings Clause of the Fifth Amendment comes into play. The clause reads “. . .nor shall private property be taken for public use, without just compensation.” Generally speaking, if the government takes your stuff (outside the context of a criminal or civil forfeiture proceeding) then it has to pay for it, and pay something approximating fair market value. If the government wants to build a road through your backyard, they can do it, but they have to buy the property from you. You can sue them about the price they’re offering, but it’s never going to be what you wanted, and you can’t prevent the sale. So one might think that this means that the government would need to buy the entire Pacific coast if they wanted to build this wall.

Turns out probably not. The courts have long recognized that when the government takes and/or destroys property in the attempt to prevent or mitigate a disaster, that it need not pay for the property. The leading case is perhaps Bowditch v. Boston, 101 U.S. 16 (1879), in which the City of Boston was found to be not liable for the destruction of a building when it was demolished during the Great Boston Fire of 1872. This is known as the “public necessity” exception to the general rule of the Takings Clause. It would be pretty easy to argue that the risk of repeated kaiju attacks constitutes a disaster which would justify a public necessity taking.

The question has to do with the sheer scope of the seizure. We’re talking about a strip of land over a hundred miles wide and almost 8,000 miles long. More than 1.5 million square miles. So we might have to draw a distinction between the land seized for the wall itself—maybe only the mile or three closest to the coast—and this safe zone. I’m not sure the government would be able to justify the exclusion of any use of the entire coast. People currently choose to live in areas which suffer from routine earthquakes, hurricanes, floods, landslides, and wildfires. The government doesn’t—and arguably can’t—stop people from living in those places simply because it’s inconvenient. It can certainly decline to offer subsidies to the residents of those areas, subsidies like flood and earthquake insurance and disaster relief funds. But I’m not sure the government can say that people can’t use that real estate at all without putting it to some other use. That, after all, is part of the language of the Takings Clause: it has to be for some public purpose. Whether it would be able to justify designating the entire Pacific Coast as a no man’s land as a “public purpose” seems like a hard sell, particularly if the government tries to assert the public necessity defense to avoid just compensation.

Now there are examples of governments using eminent domain to acquire property in disaster prone areas. In the aftermath of the 2009 Red River Flood, Fargo, ND used its eminent domain powers to buy over 700 homes in flood-prone areas. But that’s just the thing: they bought them. They did not assert the public necessity defense, and it’s doubtful that the courts would have recognized it if they did. The defense is generally limited to situations which pose an immediate and grave threat to life or property. So while there would be no problem knocking down buildings to fight off a kaiju, and one might even be able to extend that line of reasoning to seizing the entire Pacific coast to build a wall, seizing the next few hundred miles inland to provide a buffer against the threat of future kaiju might be too attenuated. Even if the courts were willing to recognize this as being a legitimate public purpose, they would probably require compensation. The entire federal debt, currently at $16 trillion, doesn’t seem adequate to provide “just compensation” for all that land.

III. Conclusion

The government could almost certainly use its eminent domain powers to build the wall and might even be able to avoid paying for the land under a public necessity theory. But whether they could seize the land required for the buffer zone is another question, and seems far less likely. Even if the courts would permit such a taking, they might require compensation, and that just seems non-viable.

23 Responses to Pacific Rim

  1. Actually, we do get to see the wall…

    SPOILERS BELOW!

    We see a big piece of it being demolished by a kaiju, which is only slowed down by it for a matter of hours. We also see it being built, as a construction site is where we find the protagonist after the initial events of the movie.

    There’s a lot of interesting questions a lawyer might ask about how we see the wall being built, including ration books, employment and hiring procedures, and job safety concerns.

    • Here’s a question, though:

      Suppose the government doesn’t actually *seize* the Exclusion Zone, but simply declares it terra non grata. It’s a war zone, it’s property where no services are available, whatever. (Think Heinleinesque “Abandoned Area,” only bigger.)

      You want to go into it? Knock yourself out. However, the courts are specifically barred from hearing any claim arising from government activities thereupon related to national defense, and no call for assistance from any government entity will be answered if it originates from the EZ.

      • Ryan Davidson

        I’d argue that’d be a fairly classic example of a “regulatory taking,” i.e., an action by the government which does not disturb title to the property, but essentially renders the property worthless. Local governments run into this sort of thing all the time when they try to get to clever with zoning ordinances. Essentially, the Supreme Court has recognized that the government can interfere with property rights in more was than just eminent domain, and it has extended the Fifth Amendment rights to just compensation to such “regulatory takings”.

        So a nice thought, but I don’t think that’d make a difference. True, you still own the land, but the government has basically made it impossible to live there. That’s a regulatory taking.

      • Good point. That does however raise the question of how much services have to further decline in, say, parts of Detroit before this theory might start to apply. There are places where the city doesn’t do much if anything, because it can’t. Without getting into the why of it, simply consider the what. What basic level of oversight/protection/service does the government have to provide – especially to an area that has historically received it – before an owner can’t claim a regulatory taking or other similar theory?

      • But could you go back to a “public necessity” to the regulatory taking? It doesn’t apply to outright taking the land, you say, because people are free to take whatever risks they like, and their living there doesn’t put the public in general in any danger. But if you don’t outright take the land, merely pass the onerous proposed regulations, and argue that the safe zone regulations are necessary to mitigate the kaiju disaster, are we back under “public necessity”?

  2. I would imagine that the fair market value of property routinely attacked by extradimensional monsters would drop catastrophically.

    • Yeah.

      Also, the novelization notes that the first three kaiju attacks – before the Jaeger program was approved by multinational coalition – all required nuclear weaponry to end the intruders in question. San Francisco, Manila, Hong Kong, right?

      • The novelization goes a lot further than the movie, then (not that I am disputing this, I haven’t read it.) It is pretty clearly implied that the first attack was ended by overwhelming conventional force. I do not recall the positive statement that nuclear weapons were used against ANY of the kaiju prior to the events of the movie, though I could be wrong. They were used against the portal, which obviously didn’t work for reasons explained in the movie.

    • That was my thought as well. The government might have to pay fair market value, but what is fair market value for a bombed out hell hole these days?

  3. I’m going from memory, and it’s been a couple of weeks since I saw the movie, but my interpretation of what was said about the wall and the safe zones is very different. My impression is that the wall was intended to protect all that valuable real estate immediately behind it. The only property it would have had to seize was the land occupied by the wall itself. They don’t start talking about safety zones until the wall is shown not to be able to stop the Kaiju. So I’m thinking that this simply represents the government conceding the ineffectiveness of the wall at telling everybody to get the hell away from the coast.

    • The original plan seemed to be that the wall would stop the kaiju, period, so your theory seems reasonable.

      The wall plotline, which is simply an excuse to defund the Jaegers and turn them into a ragtag band of flawed heroes fighting both monsters and bean-counting bureaucrats (‘Cause you know, that makes a group invincible!) is far and away the stupidest part of the movie. (No. It is. The Rodan kaiju is physically stupider but it fits into the story.) What the Hell did they think this would accomplish? The kaiju would just sort of roam around the Pacific Ocean until they decided to go home? Never mind the ridiculous impossibility of walling off thousands of miles of coast, much of it inaccessible and very rough terrain, they figured the kaiju wouldn’t find, say, THE GIANT HOLES AT THE TOP AND THE BOTTOM?

      Obviously, the plan’s advisers did not include a child of five.

      I think that a much better way to do this – not that anybody asked me and I have absolutely no moviemaking experience – would have been to say, “These kaiju are getting worse and the Jaegers are expensive. From now on, we see one, we light a miniature sun under its ass thirty seconds later.” Then, of course, the horror of finding that the next phase of kaiju were somehow immune to fusion weapons… Help us, Jaegermeisters, you’re our only hope!

      (While I’m ranting I can’t believe that not once in the film was anybody referred to as a Jaegermeister.)

      • That fed into my biggest WTF about the wall plotline: We have Attack Subs, hell we have P-38 Orions. We have Nuclear Torpedos. We evidently have the ability to track kaiju from their point of transmission to the coast…

        Don’t get me wrong, as a method for creating GIANT ROBOT FIGHTING TIME, I don’t care. The wall subplot however wasn’t well done.

        Jaegermeister. Bless you and all your works.

  4. Quote from article: “We’re talking about a strip of land over a hundred miles wide and almost 8,000 miles long. More than 1.5 million square miles.” By my math (yours may be different), 8,000 miles by 100 miles is 800,000 square miles. Math is a bit more rigorous than law.

  5. The point that got me was that there were still coastal cities after years of Kaiju attacks. I don’t know about you, but the only way I’d live near the shore is if they accepted me as a Jaegermeister. (tip o’ the hat to Marc C)

    Now to my question – does the government have any responsibility to help people relocate from dangerous areas?

  6. What about Hawaii? (Speaking of expensive property…)

  7. Personally, I thought of the wall thing as being the result of Kaiju-worshipping cultists trying to sabotage Earth’s defenses. We know they exist; we saw some of them in a crowd scene with Hannibal Chau. Whether they call the thing they worship Dagon, Cthulhu, Gojira, or something else, there were some people who were resigned to or even welcomed destruction. If any of them had infiltrated governments, they could have turned public policy and/or opinion against the Jaegers because they were effective.

  8. WOuld the presence of giant monsters showing up diminish the value? Based on what was happening it comes down to take the land or go extinct.
    Of course ‘The Government’ shows up and take the land by force you are free to take the years to get through the court system.

    Frank;y, when the second manter show up, I’m moving to Colorado… Assuming I can’t get me a sweet Jaeger!

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  10. So the question here is whether the federal government would actually be legally capable of doing something like this. We’re talking about seizing the entire Pacific coast. Some of the most expensive real estate in the country is there, not to mention strategically valuable natural resources and harbors. Can it even do that?

    Considering not only the deadly attacks, but also the “Kaiju blue” phenomena which poisons the environment, I’m betting that the real estate on the pacific coast had a value in the pennies. If anything prices in the midwest would probably start sky rocketing as everyone moved inland.

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