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Univ. of South Carolina School of Law

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Wednesday, August 20, 2008

This Land Is Your Land, This Land Is My Land: Court Of Federal Claims Hears Pearl Harbor Land Dispute Despite Hearsay Claims

The Court of Federal Claims is currently hearing a case involving an interesting piece of history.  In 1942 and 1943, in the wake of Pearl Harbor, government agents apparently arrived on the doorsteps of several Kentucky landowners and told them that they had to move off of their farms so that the U.S. government could build World War II training camps on them.  After the war, the government later earned a windfall from coal, oil, and gas resources found under the land.  According to the government, the former landowners and their heirs were not entitled to any of this money because the landowners were fairly compensated when their property was taken and not promised any future payments or right to ownership.

The owners disagreed, claiming that they were assured that they would be able to buy back their land after the war.  Indeed, they claimed that they specifically negotiated this buy back provision because they knew that there was a possibility for minerals on the land (some had even sold drilling leases already) when they negotiated the deals.  The only problems with these claims were that: (1) none of the landowners got anything in writing; and (2) only one of the original owners is still alive, with the case somehow still proceeding today despite the fact that it was initially brought in 1960.

Nonetheless, in April, Judge Susan Braden recommended awarding the families $34.3 million, roughly the profits the government made from selling the mineral rights to the land in the 1960s.  And yesterday, as a three-judge panel considered whether her recommendation should stand, it received testimony from many of the owners' heirs despite the government's claim that this testimony was hearsay.  So, how was it admissible?

Well, Federal Rule of Evidence 803(20) states that there is an exception to the rule against hearsay for statements concerning "[r]eputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located."  According to the Advisory Committee's Note to the Rule, "[t]rustworthiness in reputation evidence is found 'when the topic is such that the facts are likely to have been inquired about and that persons having personal knowledge have disclosed facts which have thus been discussed in the community; and thus the community's conclusion, if any has been formed, is likely to be a trustworthy one.'"

Considering the fact that this land lawsuit has been around since the 1960s, and considering the fact that it involves millions of dollars, it is easy to see why the land transfer was important to the community and likely to have been discussed in the community, making the heirs' testimony admissible and their claim likely to succeed.

-CM

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