U.S. v. 162.20 Acres of Land, More or Less, Situated in Clay County, State of Miss.

• Decision Date: 04 June 1984
• Docket Number: No. 83-4447,83-4447
• Parties: , 14 Envtl. L. Rep. 20,606 UNITED STATES of America, Plaintiff-Appellee, v. 162.20 ACRES OF LAND, MORE OR LESS, SITUATED IN CLAY COUNTY, STATE OF MISSISSIPPI, and F.E. Uithoven, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 377

733 F.2d 377

75 A.L.R.Fed. 729, 14 Envtl. L. Rep. 20,606

UNITED STATES of America, Plaintiff-Appellee, v. 162.20 ACRES OF LAND, MORE OR LESS, SITUATED IN CLAY COUNTY,

STATE OF MISSISSIPPI, and F.E. Uithoven, et al.,

Defendants-Appellants.

No. 83-4447.

United States Court of Appeals, Fifth Circuit.

June 4, 1984.

J. Arthur Smith, III, Baton Rouge, La., for defendants-appellants.

Jacques B. Gelin, David C. Shilton, U.S. Dept. of Justice, Appellate Sec., Lands Div., Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before CLARK, Chief Judge, RUBIN and POLITZ, Circuit Judges.

CLARK, Chief Judge:

This is an appeal from a district court's grant of summary judgment for the government in a land condemnation action, 567 F.Supp. 987. The court found no material factual issues in the landowners' claim that the government had not complied with the National Historic Preservation Act, 16 U.S.C. Sec. 470 et seq. (NHPA), and the National Environmental Policy Act, 42 U.S.C. Sec. 4332 (NEPA). We affirm.

I. Procedural History

On February 14, 1978, the United States filed a complaint and declaration of taking, with a deposit of estimated just compensation for the landowners' property. The property is located near the Tombigbee River on the site of the abandoned riverfront towns of Colbert and Barton, Mississippi. On the property is an antebellum home, "Cedar Oaks," which has been owned by the Uithoven family since 1913. The U.S. Army Corps of Engineers (Corps) seeks to include the property within the Tennessee Tombigbee Waterway Project, as part of the "Barton Ferry Recreation Area" along the Columbus Lock and Dam segment of the waterway. The Barton townsite and Cedar Oaks are listed on the National Register of Historic Places as within the Tombigbee River Multi-Resource District (River District).

As a defense to the condemnation the landowners asserted that the government could condemn the National Register site only after it had complied with the provisions of the NHPA. ¹ The district court granted the government's motion to strike the defense. A panel of this court affirmed, United States v. 162.20 Acres of Land, More or Less, Situated in Clay County, Mississippi, 639 F.2d 299 (5th Cir.1981), but remanded for a determination of whether the Corps had come into compliance with the Act, for purposes of deciding whether to withhold possession from the government or to issue appropriate injunctive relief.

On remand, the landowners asserted that the government had not complied with either NHPA or NEPA. ² The district court granted the government's motion for summary judgment. The landowners appeal.

II. The NHPA Claim

The landowners urge us to reconsider the prior panel's holding that noncompliance with NHPA is not a valid defense to a condemnation action. The federal doctrine of the law of the case is that when an appellate court establishes a rule of law in a particular case, it will not depart therefrom on a successive appeal unless sound reasons exist to do so. See generally 1B J. Moore, Federal Practice, p 0.404 at 573-74 (2d ed.1974). In this circuit, however, the law-of-the-case doctrine is supplanted by our firm rule that one panel cannot disregard the precedent set by a prior panel even though it perceives error in the precedent. Ruiz v. Estelle, 666 F.2d 854, 857 n. 5 (5th Cir.1982).

In this case, we find no reason to decide differently the issue whether noncompliance with NHPA is a valid defense to a condemnation. The landowners' request for reconsideration is based on the reasoning of the court in Massachusetts v. Watt, 716 F.2d 946 (1st Cir.1983). There the court affirmed the grant of a preliminary injunction stopping the government from auctioning oil leases before complying with NEPA's requirements. The court rejected the government's argument that the lease sale alone could not hurt the environment, and thus should have been allowed to proceed while the court made a more thorough examination of its lawfulness. The court reasoned:

It is appropriate for the courts to recognize this type of injury in a NEPA case, for it reflects the very theory upon which NEPA is based--a theory aimed at presenting governmental decisionmakers with relevant environmental data before they commit themselves to a course of action.

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In the present case plaintiffs would suffer harm if they were denied an injunction, if the lease sale then took place, and if the court then held that a supplemental EIS was required. In that event, the successful oil companies would have commited time and effort to planning the development of the blocks they had leased, and the Department of the Interior and the relevant state agencies would have begun to make plans based upon the leased tracts. Each of these events represents a link in a chain of bureaucratic commitment that will become progressively harder to undo the longer it continues. Once large bureaucracies are committed to a course of action, it is difficult to change that course--even if new, or more thorough, NEPA statements are prepared and the agency is told to "redecide." It is this type of harm that plaintiffs seek to avoid, and it is the presence of this type of harm that courts have said can merit an injunction in an appropriate case.

716 F.2d at 952. The landowners argue that NHPA likewise is focused on the governmental decisionmaking process, and that the prior panel erred in allowing the government to condemn land without first complying with NHPA.

The Watt decision is not persuasive in the context of this case. The prior panel held that the vesting of title in the government is a neutral act vis-a-vis the NHPA, and therefore that noncompliance with NHPA is not a defense to the condemnation itself. 639 F.2d at 304. The court further held, however, that "a district court having before it a condemnation case may require compliance with section 470f and either withhold possession by the government or take appropriate injunctive action to enforce its order." Id. at 305. This holding is not inconsistent with Watt. The transfer of title effected by the condemnation does not relieve the government of its obligations under NHPA or NEPA. Those obligations must be fulfilled before the government takes any steps toward making use of the property taken. Noncompliance can be the basis of a court order withholding possession of the land or enjoining any construction or other activity that threatens to disturb the environment. Id. at 304. Moreover, a court determining whether compliance has been achieved cannot take into consideration the fact that the government has acquired the property. Not even the first link forged in "a chain of bureaucratic commitment" can be used to strengthen the agency's NHPA study of the effect of the proposed undertaking.

With this in mind, we review the district court's determination that no genuine issue of material fact existed as to corps compliance with the provisions of NHPA. The court found that the Corps had achieved compliance under 36 C.F.R. Sec. 800.6(c)(3), which provides:

Effect of Memorandum of Agreement. Agreements duly executed in accordance with these regulations shall constitute the comments of the Council and shall evidence satisfaction of the Federal agency's responsibilities for the proposed undertaking under Section 106 of the Act, Section 2(b) of the Executive Order, and these regulations.

The Corps and the Advisory Council on Historic Preservation ratified a Memorandum of Agreement covering the River District on December 19, 1977. The landowners concede that the Corps developed a structure treatment plan pursuant to Section 2(c) of the agreement, ³ which the Advisory Council ratified on April 18, 1983. The court found that the plan fully satisfied the government's obligations under 2(c), and therefore under NHPA.

The landowners raise two objections on appeal to the structure treatment plan. The first is that it was developed too late: well after the government condemned the subject property. We have already declined the landowners' invitation to reconsider whether the government's failure to comply with NHPA before condemning property is disabling. The district court found that the Corps came into...