Miller v. United States, 296-74.

• Decision Date: 17 March 1976
• Docket Number: No. 296-74.,296-74.
• Parties: Harold A. MILLER et al. v. The UNITED STATES.
• Court: U.S. Claims Court

531 F.2d 510

Harold A. MILLER et al. v. The UNITED STATES.

No. 296-74.

United States Court of Claims.

March 17, 1976.

Manley B. Strayer, Portland, Or., attorney of record for plaintiff; Davies, Biggs, Strayer, Stoel & Boley, Tonkon, Torp & Galen, Portland, Or., and Ragan & Mason, Washington, D. C., of counsel.

Howard O. Sigmond, Washington, D. C., with whom was Asst. Atty. Gen. Peter R. Taft, Washington, D. C., for defendant.

Before SKELTON, NICHOLS and BENNETT, Judges.

ON PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT'S CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT AND PETITION TO DISMISS COUNT I OF THE PETITION

NICHOLS, Judge.

Plaintiffs, owners of valuable California forest lands, bring this action for just compensation under the Redwoods National Park Act, Pub.L. 90-545, 82 Stat. 931, 16 U.S.C. §§ 79a-79j. That Act vested in the United States immediate title to an area described by reference to maps, by legislative enactment pure and simple, uncomplicated by any necessity for subsequent executive action. The Secretary of the Interior was to settle claims of the former owners for just compensation, and in the absence of agreement, they were directed to sue in this court. Part of plaintiffs' land being thus taken, and part remaining in their ownership, their claim includes substantial sums for injury to land not taken.

The settlement negotiations brought to light an unfortunate situation. The area taken includes a narrow corridor connecting wider tracts to the north and south, and this corridor, which contains no primeval redwoods, cuts right across the plaintiffs' only access to the large area of their ownership, to the eastward, and to a smaller area, also not taken, called the "Demonstration Forest", which is surrounded by corridor lands. The authorization limit for the whole Park was $92,000,000. For the land taken, 2,737.40 acres, and damage to land not taken, plaintiffs claim $87,008,539, towards which they acknowledge payments totalling $11,687,955, in money and in exchanged lands. If the access problem can be resolved as defendant has attempted to do, the claim is only $7,669,771, but if as plaintiffs believe, it is unsolvable under existing legislation, $75,320,584 is the claim, plus interest as part of just compensation. Defendant has filed corrective maps in the state land records, and the parties have made a contract, purporting to remove 90.78 acres from the taking area, to restore plaintiffs' access to their land not taken, and to enlarge the Demonstration Forest area. The notice of this filing, in the Federal Register, describes the new maps as delineating and describing the lands taken in the legislative taking. 36 Fed.Reg. 19518 (1971). The access route would sever the north-south corridor and divide the Park in two, but this appears to defendant less of an evil than the enormous severance damage claim with which it is faced. Plaintiffs would be happy to take the 90.78 acres in lieu of the severance damages, but deny that defendant has power to dispose of park lands vested in the United States in this manner, or that it has followed the correct procedure even if it has such power.

The case is before us on cross motions for partial summary judgment. The facts are undisputed and the issue seems an appropriate one for disposition by that medium, preliminary to a trial on the value of the land taken, if one is necessary. Our problem is, therefore, to determine whether or not the 90.78 acres have been effectually removed from the park and restored to private ownership, so that they never were in the park for the purposes of assessing plaintiffs' claim. We hold that this is the result.

The text of Redwoods National Park Act, Secs. 2(a) and 3(b)(1) are both important and read as follows:

Sec. 2. (a) The area to be included within the Redwood National Park is that generally depicted on the maps entitled "Redwood National Park," numbered NPS-RED-7114-A and NPS-RED-7114-B, and dated September 1968, copies of which maps shall be kept available for public inspection in the offices of the National Park Service, Department of the Interior, and shall be filed with appropriate officers of Del Norte and Humboldt Counties. The Secretary of the Interior (hereinafter referred to as the "Secretary") may from time to time with a view to carrying out the purpose of this Act and with particular attention to minimizing siltation of the streams, damage to the timber, and assuring the preservation of the scenery within the boundaries of the national park as depicted on said maps, modify said boundaries, giving notice of any changes involved therein by publication of a revised drawing or boundary description in the Federal Register and by filing said revision with the officers with whom the original maps were filed, but the acreage within said park shall at no time exceed fifty-eight thousand acres, exclusive of submerged lands.

Sec. 3. * * *

(b)(1) Effective on the date of enactment of this Act, there is hereby vested in the United States all right, title, and interest in, and the right to immediate possession of, all real property within the park boundaries designated in maps NPS-RED-7114-A and NPS-RED-7114-B, except real property owned by the State of California or a political subdivision thereof and except as provided in paragraph (3) of this subsection. The Secretary shall allow for the orderly termination of all operations on real property acquired by the United States under this subsection, and for the removal of equipment, facilities, and personal property therefrom.

Defendant with its cross motion furnishes copies of Maps NP-RED-7114-A and -B, which are now conceded to be the maps Congress referred to. The "S" in "NPS" was an inadvertent error in the statute, but without legal significance.

Defendant relies on the authority given in Sec. 2(a) to "modify" the park boundaries, as the source of power to exclude the 90.78 acres. Omitting for the moment procedural questions, plaintiffs' point is that by the Act's own language, Sec. 3(b)(1), "all right, title and interest in" the land, within the boundaries shown on the maps, vested in the United States. It relies then on the usual rule that United States officials cannot dispose of Government land without express statutory authority to do so.

As to the immediate vesting of title our decisions in Drakes Bay Land Co. v. United States, 424 F.2d 574, 191 Ct.Cl. 389 (1970), and Rocca v. United States, 500 F.2d 492, 205 Ct.Cl. 275 (1974), do not bear the weight plaintiffs put on them. In the former case we were discussing other legislation and in pointing out that the Redwood National Park Act was different in vesting immediate title, we had no reason to spell out whatever minor qualifications there might be to that statement. In Rocca, likewise, we were explaining the differences between the takings under the Redwood Act and those made in what is called "inverse condemnations", i.e., where the claimant suing under the Tucker Act, 28 U.S.C. § 1491, must show whether the Government has taken at all, and if so, when. Such statements, wrenched from their original context, cannot be fathered on the court in wholly different contexts.

We may concede, however, that in the absence of Sec. 2(a), the plaintiffs clearly would be right. The most immediately relevant authority is United States v. Sunset Cemetery Co., 132 F.2d 163, 164 (7th Cir. 1943). That case deals with the Declaration of Taking Act, 40 U.S.C. § 258, and holds that before § 258(f) was added in 1942, a Declaration purporting to take a fee was irrevocable and the interest taken could not be diminished by amendment. § 258(f) was added to allow effect to be given to a stipulation or agreement by the Attorney General to exclude any property or any part thereof, or interest therein. § 258(f) does not apply to this case except as showing how Congress has dealt with the instant problem when it recognized its existence. Sec. 2(a) of the Redwoods Act is less clear.

Plaintiffs point out that the Senate and House bills that became the Redwoods Act both laid out general areas by reference to a map, but without any legislative taking. Land was to be purchased or condemned within the areas for the park from time to time. I.e., the scheme was like that discussed by us in Drakes Bay Land Co., supra. The Senate bill allowed the Secretary to make "boundary revisions" which were to be "minor adjustments", but limited to not over the park area, as contemplated, of 64,000 acres. The Secretary was not to depart from the "general boundaries described in the bill to make major acquisitions * * *" Senate Rep. No. 641, U.S. Code Cong. & Admin. News, Vol. 3 (1968), p. 3928.

The House bill was similar but provided a smaller ultimate area. The Conference Committee figure of 58,000 acres was a compromise. But the Conference Committee added a feature that was not in either the Senate or House bills: the immediate legislative taking. The reason for this was perception of an "emergency" in concern lest cutting of "these precious trees" would go on after enactment pending further legislative and administrative measures, because title would not at once vest in the United States. Speech of Senator Jackson, Committee Chairman, Con. Rec. Sept. 19, 1968, p. 27583. Another reason was to stop land price escalation on the taking date. See, Cong. Rec., supra, at 27582.

Plaintiffs apparently believe that by the introduction of the legislative taking the Congress drastically curtailed...