Polson Logging Co. v. United States

• Decision Date: 25 March 1947
• Docket Number: No. 11342.,11342.
• Parties: POLSON LOGGING CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

160 F.2d 712 (1947)

POLSON LOGGING CO. v. UNITED STATES.

No. 11342.

Circuit Court of Appeals, Ninth Circuit.

March 25, 1947.

L. B. Donley, of Aberdeen, Wash., and F. D. Metzger and Metzger, Blair, Gardner & Boldt, all of Tacoma, Wash., for appellant.

David L. Bazelon, Asst. Atty. Gen., J. Charles Dennis, U. S. Atty., of Seattle, Wash., and Roger P. Marquis and John F. Cotter, Attys., Dept. of Justice, both of Washington, D. C., for appellee.

Before GARRECHT, HEALY, and ORR, Circuit Judges.

HEALY, Circuit Judge.

This case raises the question of the authority of the Secretary of Agriculture to acquire land for the purpose of a road intended to service a national forest.

The property consists of a logging road system in the Humptulips River basin in Washington, extending easterly from the Olympic Peninsula highway to the Olympic National Forest. Appellant owns the road and the bulk of the lands in its neighborhood. Between 1918 and 1939 it logged off these lands and now holds them as part of a large reforestation area. It originally built the road as a logging railroad but removed the rails and ties when the profitable logging of the surrounding area had been completed. By arrangement with appellant, an individual owning timber in the Olympic forest converted the railroad bed into a truck road and logged his timber over it at a charge of 50¢ per thousand board feet of timber hauled. He then assigned his contract to a timber company which began to buy timber in the Olympic forest, but its use of the road for removal purposes was enjoined by appellant.

In January 1942 the United States at the instance of the Secretary of Agriculture instituted suit to condemn the roadway on the allegation that it was to be used for highway purposes in the administration, protection, development, and improvement of the Olympic forest, including the transportation of men, supplies, and equipment needed for these purposes and of the timber removed from the forest. The lands comprised a hundred foot strip some 11 miles in length, containing about 140 acres. The petition cited as the Secretary's authority for the taking the Act of June 4, 1897, as amended, 16 U.S.C.A. §§ 473-482, 551, and the departmental appropriation act of July 1, 1941, 55 Stat. 408. A declaration of taking was contemporaneously filed and estimated just compensation in the amount of $8,280 was deposited with the court. Judgment on the declaration was entered and the United States went into possession. Appellant moved to vacate the judgment and to dismiss the proceedings on the ground that the statutes relied on did not authorize the acquisition. Later, in October 1943, in reliance on the same statutes, the United States filed an amended petition praying for the condemnation of approximately 148 acres of additional lands. In this petition a fee title was sought instead of a permanent easement, as originally asked. There was a declaration of taking and a deposit of an additional sum of $688.

In November of 1943 the court ruled that both declarations of taking were unauthorized and insufficient and ordered the petition and the amended petition dismissed without prejudice to the filing of a new or amended petition. It further ordered that notwithstanding these rulings the cause "shall be considered to be pending," and the deposits were directed to be retained in the registry. Thereupon the United States filed a third declaration of taking in reliance upon the statutes previously invoked, and on the Acts of November 9, 1921, 42 Stat. 212, September 5, 1940, 54 Stat. 867, July 13, 1943, 57 Stat. 560, 23 U.S.C.A. § 1 et seq., and the Act of July 12, 1943, 57 Stat. 392, 415, and supplementary and amendatory statutes. Appellant moved to quash this declaration of taking on the same ground as before. In May of 1944 the government filed its second amended petition in condemnation, conforming to the declaration of taking filed the previous November. The court thereupon entered an order granting the government's motion for judgment on the third declaration of taking, and further, on its own motion vacated and set aside all portions of its earlier order which might be interpreted as denying the authority of the Secretary to condemn. Judgment was then entered on the third declaration, reciting that the United States was entitled to acquire the property under all the statutes cited.

It is not disputed that the taking of land for the purposes indicated in the several condemnation petitions is a taking for public use, and it is conceded that authority to condemn exists in every case in which an officer of the government has been authorized to procure real estate for public uses. The Act of August 1, 1888, 40 U.S. C.A. § 257, so provides. The statutory authorization to procure real estate may be evidenced by the making of an appropriation as well as by a specific authorization to acquire. United States v. North American Transp. & Trading Co., 253 U.S. 330, 333, 40 S.Ct. 518, 64 L.Ed. 935; Hanson Lumber Co. v. United States, 261 U.S. 581, 587, 43 S.Ct. 442, 67 L.Ed. 809; United States v. Threlkeld, 10 Cir., 72 F.2d 464, certiorari denied 293 U.S. 620, 55 S.Ct. 215, 79 L.Ed. 708. By his deposit of the estimated compensation for the property the Secretary evinced his understanding that the requisite monies had been made available for its acquisition. But despite the deposit appellant insists that Congress has made no appropriation from which the lands may be paid for.

In United States v. Threlkeld, supra, the authority of the Secretary to acquire privately owned lands for use as a logging highway in connection with a national forest was sustained. The court observed that it had long been the policy of Congress to protect, develop and utilize the national forest resources and that for such purpose roads are indispensable. The Threlkeld case was concerned with the Department of Agriculture appropriation act for the fiscal year ending June 30, 1934, 47 Stat. 1432, 1449, which included funds for the "construction and maintenance" of roads and trails; and it was held that the broad authority to construct and maintain embraces the power to acquire the needed land. Subsequent annual appropriations for the Department have not in so many words included funds for the construction of roads or trails;¹ and in reliance on this circumstance appellant argues that Congress purposely withheld from the Secretary authority to construct roads or to acquire lands for such purpose. The government insists that the administrative interpretation of the appropriations has consistently been at variance with this view. It appears to be the fact that since 1935 the Forest Service has continued to construct roads and trails thought necessary; and in the annual reports of the Department Congress was kept informed of the practice.² As authority for the expenditure here the government relies on the broad administrative power of the Secretary under 16 U.S. C.A. §§ 473-482, 551, and upon the language of the 1941 appropriation act providing funds for "all expenses necessary for the use, maintenance, improvement, protection, and general administration of the national forests." And in its final ruling on the case the trial court appears to have adopted the government's view.³

We are disposed to do likewise. There is nothing in the legislative reports to which our attention has been called indicative of a studied purpose to deny the Secretary authority to construct needed roads, or, where necessary, to acquire rights-of-way for them.⁴ And there is no reason dehors the statute for believing that, beginning with 1935, Congress regarded the program of road and trail building in the development of the national forests as having been finally completed. The continuance of construction with the knowledge and silent acquiescence of Congress is confirmatory of the belief that the broad powers of improvement, protection, and administration lodged with the Secretary were accepted as sufficient authority to build such roads as were from time to time deemed essential.

There is another and, we think, a conclusive reason for upholding the Secretary's interpretation of his authority. The Department of Agriculture appropriation act making funds available for the fiscal year ending June 30, 1944, 57 Stat. 392, was approved July 12, 1943. Among other things, it appropriated funds "for carrying out the provisions of Section 23 of the Federal Highway Act approved November 9, 1921 (23 U.S.C. 23)." Section 23(a) of the Federal Highway Act, 23 U.S.C.A. § 23 (a), provides: "Fifty per centum, but not to exceed $3,000,000 for any one fiscal year, of the appropriation made or that may hereafter be made for the survey, construction, reconstruction and maintenance of forest roads and trails shall be expended under the direct supervision of the Secretary of Agriculture in the survey, construction, reconstruction, and maintenance of roads and trails of primary importance for the protection, administration, and utilization of the national forests, or when necessary, for the use and development of the resources upon which communities within or adjacent to the National forests are dependent, and shall be apportioned among the several States, Alaska, and Puerto Rico by the Secretary of Agriculture, according to the relative needs of the various national forests, taking into consideration the existing...