Swan Lake Hunting Club v. United States

Decision Date09 August 1967
Docket NumberNo. 23551.,23551.
Citation381 F.2d 238
PartiesThe SWAN LAKE HUNTING CLUB and the State of Mississippi, Appellants, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

J. Robertshaw, Greenville, Miss., G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, Miss., Robertshaw & Merideth, Joe T. Patterson, Atty. Gen., State of Mississippi, Jackson, Miss., for appellants.

Edwin L. Weisl, Jr., Asst. Atty. Gen., Roger P. Marquis, William M. Cohen, Attys., Dept. of Justice, Washington, D. C., Hosea M. Ray, U. S. Atty., Thomas G. Lilly, Asst. U. S. Atty., Oxford, Miss., for appellee.

Willard Walker, Calbom, Walker, Cox & Andrews, Longview, Wash., for amicus curiae.

Before BELL and GODBOLD, Circuit Judges, and NOEL, District Judge.

GODBOLD, Circuit Judge:

Swan Lake Hunting Club and the State of Mississippi appeal from a summary judgment for the United States in an action to condemn hunting rights owned by the Club on land in Washington County, Mississippi. We affirm.

Swan Lake Hunting Club, a Mississippi corporation, owned the hunting rights to a swamp area known as Swan Lake (actually a silted-in bed of the Mississippi River). The Club, which in 1962 contained forty-five members, used the area as a private hunting preserve and maintained blinds, hunting trails and a club house. Even before federal regulations affected the taking of waterfowl, the Club had restricted the extent and manner of hunting by members and their guests.

In the 1930's the United States acquired 2,500 acres of land to the southwest of Swan Lake and has since maintained this area as the Yazoo Wild Life Refuge pursuant to the Migratory Bird Conservation Act, 16 U.S.C.A. 715 et seq. A program of expansion was begun in 1958, and the United States purchased or acquired options to purchase approximately 10,770 acres of additional land. This included the area on which the Club owned the hunting rights; as to this land, the government's title was subject to the Club's hunting rights now sought to be condemned.

Complaints and declarations of taking were filed pursuant to 40 U.S.C.A. 257 and 258a in three separate cases which were consolidated on motion of the Club.1 The Club answered and asserted a counterclaim for damages for wrongful temporary taking. All three parties moved for summary judgment. The District Court granted the motion of the United States and denied those of appellants. 237 F.Supp. 290 (N.D.Miss., 1964). Title was ordered vested in the United States and payment of the stipulated just compensation ($37,000) ordered made to the Club.

On appeal appellants claim that no authority for the condemnation is conferred by the Migratory Bird Conservation Act; that if such power is conferred its exercise in this case amounts to an unconstitutional taking for a private use; and that if the power and its exercise are valid, the necessary consent of the state has not been obtained.

I. AUTHORITY FOR CONDEMNATION

No specific authority to acquire lands by condemnation is conferred by the Migratory Bird Conservation Act, but the Secretary of the Interior is authorized to "purchase or rent" areas approved by the Migratory Bird Conservation Commission for use as sanctuaries.2 However, 40 U.S.C.A. § 257 authorizes an officer of the United States to acquire land by condemnation "in every case in which the officer * * * has been, or hereafter shall be authorized to procure real estate for * * * public use." This statute consistently has been interpreted to authorize acquisition by condemnation where specific authority to purchase has been conferred. E. g., Hanson Lumber Co. v. United States, 261 U.S. 581, 43 S.Ct. 442, 67 L.Ed. 809 (1923); United States v. 2.74 Acres, 32 F.Supp. 55 (D.Ill.1940) "statutory authority to acquire land for a public use by purchase is authority to acquire by condemnation * * *"; United States v. Kennedy, 278 F.2d 121 (9th Cir., 1960).

Appellants assert that the Migratory Bird Conservation Act itself demonstrates that the authorization for procurement of land contained in the Act was intended to be limited to voluntary sales and leases and not to be expanded by Sec. 257 to include condemnation. We are referred to numerous instances in the Act of words commonly used only with reference to voluntary transactions. Moreover, it is urged, when the purpose for which the land is intended is not "directly" related to a major national interest, we should be reluctant to use Sec. 257 to expand the scope of an authorization to procure land in the absence of an indication that Congress intended the specific authorization to be so extended.3

Without commenting on the possibility that in a different case it might be shown by language in the authorization itself (short of an express limitation to voluntary procurement) that Congress intended the authority conferred to be beyond the scope of Sec. 257, we hold that in this case no such showing has been made. The power to purchase conferred by the Act, when combined with Sec. 257, confers the power to acquire by condemnation.4

II. THE PURPOSE FOR WHICH TAKEN

If the statutes are construed to confer power to acquire land by condemnation for purposes of the Act, the appellants contend the exercise of the power in this case is unconstitutional. While conceding that the provision for an inviolate refuge to preserve migratory birds would be a public use, they urge that the fact, which is admitted, that regulated public hunting will be allowed on the reserve transforms the taking into one for a private use.

If one's property were taken for private use by the government through the process of condemnation he would be deprived of substantive due process of law as guaranteed by the Fifth Amendment to the Constitution. O'Neill v. Leamer, 239 U.S. 244, 36 S.Ct. 54, 60 L.Ed. 249 (1915). There is significant state authority for the proposition that public hunting is not a "public use" as required for exercise of the eminent domain power. Peavy-Wilson Lumber Co. v. Brevard County, 159 Fla. 311, 31 So.2d 483 (1947); Hampton v. Arkansas State Game and Fish Comm., 218 Ark. 757, 238 S.W.2d 950 (1951). Cf. Ann., 172 A.L.R. 174 (1948); however, "whatever may be the scope of the judicial power to determine what is a `public use' * * * the Supreme Court has said that when Congress has spoken on this subject `Its decision is entitled to deference until it is shown to involve an impossibility'." United States ex rel. T.V.A. v. Welch, 327 U.S. 546, 552, 66 S.Ct. 715, 718, 90 L.Ed. 843, 848 (1946).

But we need not here reach the question whether public hunting is a public purpose. Where both public and private use are to be made of property sought to be condemned, the exercise of the power will not be defeated if the private use is sufficiently subordinate to the public use as to be incidental to it. Hendersonville Light & Power Co. v. Blue Ridge Interurban R. Co., 243 U.S. 563, 37 S.Ct. 440, 61 L.Ed. 900 (1917); United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063 (1913); Kaukauna Water-Power Co. v. Green Bay & M. Canal Co., 142 U.S. 254, 12 S.Ct. 173, 35 L.Ed. 1004 (1891). See generally 2 Nichols, Eminent Domain Sec. 7.222 (1963); 26 Am. Jur.2d Eminent Domain Sec. 35 (1966); 29A C.J.S. Eminent Domain § 31(c) (1965); Ann., 53 A.L.R. 9, 12 (1928). There is no doubt, and it is conceded here, that establishment of sanctuaries for the preservation of waterfowl is a legitimate public purpose. See State of Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920). Congress has taken the position that carefully regulated hunting is not inconsistent with its paramount duty under the Migratory Bird Conservation Treaty of 1918 to preserve migratory waterfowl. 16 U.S.C.A. § 704. Cf. 16 U.S.C.A. § 683. In a similar vein Congress has authorized restricting hunting in areas used for purposes of the Migratory Bird Conservation Act.5 Giving due respect to congressional judgment as we must, we hold that any private benefit which may result from the limited public hunting to be allowed on the planned refuge is incidental to the legitimate public purpose of preserving migratory waterfowl.6

III. THE CONSENT OF THE STATE

Appellants contend finally that the Migratory Bird Conservation Act establishes consent of the state as a condition precedent to any exercise of the power of eminent domain and that sufficient consent has not been obtained for this taking.

In most situations where United States agencies are authorized to procure realty, acquisition is not conditioned upon consent of the state wherein the land lies. Consistently it has been held that where no such express condition had been placed on the authority to acquire land the state may not interfere with the exercise of the authority. United States ex rel. T.V.A. v. Powelson, 319 U.S. 266, 63 S.Ct. 1047, 87 L.Ed. 1390 (1943). The acquisition of land for purposes of the Migratory Bird Act is, however, one of the few exceptions.

When Congress passed the Migratory Bird Conservation Act in 1929, it authorized the purchase or rental of areas for use as sanctuaries in substantially the language presently set out in 16 U.S.C.A. § 715d. 45 Stat. 1222 Sec. 5. Sec. 7 of the Act then provided:

"No deed or instrument of conveyance shall be accepted by the Secretary * * * under this Act unless the State in which the area lies shall have consented by law to the acquisition by the United States of lands in that State."

Almost identical language presently is found in 16 U.S.C.A. § 715f.

In 1934 the Migratory Bird Hunting Stamp Act was passed for the express purpose of "providing funds for the acquisition of areas for use as migratory bird sanctuaries, refuges and breeding grounds." The Act (presently 16 U.S. C.A. § 718 et seq.) required the purchase of a hunting stamp by any person wishing to hunt migratory waterfowl; the proceeds from the stamps were to be paid into...

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