U.S., Dept. of Interior v. 16.03 Acres of Land, More or Less, Located in Rutland County, Vt.

Decision Date14 June 1994
Docket NumberD,No. 1318,1318
Citation26 F.3d 349
Parties24 Envtl. L. Rep. 21,224 UNITED STATES of America, DEPARTMENT OF THE INTERIOR, Plaintiff-Appellant, v. 16.03 ACRES OF LAND, MORE OR LESS, LOCATED IN RUTLAND COUNTY, VERMONT; Walter B. Nelson; Mary E. Nelson, Husband and Wife; Treasurer Town of Shrewsbury, Vermont and Unknown Others, Defendants-Appellees. ocket 92-6201.
CourtU.S. Court of Appeals — Second Circuit

Jacques B. Gelin, Washington, DC (Robert L. Klarquist, on the brief), U.S. Dept. of Justice (Lois J. Schiffer, Acting Asst. Atty. Gen., Charles R. Tetzlaff, U.S. Atty., Christopher B. Baril, Asst. U.S. Atty., James B. Snow, Eric C. Olson and Michael M. Tiernan, of counsel), for plaintiff-appellant.

Peter W. Hall, Rutland, VT (Shannon A. Bertrand on the brief), for defendants-appellees Walter B. and Mary E. Nelson.

Before: WALKER and JACOBS, Circuit Judges, and CARMAN, Judge. *

CARMAN, Judge:

I. Background

A. The National Trails System Act and Amendments

This appeal arises from a condemnation proceeding initiated by the Secretary of the Interior (Secretary) for the purpose of acquiring 16.03 acres of land in the Town of Shrewsbury, Vermont for the Appalachian National Scenic Trail (Appalachian Trail). The Appalachian Trail is one of several national scenic trails that Congress created under the National Trails System Act (Trails Act). See generally National Trails System Act, Pub.L. No. 90-543, 1968 U.S.C.C.A.N. (82 Stat.) 919 (codified as amended 16 U.S.C. Secs. 1241-1251). "The Appalachian Trail is a footpath for use by hikers which extends from Mount Katahdin in Maine to Springer Mountain in Georgia. The trail runs through 14 states and extends approximately 2,100 miles." United States v. 13.10 Acres of Land, 737 F.Supp. 212, 213 n. 1 (S.D.N.Y.1990).

In promulgating the Trails Act, Congress charged the Secretary with the primary responsibility of administering the Appalachian Trail. 16 U.S.C. Sec. 1244(a)(1). Consistent with this authority, the Secretary may, among other things, purchase land from private landowners, exchange federally-held lands for privately-held lands, and acquire privately-held lands through condemnation proceedings. See 16 U.S.C. Sec. 1246(e)-(g) (1988).

In 1978, Congress amended the Trails Act in order to "provide additional authority and direction to the Secretary of the Interior to insure the protection of the Appalachian Trail." S.REP. NO. 636, 95th Cong., 2d Sess. 3 (1978), reprinted in 1978 U.S.C.C.A.N. 456, 457; see generally Trails Act Amendments, Pub.L. No. 95-248, 92 Stat. 159. The Senate Report accompanying the amendments identifies the various concerns which prompted the legislation:

Over 650 miles of the Trail remain in private hands and changes in ownership and increasing pressures for development pose threats to the continuity of the Trail in numerous places. Approximately 180 additional miles of the Trail are now located along roads, providing no real hiking experience, but only a link between disconnected segments of the Trail. Some of these miles of road designation are the result of the Trail having been forced off a parcel of land due to a change in use or ownership.

The Department of the Interior has recognized this increasing threat to the Trail, and is preparing a detailed acquisition plan to carry out the mandate of the 1968 act to protect the Trail. Experience with the Trail has demonstrated, however, that additional authority is needed to insure the acquisition of a corridor sufficient to protect trail values. Similarly, an increase in the funding authorized for the Trail will be necessary to purchase a sufficient route through the areas which are now unprotected.

S.REP. NO. 636 at 3-4, reprinted in 1978 U.S.C.C.A.N. at 457-58. Among other things, the 1978 amendments (1) increased the amount of land the Secretary could condemn from an average of 25 acres per mile to the current 125 acres per mile and (2) expanded the budget available for land acquisitions from a total of $5,000,000 to $30,000,000 for each of the fiscal years 1979 through 1981. Trails Act Amendments, Pub.L. No. 95-248, Secs. 4, 5(a)(1), 92 Stat. 160 (codified as amended at 16 U.S.C. Secs. 1246(g), 1249(a)(1)).

B. District Court Proceedings

On September 7, 1990, the government filed its Complaint in Condemnation (Complaint) and Notice in Condemnation (Notice) in the United States District Court for the District of Vermont. As is material to this appeal, the Complaint and Notice contain the following: (1) the coordinates of the parcel of land consisting of "16.03 acres, more or less" the government sought to acquire in fee simple; (2) a description of ownership identifying appellee Walter B. Nelson "et ux " as the owners of the parcel; and (3) a summary of the public purposes prompting the condemnation, including the "proper administration, preservation, and development of the Appalachian National Scenic Trail...."

On February 21, 1991, appellees filed an Amended Answer in response to the government's Complaint and Notice. The essence of appellees' Amended Answer was that the government wrongfully sought to condemn 4.46 of the proposed 16.03 acres in fee instead of acquiring an easement for the 4.46 acres. Appellees claimed negotiations with the government contemplated "a taking in fee of 11.57 acres and a taking by way of easement of 4.46 acres" and the government's compensation award for the taking reflected these amounts. Appellees argued the government decided to condemn all 16.03 acres in fee only after appellees refused to accept the government's compensation award. According to appellees, the award improperly excluded compensatory and severance damages for which the government had promised it would account in making the award. Appellees asserted the government's decision to condemn all 16.03 acres in fee was "vindictive, arbitrary and capricious" and resulted from the government's bad faith actions. In sum, appellees maintained the government's acquisition of 4.46 of the proposed 16.03 acres in fee instead of by easement was an invalid taking under the Fifth Amendment, was unnecessary to comply with 16 U.S.C. Sec. 1246(g), and exceeded the amount of land that was " 'reasonably necessary to provide passage across' [appellees'] lands." Consequently, appellees sought an order from the district court to (1) dismiss the government's Complaint or amend the Complaint and Notice to include a smaller parcel suggested by appellees; (2) amend the Complaint and Notice so as to limit the condemnation to "such acreage as will comprise that width of corridor reasonably necessary to provide passage across [appellees'] lands which will protect the integrity of the trail;" or (3) amend the Complaint and Notice so that the government would acquire 11.57 acres in fee and 4.46 acres by an easement.

After conducting a one-day trial, the district court found the government failed to demonstrate "by a preponderance of the evidence that it [was] reasonably necessary" to condemn the 16.03 acres the government sought. United States v. 16.03 Acres of Land, No. 90-251, slip op. at 4 (D.Vt. March 12, 1992). The court indicated the government could take "only the minimal interest in land that will accommodate the protection of the trail and passage across lands, having in mind a minimum impact on the landowner by the taking." Id. The court found the 16.03 acres were "not necessary to protect the passage of the trail" and concluded the evidence presented and concessions by defendants demonstrated the condemnation of 6.7 acres was "reasonably necessary." Id. at 5.

II. CONTENTIONS OF THE PARTIES

On appeal, the government raises several arguments. First, the government argues the Secretary's decision as to the amount of land to condemn for the Appalachian Trail is not judicially reviewable because such a decision is committed to the Secretary's discretion by law. According to the government, the only matter subject to review was whether the amount of land that the Secretary sought to condemn exceeded the statutory limit of an average of 125 acres per mile. Second, assuming the Secretary's decision is subject to judicial review, the government maintains the district court failed to accord the Secretary the deference mandated by applicable statutory and case law. Moreover, the government contends the district court improperly placed the burden of proving the Secretary did not abuse his discretion on the Secretary. In addition, the government asserts the district court had no factual basis for concluding the Secretary abused its discretion.

Appellees oppose the government's position on three grounds. First, appellees contend the government waived any objection to the reviewability of the Secretary's decision when it failed to raise the issue before the district court. Second, appellees claim the district court properly concluded the Secretary's decision to condemn 16.03 acres was arbitrary and capricious because the government's own witness conceded a lesser quantity of land and a lesser fee would have satisfied the applicable statutory standards. Finally, as the district court based its conclusion on testimony provided by the government's own witness, appellees argue the court did not substitute its own judgment for that of the Secretary.

III. DISCUSSION

A. Judicial Review

Appellees first suggest the government waived its claim that the Secretary's decision to condemn appellees' property was unreviewable. As indicated above, the government bases this claim on the premise that the Secretary's decision was one "committed to agency discretion by law." We note, however, the government consented to the fact-finding proceedings in the district court without first raising its argument that the Secretary's decision was not subject to judicial review. Indeed, the first mention of it appeared in the government's post-trial brief. Regardless of when the government raised...

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