U.S. v. 101.80 Acres of Land, More or Less, in Idaho County, Idaho, Nos. 82-3044

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore KILKENNY, CHOY, and FLETCHER; FLETCHER
Citation716 F.2d 714
PartiesUNITED STATES of America, Plaintiff-Appellee, v. 101.80 ACRES OF LAND, MORE OR LESS, IN IDAHO COUNTY, IDAHO, Joseph Schwartz and Lorena Rose Schwartz, et al., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. 35.54 ACRES OF LAND, More or Less, In IDAHO COUNTY, IDAHO, Ora Hazelbaker, a widow, et al., Defendants-Appellants.
Docket Number82-3046,Nos. 82-3044
Decision Date23 September 1983

Page 714

716 F.2d 714
20 ERC 1011
UNITED STATES of America, Plaintiff-Appellee,
v.
101.80 ACRES OF LAND, MORE OR LESS, IN IDAHO COUNTY, IDAHO,
Joseph Schwartz and Lorena Rose Schwartz, et al.,
Defendants-Appellants.
UNITED STATES of America, Plaintiff-Appellee,
v.
35.54 ACRES OF LAND, More or Less, In IDAHO COUNTY, IDAHO,
Ora Hazelbaker, a widow, et al., Defendants-Appellants.
Nos. 82-3044, 82-3046.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Dec. 8, 1982.
Decided Sept. 23, 1983.

Page 715

Jacques B. Gelin, Washington, D.C., for plaintiff-appellee.

Donald W. Lojek, Parkinson, Lojek, Penland, Boise, Idaho, for defendants-appellants.

Appeal from the United States District Court for the District of Idaho.

Before KILKENNY, CHOY, and FLETCHER, Circuit Judges.

FLETCHER, Circuit Judge:

These consolidated appeals are taken from two condemnation proceedings in which the compensation eventually awarded to the condemnee for an easement taken by the government far exceeded the amount originally deposited with the court by the United States. The district court denied each condemnee recovery of costs, attorney fees, and expenses against the United States under 28 U.S.C. Sec. 2412 (Supp. IV 1980), as amended by the Equal Access to Justice Act (the Act), on the ground that the landowner in a condemnation proceeding can never be a "prevailing party" as required by the statute. 1 92 F.R.D. 774

Page 716

(D.Idaho 1982). We have jurisdiction under 28 U.S.C. Sec. 1291 (1976) and reverse.
I

The appellants in these consolidated cases are owners of land situated on the banks of the Middle Fork of the Clearwater River in Idaho County, Idaho. Recognizing the beauty of the area, Congress in 1968 designated the drainage basin of the Middle Fork of the Clearwater River as part of the national wild and scenic rivers system established under the Wild and Scenic Rivers Act, 16 U.S.C. Secs. 1271-1287 (1976 and Supp. IV 1980). See id. Sec. 1274(a)(1). Pursuant to the designation, various Federal agencies, including the Department of Agriculture, which administers the Forest Service, were authorized to condemn easement interests to effectuate the purposes of the Wild and Scenic Rivers System.

Accordingly, on March 24, 1978, the United States, on behalf of the Secretary of Agriculture, filed a declaration of taking in the district court of Idaho, declaring that a scenic easement against Tract 50(a), consisting of 35.54 acres and owned by Ora Hazelbaker and other persons, was "thereby taken for the use of the United States." The government also deposited with the court $12,162.92 to the use of the persons entitled thereto, in the amount of estimated just compensation stated in the declaration of taking. 2

Upon the filing of the declaration and the making of the deposit, title to the easement interest specified in the declaration immediately vested in the United States and the interest was "deemed to be condemned and taken for the use of the United States." 40 U.S.C. Sec. 258a (1976); see United States v. Dow, 357 U.S. 17, 23, 78 S.Ct. 1039, 1045, 2 L.Ed.2d 1109 (1958); United States v. Hayes, 172 F.2d 677, 679 (9th Cir.1949). At the same time, "the right to just compensation" for the taken interest vested "in the persons entitled thereto." 40 U.S.C. Sec. 258a (1976). On the same day it filed the declaration of taking and made the deposit of estimated compensation, the United States filed a document styled as a "complaint" demanding "judgment that the property be condemned." The complaint further requested that "just compensation for taking be ascertained and awarded" and "such other relief as may be lawful and proper."

On January 15, 1980, the owners 3 of Tract 50(a) answered, admitting the statutory

Page 717

authority for taking the easement and its "public use" and denying only "that the amount tendered by the Government is adequate or reasonable compensation for the property." The Hazelbaker case proceeded to trial on November 24, 1981. The jury returned a special verdict finding as just compensation for the taking of the scenic easement in Tract 50(a) the sum of $22,500. Judgment on the verdict was entered on December 1, 1981.

In similar fashion, on May 12, 1980, the government filed a declaration of taking of a scenic easement against Tract 810, consisting of 101.80 acres, owned by Joseph and Lorena Schwartz and others, and deposited $40,000 as just compensation. 4 After trial, the jury returned a verdict in the amount of $144,600 for the easement taken. Judgment was entered in the Schwartz matter on December 1, 1981.

In early December of 1981, the landowners in both Hazelbaker and Schwartz filed timely motions to amend judgment to include an award of costs and attorney fees and expenses, as provided under the Act, in the total amount of $14,045.00 and $40,370.59, respectively. 5 On January 6, 1982, the district court denied the application for fees in Schwartz on the basis that a landowner cannot be a prevailing party in a condemnation suit for purposes of an award under the Act. 92 F.R.D. 774, 777 (D.Idaho 1982). The court stated that, "[p]ractically speaking, a reasonable person would be hard pressed to hold that the defendant landowners had not prevailed at the trial on the amount to be awarded." Id. at 776. It concluded, however, that prior case law "den[ied] a landowner the status of a 'prevailing party' in a condemnation suit." Id. Nevertheless, based on testimony of the government's own witness that just compensation was in excess of $40,000 and the court's finding that $40,000 was "substantially less" than just compensation for the easement taken, the court "specifically" found that "the position of the government was not substantially justified" and that "no special circumstances which would make an award of costs, expenses and attorneys' fees unjust" existed. Id. at 776 n. 1. On January 7, 1982, the district court denied an award in Hazelbaker on similar grounds, making similar findings on the lack of substantial justification for the government's position and the non-existence of special circumstances. Both groups of landowners timely appealed.

II

The landowners contend that the district court erred in concluding that a landowner can never be a prevailing party, under section 2412, as amended by the Act, in a condemnation proceeding in which the validity of the condemnation is upheld. The government argues that a condemnee cannot

Page 718

properly be considered a prevailing party in the sense of section 2412 in such a proceeding because (a) the government is sustained in "taking" the property interest it wanted and (b) even if a landowner otherwise would be a prevailing party under section 2412, the saving provision to the Act prevents an award of fees and expenses to a condemnee. We reject both of the government's arguments. We hold that, under the circumstances of these cases, the landowners are the prevailing parties. We further hold that, since the district court correctly found that the position of the government was not substantially justified, the landowners are entitled to costs, fees, and expenses under section 2412 as amended by the Act.
A

Section 2412(a) permits the trial court to award costs to "the prevailing party in any civil action brought by or against the United States." 28 U.S.C. Sec. 2412(a) (Supp. IV 1980). Section 2412(d)(1)(A) requires the trial court to award attorney fees and expenses to "a prevailing party other than the United States ... in any civil action ... brought by or against the United States," when certain conditions obtain. Id. Sec. 2412(d)(1)(A). 6 Although both the landowners and the government concede that a condemnation proceeding is a "civil action" in the sense of section 2412, they disagree over whether a landowner in a condemnation proceeding can be a prevailing party where the property is taken.

The defendant-condemnees assert that a landowner in a condemnation proceeding in which the government's ability to take is upheld should, under certain circumstances, be considered a prevailing party under section 2412. They contend that, even though a condemnation proceeding may be initiated by the government and brought to adjudication pursuant to the government's "complaint" seeking a judgment of condemnation and the ascertainment of just compensation, the government is not the prevailing party in any given proceeding simply because, as requested, the government's right to condemn is confirmed and just compensation is awarded. They argue that unless the landowner hires an attorney and secures witnesses in order to contest the size of the deposit, he can hardly expect to receive an award larger than the deposited sum. Thus, where the government makes a deposit but the deposit is inadequate, the landowner must litigate to secure the payment of just compensation guaranteed by the Constitution. They assert that the mere circumstance that the government has requested the court to give "lawful and proper" relief (and has thereby placed the landowner in a defensive posture) rather than let the landowner himself initiate the litigation cannot obscure the fact that it is the landowner, and not the government, who "prevails" when the landowner is awarded more than the deposit he would have received had he not litigated the issue at all. The landowners thus conclude that, even apart from the issue of the government's ability to take, upon which issue either the government or the landowner may prevail, the landowner can prevail on the just compensation issue, even where the government makes a deposit, depending on whether the sum eventually awarded exceeds the original deposit.

By contrast, the government asserts that a condemnee can never be a prevailing party under section 2412 in a condemnation proceeding where the validity of the taking is upheld. It argues that, regardless of the size of the deficiency between the just compensation...

To continue reading

Request your trial
34 practice notes
  • C.I.R. v. Neal, No. 06-14357.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • February 10, 2009
    ...new statute. Commissioner v. Noel's Estate, 380 U.S. 678, 680-681, 85 S.Ct. 1238, 14 L.Ed.2d 159 (1965); United States v. 101.80 Acres, 716 F.2d 714, 721 (9th Cir.1983). There are other situations in which this Court makes determinations de novo. For example, section 7436(a) provides that t......
  • Edwards v. Heckler, Nos. 82-4156
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 13, 1985
    ...in 1980 U.S.Code Cong. & Ad.News 4953, 4984, 4989. See United States v. 101.80 Acres of Land, More or Less, in Idaho County, Idaho, 716 F.2d 714, 728 (9th Cir.1983) (quoting Hoang Ha v. Schweiker, 707 F.2d 1104, 1106 (9th Cir.1983) In reviewing a district court's decision to award attorney'......
  • Hoohuli v. Ariyoshi, No. 83-1772
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 30, 1984
    ...district court on any basis fairly supported by the record. Goodisman v. Lytle, 724 F.2d at 820; United States v. 101.80 Acres of Land, 716 F.2d 714, 727 n. 24 (9th In the area of taxpayer standing, Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), is the starting poi......
  • Porter v. Commissioner of Internal Revenue, 130 T.C. No. 10 (U.S.T.C. 5/15/2008), No. 13558-06.
    • United States
    • U.S. Tax Court
    • May 15, 2008
    ...language to be applied to the new statute. Commissioner v. Estate of Noel, 380 U.S. 678, 680-681 (1965); United States v. 101.80 Acres, 716 F.2d 714, 721 (9th Cir. 1983). The use of the word "determine" in section 6015(e)(1)(A) Page 9 that Congress intended that we conduct trials de novo in......
  • Request a trial to view additional results
34 cases
  • C.I.R. v. Neal, No. 06-14357.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • February 10, 2009
    ...new statute. Commissioner v. Noel's Estate, 380 U.S. 678, 680-681, 85 S.Ct. 1238, 14 L.Ed.2d 159 (1965); United States v. 101.80 Acres, 716 F.2d 714, 721 (9th Cir.1983). There are other situations in which this Court makes determinations de novo. For example, section 7436(a) provides that t......
  • Edwards v. Heckler, Nos. 82-4156
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 13, 1985
    ...in 1980 U.S.Code Cong. & Ad.News 4953, 4984, 4989. See United States v. 101.80 Acres of Land, More or Less, in Idaho County, Idaho, 716 F.2d 714, 728 (9th Cir.1983) (quoting Hoang Ha v. Schweiker, 707 F.2d 1104, 1106 (9th Cir.1983) In reviewing a district court's decision to award attorney'......
  • Hoohuli v. Ariyoshi, No. 83-1772
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 30, 1984
    ...district court on any basis fairly supported by the record. Goodisman v. Lytle, 724 F.2d at 820; United States v. 101.80 Acres of Land, 716 F.2d 714, 727 n. 24 (9th In the area of taxpayer standing, Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), is the starting poi......
  • Porter v. Commissioner of Internal Revenue, 130 T.C. No. 10 (U.S.T.C. 5/15/2008), No. 13558-06.
    • United States
    • U.S. Tax Court
    • May 15, 2008
    ...language to be applied to the new statute. Commissioner v. Estate of Noel, 380 U.S. 678, 680-681 (1965); United States v. 101.80 Acres, 716 F.2d 714, 721 (9th Cir. 1983). The use of the word "determine" in section 6015(e)(1)(A) Page 9 that Congress intended that we conduct trials de novo in......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT