U.S. v. 16.92 Acres of Land, s. 81-1190

• Citation: 670 F.2d 1369
• Decision Date: 16 February 1982
• Docket Number: Nos. 81-1190,81-1484,s. 81-1190
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. 16.92 ACRES OF LAND, etc., Defendant, Appeal of William C. BREWER. UNITED STATES of America, Plaintiff-Appellee, v. 65.60 ACRES OF LAND, LOCATED IN the TOWN OF RUSSELL, COUNTY OF BAYFIELD, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1369

670 F.2d 1369

UNITED STATES of America, Plaintiff-Appellee, v. 16.92 ACRES OF LAND, etc., Defendant,

Appeal of William C. BREWER.

UNITED STATES of America, Plaintiff-Appellee, v. 65.60 ACRES OF LAND, LOCATED IN the TOWN OF RUSSELL, COUNTY

OF BAYFIELD, et al., Defendants-Appellants.

Nos. 81-1190, 81-1484.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 26, 1982.

Decided Feb. 16, 1982.

Bradley G. Clary, St. Paul, Minn., James F. Lorimer, Madison, Wis., for defendants-appellants.

Martin W. Matzen, Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, PELL and SPRECHER, Circuit Judges.

PER CURIAM.

This is a consolidated appeal from judgments entered in favor of the United States in actions to condemn certain real property owned by the appellants. We have been asked to address two issues: (1) whether the United States has the authority to acquire land by condemnation in order to create the Apostle Islands National Lakeshore; and (2) whether the "improved property" classification established by 16 U.S.C. § 460w-3 violates the equal protection of law guarantee encompassed in the Fifth Amendment. For the reasons discussed in this opinion, we affirm the judgments of the district court.

I.

On September 27, 1970, Congress established the Apostle Islands National Lakeshore. See Pub.L. 91-424, 84 Stat. 880, 16 U.S.C. § 460w (1970). The Lakeshore was to be comprised of both mainland property and several islands, all located on or near the Wisconsin shoreline of Lake Superior. The Secretary of Interior was given the authority to acquire land located within the boundaries of the Lakeshore area. Since 1970, Congress has authorized $5,250,000 to be appropriated for the acquisition of land within the Lakeshore area. See 16 U.S.C. § 460w-7 (1974).

The appellants in these consolidated appeals are owners of real property located within the Lakeshore area. The United States brought successful actions in district court to condemn their respective property interests. On appeal, the appellants contest the Secretary of Interior's authority to condemn their property.

Appellant William Brewer raises an additional issue before this Court. Congress granted a limited right of use and occupancy to landowners who had "improved" their property prior to January 1, 1967. In July of 1968, Brewer commenced construction of a detached, noncommercial residential building on his previously unimproved tract of land. Brewer's "improvement" did not meet the January 1, 1967 cutoff date set by Congress for "improvements." Thus, in addition to the issue regarding the Secretary's authority to condemn land, Brewer asserts that the cutoff date violates his right to equal protection under the law. He argues that he should be entitled to the same rights of use and occupancy afforded to those landowners whose property had been improved prior to January 1, 1967.

II.

The Act establishing the Apostle Islands National Lakeshore neither authorizes nor forbids the acquisition of land by condemnation. The Lakeshore acquisition statute provides in pertinent part:

The Secretary may acquire within the boundaries of the lakeshore lands and interests therein by donation, purchase with donated or appropriated funds, or exchange, but lands and interests in lands owned by the State of Wisconsin may be acquired only by donation. * * *

16 U.S.C. § 460w-2.

The Government, however, relies upon the General Condemnation Act of August 1, 1888, as amended, 40 U.S.C. § 257, to provide it with the necessary statutory authority to condemn the appellants' properties. The material portion of 40 U.S.C. § 257 reads as follows:

In every case in which the Secretary of the Treasury or any other officer of the Government has been, or hereafter shall be, authorized to procure real estate for the erection of a public building or for other public uses, he may acquire the same for the United States by condemnation, under judicial process, whenever in his opinion it is necessary or advantageous to the Government to do so * * *

The crux of the appellants' argument is that had Congress desired the Secretary to have the power of condemnation in order to acquire property for the National Lakeshore, it would have specifically provided for it in 16 U.S.C. § 460w-3. Considering the nature of eminent domain, as well as the plain language of 40 U.S.C. § 257, we can only conclude that the appellants' argument must fail.

There is little doubt that the power of eminent domain is an attribute of sovereignty. The taking of private property for public use upon just compensation is so often necessary for the proper performance of governmental functions that the power is deemed to be essential to the life of the government. Georgia v. City of Chattanooga, 264 U.S. 472, 480, 44 S.Ct. 369, 370, 68 L.Ed. 796 (1924). Every person who acquires or occupies land does so at the risk of being evicted by the exercise of the superior right of the government or its delegate to acquire his interest upon payment of just compensation. Green Street Association v. Daley, 373 F.2d 1, 6 (7th Cir.), cert. denied, 387 U.S. 932, 87 S.Ct. 2054, 18 L.Ed.2d 995 (1967). This power of condemnation is coextensive with the government's power to purchase. United States ex rel. Tennessee Valley Authority v. Welch, 327 U.S. 546, 554, 66 S.Ct. 715, 718, 90 L.Ed. 843 (1946).

It has been uniformly held that authority to acquire real property conferred by the enactment of a statute after the Act of August 1, 1888, 40 U.S.C. § 257, carries with it the power to condemn. ¹ Thus, unless it desires to exclude condemnation, there is no need for Congress to specifically include "condemnation" as a permissible method of property acquisition in a statute. ² Our Court recognized this principle several years ago in United States v. Advertising Checking Bureau, Inc., 204 F.2d 770 (7th Cir. 1953). There, the authority of the Government to condemn property in order to house a federal agency was affirmed on the basis of 40 U.S.C. § 257. Commenting on the lack of necessity for specific authorization to condemn property in a procurement statute, this Court stated:

As authority (has) already been conferred to procure real estate for public uses by condemnation, it would seem to (be) quite unnecessary to embody in this Act specific authority to acquire real estate by condemnation proceedings. We must assume that Congress had full knowledge of the Act of August 1, 1888 and of the interpretation that (has) been placed upon it by the courts.

United States v. Advertising Checking Bureau, Inc., supra, 204 F.2d at 772, quoting Barnidge v. United States, 101 F.2d 295, 297-98 (8th Cir. 1939).

While donation, purchase, or exchange may be preferred methods of acquisition, they are not the only methods which the government may employ to acquire the appellants' properties. There is nothing in either 16 U.S.C. § 460w-2 ³ or its legislative history ⁴ to suggest that the government does not have the power of condemnation. Without limiting language from Congress, we must conclude that the Secretary of Interior has implicit authority to condemn the appellants' properties.

III.

As a condition of government acquisition of property, Congress granted to certain private landowners in the Lakeshore area the right to retain a limited interest in their property. 16 U.S.C. § 460w-3 provides in pertinent part:

(a) With the exception of not more than eighty acres of land to be designated within the lakeshore boundaries by the Secretary as an administrative site, visitor center, and related facilities, as soon as practicable, any owner or owners of improved property on the date of its acquisition by the Secretary may, as a condition of such acquisition, retain for themselves and their successors or assigns a right of use and occupancy of the improved property for noncommercial residential purposes for a definite term not to exceed twenty-five years, or, in lieu thereof, for a term ending at the death of the owner, or the death of his spouse, whichever is the later. The owner shall elect the term to be reserved. The Secretary shall pay to the owner the fair market value of the property on the date of such acquisition less the fair market value on such date of the right retained by the owner.

(c) The term "improved property," as used in this section, shall mean a detached, noncommercial residential dwelling, the construction of which was begun before January 1, 1967 (hereinafter referred to as "dwelling"), together with so much of the land on which the dwelling is situated, the said land being in the same ownership as the dwelling, as the Secretary shall designate to be reasonably necessary for the enjoyment of the dwelling for the sole purpose of noncommercial residential use, together with any structures accessory to the dwelling which are situated on the land so designated.

Appellant William Brewer acquired 16.92 acres of unimproved Lakeshore property on September 5, 1966. In July of 1968, Brewer commenced construction of a detached, noncommercial residential dwelling on his property. Had construction of this dwelling begun prior to January 1, 1967, it is undisputed that Brewer would have come within the coverage of 16 U.S.C. § 460w-3. However, because Brewer did not meet the January 1, 1967 deadline, he was denied the opportunity to retain a limited interest in his property. ⁵ Brewer claims that the "unimproved property" classification established by 16 U.S.C. § 460w-3 violates the equal protection of law guarantee encompassed in the Fifth Amendment. ⁶

A.

The first step in our analysis is to determine the standard by which we will evaluate 16 U.S.C. § 460w-3. This requires an examination of the nature of Brewer's property interests.

Brewer argues that the freedom to use and enjoy one's property is a fundamental right and that any restrictions upon this right should be subject to the strictest of scrutiny....