U.S. v. 162.20 Acres of Land, More or Less, Situated in Clay County, State of Miss., No. 80-3707

CourtU.S. Court of Appeals — Fifth Circuit
Writing for the CourtBefore GOLDBERG, GARZA and TATE; GARZA
Citation639 F.2d 299
Parties11 Envtl. L. Rep. 20,230 UNITED STATES of America, Plaintiff-Appellee, v. 162.20 ACRES OF LAND, MORE OR LESS, SITUATED IN CLAY COUNTY, STATE OF MISSISSIPPI, and F. E. Uithoven et al., Defendants-Appellants. . Unit A
Decision Date13 March 1981
Docket NumberNo. 80-3707

Page 299

639 F.2d 299
11 Envtl. L. Rep. 20,230
UNITED STATES of America, Plaintiff-Appellee,
v.
162.20 ACRES OF LAND, MORE OR LESS, SITUATED IN CLAY COUNTY,
STATE OF MISSISSIPPI, and F. E. Uithoven et al.,
Defendants-Appellants.
No. 80-3707.
United States Court of Appeals,
Fifth Circuit.
Unit A
March 13, 1981.
Rehearing and Rehearing En Banc Denied April 15, 1981.

Page 300

Thomas R. Trout, New Albany, Miss., A. Rufus Ward, West Point, Miss., J. Arthur Smith, III, Baton Rouge, La., for defendants-appellants.

H. M. Ray, U. S. Atty., Oxford, Miss., Jacques B. Gelin, James W. Moorman, Anne S. Almy, Ann P. Gailis, Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Page 301

Before GOLDBERG, GARZA and TATE, Circuit Judges.

GARZA, Circuit Judge:

We are squarely confronted with an issue of law which this court has never addressed: is alleged noncompliance by federal authorities with the mandate of Section 470f of the National Historic Preservation Act of 1966, (NHPA), 16 U.S.C. § 470 et seq., a legally sufficient defense to the condemnation of private property for use in a federal project under the Declaration of Taking Act, (DOTA), 40 U.S.C. § 258a? Our answer depends upon a resolution of the tension between the vast discretionary condemnation power given the government under DOTA, and the pervasive reach of the NHPA's command that mitigation of adverse effect on the tangible evidences of our historic heritage be considered in the decision-making process surrounding federal projects.

I.

Condemnation cases usually revolve around a conflict between private and public purposes. Here, we deal with an enormous federal undertaking, the Tennessee-Tombigbee Waterway Project, and property owned by the Uithoven family 1 which the government has sought to include within a peripheral scheme to enhance the Columbus Lock and Dam segment of the project with recreational facilities.

The Uithoven property is located near the Tombigbee River in Clay County, Mississippi, and is within the area once occupied by the abandoned riverfront town of Barton, (ca. 1848-1870). Upon the tract sits a four-room, one-story nineteenth century dwelling known as Cedar Oaks. The U. S. Army Corps of Engineers seeks to incorporate this property into a "Barton Ferry Recreation Area" which would cover two other extinct riverfront townsites: Colbert, (ca. 1830-1847), and Vinton, (ca. 1849-1900?). The Barton townsite and Cedar Oaks are listed on the National Register of Historic Places as within the Tombigbee River Multi-Resource District, a "zone" created for the purpose of listing historic sites in the project area.

The Uithovens were given notice in 1977 that the Corps intended to acquire their property for use in the Barton Ferry grounds. They submitted an "Application to Exclude Property from Condemnation Proceeding" to the Attorney General of the United States. The application explained that the Uithovens operated the land as a tree farm, and that their crop was ready for harvest. It further stated that the family had established campsites and permitted church and youth groups to camp on the grounds without charge. The application concluded:

Such exclusion would not affect the construction of the project. Such exclusion would allow two gentlemen in their sixties to continue development of the property at their own expense for public recreation, timber production and residence on the family property. The lands and homes have much meaning and inestimable value to the Uithovens. This Historic Site should not be destroyed when the Congressional Policy is the preservation od (sic) such Historic Sites.

This plea apparently reached unreceptive ears, for on February 14, 1978, the United States filed a complaint and declaration of taking in the district court below, together with a deposit of estimated just compensation covering the land. The court signed a judgment of the declaration of taking ten days later.

On April 6th and 14th, the Uithovens filed answers which raised four defenses to the taking: (1) that the complaint did not state a cause of action; (2) that it did not contain a short and plain statement of the use for which the property was taken; (3) that there was no public necessity for the taking; and (4) that the government had failed to comply with provisions of the NHPA. The government moved to strike these defenses and, after oral argument, the district court granted the motion. With regard to the last defense, the court stated:

Page 302

The government does not contend that the Corps of engineers is not required to comply with The Act. As a matter of fact, the government claims that the Corps is now in compliance therewith.

The government does contend, however, that it is not required to comply with the Act before it can exercise the right of eminent domain in the action sub judice.

This argument appeals to the court.

Final judgment upon a stipulated just compensation was entered, and this appeal was taken. 2

II.

The Uithovens urge us to hold that the district court erred in striking the NHPA-compliance defense as legally immaterial. The government responds with the assertion that its condemnation power may be exercised either before or after compliance with the NHPA, and goes on to argue that it was in compliance with the act when the declaration of taking was filed in this case.

Our analysis must begin with an examination of NHPA, which is less familiar to federal courts than the venerable DOTA. The act has been called an attempt to provide "new scope and techniques for federal efforts to preserve cultural resources," enacted "(T)o meet the shortcomings of previous federal legislation and to help stem the loss of irreplaceable cultural resources." J. M. Fowler, Federal Historic Preservation Law: National Historic Preservation Act, Executive Order 11593, and Other Recent Developments in Federal Law, 12 Wake Forest L.Rev. 31 (1976). The preamble declares the values to be promoted:

The Congress finds and declares ... that the historical and cultural foundations of the nations should be preserved as a living part of our community life and development in order to give a sense of orientation to the American People. 16 U.S.C. § 470.

Section 470f of the act creates a mechanism to promote these values neither by forbidding the destruction of historic sites nor by commanding their preservation, but instead by ordering the government to take into account the effect any federal undertaking might have on them, the National Register of Historic Places serving as the list of sites. This portion of the act provides as follows:

The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under sections 470i to 470n of this title a reasonable opportunity to comment...

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36 practice notes
  • Coliseum Square Ass'n, Inc. v. Jackson, No. 03-30875.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 18, 2006
    ...the government to take into account the effect any federal undertaking might have on them." United States v. 162.20 Acres of Land, 639 F.2d 299, 302 (5th When a project will adversely affect a National Historic Landmark, however, section 110f of the NHPA requires an agency to "undertake suc......
  • U.S. v. 1.04 Acres of Land, More or Less, Civil Action No. B-08-044.
    • United States
    • U.S. District Court — Southern District of Texas
    • March 7, 2008
    ...in the complaint in condemnation. United States v. 162.20 Acres of Land, More or Less, Situated in Clay County, State of Mississippi, 639 F.2d 299, 303 (5th Cir.1981). Writing for the Fifth Circuit Court of Appeals, Judge Reynaldo Garza stated that judicial review in condemnation actions is......
  • GETTYSBURG BATTLEFIELD v. Gettysburg College, Civ. A. No. 1:CV-91-1494.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • July 2, 1992
    ...outcome. Morris County Trust for Historic Preservation v. Pierce, 714 F.2d 271, 278 (3d Cir.1983); United States v. 162.20 Acres of Land, 639 F.2d 299, 302 (5th Cir.), cert. denied, 454 U.S. 828, 102 S.Ct. 120, 70 L.Ed.2d 103 It is undisputed that Gettysburg National Military Park is includ......
  • Calf Island Comm. Trust v. Young Mens Christian, No. Civ. 302CV462AHN.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • January 26, 2005
    ...(same); United States v. 27.09 Acres of Land, 737 F.Supp. 277 (S.D.N.Y.1990) (same). See also United States v. 162.20 Acres of Land, 639 F.2d 299 (5th Cir.1981) (holding that noncompliance with provisions of the National Historic Preservation Act is not a defense to a taking). Compliance wi......
  • Request a trial to view additional results
36 cases
  • Coliseum Square Ass'n, Inc. v. Jackson, No. 03-30875.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 18, 2006
    ...the government to take into account the effect any federal undertaking might have on them." United States v. 162.20 Acres of Land, 639 F.2d 299, 302 (5th When a project will adversely affect a National Historic Landmark, however, section 110f of the NHPA requires an agency to "undertake suc......
  • U.S. v. 1.04 Acres of Land, More or Less, Civil Action No. B-08-044.
    • United States
    • U.S. District Court — Southern District of Texas
    • March 7, 2008
    ...in the complaint in condemnation. United States v. 162.20 Acres of Land, More or Less, Situated in Clay County, State of Mississippi, 639 F.2d 299, 303 (5th Cir.1981). Writing for the Fifth Circuit Court of Appeals, Judge Reynaldo Garza stated that judicial review in condemnation actions is......
  • GETTYSBURG BATTLEFIELD v. Gettysburg College, Civ. A. No. 1:CV-91-1494.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • July 2, 1992
    ...outcome. Morris County Trust for Historic Preservation v. Pierce, 714 F.2d 271, 278 (3d Cir.1983); United States v. 162.20 Acres of Land, 639 F.2d 299, 302 (5th Cir.), cert. denied, 454 U.S. 828, 102 S.Ct. 120, 70 L.Ed.2d 103 It is undisputed that Gettysburg National Military Park is includ......
  • Calf Island Comm. Trust v. Young Mens Christian, No. Civ. 302CV462AHN.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • January 26, 2005
    ...(same); United States v. 27.09 Acres of Land, 737 F.Supp. 277 (S.D.N.Y.1990) (same). See also United States v. 162.20 Acres of Land, 639 F.2d 299 (5th Cir.1981) (holding that noncompliance with provisions of the National Historic Preservation Act is not a defense to a taking). Compliance wi......
  • Request a trial to view additional results

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