U.S. v. Hardage
| Decision Date | 21 June 1995 |
| Docket Number | No. 94-6192,94-6192 |
| Citation | 58 F.3d 569 |
| Parties | , 64 USLW 2005, 32 Fed.R.Serv.3d 968 UNITED STATES of America, Plaintiff, v. Royal N. HARDAGE, et al., Defendants, HARDAGE STEERING COMMITTEE, et al., Defendants and Third-Party Plaintiffs/Appellees, v. William C. WHITEHEAD, Third-Party Defendant/Appellant, and Ilene Whitehead, Additional Third-Party Defendant, United States of America, acting through the Farmers Home Administration, Additional Third-Party Defendant/Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Robert L. Roark, (Kenneth N. McKinney and John S. Gardner, with him on the briefs), McKinney, Stringer & Webster, P.C., Oklahoma City, OK, for defendants and third-party plaintiffs/appellees.
Charles W. Gaunce, Norman, OK, for third-party defendant/appellant.
Robert A. Bradford, Asst. U.S. Atty., (Vicki Miles-LaGrange, U.S. Atty., and Steven K. Mullins, Asst. U.S. Atty., with him on the briefs), Oklahoma City, OK, for additional third-party defendant/appellee.
Before MOORE, BRIGHT, * and BALDOCK, Circuit Judges.
This case raises the question of whether the district court may employ the All Writs Act (AWA) to compel the condemnation of land adjacent to a Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) cleanup site because the landowner was allegedly frustrating the district court's institutional controls order by not accepting the final offer for his property. Because we conclude utilization of the AWA in this case was not appropriate, we reverse the district court's judgment and remand this matter for further proceedings.
This saga began in 1986 when the United States filed suit seeking an injunction under Section 106 of CERCLA, 42 U.S.C. Sec. 9606. The government sought to compel the implementation of a remedial cleanup plan at the Hardage Superfund site located near Criner, Oklahoma. The parties ordered to clean up the site are collectively known as the Hardage Steering Committee (HSC or "the committee") and are the third-party plaintiffs in this case.
On August 9, 1990, the district court granted injunctive relief to the United States and ordered the HSC to implement a court approved remedial plan. As part of the plan, the court ordered:
The Defendants shall be, and hereby are, ORDERED to acquire those properties near the Hardage site necessary to the Remedy by negotiated purchase of the property tracts or easement interests therein for the Remedy. If the easement and property interests cannot be acquired through negotiated agreement within ninety (90) days from the date of this Judgment and Order, the Defendants shall apply to the Court for such relief as is necessary.
Mr. Whitehead owned property outside of, but adjacent to, the Hardage site falling within this order. In its Supplemental Judgment and Order of May 2, 1991, the district court included this property within an area defined as an institutional control boundary.
Mr. Whitehead and the HSC entered into negotiations in an effort to reach the accord required by the court's original order directing acquisition of property or easements to effect a remedy. Only 40 acres of Mr. Whitehead's 280-acre dairy farm were within the area necessary for the remedial plan. HSC sought to purchase these 40 acres, while Mr. Whitehead wanted to sell his entire dairy farm as a going concern. The parties could not agree on a price for the Whitehead property and negotiations broke down, leaving the Whitehead property as the only tract within the institutional control boundary not acquired by HSC.
As a consequence of this failure, HSC petitioned the court to add Mr. Whitehead and all those claiming an interest in his property as third-party defendants. The district court granted this request, and HSC filed a third-party complaint against Mr. Whitehead. The third-party complaint sought the imposition on Mr. Whitehead's property of the restrictive covenants described in the court's Supplemental Judgment and Order, subject to just compensation for the admitted taking. The complaint cited ancillary jurisdiction arising from CERCLA and the All Writs Act, 28 U.S.C. Sec. 1651(a), as the basis for subject matter jurisdiction. In the second claim for relief, HSC asserted under Oklahoma law, Okla.Stat.Ann. tit. 27, Sec. 6 (West 1995), it had a private right of eminent domain to seek condemnation of the Whitehead property for a "sanitary purpose." HSC prayed for an order directing the Whiteheads to show cause why restrictive covenants should not be entered against their property; condemnation of that property "for use by the HSC parties ... for implementation of the remedy;" determination of "just compensation for the taking;" and an award of title in fee simple to a trustee for HSC.
The Whiteheads moved to dismiss the complaint on Fed.R.Civ.P. 12(b)(6) grounds. Before deciding that motion, the district court granted the order to show cause prayed for by HSC, and a hearing was held during which the district court explored with counsel its jurisdiction and the procedures it should employ.
No testimony was taken during this informal hearing, but counsel for both sides amply explored their positions. Counsel for the Whiteheads stated initially HSC was not entitled to relief under CERCLA because the Whiteheads were not a party to the original case and had nothing to do with the cleanup site. He claimed, moreover, HSC had not been negotiating in good faith. This claim was denied by HSC's counsel who stated the committee had made several offers for the 40 acres but had not agreed to purchase the entire farm as demanded by the Whiteheads. He paraphrased the Whiteheads bargaining posture as: "You have got to buy our entire farm and not just the land and the improvements; we want you to buy it as a going concern." He added, Later counsel admitted, "Let me make clear that we are not adverse by any means to talking to the Whiteheads about purchasing their [entire] farm." He noted, however, the amount the Whiteheads wanted was "so far away from reality that we have reached an impasse."
HSC's counsel advised the court the parties had been negotiating for two years, and the last offer the Whiteheads had made was about five months prior to the hearing. He contended, "we have come back to the Court because we don't know what else to do." Counsel outlined the progress made with acquiring all the other property involved in the institutional controls order and advised HSC needed imposition of the restrictive covenants on the Whitehead property to allow fencing of the site boundary line as the first step in implementing the Superfund remedial cleanup plan.
The court then turned to counsel for the Whiteheads and asked:
If I don't permit them to restrict [the Whitehead property] as it should be ... can the policy and ... provisions of CIRCLA [sic] and so forth be carried out? Wouldn't that completely frustrate it unless they pay whatever your clients ask them for it? Are you saying that the Court is powerless to restrict the land? If not, how would I go about restricting it other than this way?
Interestingly, counsel responded, "[W]ell, certainly you could always order the EPA to engage in condemnation proceedings." When asked by the court, "[i]sn't that what they are doing here?", counsel responded that "[t]hese people are not the EPA."
The Whiteheads' counsel asserted the taking of a portion of his clients' property would destroy the value of the entire property. The court noted, however, condemnation would allow for consideration of that concern, and the factfinder would be able to take into consideration the effect condemnation had on the value of the remaining property or business. That issue led the court to inquire whether a jury could be employed.
Counsel for the government replied that condemnation "is a Commission matter under federal law." That remark led the court and counsel into a general discussion of the jurisdictional basis upon which they were proceeding, and HSC's counsel stated,
I believe you will find that Rule 71(a) [sic], Federal Rules of Civil Procedure, deals with condemnation, and sets forth the procedure for condemnation, and has a provision that says to the extent that state law allows a jury trial, then state law shall be followed.
(emphasis added). 1 After the court, recalling its own experience, noted it had not conducted "a single jury trial condemnation," counsel for the government added, "No, it [a jury trial] is not a right under federal law." 2
At this juncture, counsel for the government clarified HSC was not "standing in the shoes of EPA." He noted the court's prior order:
specifically says that the rights of the EPA to condemn land are not given to the private citizens in this case. So if there is a jurisdictional right in this case to condemn the Whiteheads' farm, it flows from your inherent powers under Superfund law or under your inherent powers as a federal judge. It doesn't flow through the EPA and the United States' condemnation powers.
After additional discussion, counsel for HSC suggested "we proceed under your inherent powers to do the condemnation."
Obviously troubled by the extent of condemnation damages, the court pressed counsel on the issue of whether damages should include not only "the value of the land taken but the impact of that taken on the remaining tract or perhaps the ongoing business." Counsel for HSC responded, "under the state condemnation procedure ... the Commissioners [could] take into account what the impact of removing the forty acres is on the property that they are left with." When further pressed whether that value would include "impact on ongoing businesses," HSC's counsel seemed to agree it would.
For the balance of the hearing, no further mention of a right to a...
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