United States v. 18.2 Acres of Land More or Less
| Decision Date | 15 December 1977 |
| Docket Number | Civ. No. S-75-240. |
| Citation | 442 F. Supp. 800 |
| Parties | UNITED STATES of America, Plaintiff, v. 18.2 ACRES OF LAND, MORE OR LESS, IN the COUNTY OF BUTTE, STATE OF CALIFORNIA, the Diamond Match Company, aka Diamond International Corporation and Unknown Owners, Defendants. |
| Court | U.S. District Court — Eastern District of California |
Dwayne Keyes, U. S. Atty., Richard H. Jenkins, Asst. U. S. Atty., Sacramento, Cal., for plaintiff.
McCutchen, Doyle, Brown & Enersen, Richard Murray, Carl Lippenberger, San Francisco, Cal., for defendants.
This condemnation action had its origins in 1972, when the Bureau of Land Management (BLM) commenced negotiations with defendant Diamond International Corporation, formerly Diamond Match Company, for the purpose of obtaining a permanent, exclusive easement over a part of Road No. 3607 owned by Diamond in Butte County, California. Road No. 3607 provides access to an area subject to a timber sale contract between the United States and the Southern Oregon Land and Timber Company. Additionally, Road 3607 leads to unimproved public domain lands at the Forks of the Butte, a scenic wooded area in the Butte Creek Canyon.
Diamond refused to grant the interest sought but offered the BLM two lesser interests which would provide timber access. The BLM refused Diamond's offer because it would not grant the public access to the Forks of the Butte.
After negotiations eventually broke down, the United States filed the instant condemnation action in this court on April 1, 1975, seeking a permanent, exclusive easement over Diamond's portion of the road. Two days later, in an ex parte proceeding, the United States was granted an order of delivery of possession.
Defendant filed an answer to the complaint on April 29, 1975.1 On May 19, 1975, the United States filed a motion for summary judgment on defense 2(a) and a motion to strike defenses 2(b) through 2(f) of defendant's answer.
On July 2, 1976, the court approved a stipulation between Diamond and the United States which would permit the United States and its assignees the right to utilize the subject property for the construction, improvement, maintenance, and use of an access road for the purpose of removing forest products under the timber sale contract referred to above.
At a hearing on September 13, 1976, this court granted plaintiff's motion to strike defenses 2(e) and 2(f) of Diamond's answer, which challenged the sufficiency of plaintiff's deposit of $1.00 in the Registry of the Court as estimated compensation.
At the same time, a decision on plaintiff's remaining motions was held in abeyance pending further briefing as to the sufficiency of defendant's contentions as defenses to an eminent domain proceeding. These remaining motions are now before the court.
Pursuant to this rule, plaintiff moves for partial summary judgment as to the first defense in defendant's answer, which states: "The purported taking is not authorized by the statutes referred to in the complaint or by any other statute or statutes."
Plaintiff maintains that there is no factual dispute and that the Acts of Congress set forth in the complaint, including 30 U.S.C. § 601, 23 U.S.C. § 214, and 40 U.S.C. § 257, "constitute clear authority" for the condemnation of defendant's land.
Defendant, while apparently conceding that these statutes constitute general authority for exercise of the eminent domain power, maintains in opposition to this motion that the statutes do not authorize a taking for the purposes set forth in the pleadings because "the Secretary of the Interior has not lawfully exercised any authority possessed by him." Defendant makes three arguments to support this proposition: (1) plaintiff violated the National Environmental Policy Act, 42 U.S.C. § 4331 et seq., by failing to prepare an Environmental Impact Statement; (2) plaintiff used an illegal method of financing construction of the subject road; and (3) plaintiff failed to obtain the approval of the Secretary of Transportation as required by 23 U.S.C. § 214(c).
The thrust of this court's inquiry will be, initially, whether any of the points raised by defendant is a valid defense to a condemnation action. If the court finds that any of defendant's three arguments presents a valid defense, then the court must determine whether plaintiff has satisfied the standards for summary judgment set out in Rule 56.
NEPA requires all Federal agencies to prepare an Environmental Impact Statement (EIS) on all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). Plaintiff seeks summary judgment on the NEPA issue on several grounds:
Federal Rule of Civil Procedure 71A governs condemnation of property. Subsection (e) provides in pertinent part:
If a defendant has any objection or defense to the taking of his property, he shall serve his answer within 20 days after the service of notice upon him. The answer shall . . . state all his objections and defenses to the taking of his property. A defendant waives all defenses and objections not so presented . . ..
Defendant argues initially that its answer adequately raises the NEPA issue. As defendant puts it:
Were this court constrained to read Rule 71A literally, it would find defendant's argument inadequate. NEPA is not an authorizing statute — it is a statute which imposes an affirmative obligation on Federal agencies when they undertake major projects. To say that NEPA is violated is not the same thing as saying that a particular action is not authorized by statute. However, Rule 71A is not to be read in a vacuum, and the case law provides this court with sufficient justification to be liberal in its interpretation of defendant's answer.
The courts have generally been reluctant to apply the seemingly absolute terms of Rule 71A when it would result in a summary disposition of the case. For example, in City of Davenport v. Three-Fifths of an Acre of Land, 147 F.Supp. 794 (S.D.Ill.1957), the defendant, instead of filing an answer to the complaint in condemnation, moved to dismiss. On a countermotion for summary judgment, plaintiff contended that defendant had waived its objections by its failure to file an answer. The court rejected the contention:
The obvious purpose of Rule 71A is to prevent delay and dilatory tactics on the part of the defendant. It is quite possible that the defendant, not having answered within 20 days, has waived any objections or defenses to the taking of the property. However, the Courts should and do construe the rules of civil procedure so as to work substantial justice in all cases and avoid a strict technical interpretation which might work a hardship on the litigants. With this in mind the Court will consider the motion to dismiss as an answer in order that the matter may be determined upon its merits rather than upon a strict construction of procedure. Id. at 796. (emphasis added)
See also U. S. v. Three Parcels of Land, Etc., 224 F.Supp. 873 (D.Alaska 1963).
In Government of Virgin Islands v. 19.623 Acres of Land, 536 F.2d 566 (3d Cir. 1976), two defenses were the subject of the appeal. One defense had been raised in a brief in opposition to the government's motion for summary judgment (i. e., identical to the case at bar). The second defense was raised for the first time by the trial court, sua sponte, at trial. The Third Circuit, while finding that the second defense was waived under Rule 71A(e), implicitly approved the procedure of raising the first defense in a brief in opposition to summary judgment, since it went on to consider that defense as if it were timely raised.
Rands v. U. S., 367 F.2d 186 (9th Cir. 1966), is perhaps the most significant case supporting a liberal construction of Rule 71A. In Rands, the defendant filed a notice of appearance and then, after more than 20 days had elapsed from the filing of the complaint, made a motion requesting to denominate the earlier appearance an answer and to amend it to raise defenses to the taking. The District Court held that the 20 day limit was absolute. The Ninth Circuit, although affirming on an alternative ground, questioned the idea that the Rule 71A(e) time limit was absolute. In doing so, the court relied in large part upon the Advisory Committee's note to Rule 71A(e), which reads in pertinent part:
subdivision (e) requires all defenses and objections to be presented in an answer and does not authorize a preliminary motion. . . . The general standard of pleading is governed by other rules, particularly Rule 8, and this subdivision (e) merely...
To continue reading
Request your trial
-
Franco v. Ncrc
...be so construed as to do substantial justice."); United States v. 18.2 Acres of Land, More or Less, in Butte County, State of California, 442 F. Supp. 800, 804 (E.D. Cal. 1977) (refusing to hold that defendant had waived a defense because when he pled it he used improper terminology; "Rule ......
-
US v. 0.16 OF AN ACRE OF LAND, ETC.
...point. Compare United States v. 255.25 Acres, 553 F.2d 571, 572 n.2 (8th Cir. 1977) (defense "has no merit") with United States v. 18.2 Acres, 442 F.Supp. 800 (E.D. Cal.1977) (permitting the defense). Even if the defense were available to Rose and he had alleged sufficient environmental inj......
-
United States v. 729.773 ACRES OF LAND, ETC., Civ. No. 80-0504.
...States v. 80.5 Acres of Land, 448 F.2d 980, 983 (9th Cir. 1971). See also United States v. 18.2 Acres of Land More or Less, 442 F.Supp. 800, 811 (E.D.Cal.1977). Accordingly, plaintiff's motion to strike this defense is hereby 3. Motion to Strike Defenses 4(d) and 4(e) Paragraph 4(d) of Oahu......
-
STAND TOGETHER AGAINST NGBHD. DECAY v. B. OF EST.
...loss of possession in turn would cause the irreparable injury. 469 U.S. at 1306-07, 105 S.Ct. at 459-60. In United States v. 18.2 Acres of Land, 442 F.Supp. 800 (E.D.Cal.1977), the federal government sought to condemn an easement over a private road. The taking of the easement would necessa......