United States v. 40 ACRES OF LAND, ETC.

• Decision Date: 06 March 1958
• Docket Number: Civ. No. A-12883.
• Citation: 160 F. Supp. 30
• Parties: UNITED STATES of America, Plaintiff, v. 40 ACRES OF LAND SITUATE IN NENANA RECORDING PRECINCT, FOURTH DIVISION, TERRITORY OF ALASKA, and Dan T. Kennedy, et al., Defendants.
• Court: U.S. District Court — District of Alaska

160 F. Supp. 30

UNITED STATES of America, Plaintiff, v. 40 ACRES OF LAND SITUATE IN NENANA RECORDING PRECINCT, FOURTH DIVISION, TERRITORY OF ALASKA, and Dan T. Kennedy, et al., Defendants.

Civ. No. A-12883.

District Court, Alaska, Third Division, Anchorage.

March 6, 1958.

Donald A. Burr, Asst. U. S. Atty., Anchorage, Alaska, for plaintiff.

Davis, Hughes & Thorsness, Anchorage, Alaska, for defendant Dan T. Kennedy.

HODGE, District Judge.

Plaintiff in this action seeks to acquire by condemnation proceedings certain property owned by the defendant Dan T. Kennedy, consisting of a homestead and improvements thereon, described as "Tract A" in the complaint herein, located within the exterior boundaries of Mount McKinley National Park. Defendant filed an answer raising objections to the taking, pursuant to Rule 71A (e), Fed.Rules Civ.Proc. 28 U.S.C. At the time of the trial defendant raised jurisdictional questions relating to such taking, in substance as follows: (1) There was no allegation in the complaint showing the authority of any officer of the United States to procure the land for the public use claimed, and hence no authority for such condemnation; (2) there was no showing of any specific legislative sanction or authority for condemning the land in question; and (3) the authority for the taking relied upon by plaintiff does not permit the United States to maintain this action. The Court reserved decision upon these questions on briefs to be submitted.

Thereafter plaintiff filed an amended complaint alleging that the request for the condemnation originated from the Solicitor for the Department of the Interior in the form of a letter addressed to the Attorney General of the United States; and that the Solicitor for such Department is duly authorized to institute the proceeding for and on behalf of the Secretary pursuant to Departmental order No. 2509, amendment No. 7. Copies of the letter and order were attached as exhibits. Defendant then filed a motion to dismiss the amended complaint upon the grounds that it does not state a claim upon which relief may be granted, and both parties submitted briefs on the issues thus raised.

The Government relies in its complaint and brief upon two statutory enactments as authority for the taking, being the Act of August 1, 1888, as amended (62 Stat. 986, 40 U.S.C.A. § 257), and the Interior Department Appropriation Act of 1951 (Chap. VII, Public Law 759, 81st Congress, 64 Stat. 692). The first is what has been referred to as the general statute relating to condemnation of private realty for Government use, and provides 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, and the Attorney General of the United States, upon every application of the Secretary of the Treasury, under this section and section 258 of this title, or such other officer, shall cause proceedings to be commenced for condemnation within thirty days from receipt of the application at the Department of Justice." (emphasis added).

The general appropriation act relied upon provides, so far as is pertinent here, as follows:

"Chapter VII

"National Park Service

"Construction

"For construction and improvement, without regard to the Act of August 24, 1912, as amended (16 U.S.C. 451), of roads, trails, parkways, buildings, utilities, and other physical facilities; and the acquisition of lands, interests therein, improvements, and water rights; to remain available until expended * * *." (emphasis added).

The Acts of Congress relating to the establishment, boundaries and control of Mount McKinley National Park are found in 16 U.S.C.A. §§ 347-353a, incl. By Sec. 355, adopted March 19, 1932, the boundaries were changed, apparently including the lands of the defendant,¹ who acquired his land by patent from the United States on May 24, 1930. Neither the original act establishing such Park nor the amendments thereto contain any specific authorization to the Secretary of the Interior or any other public officer relating to the acquisition by condemnation or otherwise of private lands within the boundaries of the Park; and no such provision is found in the general statutes relating to the jurisdiction and powers of the National Park Service. 16 U.S.C.A. §§ 1-18d.

By contrast, numerous instances are found in the statutes relating to the establishment of national parks in which the Secretary of the Interior, through the National Park Service, is given express authority to acquire private lands or property with reference to such particular park or place, under the provisions of Sec. 257 of Title 40, all being found in 16 U.S.C.A., as follows: Sec. 47e, Yosemite National Park; Secs. 81c, 81d, Colonial National Historical Park; Sec. 164, Glacier National Park, Sec. 242, Theodore Roosevelt National Memorial Park; Sec. 403i, Great Smoky Mountains National Park; Sec. 462(d), Historic Sites and Buildings; Sec. 407m, Independence National Historical Park; Sec. 1b(7) (1953), Acquisition of Right of Way for roads within authorized boundaries of national parks.

If it was the intention of Congress to make similar provision as to Mount McKinley National Park, surely it would have done so. Instead, the 1932 Act contains the following pertinent clause:

"* * * Provided, however, That such isolated tracts of land lying east of the Alaska Railroad right of way and the west bank of the Nenana River between the north bank of Windy Creek and the north park boundary as extended eastward are also included in said park: Provided further, That nothing herein contained shall affect any valid existing claim, location, or entry under the land laws of the United States, whether for homestead, mineral, right of way, or any other purpose whatsoever, or shall affect the rights of any such claimant, locator, or entryman to the full use and enjoyment of his land." (emphasis added).

A similar clause relating to existing claims or entry under the land laws is found in the original Act. 16 U.S.C.A. § 348.

It has been held repeatedly that although the Federal Government has the power to take private property essential to the public welfare, it exercises that power only pursuant to specific legislation; that express legislative authority...