United States v. 40 ACRES OF LAND, ETC., A-12883.

• Decision Date: 13 June 1958
• Docket Number: No. A-12883.,A-12883.
• 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

162 F. Supp. 939

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.

No. A-12883.

District Court, Alaska, Third Division, Nome.

June 13, 1958.

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

Davis, Hughes & Thorsness, Anchorage, Alaska, for defendants.

HODGE, District Judge.

Plaintiff has moved the undersigned judge of the above entitled court to reconsider his opinion filed herein on March 10, 1958, wherein the Court sustained a motion of the defendant Dan T. Kennedy to dismiss plaintiff's complaint (D.C., 160 F.Supp. 30). The motion to reconsider is granted and the Court has considered the matter anew upon briefs submitted by both parties.

Plaintiff relies in support of its principal contention that the authority for the taking of the land in question is evidenced by the Interior Department Appropriation Act of 1951, 65 Stat. 248 and the Act of August 1, 1888 (40 U.S.C.A. Sec. 257), upon four decisions other than the cases previously considered in such opinion. The case of United States v. Carmack, 329 U.S. 230, 67 S.Ct. 252, 91 L.Ed. 209, reversing the Circuit Court of Appeals, 8 Cir., 151 F.2d 881, following retrial of case cited in my original opinion, 8 Cir., 135 F.2d 196, involves a proceeding instituted by the United States to condemn land as a site for a postoffice, in reliance upon several Federal statutes, including the Public Buildings Act of May 25, 1926 (40 U.S.C.A. § 341), and the General Condemnation Act above referred to (40 U.S.C.A. § 257). The Public Buildings Act gave specific authority to the Secretary of the Treasury (later the Federal Works Administrator) "to acquire by purchase, condemnation or otherwise, such sites * * * as he may deem necessary * * *." The Court holds that the United States has inherent power to appropriate land determined necessary for the public use, when such power is exercised by Congress. To quote from the opinion (329 U.S. at page 240, 67 S.Ct. at page 256):

"The considerations that made it appropriate for the Constitution to declare that the Constitution of the United States, and the laws of the United States made in pursuance thereof, shall be the supreme law of the land make it appropriate to recognize that the power of eminent domain, when exercised by Congress within its constitutional powers, is equally supreme."

"We find in the broad terms of the Public Buildings Act authority for the designated officials to select the site they did. We find, in both Acts, authority for them to acquire by condemnation the site thus lawfully selected."¹

The right of the United States to condemn land is conceded by the defendant and is certainly not denied by this Court, but I agree with the defendant's contention that the question here is whether the United States, through Congress, has exercised that right.

The case of United States v. Village of Highland Falls, 2 Cir., 154 F.2d 224, does not hold as contended by plaintiff that one Congress cannot preclude another from exercising the power of eminent domain, but holds rather that such power is one which even the State Legislature cannot surrender; and relates to the question of a state divesting itself of such governmental authority by contract. This case is clearly not applicable here.

The recent decision of the District Court for the District of Columbia on March 24, 1958, of Seneca Nation of Indians v. Brucker, 162 F.Supp. 580, 582, holds that Congress may, by general legislation, override the provisions of an Indian treaty where the intent of Congress to do so is clear, and that an appropriation act which appropriated money for the construction of the Allegheny Reservoir Project "manifested a clear Congressional intention to authorize the construction of the project"; and that since the project was specifically authorized by the appropriation, the right to condemn land for such purpose must be upheld. Similarly, the case of the United States v. 5,677.94 Acres of Land, etc., of Crow Reservation, D.C., 152 F.Supp. 861, holds that an appropriation act making specific appropriations for preconstruction work on the Yellowtail Dam, furnishes sufficient authority for taking of the land within the boundaries of the Indian reservation, when considered with the General Condemnation Act. These decisions deal with appropriations for a specific project, relying upon authority of the Threlkeld (United States v. Threlkeld, 10 Cir., 72 F.2d 464) and Polson (Polson Logging Co. v. U. S., 9 Cir., 160 F.2d 712) cases cited in my original opinion, and are likewise not applicable here.

Plaintiff also cites the legislative history of the Interior Department Appropriation Act for 1951 as indicating the intent of Congress to provide for the acquisition of privately owned land in the Mount McKinley National Park. Such history adds nothing to what has already been said on this subject, and that is that the appropriation mentioned was for the "general acquisition of privately owned lands within park and monument boundaries"; and as we have seen, there were many Acts of Congress granting specific authority to condemn lands as to certain specified national parks, but no...