United States v. 422,978 SQUARE FT. OF LAND, SAN FRANCISCO

• Decision Date: 23 August 1971
• Docket Number: No. 23888.,23888.
• Citation: 445 F.2d 1180
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. 422,978 SQUARE FEET OF LAND, IN the CITY AND COUNTY OF SAN FRANCISCO, and Unknown Owners, Defendants, State of California, Defendant and Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

445 F.2d 1180 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. 422,978 SQUARE FEET OF LAND, IN the CITY AND COUNTY OF SAN FRANCISCO, and Unknown Owners, Defendants State of California, Defendant and Appellant.

No. 23888.

United States Court of Appeals, Ninth Circuit.

July 21, 1971.

As Modified on Denial of Rehearing August 23, 1971.

Wayman M. Robertson, Jr., Asst. Atty. Gen. (argued), Evelle J. Younger, Atty. Gen., San Francisco, Cal., for defendant-appellant.

Edmund B. Clark, Atty., Dept. of Justice (argued), Shiro Kashiwa, Asst. Atty. Gen., Washington, D. C., James L. Browning, U. S. Atty., J. Harold Weise, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Before CHAMBERS, BROWNING and CARTER, Circuit Judges.

JAMES M. CARTER, Circuit Judge:

This is an appeal from an order of the district court dismissing a complaint in condemnation. The State of California appeared in the action as an owner claiming rights in the subject property and resisted the motion of the United States to dismiss. The State's appeal raises questions of whether the United States exercised a navigational easement in connection with the subject property and whether the statute of limitations under the Tucker Act ran against the State. We affirm.

On November 18, 1940, the United States entered and took physical possession of submerged lands in San Francisco Bay, including a wharf facility, then designated Facility No. 70, located on the submerged land and owned by the State. Possession of the land was taken for use of the United States in connection with the San Francisco Naval Shipyard, designated Facilities No. 68 and 70, it was constructing on adjacent uplands.¹

In 1944, the State requested that the United States enter into a lease providing for payment of rental for its occupancy of the property. In the ensuing communications concerning a lease, the United States refused to agree to anything more than a nominal rental.² The United States remained in possession without entering into a lease or paying rent until October 2, 1967, when it sold Facilities No. 68 and 70, but not the submerged land, to the State for $3,200,000.³

During the period the United States was in possession of the subject property, the State never brought an action to recover compensation. On March 9, 1955, the United States filed a condemnation action against the property of which it was in possession, designating the interest to be acquired as "a term for years beginning March 9, 1955, and ending June 30, 1955, extendible yearly thereafter until June 30, 1965." Neither a declaration of taking nor an order of possession was filed pursuant to the complaint. The State appeared in the action,⁴ and the United States filed an amended complaint on March 22, 1960 and sought dismissal of the action with prejudice to the State's right to recover compensation or, in the alternative, judgment declaring that the United States took possession in exercise of its navigation servitude, for which no compensation was required to be paid.

On August 31, 1964, the United States moved to dismiss the complaint with prejudice to any claim the State had to compensation⁵ or, in the alternative, for judgment that the United States had taken possession of the property in exercise of its navigational servitude, for which no compensation was payable. On June 1, 1965, the district court, finding that the United States had not shown "clear congressional authorization" for the exercise of the navigation servitude, denied the motion⁶ and the subsequent request by the United States for a recitation permitting interlocutory appeal.

On July 17, 1968, the United States again moved to dismiss the complaint or, in the alternative, for summary judgment determining the State to be entitled to no compensation, on the ground that any claim the State had to compensation was barred by its failure to sue under provisions of the Tucker Act, 28 U.S.C. §§ 1346(a) (2) and 1491, within its six-year period of limitation, 28 U.S. C. §§ 2401 and 2501.

The district court entered an order on November 14, 1968 dismissing the complaint in condemnation without comment. The State's appeal presents two major questions: (1) Is the State of California entitled to compensation for the use by the United States of submerged land in San Francisco Bay, in connection with a naval shipyard, or did the United States exercise a navigational easement over such land? (2) Where the United States in 1940 took possession of property owned by the State, is any right that the State had to compensation barred by its failure to bring an action under the Tucker Act within six years?

I

The United States contends that the State is not entitled to compensation for the Government's use of submerged land in San Francisco Bay in connection with a naval industrial shipyard. Its argument that the owner of land under navigable waters does not have a compensable right as against the United States for use of such submerged land for a navigation purpose is supported by language in a long line of opinions of the Supreme Court.⁷

The State argues that none of these cases involved the precise issue before

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us but involved questions of the compensability of private interests in the flow of navigable streams. We will not, however, refuse to follow such an often repeated and enduring expression of the law by the Supreme Court, absent an indication that the Court would reconsider its remarks should the issue come before it. We hold that the United States can use land submerged beneath navigable waters for a navigational purpose without compensating the owner of the land.

The State contends that the power of the United States to use submerged land for a navigational purpose was not invoked in this case because there was no express congressional authorization for the exercise of this power and possession of the subject property was not, in fact, taken for a navigational purpose. These contentions are not persuasive in light of United States v. Commodore Park, 324 U.S. 386, 65 S.Ct. 803, 89 L.Ed. 1017 (1945). There the Navy Department acting in conjunction with the War Department, enlarged and improved a Naval Air Station with shore facilities for seaplanes by dredging an adjacent bay to a depth suitable for the operation of large seaplanes. The dredged materials were deposited in a navigable creek adjacent to the bay, cutting off the creek from any navigable outlet to the bay and sea.

The project, in Commodore Park, was authorized by a statute that did not recite a navigational purpose. Further, the plan originated with a view to improvement of shore facilities by expanding the base onto the dredged materials deposited in the creek. Nevertheless, the Court held applicable the rule of nonliability for the exercise of a navigational easement.

"The `fact that purposes other than navigation will also be served could not invalidate the exercise of the authority conferred, even if those other purposes would not alone have justified an exercise of Congressional Power.\' Arizona v. California, 283 U.S. 423, 456 51 S.Ct. 522, 526, 75 L.Ed. 1154.

"All the waters affected were navigable. The Constitution entrusted to Congress the responsibility of determining what obstructions may, or may not, be placed in such waters. This power Congress may exercise itself or through its duly authorized agents. Here, the War Department, selected by Congress to pass upon when and to what extent, navigable waters may be altered or obstructed, permitted, and actually supervised, the program accomplished. Even though cases might arise in which the courts would look behind the judgment of this specifically authorized agency, this is not such a case." 324 U.S. at 391-392, 65 S.Ct. at 806.

The State argues that a contrary result is compelled in this case by United States v. Gerlach Live Stock Co., 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231 (1950) and Federal Power Commission v. Niagara Mohawk Power Corp., 347 U.S. 239, 74 S.Ct. 487, 98 L.Ed. 686 (1954). We disagree. "The legislative history and construction of particular enactments may lead to the conclusion that Congress exercised less than its constitutional power, fell short of appropriating the flow of the river to the public domain, and provided that private rights existing under state law should be compensable or otherwise recognized. Such were United States v. Gerlach Live Stock Co., supra, and Federal Power Commission v. Niagara Mohawk Power Corp., supra." United States v. Twin City Power Co., 350 U.S. 222, 225, 76 S.Ct. 259, 261, 100 L.Ed. 240 (1956).

Here, the record shows Congressional authority under the Act of July 19, 1940, 54 Stat. 779 which authorized the expenditure of moneys for "essential equipment and facilities at either private or naval establishments" for building naval vessels. Pursuant to this authority funds were appropriated by the "Second Supplemental National Defense Appropriation Act" of 1941, 54 Stat. 872, 882. The Secretary of the Navy then recommended the project here involved and the President approved.

Neither here, nor in Commodore Park were there statutory provisions that aid to navigation or use of rights of navigation were relied upon. However, we may look to the project to determine whether it was intended as in aid to navigation and commerce. The parallel between Commodore Park and our case is very close.

II

Even if the United States were obligated to compensate the State for use of the subject property, the State's right to recover compensation was extinguished by its failure to bring an action within six years of the date the United States took permission of the property.

Under 28 U.S.C. § 1491, the Court of Claims has jurisdiction of "any claim against the United States founded either upon the Constitution * * * or any * * * implied contract with the United States." The district courts have concurrent jurisdiction of such claims...