United States v. Kennedy

• Decision Date: 13 April 1960
• Docket Number: No. 16179.,16179.
• Citation: 278 F.2d 121
• Parties: UNITED STATES of America, Appellant, v. Dan T. KENNEDY, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

278 F.2d 121 (1960)

UNITED STATES of America, Appellant, v. Dan T. KENNEDY, Appellee.

No. 16179.

United States Court of Appeals Ninth Circuit.

April 13, 1960.

William T. Plummer, U. S. Atty., Anchorage, Alaska, Perry W. Morton, Asst. Atty. Gen., A. Donald Mileur, Roger P. Marquis, Attys., Dept. of Justice, Washington, D. C., for appellant.

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

Before HAMLEY, JERTBERG, and KOELSCH, Circuit Judges.

HAMLEY, Circuit Judge.

The United States brought this action to acquire by condemnation two tracts of land within the exterior boundaries of Mount McKinley National Park, in Alaska. Pursuant to a stipulation thereafter entered into with the owner of one of these tracts, an uncontested judgment was entered under which the government acquired that tract. Dan T. Kennedy, owner of the other tract, moved to dismiss the complaint on the ground that it did not state a claim upon which relief can be granted.

The motion was granted and an order dismissing the action as to the Kennedy tract was later entered. The trial court held that the complaint failed to disclose that there was statutory authority under which the Secretary of the Interior could condemn land in Mount McKinley National Park.¹ The correctness of this determination is the only question before us on this appeal by the government.

The acts relating to the establishment, boundaries, and control of Mount McKinley National Park neither authorize nor forbid the acquisition of land by condemnation.² Likewise, the general statutes relating to the jurisdiction and powers of the National Park Service, as such statutes existed in 1951 when the complaint herein was filed, contain no such authorization applicable to the particular tract in question.³ The government, however, relies upon the general condemnation act of August 1, 1888, as amended, 40 U.S.C.A. § 257, as providing the necessary statutory authority to condemn the Kennedy tract.

The material portion of 40 U.S.C.A. § 257 reads 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 * * *."

It has been repeatedly held, and is not here disputed, that under this statute the government's power to condemn is co-extensive with its power to purchase. United States ex rel. Tennessee Valley Authority v. Welch, 327 U.S. 546, 554, 66 S.Ct. 715, 90 L.Ed. 843. But, as the quoted words indicate, the authority to acquire lands which will make the general condemnation statute operative is not conferred by that act but must be found elsewhere. United States v. Certain Lands in Town of Narragansett, R. I., C.C., 145 F. 654.

The authority needed in order to acquire the Kennedy tract is found neither in the statute establishing the park⁴ nor in the general statutes relating to the jurisdiction and powers of the National Park Service. But the government relies upon chapter VII of the general appropriation act of 1951, appropriating funds for the National Park Service, as providing the necessary statutory authorization to acquire the Kennedy tract.⁵ One provision of chapter VII of that act appropriates $19,667,000 for the construction and improvement 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 * * *."

Appellee concedes that the statutory authorization to procure real estate may be evidenced by the making of an appropriation as well as by a specific authorization to acquire. See Polson Logging Co. v. United States, 9 Cir., 160 F. 2d 712, 714. He denies, however, that the 1951 appropriation act upon which the government relies was intended to confer authority upon the Secretary of the Interior, acting through the National Park Service, to acquire land in Mount McKinley National Park.

This appropriation, on its face, contains no direct reference to Mount McKinley National Park or any other national park. In so far as the statutory language indicates, the appropriation is for "the acquisition of lands" in any national park. If, then, this appropriation item is to be given a more restricted meaning so as to exclude Mount McKinley National Park, it must be due to compelling legislative history or the limiting effect of other statutes.

With regard to legislative history, appellee argues first that the National Park Service represented and Congress understood that the item for acquisitions would be used only to acquire lands in certain designated areas not including Mount McKinley National Park. This being so, appellee reasons, no part of this appropriation item may be used to acquire land within the exterior boundaries of Mount McKinley National Park.

The National Park Service for fiscal year 1951 requested a total of $275,000 for the purpose of acquiring private properties within the various national parks. This item was deleted by the House of Representatives, but was restored by the Senate.⁶ On conference between the House and Senate Committees the Senate version of the act was adopted.⁷ There is nothing in the committee reports to indicate that expenditures from this $275,000 item for acquisitions were limited to particular national parks, or that Mount McKinley National Park was excluded therefrom.

Appellee, however, calls attention to the two lists referred to in the Senate hearings in which specific parks are named. One such list is found in the justification which the National Park Service filed in support of the $275,000 appropriation item, as follows:

"It is proposed to use the $275,000 to acquire most urgently needed land in various areas, including Glacier, Carlsbad Caverns, Mesa Verde, Olympic, Yosemite, Lassen Volcanic, and Sequoia and Kings Canyon National Parks; Colonial and Saratoga National Historical Parks; Gettysburg National Military Park; Manassas National Battlefield Park; and in Dinosaur, Glacier Bay, Death Valley, Saguaro, and Joshua Tree National Monuments." U. S. Congress Senate Hearings, vol. 10, 224 (1949-50)

Mount McKinley National Park is not included in the list set out in the justification. It will be noted, however, that this was not represented to be an all-inclusive list. The justification proposed that the $275,000 be used "to acquire most urgently needed land in various areas, including * * *" the named parks and monuments. (Emphasis supplied.) Explaining the list of parks and monuments which was made a part of the justification, Newton B. Drury, Director of the National Park Service, told the Senate subcommittee (Id. at 230):

"Mr. Drury. Yes, those were given in our justification as examples. This is a flexible fund. Now, you asked me about Colonial, and it may well be that there will be purchases there.

"Senator Hayden. There may or may not?

"Mr. Drury. Yes, there may or may not."

A second list which did not include Mount McKinley National Park was filed with the committee by Senator Cordon. However, this list omits eight parks and monuments which were named in the justification,⁸ and includes seven parks and monuments which were not named in the justification.⁹ This circumstance, it seems to us, is a further indication of the intended flexibility of the $275,000 acquisition item. The written explanatory statement which accompanied the list supplied at the request of Senator Cordon also makes it clear that the list of parks and monuments there named was not intended to be exclusive, but only illustrative.¹⁰

Senator Cordon later asked Drury whether the justification for $4,827,000 requested for acquisition of lands and water rights carried an itemization of what acquisitions the National Park Service intended to make with the full amount of the request. Drury replied: "Well, except for that $275,000 item, it does." Id. at 241.¹¹

The legislative history reviewed above does not, in our opinion, bear out appellee's contention that the National Park Service represented and Congress understood that the $275,000 item would be used only to acquire lands in connection with parks and monuments specifically named in the justification and written statements submitted to the Senate subcommittee. We therefore conclude that such legislative history does not warrant a reading of the appropriation item which would exclude its use for land acquisitions within the exterior boundaries of Mount McKinley National Park.

Appellee also argues that the legislative history of the appropriation indicates that the $275,000 item may be used only to acquire lands where the owner is willing to sell and where the government can get a bargain.¹²

There can be no doubt that the agency intended to use the acquisition fund primarily for purchases at bargain prices. It was largely because of this that the agency could not supply the committee with a list of the specific lands which would be acquired.¹³ But it was at no time represented that property would never be acquired by condemnation. On the contrary, the committee was told that this was a continuing program under which considerable property had been acquired by condemnation in past years.¹⁴

Nothing in the legislative history as reviewed above warrants us in reading such a limitation into that statute.

Appellee argues further that the legislative history of the 1951 appropriations act indicates that the agency was merely attempting to secure necessary funds to buy lands for which it already had purchase authority. Since there was no separate purchase authority with respect to Mount McKinley National Park, it is contended that the appropriation may not be utilized in acquiring the Kennedy tract.

The item...