Whitman v. State Highway Commission of Missouri, 1793.

• Decision Date: 06 May 1975
• Docket Number: No. 1793.,1793.
• Parties: Glenn L. WHITMAN, and Janet E. Whitman, d/b/a Osage Outdoor Advertising, Plaintiffs, v. STATE HIGHWAY COMMISSION OF MISSOURI et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

400 F. Supp. 1050

Glenn L. WHITMAN, and Janet E. Whitman, d/b/a Osage Outdoor Advertising, Plaintiffs, v. STATE HIGHWAY COMMISSION OF MISSOURI et al., Defendants.

No. 1793.

United States District Court, W. D. Missouri, C. D.

May 6, 1975.

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Alex Bartlett, Jefferson City, Mo., for plaintiffs.

Paul F. Tochtrop, Jefferson City, Mo., for State Highway Comm.

Vernon Poschell, Asst. U. S. Atty., Kansas City, Mo., for defendants.

FINDINGS AND OPINION

ELMO B. HUNTER, District Judge.

This is an action for declaratory and injunctive relief arising out of a highway relocation and improvement project on U. S. Highway 54, a federal-aid primary highway, in Miller County, Missouri. Plaintiffs at all times relevant to this litigation were husband and wife, and were doing business as Osage Outdoor Advertising. Defendant State Highway Commission of Missouri (the Commission) is an entity created under the Constitution and Laws of the State of Missouri, and is authorized to sue and be sued in its own name. § 226.100 RSMo. (1969). The Commission is authorized by Missouri law to exercise the power of eminent domain. Robert L. Hyder, formerly a defendant in this action, was during all times pertinent to this case, and until his retirement on February 28, 1974, Chief Counsel of the defendant Commission and had been appointed and authorized to act pursuant to § 226.060 RSMo. (1969). The federal defendants are Claude S. Brinegar, Secretary of Transportation of the United States (successor to John A. Volpe) and Norbert T. Tiemann, Administrator of the Federal Highway Administration, United States Department of Transportation (successor to F. C. Turner).

Plaintiffs allege that they were and are the owners of various outdoor advertising structures (billboards) located pursuant to leases negotiated with the property owners, on property adjacent to U. S. Highway 54 prior to the improvement project. They contend that the property upon which these structures were located was acquired by the Commission for the Highway 54 project, that plaintiffs were required to remove or destroy the structures without any form of compensation, and that the underlying leasehold interests were taken by the Commission without payment of just compensation.

Initially, plaintiffs contend the Commission violated various provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. §§ 4601-4655 (1971) (hereinafter, the URA). In this regard they seek an order of this Court requiring the Commission to specifically comply with §§ 301-305 of the URA (42 U. S.C. §§ 4651-4655) with respect to the billboards. In particular, plaintiffs assert that the Commission must purchase the signboards in question and compensate plaintiffs under the provisions of § 302 of the URA (42 U.S.C. § 4652).¹

Second, plaintiffs assert that the Commission took the underlying leasehold interests without due process and without payment of just compensation in violation of the fifth and fourteenth amendments to the United States Constitution and various provisions of Missouri law. In this regard they seek an award of just compensation for the property allegedly taken.

Finally, plaintiffs request a review of the determinations of the Secretary of Transportation and the Federal Highway Administration (the federal defendants) approving federal financial assistance for the Highway 54 project.

Defendants have moved to dismiss the complaint on several alternative grounds, including lack of jurisdiction, failure to state a claim upon which relief can be granted, and, with respect to the Commission, that this cause is barred by the eleventh amendment to the United States Constitution. By previous order, disposition of these motions was postponed until the trial of the case on the merits.

The issues are raised by plaintiffs' first amended complaint, the answers of defendant thereto, the motions to dismiss of each defendant, and by Standard Pretrial Order No. 2. Trial to the Court commenced on June 3, 1974 and concluded on June 5, 1974. Final post-trial briefs were submitted in November, 1974, and an agreed upon form of Standard Pretrial Order No. 2, including stipulations of facts and admissions of parties, was submitted by the parties on March 4, 1975.

Jurisdiction

Plaintiffs assert that this Court has subject matter jurisdiction over plaintiffs' claims under the URA under the provisions of 28 U.S.C. § 1331(a) in that the issues present a federal question and the amount in controversy exceeds the sum or value of $10,000.00. Alternatively, plaintiffs contend that jurisdiction is present under 28 U.S.C. § 1337 as this case arises under an act of the Congress regulating commerce, or under the provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701-706. Under this alternative theory, plaintiffs assert the pendent jurisdiction of this Court with regard to their claims against the Commission.

For the reasons set forth below, this Court has concluded that jurisdiction is present under 28 U.S.C. § 1331(a) as to plaintiffs' claims against the Commission, as these claims for relief arise under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and the matter in controversy exceeds the sum or value of $10,000.00.² The Court has concluded that the eleventh amendment does not bar this action as against the Commission. Concerning plaintiffs' claims against the federal defendants jurisdiction is present under the Administrative Procedure Act to review the determinations of the federal defendants in funding the Highway 54 improvement project. The Court will decline to exercise pendent jurisdiction with regard to plaintiffs' claims for just compensation for the underlying leasehold interests.

Congress had a twofold purpose in enacting the URA. First, the purpose of the relocation assistance provisions was to establish a uniform policy for treatment of individuals displaced as the result of federal or federally assisted projects. See URA § 201 (42 U.S.C. § 4621). Second, Congress intended the real property acquisition policies sections to bring about uniform nationwide procedures for the taking of property by the federal government or state agencies receiving federal assistance. Will-Tex Plastics Mfg., Inc. v. Department of HUD, 346 F.Supp. 654 (E.D.Pa.1972).

The real property acquisition policies of the URA are contained, generally, in §§ 301-305 (42 U.S.C. §§ 4651-4655). Sections 301-304 by their terms apply to federal agencies in the acquisition of real property for federal projects. Section 301 (42 U.S.C. § 4651) establishes nine separate practices and guidelines for federal agencies to follow in the acquisition of real property. Section 302 (42 U.S.C. § 4652) mandates that an agency acquiring real property also acquire an equal interest in any building, structure or improvement on such property which will be required to be removed, or which will be adversely affected by the use of such property, and sets forth a method for compensation to be paid to the owner of any such structure or building.

Section 303 (42 U.S.C. § 4653) involves compensation and reimbursement to the owner of property acquired for certain expenses involved in and incidental to the transfer of title to the United States. Section 304 involves payment by the acquiring agency of certain litigation expenses in limited circumstances.

Section 305 of the URA (42 U.S.C. § 4655) makes the provisions of the preceding sections obligatory upon the states as a condition to the receipt of federal financial assistance. This section provides as follows:

"Notwithstanding any other law, the head of a Federal agency shall not approve any program or project or any grant to, or contract or agreement with, a State agency under which Federal financial assistance will be available to pay all or part of the cost of any program or project which will result in the acquisition of real property on and after January 2, 1971, unless he receives satisfactory assurances from such State agency that —

"(1) in acquiring real property it will be guided, to the greatest extent practicable under State law, by the land acquisition policies in section 301 and the provisions of section 302, and

"(2) property owners will be paid or reimbursed for necessary expenses as specified in sections 303 and 304."

Plaintiffs' primary claim in this case is that the Commission has failed to comply with § 305 of the URA in its real property acquisitions for the U. S. Highway 54 project. In particular, plaintiffs assert that the Commission has failed to comply with the provisions of §§ 301 and 302 to "the greatest extent practicable under State law" as is required by § 305.³

Defendants contend that federal question jurisdiction cannot be properly invoked pursuant to §§ 301, 302 or 305 for the reason that none of these sections grant any rights to the plaintiffs that are subject to judicial enforcement. In this context they refer the Court to § 102 of the URA (42 U.S.C. § 4602), which provides as follows:

"(a) The provisions of Section 301 of Title III of this Act (42 U.S.C. § 4651) create no rights or liabilities and shall not affect the validity of any property acquisitions by purchase or condemnation.

"(b) Nothing in this Act shall be construed as creating in any condemnation proceedings brought under the power of eminent domain any element of value or of damage not in existence immediately prior to the date of enactment of this Act."⁴

With regard to § 102(a), it has been held that this section precludes judicial review of action allegedly taken in violation of § 301, and precludes judicial enforcement of that section. In an exhaustive opinion in Barnhart v. Brinegar, 362 F.Supp 464 (W.D.Mo.1973), Judge William R. Collinson reviewed the entire history of these sections and concluded:

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