Whitney Benefits, Inc. v. U.S.
| Decision Date | 09 January 1985 |
| Docket Number | No. 84-919,84-919 |
| Citation | 752 F.2d 1554 |
| Parties | , 15 Envtl. L. Rep. 20,124 WHITNEY BENEFITS, INC., and Peter Kiewit Sons' Company, Appellants, v. The UNITED STATES, Appellee. Appeal |
| Court | U.S. Court of Appeals — Federal Circuit |
George W. Miller, Hogan & Hartson, Washington, D.C., argued for appellants.
David F. Grady, Hogan & Hartson, Washington, D.C., of counsel.
Claire L. McGuire, Dept. of Justice, Washington, D.C., argued for appellee. With her on the brief were F. Henry Habicht Before MARKEY, Chief Judge, NICHOLS, Senior Circuit Judge, and BISSELL, Circuit Judge.
II, Asst. Atty. Gen., Alfred T. Ghiorzi and Dirk D. Snel, Washington, D.C.
This case presents cross-appeals from an unreported decision of the Claims Court dismissing without prejudice a complaint seeking just compensation under the fifth amendment and 28 U.S.C. Sec. 1491. The view of that court, as stated from the bench, was that under the facts no taking could have occurred up to the date of hearing and it was then uncertain whether a taking ever would occur. We have jurisdiction under 28 U.S.C. Sec. 1295(a)(3). We hold that within the allegations of the complaint, appellants might establish facts constituting a taking. It is not a legal impossibility as the court below believed, though the instant record does not establish the matter one way or the other, without further fact investigation. Therefore, we reverse and remand.
Appellant, Whitney Benefits, Inc., alleges it is a nonprofit corporation owning in fee certain coal-bearing property in Sheridan County, Wyoming. Appellant, Peter Kiewit Sons' Company, owns in fee part of the same property and is lessor of the entire mineral estate in the rest, by lease dated December 3, 1974, and still in effect by extension. The property is described by metes and bounds and is on an alluvial valley floor significant to farming. On August 3, 1977, Congress enacted the Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. Sec. 1201 and ff, which by the theory of the complaint effects a legislative taking of the property involved. However, should any later event, up to the hearing, constitute the taking, appellants would amend to conform their theory of the action. They say the Act, expressly or in its "direct result," prohibited surface coal mining on land such as theirs. Desiring to mine, they applied for a license to the Wyoming Department of Environmental Quality, the state having enacted legislation conforming to standards it was required to meet in the federal act. The state denied the license, having no choice to do otherwise under its own or the federal law, according to the implicit theory of the complaint. According to representations by appellants to the court below in oral argument (but not substantiated by references to published legislative history) Congress was aware of this specific property and its problems, at one time considered, but in the end rejected, a "grandfather clause" to permit mining there, and could not but have intended mining of this property to be a target of the legislation. The mining would be conducted on the surface of the land, not underground. The plain meaning of the legislation is, and appellee United Staets does not seriously dispute, that there are special objections to coal mining on the surface of an alluvial valley floor and Sec. 1260(b)(5)(A) reflects a specially preclusive treatment of this kind of "strip mining." Licensing is flatly prohibited if it would interrupt or preclude farming of substantial extent or materially damage water quality, and if the valley is west of the 100th meridian of west longitude.
There is a "grandfather clause" for such mining actually going on in the period within a year before August 3, 1977. Further, for operators who have not actually begun, but have made "substantial financial and legal commitments" towards beginning, the Secretary is authorized to agree with such operators to convey the fee to, or lease in exchange, other federal land embodying coal deposits (but presumably not arable valley alluvial land). The Congress further says--
It is the policy of Congress that the Secretary shall develop and carry out a coal exchange program to acquire private fee coal precluded from being mined by the restrictions of this paragraph (5) in exchange for Federal coal which is not so precluded.
30 U.S.C. Sec. 1260(b)(5)
The appellants, on denial of a license by Wyoming, according to counsel applied to
the Secretary in 1979 for such an exchange but now, in 1984, negotiations are still under way with no agreement in sight. It is appellants' theory that this exchange provision has been rendered illusory, but they are willing to continue negotiating if assured that limitations will not run on their taking claim. Appellee says appellants have sued it under 30 U.S.C. Sec. 1270 in the United States District Court, District of Wyoming, to require the Secretary to effect an exchange.
The relevant parts of Sec. 1260(b)(5) are set forth hereinafter in an appendix, together with another portion of SMCRA which relates to judicial review, Sec. 1270, "Citizen's Suits." There is no reference to a Tucker Act suit, 28 U.S.C. Sec. 1491, in either provision.
The court below did not file an opinion, but decided the case from the bench. Its view can be quite simply stated. It is that the exchange mechanism described above is a procedure for ascertainment and payment of just compensation, and since facially under the statute just compensation is thus provided, appellants do not have a Tucker Act claim "under the Constitution." The fifth amendment is thus complied with facially, and a Tucker Act claim does not even start to accrue until the "exchange mechanism" has failed to accomplish its end as actually applied. To establish this, appellants must pursue an acceptable exchange for some unstated period of time and then, if they can, convince the district court in one of the modes of review provided within the four corners of the statute, that "just compensation" is being unconstitutionally delayed or denied. The appellee in the court below contended that in a suit under Sec. 1270 the court should grant a trial de novo as to the value of the property taken. Whether it would so contend in any other court is hard to say since Sec. 1270 embodies no such requirement expressly.
The court below rejected appellee's other arguments: first, that Claims Court jurisdiction is completely precluded in all possible eventualities, and second, that the "exhaustion doctrine" requires appellants to contest the denial of the license by all state review procedures, administrative and judicial, even though they accepted denial of a license to mine as the only possible result under the statutes, federal and state. While appellee cross-appealed, we do not understand it to be urging on us the points the Claims Court rejected.
The most obvious difficulty with the Claims Court's position, if we understand it correctly, is the fact that the "exchange mechanism" is nowhere stated in the statute or legislative history (so far as we have been able to delve into the latter) to be the exclusive method of ascertaining constitutional just compensation. The Supreme Court has recently reiterated that statutory supersession of the Tucker Act method is not lightly to be implied. Ruckelshaus v. Monsanto Company, --- U.S. ----, ----, 104 S.Ct. 2862, 2881, 81 L.Ed.2d 815 (1984) (following Regional Rail Reorganization Act Cases, 419 U.S. 102, 133, 95 S.Ct. 335, 353, 42 L.Ed.2d 320 (1974)). Here the statute nowhere says the appellants are obliged to accept exchange land as "just compensation." It is more logical, and more consistent with the statute, to say it is a possible mode of settling a money claim which the claimant may accept if so minded, thus reducing the cash outflow from the Treasury. It seems obvious Congress did not mean to force an exchange upon a claimant not so minded. In the first place, the entire statute, including this portion, having been enacted at a time of "energy crisis," was meant to maintain the production of coal as a vital source of energy so far as consistent with the paramount environmental concerns of the Act. To force an exchange on a claimant who wanted to get out of the coal business would be futile as he would dispose of the exchanged property for what it would realize.
We add that a cross-reference in Sec. 1260(b)(5) says that exchanges shall be made under 43 U.S.C. Sec. 1716. This latter provision was part of the Federal Land Policy and Management Act of 1976, Pub.L. No. 94-579, 90 Stat. 2756, and neither that Act nor its legislative history offer any suggestion that exchanges are authorized without the consent of the private party with whom the exchange is effected.
Finally, as to this question of interpretation, an attempt to force a person, otherwise identifiable as a former owner of property taken, to receive as just compensation other lands rather than money, would be of dubious constitutionality. This matter is discussed in Regional Rail Reorganization Act Cases, 419 U.S. 102, 150, 95 S.Ct. 335, 361, 42 L.Ed.2d 320 (1974), but resolved only in the context of the Court's holding that the statute there under review was an exercise of the bankruptcy power rather than one for the acquisition of property for public use. The modern view, as stated in that case, and in 3 P. Nichols, Eminent Domain Sec. 8.2 (3d ed.1984) is that statements that just compensation must always be in money are too sweeping. However, requirements that a condemnee accept the taker's bonds, or its surplus lands, remain pretty indefensible. Of federal cases there are cited, as to land, only Vanhorne's Lessee v. Dorrance, 2 Dall. 304, 1 L.Ed. 391 (C.C.D.Pa.1795), which is positive that the Constitution does not permit any such imposed...
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