Petition — Georgia Power Co. v. United States

8 0 -l Q 4% fF: "erera E

2EC 24 1980

MICHAEL RODAK, JR., CLERK |

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

NO.

Georgia Power Company,

Petitioner,

vs.

The United States of America,

Respondent.

PETITION FOR CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

ROBERT L. PENNINGTON

1400 Candler Building

Atlanta, Georgia 30043

(404) 658-8000

Counsel of Record for Petitioner

RICHARD G. HOLLOWAY

HERBERT D. SHELLHOUSE

1400 Candler Building

Atlanta, Georgia 30043

Counsel for Petitioner

QUESTION PRESENTED

Where members of the public are specifically

authorized by the Corps of Engineers to operate

sailboats for recreational purposes on a government

lake, and where such authorized use constitutes a

substantial interference with the rights of a private

electric utility to operate and maintain over the lake

an electrical transmission line pursuant to an ease-

ment granted by the Corps of Engineers, may the

United States escape its obligation to pay just com-—

pensation for such taking?

In conformity with Rule 28.1, the Petiti

makes the following disclosure: oe

The Southern Company (parent fimn);

Alabama Power Company (affiliate) ;

Gulf Power Company (affiliate) ;

Mississippi Power Company (affiliate) ;

Southern Company Services, Inc. (affiliate) ;

Southern Electric Generati Comp

(subsidiary) . siete, oo

INDEX

pv TK Ri ae Vey 6) y |)” Rr lil

NG SEO a nd inp wins he a bone ve¥ se

ARGUMENT

I. Petitioner Had a Valuable, Vested

Property Right Which Has Been

Effectively Destroyed .................

II. The United States Should Be Liable

for a Taking Which Was Permitted

Wet We I, os as cco vee wees «

III. The United States Is Liable for the

Acts of Third Party Users of the

a ee

NO es vicki eecakcees sas beeees

APPENDICES:

A. July 16, 1980, Opinion of the Court

roo san cence an

B. October 3, 1980, Order of the Court of

I te pate SO ee Eee ed

Pe EE gnc h oe bors scceduanes

oe CPB, $6 S118, S113 .............0.%.

Fr. MOOR 6 7s BIS ...........0. 0055:

CERTIFICATE OF SERVICE. ._.......

Hoo

ii

A TABLE OF AUTHORITIES

Armstrong v. United States, 364 U.S. 40

EEN oo hes mae AN go ci 9

Benenson v. United States, 212 Ct. Cl. 375,

eee ee rs ho, 16

Dugan v. Rank, 372 U.S. 609 (1963) Fitna 18, 22

Gaffney v. Pesce, 144 Conn. 17, 126 A.2d 926

Ce tee anamr gt Sr 10

Garden Construction Co. v. . United States,

191 Ct. Cl. 172, 423 F.2d 273 (1970) . 21

Georgia Power Co. v. Sullivan, 217 Ga. 699,

AEG Geos GO4 (I0GE) 8 cin. ce ds 10

Goldblatt v. Town of Hempstead, 369 U.S.

ee as Ree nae

Griggs v. County of Allegheny, 369 U. s. 84

ts ERNE te erie a2, 16, 22, 28

Hurley v. Kincaid, 285 U.S. 95 (1932) Kee

J. J. Henry Co., Inc. v. United States, 188 Ct.

Cl. 39, 411 F.2d 1246 (1969)... . ae

Kaiser Aetna v. United States, 444 U.S. 164

SO ee i a ee ‘fun ay a ee

Keesling v. City of Seattle, 52 Wash.2d 247,

gue Faere (IOGR) oe as. 11

Kleinheider v. Phillips Pipe Line Co., 528 F.2d

837 (8th Cir. 1975) ......... | 10

Labounty v. Vickers, 352 Mass. 337, 295

PEM A IOED ce ck ka ay a

Metropolitan District Comm’n v. Plotnick,

354 Mass. 1, 234 N.E.2d 766 (1968) . ae

Minot v. United States, 212 Ct. Cl. 154, 546

Wie ee ae

Mobley v. Saponi a 215 Va. 643, 212

S.E.2d 287 (1975) . ee ae bone

ili

Monongahela Navigation Co. v. United States,

Se ee A a eas eA ee

Panhandle Eastern Pipe Line Co. v. State

Highway Comm’n, 294 U.S. 618 (1935) .....

Penn Central Trans. Co. v. City of New York,

Ge eee Se Cetera 9,

Pennsylvania Coal Co. v. Mahon, 260 U.S.

NN she Fe A os

Sun Oil Co. v. United States, 215 Ct. Cl. 716,

572 F.2d 786 (1978) . ce eel

Swenson v. Strout Realty, tea. 85 Nev. 236,

452 P.2d972(1969)...................

Tenney Telephone Co. v. United States, 82

Baume We a vee ee, ROOD ok ea he.

Town of Essex v. New England Telegraph Co.,

239 U.S. 313 (1915) |

Umberger v. State, ex rel. Department of Game,

248 N.W.2d 395 (S.D. 1976)

United States v. Bailey, 467 F.Supp. 925

(E.D. Ark. 1979) .......

United States v. Causby, 328 U. Ss. 256 (1946)

16, 17, 18,

United States v. Cress, 243 U.S. 316 (1917). .

United States ex rel. Tenn. Valley Authority

v. Kasement, 249 F.Supp. 747 (W.D.Ky.

1966) Ue ea i eine

United States v. General M étore Corp., 323

Wan Bre (2eee) ..2:..

United States v. Gerlach Live Stock Co., 339

eh Wt Re ere ea.

United States v. Sea Gate, Inc., 397 F.Supp.

1351 (D.N.C. 1975) | |

Wiegmann v. Baier, 203 N. W. 2d 204 (Iowa

Tc ren ea Penis | |

iv

20

13

10

, =

16

22

. 22

Wilfong v. United States, 202 Ct. Cl. 616,

Ge wae bee Ceere) .. cee eee. . 13

Youngstown Steel Products Co. v. City of Los

Angeles, 38 Cal.2d 407, 240 P.2d 977 (1952) .

U.S. Const. amend. V......... mat ota Pa

16 U.S.C. § 460d... ae | 16, 1d

28 U.S.C. § 1255(1) | pon a cae 1

oo ek 2! Ce etrgt

eR 16

36 C.F.R. § 327.0 et seq. __. , 16

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

NO.

Georgia Power Company,

Petitioner,

VS.

The United States of America,

Respondent.

PETITION FOR CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

OPINION BELOW

The decision of the Court of Claims is reported

in — Ct. Cl. _ and F.2d __ and appears as Appen-

dix A hereto. The Court of Claims order on rehear-

ing is unreported and appears as Appendix B hereto.

JURISDICTIONAL STATEMENT

The judgment of the Court of Claims was ren-

dered and entered on July 16, 1980. A timely petition

1

2

for rehearing en banc was denied on October 3, 1980.

This Court has jurisdiction under the provisions of

28 U.S.C. § 1255(1).

STATUTES

U.S. Constitution, amendment V

BEES STS ea Bn oe Se

16 U.S.C. § 460d

el a iin 4 aan h C46 40 ab as WE ees

36 C.F.R. §§ 311.0, 311.3

ERS ee ae a

36 C.F.R. §§ 327.0, 327.3

SG eg a a

STATEMENT OF THE CASE

The Petitioner, Georgia Power Company, is a reg-

ulated public utility furnishing electricity to most

of the citizens of Georgia. In 1926, it constructed a

transmission line between Toccoa and Augusta,

Georgia, under easements acquired from private

landowners. The lands over which the easements

were located were condemned by the United States

in 1951 to create Clark Hill Reservoir. Rather than

condemning the easements, the United States negoti-

ated with the Petitioner to move its line to another

location over the lake in exchange for cash and a

conveyance from the government which was to pro-

vide the Petitioner rights “equivalent to the right

surrendered... .”

Pursuant to this agreement, the United States

conveyed to the Petitioner a “perpetual easement”

to maintain its transmission line over the condemned

3

lands. Although the metes and bounds of the ease-

ment were described, the easement was silent as to

the height at which the lines were to be strung. Fol-

lowing discussions with the Corps of Engineers

(hereinafter referred to as the “Corps’”), the line

was built at a height of twenty-five feet, and there

it remained with no problems for approximately

twenty years.’

The easement relieved the United States from

liability for injury or damage arising from the use

or occupation of the premises by the Petitioner and

required the Petitioner to inspect the line at reason-

able intervals and promptly repair any defects, and

further provided that the use and occupation of the

land “shall be subject to such rules and regulations

regarding ingress, egress, safety ... as the District

Engineer ... may from time to time prescribe.” (It

should be noted that no such rules or regulations

have ever been prescribed.) However, there was no

provision requiring the Petitioner to remove or re-

locate the line at its expense in the event of any

change in the use of the lake.”

a —_——— 4

1 Whether the Corps actually prescribed a twenty-five foot

elevation or whether this was simply specified by the Corps

as a minimum height is irrelevant; it is undisputed that,

with the full knowledge of the Corps, the lines were strung

at that height and remained there without objection until

they were raised in 1977.

* The Corps had submitted a draft of a proposed easement

to Petitioner which was rejected because its terms could

possibly be used to justify a later forced removal, a condi-

tion Petitioner obviously was unwilling to agree to since

this was entirely different from the rights it was giving up.

+

It is clear, though not specifically documented in

the record, that recreational sailing on lakes was not

overly popular in the early 1950’s, and high-masted

sailboats on lakes were unknown. Without being

able to predict what the future held in store for this

sport, it was quite logical for both parties to be-

lieve, as the record shows to have been the case,

that a clearance of twenty-five feet was ample for

any use to which Clark Hill Reservoir might be put.

The newly-relocated transmission line was erected

within the bounds of the easement at a height of

twenty-five feet and was energized in 1952. There-

after, the Petitioner undertook a program of reg-

ular inspection to assure that its facilities remained

in safe and serviceable condition, and the transmis-

sion line stood free of interference for two decades.

In May, 1971, the Petitioner was informed that

the mast of a sailboat had nearly made contact with

the line, and this incident prompted the parties to

begin discussions on the potential hazard posed by

recreational boating. Six months later, the Corps

formally requested the Petitioner to raise its line

above twenty-five feet; the Petitioner agreed to do

so if the United States would absorb the necessary

cost. The Corps did not immediately respond to this

proposal, but did place warning buoys near the line

and indicated its existence and the available clear-

ance on navigational maps.

Nothing further transpired until April 29, 1973,

when a sailboat with a mast measuring twenty-eight

feet contacted the line, killing one person and seri-

ously injuring others. This accident proved not only

*%

5

that recreational use of the reservoir was incom-

patible with continued maintenance and operation

of the line at the original twenty-five foot height,

but also that the limited safety precautions taken

by the Corps were ineffective to prevent collisions

by private boats.

Despite repeated inquiries by the Petitioner for a

decision on government assumption of relocation

costs, the Corps would only advise that an investi-

gation and engineering study was underway. It was

not until February 24, 1977, that the Corps finally

informed the Petitioner that it would neither ac-

cept responsibility for any future accidents nor bear

the expense of raising the line, even though at the

same time the Corps acknowledged that it had a

duty to assure public safety, that it had not been

able to do, and that the only way te protect the pub-

lic users of the lake was to raise the line.

It was not until after this communication that the

Petitioner learned of the seriousness and extent of

the hazard posed by recreational boating. According

to the government’s own figures, by mid-1975 the

percentage of sailboats using Clark Hill Reservoir

which were unable to negotiate the transmission

line had already reached forty-seven percent. The

Corps further projected that the reservoir would

eventually accommodate boats with seventy-five foot

6

masts and that, in the near future, projections of

fifty-two feet could be expected.’

The development of Clark Hill Reservoir was part

of an overall scheme to improve the Savannah River

basin in Georgia and South Carolina and was for-

mally authorized by Congress in December, 1944.

Pub. L. 78-534 (1944). As expressed in the Definite

Project Report, the development was intended to

promote “hydroelectric power, improvement of navi-

gation, and other purposes.”

Limited recreational use by the public was also

envisioned under the rules and regulations to be

promulgated by the Corps. Even then, it was planned

to allow only such public access as would compliment

operation of the project for its major purposes and

assure public safety.

The operation of boats, ... for fishing and rec-

reational use is permitted except in prohibited

3 The court below decided there was insufficient proof of

the inevitability of recurring accidents necessary to give

rise to a substantial interference with the Petitioner’s

property, July 16, 1980, Slip Opinion, at 4, fn. 5, relying

upon the Corps’ Deputy Director of Civil Works, who con-

cluded: “‘For the most part, the nonconforming crossings

are located in coves and not in the main channels used by

the sailboats.” The court ignored the fact that there were

crossings that were readily accessible as evidenced by the

1971 and 1973 incidents, and further ignored the effect on

other crossings resulting from raising the affected cross-

ings. In any event, whether all or only some of the cross-

ings needed additional clearance is immaterial for the

purposes of this appeal and can be handled appropriately on

remand.

7

areas designated by the District Engineer in

charge of the reservoir area....

36 CFR § 311.3(a).

The Petitioner, whose property interests at Clark

Hill Reservoir were narrowly circumscribed by the

easement, had no ability on its own to restrict ac-

cess to those portions of the reservoir crossed by

its transmission line only to boats able to pass under

it. The Corps, however, had such authority and as

early as November, 1971, when it requested that the

Petitioner raise the transmission line, assured the

Petitioner that regulations would be issued to pre-

vent future incidents, but only after the line had

been raised from its original twenty-five foot height.

The inconsistency between the governinent’s will-

ingness to prevent by regulation future, unantici-

pated interference by private boats and its refusal

to eliminate the acknowledged, existing interference

was never resolved, the Corps protesting that any

decision could only be made after “full public partici-

pation.” No such participation was even solicited

until after work to relocate the line had been largely

completed.

By the latter part of 1977, a number of facts had

become evident. First, the Corps had permitted a

use of Clark Hill Reservoir to develop that was in-

compatible with the Petitioner’s twenty-five foot

high transmission line. Second, the inconsistent use

of the reservoir was widespread and would continue

to grow more serious in the future. Third, the

safety precautions that had been taken would not

8

prevent collisions with the transmission line. Fourth,

the Petitioner had no control whatsoever over use

of the reservoir and thus could not take any addi-

tional, more effective measures. Finally, the Corps

had determined to compel relocation of the trans-

mission line by refusing to take action within its

authority to stop or to minimize the incompatible

use of the reservoir, thus exacerbating the problem

and for all intents and purposes rendering it per-

manent.

Based upon these considerations, the Petitioner

was forced to raise its transmission line to the eleva-

tion specified by the Corps in its November, 1971,

“request.” The Petitioner’s action to recover the

actual cost of construction, $802,348.00, was filed

shortly thereafter in the United States Court of

Claims under authority of 28 U.S.C. § 1491.

ARGUMENT

Notwithstanding legal technicalities and semantic

niceties, it is indisputable that the Petitioner has

lost a vested property right at a cost of over $800,000

solely for the benefit of a limited public use. Should

the electric ratepayers of Georgia who have gained

nothing but lost a substantial investment be forced

to pay for the public’s use of the Petitioner’s ease-

ment? Or should the price of the public’s gain be

borne by the public?

This Court is committed to the proposition that

the “Fifth Amendment’s guarantee... [is] designed

to bar Government from forcing some people alone

to bear burdens which, in all fairness and justice,

eee ee

9

should be borne by the public as a whole.” Armstrong

v. United States, 364 U.S. 40, 49 (1960), quoted

approvingly in Penn Central Trans. Co. v. City of

New York, 488 U.S. 104, 123 (1978). This Court

has also made clear that, while there can be no set

formula for determining when justice and fairness

require that economic injuries caused by public ac-

tion be borne by the Government rather than remain

disproportionately concentrated on a few persons,

the circumstances of each case must be examined

essentially on an ad hoc basis. Kaiser Aetna v.

United States, 444 U.S. 164 (1979).

The central issue, therefore, is whether it is fair in

the context of this case to force one corporate entity

to bear the entire cost of relocating its facilities sole-

ly to accommodate the recreational public. Although

this precise question appears to be one of first im-

pression, guidelines announced by this Court as well

as a sense of justice and fair play require a finding

that there has been a taking by the United States

for public purposes for which compensation is due

the Petitioner.

In any event, the question is certainly one of grave

import for the entire public utility industry and

merits this Court’s attention.

I,

Petitioner Had A Valuable Vested Property

Right Which Has Been Effectively Destroyed

Although the lower court declined to decide wheth-

er the Petitioner had a vested, exclusive right to

10

maintain its line at a height of twenty-five feet, this

is an essential element of the Petitioner’s case and,

hence, will be treated at the outset of the argument.

The original easements. while not specifying a

particular height, did give the Petitioner the right

to keep the line clear of all obstructions. (Even in the

absence of such a provision, this right is inferred.

Georgia Power Co. v. Sullivan, 217 Ga. 699, 124

S.E.2d 634 (1962).) The concomitant of this is the

absolute and exclusive right to occupy a definite

amount of airspace sufficient to accomplish the pur-

pose of transmitting electricity without interference.

The fact that the easement is silent as to height

means nothing. The universally accepted rule is that

where the location of the easement has been estab-

lished either by express terms or by use of a specific

location, it becomes fixed and cannot be substantially

changed without the consent of both parties. Youngs-

town Steel Products Co. v. City of Los Angeles, 38

Cal. 2d 407, 240 P.2d 977, 979 (1952). See, United

States ex rel. Tenn. Valley Authority v. Easement,

249 F. Supp. 747 (W.D. Ky. 1966) ; Cf. Kleinheider

v. Phillips Pipe Line Co., 528 F.2d 837 (8th Cir.

1975); Gaffney v. Pesce, 144 Conn. 17, 126 A.2d

926 (1956); Labounty v. Vickers, 352 Mass. 337,

225 N.E.2d 333 (1967); Swenson v. Strout Realty,

Inc., 85 Nev. 236, 452 P.2d 972 (1969); Umberger

v. State ex rel. Department of Game, 248 N.W.2d

11

395 (S.D. 1976); Keesling v. City of Seattle, 52

Wash. 2d 247, 324 P.2d 806 (1958) .4

The fact that the easement placed a duty upon the

Petitioner to maintain the line in a safe condition,

to comply with safety rules, and to assume liability

for damages resulting from maintenance and use

of the line does not make the Petitioner a mere

licensee subject to the whims of the grantor. Such

an argument defies logic. The line was safe when

built and has remained that way. The hazard has

resulted from a change in the use of the water under

the line, a change allowed to come about by the

Corps and over which the Petitioner had absolutely

no control. The line was built with the full expecta-

tion that a twenty-five foot clearance was adequate

for all contemplated uses of the lake. Had the United

States really expected later to require Petitioner

to move the line, it would have said so in the ease-

ment, and certainly it never would have agreed in

the relocation contract to give the Petitioner the

same rights being voluntarily given up. It is obvious

that the Petitioner would never have agreed to such

a requirement; its easement rights would have had

* The Court of Claims did not even address those cases that

would preclude the United States, by virtue of its conduct

in specifying the original height of the line, from ordering

its removal. See Kaiser Aetna v. United States, 444 U.S.

164 (1979); Panhandle Eastern Pipe Line Co. v. State

Highway Comm’n, 294 U.S. 613 (1935); Town of Essex v.

New England Telegraph Co., 239 U.S. 313 (1915); Cf.

Monongahela Navigation Co. v. United States, 148 U.S. 312

(1893) ; Tenney Telephone Co. v. United States, 82 F.2d

788 (7th Cir. 1936) ; United States v. Bailey, 467 F. Supp.

925 (E.D. Ark. 1979).

12

to have been condemned; and a much higher price

would have been paid.

The value of the easement to the Petitioner rests

wholly upon the purpose for which it was granted

and the use to which it has been put. The importance

of the twenty-five foot fixed elevation is in the con-

tinued, uninterrupted maintenance of existing facil-

ities. The Petitioner paid for this right originally

and it retained this right when relocating. The next

question, then, is whether that property has been

taken. (Again, the Court of Claims never specifically

decided whether the interference complained of rose

to the level of a taking but implied that it did not.)

Governmental interference with private property

necessary tc constitute a taking need not involve ac-

tual physical destruction of property. Under prin-

ciples developed by this Court, it is sufficient that

there has been a substantial interference with the

owner’s use and enjoyment of his property. See Kai-

ser Aetna v. United States, 444 U.S. 164 (1979);

Griggs v. County of Allegheny, 369 U.S. 84 (1962) ;

United States v. General Motors Corp., 323 U.S. 373

(1945). The Petitioner here has been subjected to

property damage and liability for injuries to others;

it has been informed that interference will likely

continue because safety precautions are not effec-

tive; and it has been met with intransigence in re-

sponse to its reasonable demand that remedial meas-

ures — effective regulations — to end the interfer-

ence be taken by the Corps.

Admittedly, only one fatality occurred through

direct contact with the transmission line before cor-

13

rective action was forced upon the Petitioner, but

one cannot seriously contend that it was obliged to

wait for additional accidents to occur in order to

merit a recovery. The Petitioner’s obligation, rather,

is only to show that the interference will inevitably

recur, see United States v. Cress, 243 U.S. 316

(1917); Wilfong v. United States, 202 Ct. Cl. 616,

480 F.2d 1326 (1973), and this burden can be satis-

fied other than by a body count.

For example, in Dugan v. Rank, 372 U.S. 609

(1963), the United States constructed a dam, the

effect of which was to appropriate private water

rights recognized by state law. Although the amount

of water of which the plaintiffs would be deprived

was certain to vary with day-to-day operation of

the dam, this Court, nonetheless, found that a com-

pensable taking had already occurred, based upon

the government’s “purpose and effect of subordinat-

ing” the plaintiffs’ water rights to federal use

“whenever it saw fit.” 372 U.S. at 625.

The Court of Claims apparently found no plan or

intent to deprive the Petitioner of its property for

the reason that the Petitioner had never been ordered

to relocate its transmission line, July 16, 1980, Slip

Opinion, at 6, but if a formal, written demand were

always required for governmental appropriation of

private property, few, if any, cases for compensation

would ever reach the courts. It is sufficient, rather,

to infer such an intention from the facts. See Dugan

v. Rank, supra; Sun Oil Co. v. United States, 215

Ct. Cl. 716, 572 F.2d 786 (1978); J. J. Henry Co.,

Inc. v. United States, 188 Ct. Cl. 39, 411 F.2d 1246

(1969).

14

By the summer of 1977, it became apparent that

forcing a relocation had been the government’s in-

tent all along. As early as 1971 when the Corps was

in the process of instituting its first safety measures,

the government’s operational manager at Clark Hill

Reservoir was already “convinced that the only sure

cure to the hazards posed .. . was a raising of the

lines,” and the November, 1971, letter “request” that

a relocation be accomplished suggested an alterna-

tive height of fifty-four feet, even before an engi-

neering design for relocation had been commissioned.

Having declined to bear the cost of relocating the

line after six years of delay and knowing that other

safety measures were inadequate, the Corps there-

after foreclosed the only other available solution—

the exercise of its regulatory authority to stop the

inconsistent use of the reservoir. This decision meant

that conditions on the reservoir would be allowed

to deteriorate until the Petitioner would be forced

to relocate the transmission line on its own and ex-

pressed an attitude, perhaps, best summarized by

the Corps’ Deputy Engineer for the South Atlantic

Division, who concluded: “If conditions become ob-

viously unsafe it is considered that the utility com-

panies, in the public interest, will assume responsi-

bility for alterations without positive action by [the

United States].”

There is no question but that the conditions in

1977 were “obviously unsafe.” There had been one

near miss which prompted certain safety measures,

one tragedy in 1973 in spite of the safety measures,

an increase in the number of sailboats using the lake,

an increase in mast heights, and a projected, con-

15

tinued increase in numbers of boats and their mast

heights. Aluminum masts and electric wires are

wholly incompatible; each interferes with the safe

operation of the other; the interference is not only

substantial, it is lethal; under the Corps’ regula-

tions, the interference was bound to continue with

deadly frequency. Hence, there was a taking of

property without compensation.

Il.

The United States Should Be Liable For A

Taking Which Was Permitted By Its Regula-

tions

The central legal issue is whether the Corps’

scheme for regulating the manner in which the pub-

lic might use the reservoir, which use by the public

substantially interfered with the exclusive right of

the Petitioner to use its easement, is sufficient to

render the United States liable to compensate the

Petitioner for this taking.

The Court of Claims, characterizing the Petition-

er’s position as one advocating a duty on the Corps

to proscribe by regulations the use of the reservoir

by high masted boats, July 16, 1980, Slip Opinion, at

6, held that there was no affirmative duty to do so.

The Petitioner contends, rather, that, once the public

was authorized by regulations to use the reservoir,

a duty devolved on the Corps to regulate that use

sensibly, reasonably and in a manner not knowingly

inconsistent with the Petitioner’s vested property

rights.

16

The Court of Claims declined to find liability

against the United States on the ground that no

“taking” in a constitutional sense could be based

upon a permissive regulatory scheme, thus charac-

terizing the actions of the Corps as mere “discre-

tionary inaction.” July 16, 1980, Slip Opinion, at 5.

It is, however, essential to realize that recreational

boating at this reservoir exists only at the sufferance

and under regulation of the United States.

The cases in which governmental regulation has

resulted in a taking generally fall into either of two

categories: (i) government regulation mandates a

use of the property by others inconsistent, with the

owner’s rights, see, e.g., Griggs v. County of AI-

legheny, supra; United States v. Gerlach Live Stock

Co., 339 U.S. 725 (1950) ; United States v. Causby,

328 U.S. 256 (1946), or (ii) government regulation

forbids a use of the property by the owner, similarly

inconsistent with his rights, see, e.g., Goldblatt v.

Town of Hempstead, 369 U.S. 590 (1962); Benen-

son v. United States, 212 Ct. Cl. 375, 548 F.2d 939

(1977); see generally Penn Central Trans. Co. v.

City of New York, supra. The regulation present in

this case fits neatly into neither classification for it

merely permits, but does not require, a use of the

property inconsistent with the Petitioner’s vested

property rights.

The regulatory authority of the Corps necessary

to end the interference posed by recreational boat-

ing exists under both statute, 16 U.S.C. § 460d, and

published regulation, 36 C.F.R. § 327 et seq., and

had formerly been implemented in part by rules of

specific application to Clark Hill Reservoir, 36 C.F.R.

17

§ 311 et seq. Although the Petitioner does not con-

test the government’s discretion to issue or to re-

voke rules governing use of the reservoir, where

the regulatory process itself has caused an appro-

priation of private property, in this case, by the

authorization of substantial interference with the

Petitioner’s transmission line, the constitutional

mandate of compensation to the owner is invoked.

It is undisputed that in 1951 use of the reservoir

by boats with masts and other projections exceeding

twenty-five feet was completely unanticipated either

by the Petitioner or by the Corps; and, consequent-

ly, the regulations promulgated by the Corps which

permitted recreational boating found no occasion to

address a contingency that neither party had been

aware could ever develop. Such use of the lake at

that time did not in any way interfere with the

Petitioner’s property.

However, throughout the period in which the in-

consistent use posed by recreational boating was

mounting to dangerous proportions, the regulations

remained static, and their effect has been to allow

the status quo to change, to permit the development

of a substantial interference with the Petitioner's

easement that did not exist when the reservoir was

developed and the Petitioner installed its line. In

effect, the United States has by regulation broad-

ened the use of Clark Hill Reservoir and, in so doing,

has appropriated the Petitioner’s property for an

expanded public use.

The government’s invasion of the Petitioner’s

property in this case is the factual converse of its ap-

propriation in United States v. Causby, 328 U.S.

18

256 (1946). In that case the plaintiffs maintained a

chicken farm over which the government made low-

level approaches for landing at a nearby airport. As

a result of these overflights, the plaintiffs’ business

was largely destroyed.

The interest of the plaintiffs in Causby was to

prevent government invasion of that portion of air-

space immediately above their land necessary for

the conduct of their business. There was no question

of the government’s right to use the airspace above

that limit.

That the Civil Aeronautics Authority admittedly

had authority to prescribe air traffic rules and had

by regulation approved the landing approaches over

the plaintiffs’ land was found to be inconsequential.

This Court found that a compensable, though partial,

taking had occurred.

The Petitioner here maintained a comparable in-

terest, not in prohibiting government intrusion into

the space immediately above the waters crossed by

the transmission line, but in preventing interference

at a fixed height of twenty-five feet. Here, as in

Causby, federal regulation permitting interference

does not preclude finding that a taking has occurred.

What the United States appropriated in Causby

was an easement for overflight, the effect of which

was to impair the plaintiffs’ use and enjoyment of

their fee interest in the land. The United States in

this case has reclaimed for its fee the Petitioner’s

vested interest in an elevation of twenty-five feet,

the effect of which has been to impair the Petition-

19

er’s use and enjoyment of its easement and to force

the relocation of its transmission line. In both cases

the taking is only partial but, nonetheless, compen-

sable.

The Court of Claims, however, implied that the

government’s responsibility for the substantial in-

terference with the Petitioner’s vested property in-

terest turns solely on whether government regula-

tions specifically refer to mast height in their blan-

ket authorization to the public for use of the reser-

voir. The distinction between “affirmative regula-

tion” and “nonregulation” is one of semantics only

because, in both cases, substantial interference with

private property can be directly attributable to the

same.

It is clearly obvious that, if the United States had

issued a regulation permitting use of Clark Hill

Reservoir only by boats with masts and antennae

exceeding twenty-five feet in height, then given the

substantial interference present here there would be

a compensable taking. This is the “affirmative regu-

lation” which most clearly leads to liability.

No substantial difference in analysis results if

the United States by regulation authorizes use of

Clark Hill Reservoir by boats without specifying

mast and antennae heights. This is still “affirmative

regulation” by the government permitting (and in

fact resulting in) substantial interference with the

Petitioner’s property.

The effect of the Court of Claims decision is that

the Corps’ responsibility became “fixed” in 1951

20

and, inasmuch as sailing posed no problem with re-

spect to the transmission line at that time, damage

from any change in the status quo would have to

be borne by the Petitioner. Such a position cannot

be legally justified: the Corps’ duty not to take pri-

vate property without compensation is fixed, but

the manner in which it discharges this duty must

adjust as circumstances change. The initial taking

of the Petitioner’s property was for the purpose of

changing the use of the land to a reservoir partly

for recreation; the taking here complained of is for

the purpose of expanding that use to accommodate

a new recreational use, i.e., high-masted sail boats.5

The Petitioner does not contend that liability of

the United States for a taking of private property

can be imposed whenever interference with private

property in some manner implicates the govern-

ment’s regulatory authority. However, when activi-

ties are undertaken only because of government reg-

ulation, are known by the government to constitute

and do in fact constitute such a substantial interfer-

ence with private property so as to give rise to a con-

stitutional taking of that property, such activities

should be attributable to the United States and

render it liable for compensation under the Fifth

Amendment.

5 One would hardly argue that the taking of an avigation

easement for small propeller planes as in Causby would

prevent the chicken farm owner from recovering for an

additional taking which would be caused by the giant Con-

corde using the airport. There can be more than one partial

taking, each of which requires adequate compensation.

21

Til.

The United States Is Liable For The Acts of

The Third Party Users of The Reservoir

It is only by virtue of the government’s permissive

regulatory scheme that physical interference with

the Petitioner’s transmission line developed. The

Court of Claims, however, was of the view that lia-

bility of the United States was too attenuated on

the ground that “[i]t was the public boaters — in-

dependent third parties — who interfered with [the

Petitioner’s] use of the power line.” July 16, 1980,

Slip Opinion, at 6.

The “independent local action” rule as fashioned

by the Court of Claims has been applied to relieve

the United States from liability where another gov-

ernmental entity has been found more directly impli-

cated in objectionable actions. See, e.g., Minot v.

United States, 212 Ct. Cl. 154, 546 F.2d 378 (1976) :

Garden Construction Co. v. United States, 191 Ct. Cl.

172, 423 F.2d 273 (1970). However sound applica-

tion of the “independent local action” rule may be in

determining the identity of the proper party de-

fendant, in this case, there is no other governmental

entity involved on which responsibility can be placed,

and application of that rule here would effectively

22

deprive the Petitioner of any judicial recourse to

protect its rights.é

This Court has never sanctioned such a sweeping

application of the rule to defeat vested property in-

terests. In Griggs v. County of Allegheny, 369 U.S.

84 (1962), a landowner sued a municipal corpora-

tion for appropriating an avigation easement over

his land necessary for operation of an airport. The

facility was operated by the local government and

planned under rules and regulations of the Civil

Aeronautics Administration. This Court held that

the municipal corporation was the party ultimately

responsible for the interference.

It is argued that though there was a “taking,”

someone other than [the municipal corporation]

was the taker — the airlines or the C.A.A. acting

as an authorized representative of the United

States .... The Federal Government takes

nothing; it is the local authority which decides to

build an airport vel non, and where it is to be

located. We see no difference between its respon-

‘In a proper case, injunctive relief is available to restrain

interference with use and enjoyment of an easement. See,

e.g., United States v. Sea Gate, Inc., 397 F. Supp. 1351

(D.N.C. 1975) ; Wiegmann v, Baier, 203 N.W.2d 204 (lowa

1972); Metropolitan District Comm'n, v. Plotnick, 354

Mass. 1, 234 N.E.2d 766 (1968) ; Mobley v. Saponi Corp.,

215 Va. 648, 212 S.E.2d 287 (1975). However, equitable re-

lief may not be granted against the United States. See

Dugan v. Rank, supra; Cf. Hurley v. Kincaid, 285 U.S. 95

(1932), and, thus, a failure to recover damages in the pres-

ent action will effectively destroy the Petitioner’s rights by

foreclosing any remedy through which they may be en-

forced.

23

sibility for the air easements necessary for opera-

tion of the airport and its responsibility for the

land on which the runways were built.

Id., at 89.

The lower court only gave Griggs footnote treat-

ment, considering that it was inapplicable because

the third parties there, i.e., the pilots, were required

to use specified approaches to the airport. July 16,

1980, Slip Opinion, at 8, fn. 10. Admittedly, that

factual difference exists, but this in no way detracts

from the principle that the government cannot al-

ways hide behind the shield of third party conduct.

If third parties, here members of the pleasure boat-

ing public, in furtherance of the authorized use of

public lands, cause substantial interference with pri-

vate property, then in all fairness and justice that

liability must be borne by the public through its gov-

erning body. It must be remembered that these third

parties are not independent; to the contrary, their

very right even to be on the lake comes from the

United States. The regulations here involve sanc-

tioned interference with private property; the ef-

fect on the Petitioner is just as devastating as if the

regulation had actually mandated such interference.

That a “taking” does not depend on the ultimate

beneficiary of the government’s appropriation was

recognized by this Court most recently in Kaiser

Aetna v. United States, 444 U.S. 164 (1979), where

the Corps insisted upon free public access to a pri-

vately-owned marina.

Here the Government’s attempt to create a public

24

right of access to the improved pond goes so far

beyond ordinary regulation or improvement for

navigation as to amount to a taking under the

logic of Pennsylvania Coal Co. v. Mahon, [260 U.S.

393 (1922)]....

In this case, we hold that the “right to exclude,”

so universally held to be a fundamental element of

the property right, falls within this category of

interests that the Government cannot take without

compensation.

Id., at —, 100 S.Ct. at 392, 393, 62 L. Ed. 2d at 345,

346. See Pennsylvania Coal Co. v. Mahon, supra.

Liability of the United States in this case does not

depend on the fact that members of the public are

directly benefiting from its appropriation of the

Petitioner’s property. The act of appropriation it-

self is directly traceable to the decision, by regula-

tion, to provide for expanding public recreational

use of Clark Hill Reservoir. Although the Petitioner

nominally holds its electrical transmission line under

easement, the effect of the Court of Claims’ decision

has been to relegate the Petitioner to the status of a

mere licensee with no guarantee that, at some future

time, the transmission line as located will accommo-

date an as yet unanticipated expansion of the public

use. In the final analysis, it is the Petitioner and the

electric rate payers throughout the State of Georgia

who have been required to absorb the cost incurred in

expansion of the recreational use of Clark Hill

Reservoir.

25

CONCLUSION

For the reasons stated above, the Petitioner sub-

mits that a writ of certiorari to the United States

Court of Claims should be issued.

Respectfully submitted,

ROBERT L. PENNINGTON

1400 Candler Building

Atlanta, Georgia 30043

(404) 658-8000

Counsel of Record

RICHARDG. HOLLOWAY ——i«#™

HERBERT D. SHELLHOUSE

1400 Candler Building

Atlanta, Georgia 30043

Counsel for Petitioner

Dated: December 19, 1980

la

APPENDIX A

IN THE UNITED STATES COURT OF CLAIMS

No. 538-77

(Decided July 16, 1980)

GEORGIA POWER COMPANY

v. THE UNITED STATES

Robert L. Pennington, attorney of record, for

plaintiff. Richard G. Holloway, Herbert D. Shell-

house, and Troutman, Sanders, Lockerman & Ash-

more, of counsel.

Eric S. Gould, with whom was Assistant Attorney

General James W. Moorman, for defendant.

Before NICHOLS, KASHIWA and SMITH, Judges.

ON DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT AND PLAINTIFF’S MOTION FOR SUMMARY

JUDGMENT

KASHIWA, Judge, delivered the opinion of the

court:

This is a taking claim against the United States,

before us on the parties’ cross motions for summary

judgment. Georgia Power Company (plaintiff)

claims a taking of its electrical powerline easement

which, allegedly, is vested 25 feet above full pool ele-

2a

vation of the Clark Hill Reservoir.! The act com-

plained of is defendant’s failure to regulate mast and

antenna heights of recreational sailboats used on the

reservoir by the public.

Sometime shortly after 1977 plaintiff raised the

powerline at issue to 54 feet above the reservoir’s

full pool elevation and now seeks to recover from the

United States its costs expended therefor.2 The

United States never ordered plaintiff to raise its

powerline. Plaintiff did so after a near accident in

1971 and a fatal accident in 1973 in which a pas-

senger in a sailboat was killed when the mast of the

sailboat struck plaintiff’s powerline. Pursuant to a

“hold harmless” provision in plaintiff’s easement

agreement executed with the United States on De-

cember 7, 1951, the Government was not financially

liable for the damages resulting from the fatal 1973

‘This project involving the Savannah River Basin in Geor-

gia and South Carolina was authorized by Congress on De-

cember 22, 1944, by Pub. L. No. 78-534. A Definite Project

Report was approved on February 20, 1946, which stated

the project was constructed for “hydroelectric power, im-

provement of navigation, and other purposes.” Recreation-

al boating on the reservoir is not an inconsistent use. The

project was planned and is administered by the Army Corps

of Engineers. 36 C.F.R. § 327 et seq.

* The present phase of litigation deals solely with the issue

of liability. By agreement of the parties, the issue of the

amount of damages is not before the court.

3a

accident.? In addition, a report by defendant dis-

closed that, as of May 1975, 47 percent of the sail-

boats permanently moored on the reservoir had

masts in excess of 25 feet (with the number pre-

dicted to increase).

Plaintiff requested defendant pay for the raising

of the powerline. Defendant, acting through the

Corps of Engineers, refused, claiming, inter alia,

insufficient justification. According to Brigadier

General Drake Wilson, Deputy Director of Civil

Works:

* * * For the most part, the nonconforming

crossings are located in coves and not in the main

channels used by the sailboats. Other crossings are

located in areas where the practical recreational

use of a sailboat is limited by bridges and certain

natural constraints.

Prior to the construction of the reservoir, plaintiff

was in possession of powerline easements on its Toc-

* Condition 7 of the easement agreement provides:

“That the United States shall not be responsible for dam-

ages to property or injuries to persons which may arise

from or be incident to the use and occupation of the said

premises, nor for damages to the property of the grantee,

or for injuries to the person of the grantee (if an individu-

al), nor for damages to the property or for injuries to the

person of the grantee’s officers, agents, servants, or em-

ployees, or others who may be on said premises at their in-

vitation or the invitation of any one of them, arising from

or incident to governmental activities, and the grantee shall

hold the United States harmless from any and all such

claims * * *,”

See Condition 8, infra.

4a

coa-Augusta powerline, portions of which traversed

land which was subsequently flooded. Negotiations

between plaintiff and defendant began in 1945 re-

garding the status of this Toccoa-Augusta power-

line. Rather than condemning the portions of the

powerline easements soon to be flooded, by agree-

ment dated February 26, 1951, plaintiff and the

United States negotiated a removal and relocation of

the powerlines, at the expense of the United States

(totaling $232,800). Pursuant to this agreement,

on December 7, 1951, plaintiff was given an ‘‘ease-

ment or right of way” traversing portions of the

Clark Hill Dam and Reservoir Project, which was to

be “equivalent to the right surrendered by [plain-

tiff] on the land from which the facilities are re-

moved * * *,”4 Thereupon, plaintiff constructed the

powerline at a height of 25 feet above the reservoir’s

full pool.

Plaintiff argues it possessed a vested property in-

terest in a powerline easement at 25 feet above full

pool elevation. Additionally, plaintiff claims defend-

ant’s nonregulation of the height of masts and an-

tennae is a type of “affirmative regulation” con-

stituting permission to use the reservoir by boats

which cannot negotiate under the powerline. After

consideration of the briefs and oral argument, we

hold for defendant and find no taking by the United

States.

Even assuming plaintiff did have a vested proper-

ty interest in a powerline easement at 25 feet above

* No reference to the height of the powerline was contained

in this easement or any of the easements surrendered.

5a

full pool elevation (which we find unnecessary to de-

cide), there was no taking upon which the plaintiff

may recover because the interference complained of

constituted acts of independent third parties. As

such, there is no Fifth Amendment liability on the

part of the United States, a rule of law earlier held

in a case analogous to the controversy at hand.

Minot v. United States, 212 Ct. Cl. 154, 546 F.2d

378 (1976). See also United States v. General Mo-

tors Corp., 323 U.S. 373 (1945).

In Minot the United States had a 34-kilovolt elec-

trical powerline easement over the plaintiff’s prop-

erty. The United States entered into a powerline

pooling agreement with the Guam Power Authority

(GPA), a public corporation of the Government of

Guam, possessing the power of eminent domain and

the power to sue and be sued in its own name. This

pooling agreement allowed GPA to use the easement

possessed by the United States. Subsequently, and

without authorization, GPA erected a 115-kilovolt

powerline involving, for example, much larger sup-

port towers on plaintiff’s property. Plaintiff argued

GPA’s action amounted to a taking by the United

States. The court denied plaintiff’s taking claim be-

cause (1) the permit issued to GPA by the United

States “did not authorize GPA to do anything that

the Government had not the common law right to

allow it to do,” and (2) any “condemnation” of

plaintiff’s land by GPA’s action was the result of

independent local action for which the United States

was not liable. 212 Ct. Cl. at 159, 546 F.2d at 381.

Similarly in the instant case, the facts do not reveal

any interference by the United States. It was the

public boaters—independent third parties—who in-

6a

terfered with plaintiff’s use of the powerline.‘

At the time the negotiations to relocate plaintiff’s

powerline were taking place (in the early 1950’s),

it was unanticipated by either party that boats with

masts tall enough to come in contact with the power-

line would ever be used on the reservoir. Also, from

the time of these negotiations to the time of the acci-

dent, the same regulation containing no restriction

on the height of either masts or antennae was in

force. In short, there has never been any regulation

by the Government of the size of either mast or an-

tenna heights allowed on the reservoir. Although

plaintiff argues defendant fixed the height of the

powerline at 25 feet, we feel the facts more properly

establish that defendant only required a minimum

height of 25 feet above full pool elevation.* Defend-

5 There was only one act of direct interference with plain-

tiff’s powerline (the fatal accident), plus the large per-

centage of “nonconforming” sailboats. On its face, this one

accident plus the near accident is only an “intermittent in-

terference,” and we do not hold that plaintiff has proven a

recurrence was inevitable—constituting a sufficient appro-

priation for a taking. See Wilfong v. United States, 202 Ct.

Cl. 616, 622, 480 F.2d 1326, 1329 (1973). Accord, North

Counties Hydro-Electric Co. v. United States, 138 Ct. Cl.

380, 382-383, 151 F. Supp. 322, 323, cert. denied, 355 U. S.

882 (1957); National By-Products, Inc. v. United States,

186 Ct. Cl. 546, 576-577, 405 F.2d 1256, 1273 (1969).

® We do acknowledge that since defendant was paying for

the powerline to be relocated it would attempt to keep the

costs low, thereby seeking a lower relocation height than

plaintiff might possibly have desired. However, at best, that

would merely have been a conflicting negotiating position.

Nothing presented to us indicates defendant possessed un-

usual leverage to force plaintiff to assent to a maximum

height of 25 feet against its will.

7a

ant asserts before us that the 25-foot clearance was

consistent with the then existing standards of the

National Electric Safety Code. Further, it is clear

from the December 7, 1951, easement agreement that

the risk of the powerline becoming dangerous was

allocated solely to plaintiff. Condition 8 of the ease-

ment agreement provides:

That the United States shall not be responsible

for damages to property or injuries to person

which may arise from or be incident to the con-

struction, maintenance, and use of said line.

Condition 4 of the easement agreement provides:

That the grantee shall supervise the said line

and cause it to be inspected at reasonable inter-

vals, and shall immediately repair any defects

found therein as a result of such inspection, or

when requested by said officer to repair any de-

fects. Upon completion of the installation of said

line and the making of any repairs thereto, the

premises shall be restored immediately by the

grantee, at the grantee’s own expense, to the same

condition as that in which they existed prior to the

commencement of such work, to the satisfaction of

the said officer.

Also, we find Condition 3, which is reprinted in the

margin,’ placed plaintiff on notice that it would not

‘ Condition 3 of the easement agreement provides:

“That the use and occupation of said land incident to the

exercise of the privileges hereby granted shall be subject to

such rules and regulations regarding ingress, egress, safety,

sanitation, and security as the District Engineer, Savannah

District, may from time to time prescribe.”

8a

be indemnified for any modifications necessary in,

e.g., the interest of public safety. See also Condition

7, supra at note 3. A change in the status quo of the

boats using the reservoir, rendering the use of the

powerline dangerous, falls within the provision of

the above-quoted Conditions.

Additionally, although plaintiff asserts quite vig-

orously that defendant should have issued regula-

tions proscribing the use of the reservoir by boats

with mast or antenna heights tall enough to come in

contact with the powerline, plaintiff has not proven

this was an affirmative duty imposed on the defend-

ant. To the contrary, we feel the issuance of such

regulations is merely a discretionary act, and a tak-

ing may not result from this discretionary inaction.

Indeed, after the near accident in 1971, defendant

did post buoys and signs and mark navigational

maps to warn of the potential hazard.’ Hence, rea-

sonable actions were taken by the Corps of Engineers

to warn the public of the potential hazard. Thus,

while it is true the Government could have done

more, it did take reasonable actions to discharge its

responsibility to protect the safety of the boating

public. Referring back to the analysis of Brigadier

General Drake Wilson, the powerline did not cross

at main channels but, rather, in areas where sail-

boating is limited by natural or artificial con-

straints. Unfortunately, the Corps’ actions did not

guarantee there would be no accidents, but we can-

not hold the defendant’s assessment of, and reaction

to, the safety problem was improper under the cir-

5 No evidence has been produced that such buoys, signs, and

other warnings were not. properly maintained.

9a

cumstances. Neither can we agree with plaintiff’s

assertion that the “[d]efendant knowingly abdicated

its responsibility to assure public safety, forcing the

plaintiff to assume this duty by default.” It was not

assumed by default. The United States and plaintiff

allocated the obligation to maintain the safe opera-

tion of the powerline to the plaintiff. Also, after

placing the warnings of the potential danger pre-

sented by the powerline, it thereupon became the

obligation of the operators of the vessels to abide by

such warnings—any disregard thereof, either in-

tentionally or negligently, is not an act authorized by

the United States.

Plaintiff maintains its powerline was “safe” with-

in the meaning intended by the Conditions to which

the easement is subject, averring what is unsafe is

boating underneath the powerline, an act “‘specifical-

ly authorized” by defendant. We disagree. Plain-

tiff’s interpretation of the above-mentioned Condi-

tions is too narrow and, as stated above, any boater

ignoring the posted warnings is not acting under

authority of the United States. Thus, since the Gov-

ernment never altered the regulatory scheme, we

agree with defendant: Plaintiff is in effect basing its

claim on the ground that the United States did not

alter the status quo for the benefit of plaintiff, and

lacking such regulation, plaintiff now seeks indemni-

fication from the United States due to the occurrence

of an event the risk of which occurrence plaintiff as-

sumed. However, the United States never ordered

plaintiff to relocate its powerline; the United States

is under no affirmative duty to prohibit the use of

this reservoir by boats with masts or antennae that

are too tall to negotiate under the powerline; and

10a

plaintiff assumed the obligation of the continued

safe operation of the powerline. Accordingly, under

the circumstances here present, defendant’s non-

regulation of mast and antenna heights does not

amount to an authorized interference with plain-

tiff’s powerline, and no taking may be found. Plain-

tiff’s claim really appears to be grounded on a con-

tractual dispute regarding its obligation assumed

under the December 7, 1951, easement agreement.

As we have held before, contractual disputes seldom

give rise to a taking. J. J. Henry Co. v. United

States, 188 Ct. Cl. 39, 46, 411 F.2d 1246, 1249

(1969). The case at hand is no exception.

Plaintiff refers us to Eyherabide v. United States,

170 Ct. Cl. 598, 345 F. 2d 565 (1965), as an excep-

tion to the independent action rule. In Eyherabide

the property at issue was a ranch surrounded on the

east, west, and north by a naval gunnery range. Due

to governmental activities on the gunnery range, the

owner of the ranch could not hire a caretaker. As a

result, vandals apparently destroyed some of the im-

provements on the ranch.? The court allowed a re-

covery against the United States due to the damage

caused by the probable acts of vandals. However,

Eyherabide is an extreme case and should not be

considered a wide-reaching exception to the “inde-

pendent action” rule. Eyherabide is inapposite to our

facts; nor do we find the supporting cases cited on

this point by plaintiff to be helpful (e.g., Pete v.

United States, 209 Ct. Cl. 270, 531 F. 2d 1018

® Some of the damages complained of were not directly at-

tributable to any single source. It was assumed these were

probably acts of vandals.

lla

(1976) ). In Eyherabide there were repeated physi-

cal invasions of the property by the United States in

the form of dropped fuel tanks and tow targets,

entry of live shells and rockets, destruction of buiid-

ings and improvements from gunnery activities, and

even actual directions from naval personnel that the

then employed caretakers were to leave the premises

(because the naval personnel mistakenly believed the

property was part of the gunnery range.) It was

only with relation to these actual and extreme direct

physical invasions by the United States that the

court was able to grant relief from the damages

caused by the supposed vandals. Since the circum-

stances found to be appropriate to consideration of

third-party acts in Eyherabide are wholly lacking in

this case, we find it inappropriate to hold the United

States responsible for the acts of the recreational

sailboaters.

Plaintiff also relies on United States v. Causby,

328 U. S. 256 (1946), for the proposition that the

Government has “reclaimed for its fee the [p ]lain-

tiff’s interest in an elevation of twenty-five feet,”

which act destroyed the plaintiff’s use and enjoy-

ment of the air space above the reservoir. Again, the

essential fact which is missing in the instant case is

any direct governmental action. The finding of a

taking in Causby flowed from acts of direct physical

invasion of plaintiff’s property by United States

military aircraft flying outside the navigable air

space (i.e., outside the public domain). The Govern-

ment was held to have taken an avigation easement

because the Civil Aeronautics Authority’s approved

glide path limited the utility of the plaintiff's prop-

erty. A basis for the finding of the partial taking in

1Za

Causby was the governmental action—an element

wholly lacking on our facts. As such, we are not

persuaded Causby is of any assistance to plaintiff.1°

We have reviewed the remaining authorities relied

on by the parties but find it unnecessary to discuss

them in view of our disposition of the case on the

above-described grounds.

CONCLUSION

It is concluded there was no taking by the United

States. Accordingly, defendant’s motion for sum-

mary judgment is granted, plaintiff’s motion is de-

nied, and the petition is dismissed.

10 Griggs v. Allegheny County, 369 U.S. 84 (1962), a case

plaintiff referred us to at oral argument (and cited in its

brief to the court) is inapposite to our facts as that case

involvee actual regulations which the respondent was re-

quired to adhere to (e.g., rules pertaining to airport ap-

prosch standards) and which private pilots had to comply

with. The result, as in Causby, was a finding of a taking by

the low overflights.

1b

APPENDIX B

GEORGIA POWER COMPANY v. THE UNITED

STATES

No. 538-77

UNITED STATES COURT OF CLAIMS

Oct. 3, 1980

NICHOLS

Before NICHOLS, Judge, Presiding, KASHIWA

and SMITH, Judges.

ORDER

This case comes before the court on plaintiff’s mo-

tion, filed August 4, 1980, for rehearing en banc

pursuant to Rules 7(d) and 151(b) with reference

to the decision entered herein on July 16, 1980. Upon

consideration thereof, together with the response in

opposition thereto, without oral argument, by the

seven active Judges of the court as to the suggestion

for rehearing en banc under Rule 7 (d), which sug-

gestion is denied, and further having been so con-

sidered by the panel listed above as to the motion for

rehearing under Rule 151(b),

IT IS ORDERED that plaintiff’s said motion for

rehearing be and the same is denied.

le

APPENDIX C

U.S. CONST. AMEND. V

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases aris-

ing in the land or naval forces, or in the Militia,

when in actual service in time of War or public

danger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life, lib-

erty, or property, without due process of law; nor

shall private property be taken for public use, with-

out just compensation.

1d

APPENDIX D

16 U.S.C. § 460d

PUBLIC PARK AND RECREATIONAL

FACILITIES AT WATER RESOURCE

DEVELOPMENT PROJECTS

§ 460d. Construction and operation of public parks

and recreational facilities in water resource

development projects; lease of lands; prefer-

ence for use; penalty; application of section

3401 of Title 18; citations and arrests with

and without process; limitations; disposi-

tion of receipts

The Chief of Engineers, under the supervision of

the Secretary of the Army, is authorized to construct,

maintain, and operate public park and recreational

facilities at water resource development projects

under the control of the Department of the Army, to

permit the construction of such facilities by local

interests (particularly those to be operated and

maintained by such interests), and to permit the

maintenance and operation of such facilities by local

interests. The Secretary of the Army is also author-

ized to grant leases of lands, including structures

or facilities thereon, at water resource development

projects for such periods, and upon such terms and

for such purposes as he may deem reasonable in the

public interest: Provided, That leases to nonprofit

organizations for park or recreational purposes may

be granted at reduced or nominal considerations in

recognition of the public service to be rendered in

utilizing the leased premises: Provided further, That

2d

preference shall be given to Federal, State, or local

governmental agencies, and licenses or leases where

appropriate, may be granted without monetary con-

siderations, to such agencies for the use of all or any

portion of a project area for any public purpose,

when the Secretary of the Army determines such

action to be in the public interest, and for such per-

iods of time and upon such conditions as he may find

advisable: And provided further, That in any such

lease or license to a Federal, State, or local govern-

mental agency which involves lands to be utilized for

the development and conservation of fish and wild-

life, forests, and other natural resources, the licensee

or lessee may be authorized to cut timber and harvest

crops as may be necessary to further such beneficial

uses and to collect and utilize the proceeds of any

sales of timber and crops in the development, conser-

vation, maintenance, and utilization of such lands.

Any balance of proceeds not so utilized shall be paid

to the United States at such time or times as the Sec-

retary of the Army may determine appropriate. The

water areas of all such projects shall be open to pub-

lic use generally for boating, swimming, bathing,

fishing, and other recreational purposes, and ready

access to and exit from such areas along the shores of

such projects shall be maintained for general public

use, when such use is determined by the Secretary

of the Army not to be contrary to the public interest,

all under such rules and regulations as the Secretary

of the Army may deem necessary including but not

limited to prohibitions of dumping and unauthorized

disposal in any manner of refuse, garbage, rubbish,

trash, debris, or litter of any kind at such water re-

source development projects, either into the waters

3d

of such projects or onto any land federally owned

and administered by the Chief of Engineers. Any

violation of such rules and regulations shall be pun-

ished by a fine of not more than $500 or imprison-

ment for not more than six months, or both. Any

persons charged with the violation of such rules and

regulations may be tried and sentenced in accordance

with the provisions of section 3401 of Title 18. All

persons designated by the Chief of Engineers for

that purpose shall have the authority to issue a cita-

tion for violation of the regulations adopted by the

Secretary of the Army, requiring the appearance of

any person charged with violation to appear before

the United States magistrate, within whose jurisdic-

tion the water resource development project is locat-

ed, for trial: and upon sworn information of any

competent person any United States magistrate in

the proper jurisdiction shall issue process for the

arrest of any person charged with the violation of

said regulations; but nothing herein contained shall

be construed as preventing the arrest by any officer

of the United States, without process, of any person

taken in the act of violating said regulations. No use

of any area to which this section applies shall be

permitted which is inconsistent with the laws for the

protection of fish and game of the State in which

such area is situated. All moneys received by the

United States for leases or privileges shall be de-

posited in the Treasury of the United States as mis-

cellaneous receipts.

le

APPENDIX E

311.0 Determination of the Secretary. The Sec-

retary of the Army having determined that use of

the Clark Hill and Hartwell Reservoir areas by the

general public for boating, swimming, bathing, fish-

ing, and other recreational purposes will not be con-

trary to the public interest and will not be incon-

sistent with the operation and maintenance of the

reservoir for its primary purposes, hereby prescribes

the following rules and regulations pursuant to the

provisions of Section 4 of an Act of Congress ap-

proved December 22, 1944 (58 Stat. 889; 16 U.S.C.

460d) as amended by the Flood Control Act of 1946

(60 Stat. 641) and Section 209 of the Flood Control

Act of 1954 (68 Stat. 1266) for the public use of the

Clark Hill and Hartwell Reservoirs.

311.38 Boats and other vessels, private.

(a) The operation of boats, houseboats, cabin

cruisers and other vessels on the reservoir for fishing

and recreational use is permitted except in prohibit-

ed areas designated by the District Engineer in

charge of the reservoir area and subject to the regu-

lations contained in this part.

(b) A permit shall be obtained from the District

Engineer or his authorized representative for plac-

ing and operating a boat or other vessel on the reser-

voir for any one period longer than three days. No

charge will be made for this permit. The permit shall

be kept aboard the vessel at all times that the vessel

is in operation on the reservoir. The District Engi-

neer in charge of the area or his authorized repre-

2e

sentative shall have authority to revoke the permit

and to require removal of the vessel upon failure

of the permittee to comply with the terms and con-

ditions of the permit or with the regulations in this

part.

(c) Unsafe boats or other vessels will not be per-

mitted on the reservoirs. The District Engineer may

require the applicant for a permit to furnish the con-

struction plans and other information pertaining to

the construction and equipment of the boat or other

vessel prior to issuing a permit for its operation on

the reservoirs. All boats permitted on the reservoir

shall be equipped for safe operation and operated in

a safe manner in accordance with instructions issued

by the District Engineer. These instructions may

provide that the operation of speed boats and water

skiing activities shall be confined to areas of water

designated by the District Engineer for such activ-

ities.

(d) Boathouses, houseboats, cabin cruisers and

other vessels may be placed and operated on the res-

ervoirs, except that such facility shall not be utilized

for human habitation at a fixed or permanent moor-

ing point and if equipped with toilets and galleys

shall not be placed on reservoirs with small perma-

nent pools. Such vessels may be barred from other

reservoirs by the District Engineer with the concur-

rence of the Chief of Engineers in those reservoirs

in which the waters thereof are used for domestic

water supply when the District Engineer determines

that such use is contrary to the public health and

safety.

1f

APPENDIX F

§ 327.0 Applicability.

The regulations covered in this Part 327 shall be

applicable to all water resource development projects

administered by the Chief of Engineers. All other

Federal, State, and local laws and regulations re-

main in full force and effect where applicable to

those water resource development projects. These

regulations do not apply to those water resource de-

velopment projects regulated jointly with other Fed-

eral agencies to which Parts 313 and 322, Chapter

III, Title 36, Code of Federal Regulations apply.

§ 327.3 Vessels.

(a) It shall be a violation of these regulations to

operate any vessel for a fee or profit upon the waters

of water resource development projects unless such

operation is authorized by lease, license or concession

contract with the Department of the Army. This par-

agraph shall not apply to the operation of vessels

upon navigable waters of the United States.

(b) No vessel shall be operated in prohibited

areas of a lake, reservoir, or other body of water.

Such areas sha!l be designated by the District Engi-

neer and marked by the posting of appropriate signs.

(c) No person shall operate any vessel or manipu-

late any water skis or other similar device in a care-

less, negligent, or reckless manner so as to endanger

any person or property.

(d) The construction of floating or stationary

Ww

2f

mooring facilities or any other structure of any kind

in the lake, reservoir, or other body of water is pro-

hibited unless a permit therefor has been issued by

the District Engineer. No habitation of such facili-

ties will be permitted.

(e) All vessels when not in actual use shall be

removed from the lake, reservoir, or other body of

water unless securely moored at mooring facilities

permitted by the District Engineer.

en renee

CERTIFICATE OF SERVICE

This is to certify that I have served the within

and foregoing Petition for Writ of Certiorari upon

the Respondent by depositing three copies of the

same in a United States post office, first-class post-

age prepaid, respectively, to: The Solicitor General,

Department of Justice, Washington, D.C. 20530;

and Patricia N. Young, Department of Justice,

Washington, D.C. 20530.

This ____ day of December, 1980.

ROBERT L. PENNINGTON

Counsel of Record for Petitioner