Petition — Cuyahoga Valley Homeowners & Residents Ass'n v. Secretary of the Interior

Supreme Court brief1983

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SEP 24-1983 ——

ALEXANDER L. STEVAS,

CASE NO. CLERK

UNITED STATES SUPREME

OCTOBER 1983 TERM

CUYAHOGA VALLEY HOMEOWNERS AND

RESIDENTS ASSOCIATION, AND

DAVID HAZELWOOD, Petitioners

vs.

CECIL D. ANDRUS, Secretary of

The Department of Interior and

WILLTAR H. WHALEN, Director of

The National Park Service, and

WILLIAM BIRDSELL, Superintendent

of The Cuyahoga “Valley National

Recreation Area, Respondents

On writ of Certiorari to the

United States Court of Appeals for

the Sixth Circuit

Petition for Certiorari

BARTON J. CRAIG

Attorney for Petitioners

725 St. Clair Avenue, N.W.

Cleveland, Ohio 44113

(216) 696-2100

(216) 696-6971

PETITION FOR CERTIORARI

QUESTIONS PRESENTED

Whether the District Court properly

construed the Plaintiff-Petitioners

statutory rights under the Cuyahoga

Valley National Recreation Area Act,

despite the requirement in the act

that "Fee title for [family residences]

shall not be acquired unless the

Secretary finds that such acquisition

is necessary to fill the purposes

of...the CVNRA Act," and the rigid

two stage planning requirements

articulated in the CVNRA Act. See

16 U.S.C. §§ 460ff-1(c), 460ff-1(e),

460ff-2, 460ff-5(b).

wnether the broad discretion which

the federal judiciary is required to

grant to the governmental condemning

authority, under the Due Process

Clause of the Fifth Amendment,

applies to condemnation actions

which unnecessarily intrude on the

constitutional privacy interest

enjoyed by family members in their

residential homesteads. Thus this

court must decide whether the Due

Process Clause and Moore v. The

City of East Cleveland, 431 U.S. 494

(1977), limits Berman v. Parker 348

U.S. 26, (1954) in light of the fact

that Berman explicitly excluded

residential condemnations from its

rule. See Berman at 31.

oi SNe Oe ts (Cea oe a Tee ae ee ee ee

IN THE SUPREME COURT OF THE

eS: | Qeaee OSAtEe oe F

CUYAHOGA VALLEY

HOMEOWNERS AND ne

RESIDENTS ASSOCIATION, PETITION “4

ron a

CERTIORARI :

AND tT TE

= DAVID HAZELWOOD SIXTH "

E. CIRCUIT ;

COURT OF

Petitioners APPEALS :

CECIL D. ANDRUS

SECRETARY OF THE

DEPARTMENT OF

INTERIOR, AND

WILLIAM H. WHALEN

DIRECTOR OF THE

NATIONAL PARK SERVICE,

AND

WILLIAM BIRDSELL,

SUPERINTENDENT OF THE

CUYAHOGA VALLEY

NATIONAL RECREATION

AREA

Ss ‘€, a

Se ee Se oe

a ee oe eS ee _ _ _ _ ee

Respondents

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . «© «© «© «© » « Wi

CONSTITUTIONAL AND STATUTORY

PROVISIONS RELIED UPON .....-.. vil

—

QUESTIONS PRESENTED. . «. «© «© © «© © «

BASIS FOR SUPREME COURT

JURISDICTION... « ; “arene fa

I. STATEMENT OF THE CASE. . . « « «

A. PROCEDURAL HISTORY. ... .»

» @

uw VW WwW &#

B. FACTUAL BACKGROUND. . « « «

II. THIS COURT SHOULD GRANT

DISTRICT COURT ERRONEOUSLY

THE PLAINTTFFS’ STATUTORY F

RIGHTS UNDER THE CVNRA ACT . . .11

HE ‘

TO CONDEMN PRIVATE 4

PROPERTY IS LIMITED TO :

THE EXPRESS CONDEMNATION

A. THE LOWER COURTS DID

NOT RECOGNIZE THAT T

CONGRESS EXPLICITLY

INTENDED TO PROTECT

INDIGNENOUS COMMUNITIES

FROM NATIONAL PARK

CONGRESS INTENDED TO

AUTHORITY TO SONDEM THE

THPROVED PROPERTY tO

SITUATIONS INVOLVING

DETRIMENTAL USE OF SUCH

ITl.

THIS COURT SHOULD GRANT

CERTIORARI TO DECIDE THE

PLAINTIFFS' NOVEL,

IMPORTANT CLAIM THAT

MOORE V. CITY OF EAST

CLEVELAND CONSTITUTIONALLY

LIMITS THE GOVERNMENT'S

CONDEMNATION AUTHORITY.

THE LOWER COURTS NEVER

ANALYZED THE PLAINTIFF-

PETITIONERS CLAIMS THAT

THE GOVERNMENT'S SINGLE-

FAMILY HOMESTEAD RESIDENTIAL

CONDEMNATONS VIOLATE

THEIR DUE PROCESS PRIVACY

RIGHTS UNDER THE FIFTH

AMENDMENT AND MOORE V

CITY OF EAST CLEVELAND. . .37

CONCLUSION . 2. 2. «6 «© «© © © © © © 0 09

APPENDIX

,* TEXT OF DISTRICT COURT OPINION

IN CUYAHOGA VALLEY HOMEOWNERS

"RESIDENTS ASSOCIATION BT

@ AND AL.

5 . = . . . PRIL

’ > - 1982). . . . . . . . . . . . . -A-1

FINAL ORDER IN N.D. OHIO CASE

CASE NO.

NO . C78=-1 377 . . . . . . . . . . . . A-48

NOTICE OF APPEAL IN N.D. OHIO

C78-1 377 we ey, ee ws bes OPE -A-49

iii

OPINION AND FINAL ORDER OF THE

COURT OF APPEALS IN CUYAHOGA

VALLEY HOMEOWNERS AND RESIDENTS'

. Ve

D. ANDRUS ET. AL... Case No

82-3324 (6th Cir., July 6, 1983). - A-50

CASES DELINEATING THE HIGH DEGREE

OF CONSTITUTIONAL PROTECTION FROM

GOVERNMENTAL INTRUSION AFFORDED

FAMILY PRIVACY IN THE HOME. . .

TESTIMONY OF WILLIAM BIRDSELL,

SUPERINTENDENT OF THE CVNRA,

. A-58

AT HIS FEBRUARY 7, 1979 DEPOSITION,

PAGES 26-27, 30-32, WHEREIN HE

: ADMITS STATING THAT THE DECISION

TO ACQUIRE FEE TITLE TO FAMILY

@ HOMESTEADS IS ARBITRARY .

TESTIMONY OF WILLIAM BIRDSELL,

SUPERINTENDENT OF THE CVNRA, AT

HIS AUGUST, 1979 DEPOSITION AT

PAGES 217-219 STATING THAT 300

7 OF THE ORIGINAL 500 FAMILY

: HOMESTEADS WERE DESIGNATED BY THE

@ NATIONAL PARK SERVICE FOR FEE

ACQUISITION . . «© «© © © «© © @ «

. TEXT OF LETTER FROM CONGRESSMAN

: SEIBERLING AND SENATOR METZENBAUM

DATED MARCH 14, 1980 INSTRUCTING

a THE NATIONAL PARK SERVICE TO

IMMEDIATELY DISMISS ALL PENDING

A FEE TITLE CONDEMNATIONS OF SINGLE

a FAMILY RESIDENCES IN THE CVNRA. .

. A-61

. 4-66

. A-71

U.S.C.

CERTIFICA

‘

1254...

1291. . .

Ses 5k ea ee

2201. . .

460ff-1(c).

460ff-1(e).

460ff-1(f).

460ff-2 .

460ff-5(b).

OF SERVICE.

FIFTH AMENDMENT TO UNITED

CONSTITUTION. ... .

STATES

TABLE OF CASE AND OTHER NON-

CASE LAW AUTHORITIES

Berman V. eer eSE A) Pe er aes 5

Duplex Printing Press Company

v. Derring, 254, U.S. 445

Moore v. City of East

preverane, va U.S. sat

(1977). ‘ —

ee v. New York, 454, U.S.

Shoemaker v. United States

147, U.S. 282 (1895). . « -»

Steagald v. United States

451, U.S. 204 (1981). « « «© «

United States v. Carmak

United States ex. rel 1T.V.A.

v. Welch, el

PAGE

2, 39, 41-41

45, 47, 48

43, 44, 45

.38

44, 45

16, 38

ze,

13-15, 38

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v. Hoffman; TO! U.S. rt (1879) .30 %

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B ‘

‘wat

any

”

NON-STATUTORY AUTHORITIES

The Federal Drive To Acquire

Private Land Should se Waassecsed

General Accounting Office,

12/14/79 (CED-80-14). . . . . . . . -46

The National Park Service Should

Improve Its Land Acquisition

ind Management At The Fire Island

National Seashore, General

Accounting OREAS ears ae

81-78) .. o wnlp/ ae

Federal Land Litiehtstns And

Management Practces, General

Accounting eae arse (CED-

Sb} rc . ath ee

TESTIMONY OF CONGRESSMAN JOHN

SEIBERLING in Hearing Before

the Sub-Committee on National

Parks and Recreation, of the

Committee on Interior and Insular

Affairs, House of Representatives

r ongres, 2nd Session,

H.R. 7167 and Related Bills. ... .48

1974 U.S. Code Cong. and Admin.

News page 6655 et. seq.. «. »« «+ « « «19, 22, 32.

33, 35

<i ee eT hee “ae eee Veet . 44 "ARERR T ie ah ic a ae oe One yh oe

7 ‘ ‘ ~, . be 4 - we

‘

CONSTITUTIONAL AND STATUTORY "g

~~PROVISIONS RELIED UPON

(For Full Text See Appendix)

Fifth Amendment to the United

State Constitution. . . . ° . * . ~A-75

SOV. 86Gs § 3254s. 6 as 6 6c oe eee

| S50.8.0. $109). < . : .. sv eee :

¥ 6 0ie.6. £4198. OOS eee |

@ DWAR: Be REO 6 co 85 se eh ase 0)

| 16 U.S.C. § 460ff-1(c). . . . . « eAH7B ;

, 16 U.S.C. § 460ff-1(e). . . . . « «A+78

; 16 U.S.C. § 460ff-1(f). . . . « « -A=80 e

@ 16°U.660. $.4608f-25. . 0 Cae ‘

“j 16 U.S.C. § 460ff-5(b). . . « « « «A-82 i

a ok

: viii :

wth

PETITION FOR CERTIORARI*

QUESTIONS PRESENTED

whether the District Court

properly construed the

Plaintiff-Petitioners

Statutory rights under the

Cuyahoga Valley National

Recreation Area Act, despite

the requirement in the act that

"Fee title for [family

residences] shall not be acquired

unless the Secretary finds that

such acquisition is necessary

to fill the purposes of...the

CVNRA Act," and the rigid

two stage planning requirements

articulated in the CVNRA Act.

See 16 U.S.C. §§ 460ff-1(c),

460ff-1(e), 460ff-2, 460ff-

5(b).

Whether the broad discretion

which the federal judiciary is

required to grant to a

governmental condemning ii

authority, under the Due 3

Process Clause of the Fifth

Amendment, applies to condemnation

actions which unnecessarily

intrude on the constitutional

¥ “This Petition for Certiorari is

szet rsuant to Supreme Court

es 33.1(c) and 33,3,

authorizing 65 pages for a

typed Certiorari petition.

privacy interests enjoyed by

family members in their

residential homestead. Thus

this court must decide whether

the Due Process Clause and

Moore v. The City of East Cleveland,

431 U.S. 494 (1977), limits

Berman v. Parker 348 U.S. 26,

(1954) in light of the fact

that Berman explicitly excluded

residential condemnations from

its rule. See Berman at 31.

BASIS FOR SUPREME COURT

JURISDICTION

On July 6, 1983, the United

States Sixth Circuit Court of

Appeals filed its final judgment in

this case. United States Supreme

Court review of that final judgment

is sought today by means of a

Petition for Certiorari pursuant to

the grant of Supreme Court

jurisdiction articulated in

28 U.S.C. Section 1254.

STATEMENT OF THE CASE

A. PROCEDURAL HISTORY

On October 19, 1978 petitioner-

plaintiffs, the Cuyahoga Valley

Homeowners and Residents Association

and David P. Hazelwood, filed the

above-captioned case as a class

action seeking deciaratory and

injunctive relief against the

following defendants: (1) Cecil

D. Andrus, who, at the time the

complaint was filed, was the

Secretary of the United States

Department of the Interior;

(2) William H. Whalen, who, at the

time the complaint was filed, was

the Director of the United States

Department of the Interior; an.

(3) William Birdsell, who, at the

time the complaint was filed, was

the Superintendent of the Cuyahoga

Valley National Recreation Area, ¥,

(hereinafter, CVNRA), eatablished

pursuant to 16 U.S.C. § 460°¢ ‘

et. seq. Hach defendant was aued |

in hie official capacity and the ;

; suit sought a judicial interpretation

g of the defendant officials’ ‘

a atatutory authority to acquire

“ 5

single-family residential property

located within the boundaries of

the CVNRA through condemnation

proceedings. Jurisdiction was

invoked under 28 U.S.C. § 1331 and

2201. On July 16, 1979, the

plaintiffs filed a joint motion for

summary judgment. On October 4, 1979,

the defendants filed a joint motion

for summary judgment.

On April 13, 1982, the District

Court issued a Memorandum of

Opinion in support of its order

granting the Governmental Defendants'

Motion for Summary Judgment and

denying the plaintiff's Motion for

Summary Judgment. The errors in

that ruling are the subject of this

Petition for Certiorari.

On May 7, 1982, the plaintiffs

filed a Notice of Appeal to the

United States Court of Appeals for

the Sixth Circuit, pursuant to

28 U.S.C. Section 1291. On

July 6, 1983, that Court of Appeals

filed ite final judgment validating

the Diatrict Court's April 13, 1982

ruling by holding: (1) The

District Court sustained original

jurisdiction over the plaintiffs ‘

compliant; (2) the District Court

accurately construed the scope of 3

) the defendants statutory authority ”

y under 16 U.S.C. § 460ff et. seq.3

(4%) the District Court accurately

determined that §§ 460ff et seq. ;

4 does not violate plaintiffs due 4

process privacy rights under |

Moore v. City of East Cleveland,

431 U.S. 494 (1977). The Court of ,

Appeals affirmation of the District 4

, Court's opinion is the subject of .

this Petition for Certiorari.

f rd] B. FACTUAL BACKGROUND

| On December 27, 1974, Congress

enacted the CVNRA Act, 16 U.S.C. § ,

460ff et. seq., which ultimately rt

es provided that 36,000 acres of land

! located in the State of Ohio and ;

Known ao the Cuyahoga Valley shall ‘i

be converted into a national

recreation area. The Act authorizes

the Secretary of the United States

Department of Interior to employ

ita condemnation power to acquire

those parcels of land required for .

park use. The Act also contains ‘a

explicit reatrictiona with regard ‘a

to the acquisition of residential

properties encompassed within the

definition of “improved property"

provided by 16 U.S.C. § 460ff-

1(e), which is quoted at footnote 5

of the District Court's opinion.

See Appendix attached hereto. The

plaintiffs' claims pertain only to

"improved property" as that term is

used in the Act.

The Cuyahoga Valley Homeowners

and Residents Association is a

nonprofit, unincorporated organization

comprised of over 120 families who

reside in the zone designated as

the CVNRA. The Homeowners and

Residents Association filed this

action on behalf of its membership,

which is alleged to be "seriously

threatened by the imminent

probability that the defendants

will unlawfully assert eminent

domain actions against their Fee

Simple Titles," and on its own

behalf "because the threatened

unlawful conduct of the defendants

will deplete the Association's

membership. .. ." Compliant,

pp. 2-3, Paragraph 4. See: OHIO

REV. GODE ANN. § 1745.01 (Page 1955).

“! 4

‘nf , ; *

Vee ee a at Oa” Arh - ss ‘rae @

David P. Hazelwood owns 4

residence within the zone designated

as the CVNRA. He is also a member

and officer of the Cuyahoga Valley

Homeowners and Residents Association.

Hazelwood's residence is listed for

fee acquisition in the "Final

General Management Plan," for the

CVNRA published in 1977 by the

United States Department of the

Interior in conjunction with the

National Park Service.

The thrust of the plaintiffs'

complaint is essentially threefold:

first, the plaintiffs claim that

the defendants wrongfully exceeded

their narrow power of condemnation

in violation of 16 U.S.C. 460ff-

1(c). In support of their

position, the plaintiffs point to

the testimony of the architect of

the 16 U.S.C. § 460ff-1(c),

Congressman Seiberling, who

testified regarding that section at

a Congressional Hearing in Akron,

Ohio:

"Mr. Seiberling: thank you for

an excellent statement.

I would simply like to say

that the park plan that

was developed by the

National Park Service and

the study that they made

2 years ago would envision

taking by acquisition, purchase,

between 26 and 430 residences

in the entire valley. We are

not talking about dispossessing

a large number of people.

And as you know, Mr. Pickere;

the bill provides that

those people have the

option of taking a 25 year

or a life term so that

nobody could be turned

down out of his home. I

think that to me this is

getting on to the point

where it almost affects no

one's ability to continue

living where the are."

(Emphasis added.)

See Hearing Before The Sub-

Committee on National Parks

and Recreation, of the Committee

On Interior and Insular Affairs

House of Representatives,

95rd Congress, 2nd

Session, H.R. 7167 and v4

Related Bills, Page 144.

- Ihe = Oe

te et OS aes

. ead Fa

The plaintiffs pointed out to

the Lower Courts that the result of

the Section 460ff-1(c) fee title

condemnation authority differs

markedly from the result guaranteed

by Congressman Seiberling, the

drafter of Public Law 93-555

(16 U.S.C. § 460ff et. seq.).

William Birdsell, the CVNRA's

Superintendent, stated in his

August 17, 1979 deposition, which

was before the District Court, that

of the approximately 500 single-

family residences located within

the original boundaries of the

CVNRA, approximately 300 of such

residences had been acquired in

Fee Title by the National Park

service. See August 1979 testimony

of William Birdsell in Appendix

page A-66 attached hereto. The

figure of 300 Fee Title, single-

family residential condemnations

does not include fee title

condemnation actions pending as of

August 17, 1979. The Plaintiffs

also pointed out to the District

Court that even Superintendent Birdsell

admitted saying that the decision to acquire

fee title to improved property, »ased

solely on the 1977 General Management

) ‘

Plan is at least sometimes arbitrary.

See Quotation from Birdsell's

2/6/79 Deposition in Appendix page

A-61 attached hereto.

Congress exhibited its

displeasure with the National Park

Service's arbitrary interpretation

of 16 U.S.C. § 460ff et seq when

Congressman Seiberling (the author

of the CVNRA Act) and Senator

Metzenbaum of Ohio both wrote the

Director of the National Park

Service on March 14, 1980 stating:

",.ewe recommend that the

National Park Service thoroughly

reevaluate its land acquisition

program in the Cuyahoga Valley

National Recreation area and in

the meantime that all individual

residents whose land is subject to

Complaint action be notifie

that the suit will be suspended

or dropped unless the resident

expressly requests completion

of the complaint action.”

(Emphasis added.) see letter

in Appendix attached hereto at

A-71.

The NPS never heeded Congressman

Seiberling's and Senator Metzenbaum's

requests.

The plaintiffs' complaint also

asserted that the Governmental

Defendants' arbitrary residential

land acquisition tactics regarding

family homesteads violated the

Fifth Amendment Due Process rights

of the families living within the

CVNRA, and that the defendants'

land acquisition plan is not

supported by a reasonable, detailed

or lawfully prepared Master Plan

and/or Environment Impact Statement,

(hereinafter EIS), in violation of

16 U.S.C. § 460ff-5(b) and the

@ National Environmental Policy Act,

42 U.S.C. § 4331 et. seq.

Il.

THIS COURT SHOULD GRANT

; CERTIORARI IN THIS CASE

@ BECAUSE BOTH THE COURT

g OF APPEALS AND THE DISTRICT

COURT BRRONEOUSLY ABDICATED

? TO THE NATIONAL PARK SERVICE

THEIR JUDICIAL RESPONSIBILITY

: TO CONSTRUE THE PLAINTIFFS'

STATUTORY RIGHTS UNDER THE :

CVNRA ACT.

A. THE LOWER COURTS DID NOT

RECOGNIZE THAT THE GOVERN-

MENT'S AUTHORITY TO CONDEMN

PRIVATE PROPERTY IS LIMITED

TO THE EXPRESS CONDEMNATION

AUTHORITY EXTENDED BY CONGRESS.

The First issue which must be

resolved whenever a homeowner

challenges the Government's rights

to condemn his residence, is,

Whether the condemning agency

Sustains express statutory authority

to initiate the condemnation action.

This fundamental principle was

expressed by five Justices of the

United States Supreme Court in

United States ex. rel. T.V.A. v.

Welch, 327 U.S. 546, 551-552 (1946)

when they state:

"We think that it is the

function of Congress to decide

what type of taking is for

public use. It is true that

this Court did say in Cincinnati v.

Vester, 281 U.S. 439, 446, ;

that "it is well established

that in considering the appli-

cation of the Fourteenth Amend-

lient to cases of expropriation

Of private property, the question

what is a public use is a y,

udicial one." But the court's oF

udgment in that case denied

the power to condemn ‘excess’

roperty on the ground that

ers stake law hat not authorized

Lbs"

Mr. Justice Reed, joined by the

Chief Justice, authored a concurring

Oopinon in Welch supra in which

these two Justices independently

# stressed the requirement that the

-@ Government enjoy express statutory

authority before embarking on the

exercise of its condemnation power.

Justice Reed stated in Welch supra,

at 556-557:

"(The) argument of a lack of

judicial power properly was

rejected by the Circuit Court

of Appeals although, as ga

explained above, I think that |

iar. court erroneously held that the |

T.V.A. Act did not authorize

ue these condemnations. 150. F.

2d 613, The T.V.A. is a creature

of its statute and bound by the terms

of that statute, and that its

every act may be tested

udicially, by an arty with

e standing to do so, to

determine whether it moves

within the authority granted

to it by Congress.

This taking is for a public

purpose but whether it is or

is not is a judical question...

e}| constitutional doctrine

of the Separation of Powers would

be unduly restricted if any

administrative agency could

invoke so-called political

powers so as to immunize its

@ action against judicial

examination in contests between

the agency and the citizen."

Thus, Welch, supra irrefutably

establishes that the Government may

not condemn private property unless

it sustains statutory authorization

Court reversed the Court of Appeals

upon the express determination that

the statute involved in Welch did

authorize the Government's

condemnation action in that case.

In stark contrast with the

Welch statute, the homeowners in

| this action contend that 16 U.S.C.

pe § 460ff et. seq., embodies a

congressional intention that the

? Government avoid condemning fee

é title to improved residential

property unless it can establish

} that such residential property is

RY needed for "direct visitor use."

@ The deliberate Congressional

intention to statutorially limit

i the Government's condemnation

- authority under 16 U.S.C. § 460ff

et. seq. distinguishes the

ultimate result in this case from

the ultimate result in Welch.

Yet, the Lower Courts totally

abdicated their responsibility to

construe the meaning of the CVNRA

Act. In reliance on Berman

v. Parker, 348 U.S. 26 (1954). See

District Court's Opinion (Appendix

pages A-9, A-16, A-17, A-26

and Court of Appeals Opinion of

Apendix pages A-56, A-57.)

The Lower Courts failed to

recognize that each of the cases,

including Berman, which authorize

the Government to exercise broad

constitutional authority when

condemning private real property,

dealt with the acquisition of land

which did not comprise the residen-

tial homestead of the condemnee.

For example, see Welch supra, at

548 (No showing that the condemned

land was comprised of residential

homesteads); Carmak v. United

States, 329 U.S. 230, 231 (1946).

(Federally condemned land was held

in trust by a City, which used it

for a local park, courthouse, city

hall, public library); Berman,

supra., at 31 where Justice Douglas

went out of his way to note:

"Appellants own property in

Krea B at 714 Rsaete Street,

S.W. It ie not used as a

dwellin i r habitation.

on it." (Heshasie salar. )

That important distinction

between this case and the Berman

line of decisions was pinpointed in

the Plaintiffs' District Court and

Court of Appeals Briefs. Mysteriously,

neither of the Lower Courts

addressed this distinction in their

opinions. Instead, the Lower Court

mutely applied the lightest

possible scrutiny in reviewing the

Defendants' family homestead

condemnation standards. See

Appendix A=-56, A-57.

B. CONGRESS EXPLICITLY INTENDED

TO PROTECT INDIGENOUS COMMUNITIES

ABUSE DURING THE CREATION OF THE

PARK AND IRREFUTABLY INTENDED

SYSTEM WATCH DENTED TEE WATTONAL

PARK SERVICH THE AUTHORITY TO

CONDEMN THE COMPLETE INTEREST

‘ 7 7. « > 4

A eT ea. ae ee eee ee ee

a | ae

WHICH A_ PARK RESIDENT ENJOYED

WAS NEEDED FOR DIRECT VISTTOR USE.

When Congress enacted the

Cuyahoga Valley National Recreation

Act, 16 U.S.C. § 460ff et. seq., it

articulated its affirmative

intention to limit the disruption

which the creation of the Park

would cause to local institutions

and particularly residents inside

the park area. Congress' intention

to minimize abusive tactics by the

National Park Service appears in

sonnection with 16 Section 460ff-

3(f) which directs the Secretary of

the Interior to consult with local

governments in establishing zoning

laws that will be conducive to the

goals of the Recreation Area.

However, the Congress was concerned

that the National Park Service

would abuse this provision, and

consequently, the Legislative

History of the Park Act expresses

Congress' concern that the Park

Service would "coerce or badger

local subdivisions or. . +. attempt

‘

a oe

to preempt their constitutional

authorities." See 1974 U.S.

Code Cong. and Admin. News

peges 6654-55, 6658.

Just as the Congress saw the

need to express its intention that

the Park Act was not to be employed

by the Park Service as a vehicle

for coercing ov badgering local

governmental institutions, the

Congress also saw the need to craft

statutory protections, in the form

of residential property retention

rights, to avoid unneeded disruption

dwell within the park's boundaries.

Thus, Section 460ff-1(e) of the

Park Act created a definition for

the term "IMPROVED PROPERTY" which

included single-family residential

property. The controlling language

"For the purposes of sections

460ff to 460ff-5 of this title,

the term ‘improved Ay th 9

means: (i) a detached single-

. family dwelling, the construction

of which was begun before

January 1, 1975 (hereafter

referred to as 'dwelling'),

oy of :

- “a

together with so much land on

which the dwelling is situated,

the said land being the same

ownership as the dwelling, as

the Secretary shall designate,

for the sole purpose of

noncommercial use, together

wivh any structures necessary

to the dwelling which are

situated on the land so

designated. . ."

Homeowners, who enjoyed the

special Congressionally conferred

status of "improved property"

owner, were furnished a statutory

@ guarantee that regardless of the

gravity of the Government's need

for their improved property, they

enjoy the absclute right to retain

title to a life estate or a term of

up to twenty-five years. The

homeowner's absolute statutory

, @ right against Governmental

condemnation of a life estate

and/or a twenty-five year estate is

codified in Section 460ff-1(f).

The Legislative History of Section

| 460ff-1(e), (f) confirms Congress’

intention that these provisions

Operate as an express barrier to

governmental condemnation of a

homeowner's life estate and/or term

of years estate, so long as his

improved property is employed as a

single-family dwelling. See 1974

U.S. Code Cong. and Admin. News,

pages 6656 thru 6657.

Thus, the statutory language of

Section 460ff-1(e), (f), as well as

the Legislative History of those

provisions, and the National Park

Service's own interpretation

irrefutably demonstrate that when

Congress drafted 16 U.S.C. § 460ff

et. seq., it intended to create an

express and absolute statutory

limitition on the Government's

authority to condemn the complete

property interest which the Park

residents enjoy in their homesteads.

The Park Service even admits that

the Section 460ff-1(e), (f)

statutory limitation on the

Government's condemnation authority

operates regardless of the

immediacy of the Government's need

to acquire possession of the

residential property. See District

Court Opinion at Appendix page A22

infra.

C. CONGRESS INTENDED TO LIMIT

R T'S AUT [TY

PARK "VISITOR USE.™

As part of the Congress' scheme

to protect local interests from

obliteration by the process of park

creation, Congress extended

extremely narrow statutory

authority to the National Park

Service to condemn Fee title to

Residential, "Improved Property"

within the definition of Section 460ff-

1(e). Section 460ff-1(c) expresses

the narrow statutory authority

which Congress intended the

National Park Service to sustain

when it seeks to acquire fee title

to such statutorially protected

residential realty:

"With respect to improved

properties...the Secretary may

acquire scenic easement or

Such other interests as, in his

judgment, are necessary for the

Purposes of the recreation

area. Yee title to such improved

Properties shall not be ac uired

unless the Secretary finds that

such lands are being used, or

unless such ac uisition is

necessary to fulfill the purposes

Of sections

to -

2 of this title. (Emphasis

added.)

Thus, the first clause of

Section 460ff-1(c) purports to

extend blanket authority to the

Secretary to acquire "scenic

easements or such Other interests"

in park dwellers! domestic

homesteads. However, the next

sentence explicitly forbids the

acquisition of "Fee title" to such

dwellings ("Fee title...shall not

be acquired"), except in two very

narrow Circumstances:

(1) <A dwelling place is being

used for purposes that are

detrimental to the park;

(2) The acquisition of Fee

Title, as opposed to the

less intrusive acquisition

of a scenic easement, is

necessary to fulfill the

purposes of the park.

The Lower Courts rubberstamped

the National Park Service's

argument that the exception number

two supra virtually swallows up the

general rule that "fee title to

td) improved residential properties

shall not be acquired." See

16 U.S.C. § 460ff-1(c). Under the

Government's theory, Congress

intended the Secretary's determination

of the necessity to condemn the Fee

. r title to a family dwelling place to

be conclusive on the questions of

the necessity of such a condemnation.

b Several reasons compel the

’ conclusion that the Government's

: interpretation of Congress' intent

a Sia.

- = x

is erroneous. However, neither of

the Lower Courts addressed these

reasons, and therefore, this Court

should grant Certiorari to correct

the Lower Courts defective

construction of Congress' statutory

intent.

FIRST. If Congress actually

intended the Secretary to enjoy the

plenary authority noted by the

Government to condemn fee title to

the specially protected class of

residential improved property, then

the language of § 460ff-1(c) is

unnecessarily clumsy to express

such a purpose. If Congress really

intended to vest the Secretary with

plenary, unreviewable power to

condemn Fee title to park residents’

dwelling places, then Congress

would have simply ended Section

460ff-1(c) at the conclusion of the

first sentence of the current

provision:

"With respect to improved

properties, the Secretary shall

acquire scenic easements or

such other interets as, in his

judgment are necessary for the

purposes of the recreation

area." (Emphasis added.)

The first sentence of Section

460ff-1(c), standing alone, is

i perfectly adequate to convey the

supposed Congresional intention

which the Government, and the Lower

Courts, have thus far interpreted

| as the meaning of the last

A sentence. In other words, the

Lower Courts interpreted the second

sentence--

"Fee title to such improved

property shall not be acquired

unless the Secretary finds

that...such acquisition is

@ necessary to fulfill the

purposes of sections 460ff to

460ff-5 of this title..."

to express a meaning which is

redundant to the plain meaning of

the first sentence of Section

@ 460ff-1 (c)-

"With respect to improved

properties...the Secretary may

acquire scenic easements or

. such other interest (obviously

including fee interets) as in

his judgment are n -cessary for

: the purposes of the recreation

| . area."

Such an interpretation violates

the well-known canon of statutory

, construction that mandates

; avoidance of a statutory interpretation

; which renders part of a statute

surplusage. Although this

important argument was fully

delineated in the Plaintiffs’

if briefs filed in the Lower Courts,

neither the Court of Appeals, nor

the District Court explicitly

addressed this argument.

SECOND, the Government's, and

the Lower Courts', interpretation

of Sections 460ff-‘(c) also renders

another phrase of that provision

surplus, in violation of the

f statutory construction canon

: against redundant interpretations.

) If one examines the second sentence

in isolation, the Government's

reading results in the conclusion

that Fee title to park residents'

dwelling places shall not be

acquired except:

(1)

Te SS Te

—— a

When the Secretary finds

that such dwellings are

used for purposes that are

detrimental to the

purposes of the recreation

area; or

«a a,

ore

(2) When the Secretary, in the

exercise of his plenary,

unreviewable authority,

decides that fee title to

residential property is

necessary to fulfill the

purposes of Sections 460ff

to 460ff-5.

The problem with such an

interpretation is that it renders

the first (i.e., detrimental use)

exception a subset of the second

(i.e., necessary for park purposes)

exception. In other words, if the

"necessary for park purposes"

exception was intended by Congress

to grant the Secretary plenary

power to condemn residential

property, on a "necessary for park

purposes" theory, then there is no

need whatsoever to establish a

separate exception to justify

condemnation of residential

property that is used in a fashion

which is "detrimental to the

purposes of the recreation area."

Obviously, every occasion in which

homestead property is condemned

because it is used in a fashion

detrimental to the purposes of the

park, is equally justified on the

separate theory that such acquisition

of the detrimentally employed

property was "necessary to fulfill

the purposes" of the park act,

i.e., the purposes which are

jeopardized by the detrimental use!

Thus, the Government's

interpretation, affirmed by the

Silence of the Lower Courts, that

the last clause of Section 460ff-

1(c)* constitutes an expression of

Congress' intent to vest the

) Secretary with plenary, unreviewable

authority to condemn fee title to

protected residential "improved

property" languishes in a double

conundrum of redundancy. The

Government's statutory interpretation,

@ which rests on the assumption that

several phrases of Section 460ff-1(c)

comprise syntactic surplus, is

particularly suspect because

x * The last clause of Section

460ff-1(c) reads:

necessary to fulfill the

purposes of sections 460ff to

460ff-5 of this title."

‘ "Fee title to such improved Fae

; property shall not be acquired ee

; unless the Secretary finds ft

f that...such acquisition is mee

Ee ae RE PS ee aes Pat as

MS Ae ee eA ee oe a oe

it clashes with the ancient canon

of statutory construction which

abhors all interpretations *hat

render a portion of statute

useless. In Washington Market

Company v. Hoffman, 101 U.S. 112,

115-16 (1879), the United States

Supreme incorporated this canon of

construction into the statutory

interpretation rules which the

Federal Judiciary must observe when

the High Court wrote:

"We are not at liberty to

construe any statute so as to

deny effect of any part of its

language. It is a cardinal

rule of statutory construction

that significance and effect

shall, if possible, be accorded

to every work. As early as in

Bacon's Abridgement, Sect. 2,

it was added that ‘a statute ought,

upon the whole, to be construed

that, if it can be prevented,

no clause, sentence, or word

shall be superfluous, void, or

insignificant.’ This rule has

been repeated innumerable

a . <

y 4,

“

times. Another rule equally

@ recognized is that every part

of a statute must be construed

in connection with the whole,

so as to make all the parts

harmonize, if possible,

and give meaning to each."

(Emphasis added.)

In light of the patent

invalidity of the Lower Courts'

interpretation of the Government's

fee condemnation authority, under

@ 16 U.S.C.§ 460ff et. seq., this

Court should grant Certiorari to

review the interpretation of that

enactment in light of its Legislative

History, as expressed in the

published Legislative Committee

Reports and Hearings. The United

re © States Supreme Court endorsed the

a use of published legislative

5 history, in the form of published

Ee Committee Reports and Hearings in

4 Duplex Printing Press Company

: V. Derring, 254 U.S. 443, 474-475 ee

(1920).

") ¢ Se Oo adua eh

The Legislative History of the

Park Act, as published in the

Report of the Senate Interior and

Insular Affairs Committee (Senate

Report No. 93-1328), is published

at 1974 U.S. Code Cong. and Admin.

News, page 6649 et. seq. The

Legislative History suggests that

the Lower Courts should have

scrapped the Government's interpretation

that Section 460ff-1(c) expresses a

Congressional intent to vest

plenary power in the Secretary of

the Interior to condemn fee title

to the otherwise specially

protected class of residential

improved property. Examination of

the Legislative History of the Park |

Act compels the conclusion that <

Congress intended that most single-

family dwelling places, which

constitute improved property under

the Act, be acquired solely in

scenic easement, and that fee title

to such dwellings should be

condemned only when the improved

property is shown to be "needed for

direct visitor use."

@ FIRST, Congressman Seiberling,

the architect of the CVNRA Act

testified that only 26-30 homes

would be acquired in Fee, when in

fact, 300 of the original 500 homes

were acquired in fee. SECOND, In

March 1980, Congressman Seiberling

and Senator Metzenbaum both wrote

the National Park Service,

requesting that it cease acquiring

family homesteads and that it

dismiss all pending condemnations,

after the National Park Service

acknowledged acquiring over 300

Legislative History of the Act

states:

"The use of scenic easements

should also be a maior part of

the land acquisition program

@ for the area. ‘The intent here

is to allow fee acquisition to

be concentrated in those areas 4

needed for direct visitor use, 4

while acquisition funds can be

spent to protect a larger P

surrounding area through |

easements than would be 4

possible by using the same a

dollar amounts for the

acquisition."

See 1974 U.S. Code Cong. and

Admin. News, at page 6655.

(Emphasis added.)

In a passage discussing the

‘ types of property which the

Secretary should expect not to

4 acquire, the Legislative History

me includes fee title to residential

a "improved property," and suggests

oe that the Secretary should emphasize

2 scenic easement acquisition with

to be acquired unless the

: Secretary finds that such

es properties are used or being

Ee threatened with uses detrimental

to the purposes of the recreation a

area, or unless fee acquisition J

E @ respect to residential "improved

3% property."

os "Pee title to any improved

Pe properties in the area is not

is necessary to fulfill fi

the purposes of the Act. The .

Secretary may, however, acquire oa

~ ~

34 .

scenic easements as he deems

necessary on such properties.

Obviously, where appropriate

scenic easements have already

been granted to a public body,

the chance of adverse uses

occurring which might be detri-

mental to the recreation area is

precluded, and these properties

can generally be left under the

existing easements.”

See 1974 U.S. Code cong.

and Admin. News, at page 6656.

(Emphasis added.)

The Legislative History of the

Park Act also indicates that the

two-stage planning effort which the

Congress statutorially mandated was

designed in part as a monitoring

device to insure that the Secretary

implemented Congress’ intention

that condemnation, in fee, of

residential "improve: property"

occur only when the fee title to

such improved property was

"necessary to fulfill the purposes

of the Park Act," in the sense that

fee title to such residetial

improved property is "directly

needed for park visitor use." See

16 U.S.C. § 460ff-1(c), 1974 page

6657. See also two stage planning

process statutorially mandated by

16 U.S.C. §§ 460ff-2, 460ff-5(b).

The Lower Court's failure to

construe the CVNRA Act, in light of

its Legislative History, to limit

residential fee title condemnations

to homesteads "directly needed for

park visitor use," is a clear error

which should be reviewed by this

Court's Certiorari authority in

order to affirm the proper method

of statutory construction in the

context of a Congressional effort

to protect family residences from

bureaucratic abuse. This Court can

not tolerate the Lower Courts

rubberstamping of a bureaucratic

statutory interpretation which

frustrates the intent of Congress

to protect the sanctity of family

dwelling places.

III

THIS COURT SHOULD GRANT

CERTIORARI TO DECIDE TH

fe E

PLAINTIFFS’ NOVEL, TMFOR TANT

EAST CLEVELAND CONSTITUTIONALLY

LIMITS THE GOVERNMENT'S CONDEMNATION

AUTHORITY. ’

THE LOWER COURT NEVER ANALYSED

THE PLAINTIFF-PETITIONERS' CLA

IMS

THAT THE GOVERNMENT'S SINGLE-

FAMILY HOMESTEAD RESIDENTIAL

CONDEMNATIONS VIOLATE THEIR DUE

Both Lower Courts affirmed,

without analysis, the Government's

assertion that it sustains the

constitutional authority to acquire

a family's homestead, pursuant to

statutory authority like that

expressed in 16 U.S.C. § 460ff-

1(c), when the Government sustains

the burden to show that, in its

"opinion," such a forced acquisition

of a family's home is "expedient"

for the public purpose expressed in

the taking statute. The Government's

argument violates the Due Process

and Privacy notions expressed in

the Fifth and Fourth Amendment,

which the United States Supreme

Court developed in cases decided

long after Shoemaker v. United

States, 147 U.S. 282 (1893);

United States ex rel TVA v. Welch,

4327 US 546 (1946); United States

v. Carmak, 329 U.S. 230 (1946);

Berman v. Parker, 348 U.S. 26

; (1954), on which the Lower Courts ”*

o © relied.

FIRST, neither of the Lower

Courts recognized that each of tne

cases which authorize the Government

to exercise broad constitutional

je authority when condemning private

real property, dealt with the

comprise the residential homestead

of the condemnee. For example, see

Welch supra, at 548 (No showing

that the condemned land was

comprised of residential homesteads):

% Carmak, supra at 231 (Federally é

on condemned land was held in trust by

See ee

a City, which used it for a local

park, courthouse, city hall, public

library); Berman, supra at 31 where

Justice Douglas went out of his way

to note:

"Appellants own property in

Area B at 714 Fourth Street,

S.W.. It is not used as a

dwelling or place of habitation.

A department store is located

on it." (Emphasis added.)

SECOND, in Moore v. City of

East Cleveland, 431 U.S. 494

(1977), Inez Moore violated an East

Cleveland zoning ordinance, which

denied her the right to reside in

her single family residential

dwelling with her grandchildren,

who were "illegal occupants" under

the applicable zoning code. The

Cuyahoga County Court of Appeals

affirmed a lower court finding that

the applicable ordinance was

constitutional and Moore appealed

to the United States Supreme Court,

which reversed the Court of Appeals

on DP ? Process grounds.

In Moore, Justice Powell

which impinges on "family needs"

and "family values" must satisfy an

especially high standard of

judicial review. See Moore, supra,

at 498. Justice Powell noted the

standard for judicial review of

such ordinances when he wrote at

499:

"When a city undertakes

intrusive regulations of

the family...the usual judicial

deference to the legislature is

long recognized that freedom of

personal choice in'matters

of...family life is one of the

liberties protected by the Due

Process Clauses of the

Fourteenth Amendment...A host

\ of cases...have consistently .

acknowledged a private realm of ig

cannot enter...(W)hen the govern-

ment intrudes on choices concerning

family living arrangements, this

Court must examine carefully ©

L-

;

Se ie

oe er

Rs —

importance of the governmental

interests advanced and the extent

to which they are served 2d by the

Challenged regulations. '"

In applying the "careful

scrutiny" test to examine the

importance of the governmental

interests advanced, and the extent

to which those interests were

served, by the East Cleveland

ordinance, the Moore Court

determined that the bare language

of East Cleveland's ordinance

implemented the facially legitimate

governmental interests of preventing

overcrowding and minimizing

traffic, parking congestion and

avoiding an undue financial burden

on the municipality. See Moore supra,

at 499-500. However, the Court

invalidated East Cleveland's

ordinance under the Due Process

Clause because the ordinance only

"marginally serve(d)" the City's

legitimate interests. See —

Moore supra, at 500. Similarly, #

the Government has shown no need to :

acquire the entire fee simple

estate in the Plaintiffs’ homes.

Such acquisitions only marginally

serve the interests of creating the

CVNRA. But, more importantly,

neither of the Lower Courts

endorsed the application of the

Moore, "careful scrutiny," test to

the Homeowners claims. The applica-

bility of the Moore test to the

expropriation of family homesteads

is the critical issue which this

court must grant Certiorari to review!

THIRD, a citizen's residential

premises form the focus of the

privacy interests which the United

States Supreme Court has most

rigorously protected from Government

interference. See lengthy citation

in the Appendix attached hereto at

page(s) A-58 infra.

In fact, a citizen's residential

privacy interests have been deemed

so weighty under constitutional

analysis that the United States

Supreme Court historically

questioned whether the government

may enter private residential

premises without a warrant or

exigent circumstances to effectuate

sen ie : . : %

ae Forte Sek “,' Se i <t - F Ate we pd 4 G

A pe I at! eee rok Ce es ee er Se a>:

an arrest. See United States v. Watson,

423 U.S. 411, 418, fn. 6, (1976);

Gerstein v. Pugh, 420 U.S. 103,

113, fn. 13, (1975); Coolidge v.

New Hampshire, 403 U.S. 443, 474-

481, (1971); Davis v. Mississippi,

394 U.S. 721, 78, (1969); Jones v.

United States, 3557 U.S. 493, 499-

500, (1958).

Neither the Government, or the

Lower Courts, offered a rebuttal to

the Plaintiffs' argument that the

Constitutional Privacy case law

recognizes a special protection for

@ a citizen's home, on which the

Government may not intrude without

a more substantial justification

than the fickle, flimsy reasons

articulated in this Petition supra.

The cases analyzed in the Appendix

| at A-58 and Part III, of this

@ Plaintiff-—Petitioners' petition

establish this principle, which the

High Court recently repeated in

Payton v. New York, 445 U.S. 573

(1980); and Steagald v. United States,

451 U.S. 204 (1981).

In Payton supra the High Court

held that the Constitutional Right

{

43 a

of Privacy prohibits Government

from making a warrantless and

nonconsensual, probable cause entry

into a citizen's home, inorder to

perfect a felony arrest. In so

holding, the Court relied on the

unique privacy interest that United

States citizens enjoy in their

homes. See Payton supra, at 585-

590. The Payton Court expanded on

this theme ig footnotes 13 and 17,

445 U.S., at 578-582. In Steagald v.

United States, 451 U.S. 204 (1981),

the High Court recognized the

greatly protected nature of the

home as a sanctuary of privacy into

which Government may not intrude

for a trifling reason. In

Steagald supra, the High Court

suppressed evidence found in

Steagald's home after police

officers entered Steagald's home,

acting under an arrest warrant for

Lyons, who's arrest the officers

sought to perfect within Steagald

homestead. The Steagald Court, at

451 U.S., 212-216, invalidated the

governmental entry into a citizen's

residence for the lofty governmental

purpose of accomplishing an

otherwise lawful probable cause

arrest, because such an entry

violated the privacy rights of the

resident.

The Payton, Steagald, and

Moore v. City of East Cleveland

cases conclusively establish that

the Government requires weightier

interests than the featherweight

interests to which the Lower Courts

deferred in order to permit the

Government to intrude upon families

constitutionally protected privacy

interests by seizing fee title to

their homesteads. The Lower

Courts' denigration of the

Plaintiff-Petitioners' constitutionally

protected family privacy interests

is reflected by the Lower Courts'

stunning failure to even analyze

the Plaintiffs' Moore v. City of

East Cleveland argument in either

of their opinions. That argument

was fully and explictly briefed

before the Lower Courts. Certainly

the U.S. Supreme Court should, at

a minimum, grant Certiorari to

review the complex and novel

e or

question of the conflict between

the light scrutiny test articulated

in Berman supra and the heightened

“careful scrutiny" test articulated

in Moore supra in the context of

unnecessary governmental expropriation

of family homesteads.

The issues inherent in the

conflict between the Berman test

and the Moore test are of major

national importance, especially in

light of the fact that over 50% of

the land in the United States is

owned by federal, state, and local

governments, with 33% of the land

being owned by the federal

government. For example, the

Government's residential land

acquisition practices in the CVNRA

are the subject of fovr major

national media pieces released in

the last four years, including a

one hour Frontline television

documentary aired on the Public

Broadcasting System in June, 1983, 4

and a six day front page expose in .

the Cleveland Press. Furthermore, |

the problems asso:iated with the :

National Park Service's abusive and

arbitrary land acquisition

practices are national in scope, as

documented in numerous General

Accounting Office Reports issued on

this topic in recent years. See

The Federal Drive To Acquire

Private Lands Should Be Reassessed

G.A.0., 12/14/79 (CED-80-14);

The National Park Service Should

Improve Its Land Acquisition

And Management At The Fire Island

National Seashore, G.A.0. 5/8/81

(CED-81-78); Federal Land Acquisition

And Management Practices, G.A.O.

9/11/81 (CED-81-135) (specifically

addressing Cuyahoga Valley at pages

43-45).

The result of the Lower Courts

decisions is that under Steagald,

greater judicial scrutiny protects

a criminal, hiding out in a home,

from governmental intrusion into

his privacy rights inorder to

perfect a lawful arrest than

the judicial protection afforded a

family's privacy interest in

thwarting governmental confiscation

of their homestead. This Court

must grant Certiorari to review and

correct this injustice and

explicitly articulate, the

appropriate Moore vy. City of East

Cleveland, standard of judicial

review for governmental expropriation

of single family homesteads.

CONCLUSION

This Court should grant

Certiorari to review the questions

presented by this case, particularly

the conflict between Berman supra

and the Due Process privacy rights

articulated in Moore supra

regarding the standard of judicial

review of coerced governmental

acquisitions of family homesteads.

Respectfully submitted,

Petition

gir Avenue, W.

Ohio 44113

Cleveland es

(216) 696-6971 . '

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

APRIL 13, 1982)

CECIL D. ANDRUS,

et. al.,

Defendant MEMORANDUM

OF OPINION

CUYAHOGA VALLEY ) CASE NO.

HOMEOWNERS AND RESIDENTS) C78=1377

ASSOCIATION, et. al

Plaintiff |

Vv. JUDGE JOHN

M. MANOS

(FILED

)

On October 19, 1978 plaintiffs,

the Cuyahoga Valley Homeowners and

Residents Association and David P.

Hazelwood filed the above-captioned

case as a class action seeking

declaratory and injunctive relief

against the following defendants:

(1) Cecil D. Andrus, who, at the

time the complaint was filed, was

the Secretary of the United States

Department of the Interior; (2) William

H. Whalen, who, at the time the

complaint was filed, was the Director

of the United States Department of

Interior; and (3) William Birdsell,

who, at the time the complaint was

filed, was the Superintendent of the

Cuyahoga Valley National Recreation

Area, (hereinafter, CVNRA),

established pursuant to 16 U.S.C.

§ 460ff. The suit seeks a judicial

interpretation of the defendant

officials’ statutory authority to

acquire single family residential

property located within the

boundaries of the CVNRA through

eminent domain proceedings.

1 16 U.S.C. 9 460ff provides as

follows:

For the purpose of

preserving and protecting

for public use and enjoy-

ment, the historic,

scenic, natural, and

recreational values of the

Cuyahoga River and the

adjacent lands of the

Cuyahoga Valley and for

the purpose of providing

for the maintenance of

needed recreational open

space necessary to the

A-2

ee =

TT.

(Continued)

urban environment, the Cuyahoga

Valley National Recreation

Area, hereafter referred to as

the "recreation area," shall be

established within six months

after December 27, 1974. In

the management of the recreation

area, the Secretary of the

Interior (hereafter referred to

as the "Secretary") shall

utilize the recreation area

resources in a manner which

will preserve its scenic,

natural, and historic setting

while providing for the

recreational and educational

needs of the visiting public.

A-3

i all

P - *%

Jurisdiction is invoked unger

28 U.S.C. § 1331. and 2201”. On

July 16, 1979 plaintiffs filed a

joint motion for summary judgment.

On October 4, 1979 the defendants

filed a joint motion for summary

judgment. For the reasons which

follow the defendants’ motion is

granted ang the plaintiffs' motion

is denied. Fed. R. Civ. P. 56.

On December 27, 1974 Congress

enacted the CVNRA Act, 16 U.S.C. §

460ff et seq., which provides that

a certain body of land located in

the State of Ohio and known as the

Cuyahoga Valley shall be converted

into a national park. The Act

authorizes the Secretary of the

United States Department of

Interior or his delegate to employ

the power of eminent domain to

acquire those parcels of land

required for park use. The Act

also contains explicit restrictions

with regard to the acquisition of

residential and agricultural

properties encompassed within the

definition of “improved property"

proviged by 16 U.S.C. § 460ff-

1(e).

2. o8 U.5-c. § 1551 provides as

follows:

The district courts shall have

original jurisdiction of all

civil actions arising under the

Constitution, laws, or treaties y

of the United States.

28 U.S.C. § 2201 provides as

follows:

In a case of action controversy

within its jurisdiction, except

with respect to Federal taxes

other than actions brought

under section 7428 of the

Internal Revenue Code of 1954

or a proceeding under section

505 or 1146 of title 11, any

court of the United States,

upon the filing of an appropriate

pleading, may declare the

rights and other legal

relations of any interested

party seeking such declaration,

whether or not further relief

is or could be sought. Any

such declaration shall have the

force and effect of a final

judgment or decree and shall be

reviewable as such.

s -

The court need not address any

other motions filed in the

instant case on the ground of

mootness.

16 U.S.C. § 460ff-1(e) provides

as follows:

For the purposes of sections

460ff to 460ff-5 of this title,

the term "improved property"

means: (i) a detached single

family dwelling, the construction

of which was begun before

January 1, 1975 (hereafter

referred to as "dwelling"),

together with so much of the

land on which the dwelling is

situated, the said land being

in the same ownership as the

dwelling, as the Secretary

shall designate to be reasonably

necessary for enjoyment of the

dwelling for the sole purpose

of noncommercial residential

use, together with any .

structyres necessary to the “

dwelli..g which are situated on

the structures necessary to the

dwelling which are situated on

the land so designated, or

(ii) property developed for

A-6

(Continued)

property," the Secretary shall

take into consideration the

manner of use of such buildings

and lands prior to January 1, 1975,

and shall designate such lands

as are reasonably necessary for

the continued enjoyment of the

property in the same manner and

to the same extent as existed

prior to such date. In

applying this subsection with

respect to lands and interests

therein aaded to the recreation

area by action.

a ee

The plaintiffs' claims pertain only

to "improved property" as that term

is used in the Act.

The Cuyahoga Valley Homeowners

and Residents Association is a

nonprofit, unincorporated organization

comprised of over 120 families who

reside in the zone designated as

the CVNRA. It filed this action on

behalf of its membership, alleged

to be "seriously threatened by the

imminent probability that the

defendants will unlawfully assert

eminent domain actions against

their Fee Simple Titles," and on

its own behalf "because the

threatened unlawful conduct of the

defendants will deplete the

Association's membership..."

Complaint, pp. 2-3, § 4. See: OHIO

REV. CODE ANN. § 1745.01 (Page 1955).

6. OHIO REV. CODE ANN. § 1745.01

(Page 1955), provides as

follows:

Any unincorporated association

may contract or sue in behalf

of those who are members and,

in its own behalf, be sued as

an entity under the name by

which it is commonly known and

called.

A-8

SOP Tete Rey gain ee Oe ne toe ae

DaVid P. Hazelwood owns a

residence within the zone designated

as the CVNRA. He also is a member

and officer of the Cuyahoga Valley

Homeowners and Residents Association.

Hazelwood's residence is listed for

fee acquisition in the "Final

General Management Plan, CVNRA,"

publishec in 1977 by the United

States Department of the Interior

in conjunction with the National

Park Service.

The thrust of the plaintiffs'

complaint is essentially two-fold:

first, the plaintiffs claim that

the defendant have wrongfully

exceeded their narrow power of

eminent domain in vjolation of

16 U.S.C. 460f-1(c) and the Due

Process Clause of the Fifth

Amendment; and second, that the

defendants’ land acquisition plan

is not supported by a reasonable,

detailed or lawfully prepared

Master Plan and/or Environment

Impact Statement, (hereinafter,

EIS), in violation of 16 U.S.C. §

460ff-5(b) and the National =f

Environmental Policy Act, 42 U.S.C. <

§ 4331 et seg. For the reasons "4

which follow the court holds that “6

the plaintiffs' claims are without

merit.

7. 16 U.S.C. § 460ff-T(c) provides

as follows:

With respect to improved

properties, as defined in

sections 460ff to 460ff-5 of

this title, the Secretary may

acquire scenic easements or

such other interests as, in his

judgment, are necessary for the

| purposes of the recreation

R area. Fee title to such

improved properties shall not

be acquired unless the

Secretary finds that such lands

are being used, or are

Ag threatened with uses, which are

:@ detrimental to the purposes of

S the recreation area, or unless

a such acquisition is necessary

7 to fulfill the purposes of

sections 460ff to 460ff-5 of

this title.

B. 16 U.S.C. § 460ff-5(b) provides

as follows:

For the development of the

recreation area, including

improvements of properties

acquired for purposes of

sections 460ff to 460ff-5 of

this title, there is authorized

to be appropriated not more

than $13,000,000. Within one

year from the date of establishment

of the recreation area pursuant

to sections 460ff to 460ff-5 of

this title, the Secretary

shall, after consulting with

; the Governor of the State of

\ © Ohio, develop and transmit to

the Committees on Interior and

Insular Affairs of the United

States Congress a final master

plan for the development of the

recreation area consistent with

the objectives of sections

460ff to 460ff-5 of this title,

indicating:

= ap ee

(1) the faclities needed to

accommodate the health,

safety, and recreation

needs of the visiting

public;

a ee

* ft Agate

“ ee ee

A=-11

7 Mii

(2)

(3)

(Continued)

the location and estimated

na of all facilities;

the projected need for any

additional facilities

within the area.

SF Te are

In essence, the plaintiffs’

first contention is that under

16 U.S.C. § 460ff-1(c), the

defendants may only institute

eminent domain proceedings against

a fee title owner who resides in

the CVNRA if it is shown that the

property is being used in a manner

detrimental to the purposes of the

park and/or if the property is

required for direct park visitor

use. According to the plaintiffs,

under the direct park visitor use

theory, the defendants must

establish that the property in

question is "specifically needed

for an identifiable park use," such

as a tangible park facility, before

they may exercise their statutory

eminent domain power. The

plaintiffs further contend that

even if the defendants established

that property was being used in a

manner detrimental to the purposes

of the park or was required for

direct park visitor use, the

property could only be acquired

subject to the owner's right to

elect a life estate or a term less

than or equal to twenty-five

A-13

a, ae

1(f).

years under 16 U.S.C. § 460ff-

5. 16 0.8.C. § 460ff-T(f) provides

as follows:

The owner of an improved

property, as defined in

sections 460ff to 460ff-5 of

this title, on the date of its

acquisition, as a condition of

such acquisition, may retain

for himself, his heirs and

assigns, a right of use and

occupancy of the improved

property for noncommercial

residential or agricultural

purposes, as the case may be,

for a definite term of not more

than twenty-five years, or, in

lieu thereof, for a term ending

at the death of the owner or

the death of his spouse,

whichever is later. The owners

shall elect the term to be

reserved. Unless the property

is wholly or partially donated,

the Secretary shall pay to the

owner the fair market value of

the property on the date of its

acquisition, less the fair

market value on that date of

the right retained by the ‘

owner. A right retained .

A-14

(Continued)

by the owner pursuant to this

section shall be subject to

termination by the Secretary

upon his determination that it

is being exercised in a manner

inconsistent with the purposes

of sections 460ff to 460ff-5 of

this title, and it shall

terminate by operation of law

upon notification by the

Secretary to the holder of the

right of such determination and

tendering to him the amount

equal to the fair market value

of that portion which remains

unexpired.

Noy

“W

yry ‘

P's

aT,

In Berman v. Parker, 348 U.S.

26, 75 S. Ct. 98 (1754), the United

States Supreme Court held that the

role of the judiciary in determining

whether the power of eminent domain

is being exercised for a public

purpose is an extremely narrow one.

In Berman, private property owners

challenged the constitutionality of

Congressional legislation authorizing

the condemination of their property

for the purpose of redeveloping the

District of Columbia. The Court

held that resolution of the

question of whether acquisition of

full title to the properties in

issue was necessary to carry out

the project was a question properly

left to the agency created by the

legislation and was not within the

province of the courts. Specifically,

the Court held that "[o]nce the

question of public purpose has been

decided, the amount and character

of land to be taken for the project %

and the need for a particular tract .

to complete the integrated plan

rests in the discretion of the

legislative branch." Berman

v. Parker, supra, 348 U.S. at 35, a

36, 75 S. Ct. at 104. Fe

A-16

Since the purpose of CVNRA has

Clearly “been decided" in favor of

"preserving and protecting for

public use and enjoyment, the

historic, scenic, natural, and

recreational values of the Cuyahoga

River and the adjacent lands of the

Cuyahoga Valley and for...providing

for the maintenance of needed

recreational open space necessary

to the urban environment," 16 U.S.C,

§ 460ff, and the Secretary of the

United States Department of

Interior is vested with wide

scenic easements or such other

interests jeneateg fee titles]

as, in his ffudgment are necessary

for the p rpeses of the recreation

area," 16 U.S.C. § 460ff-1(c),

(emphasis added), neither this

e@ court nor the plaintiffs can

substitute judgment for the

a Secretary's determination to

acquire fee title through the use

of the statutory eminent domain

power. Accordingly, the plaintiffs’ ‘

Claim that the Secretary's use of G

the eminent domain power is in se u

violation of the Due Process Clause <<!

of the Fifth Amendment is without

merit. See: Berman v. Parker, supra.

A-17

See tS Tie

A similar disposition is

required of the plaintiffs' claim

that the defendants may only

; institute eminent domain proceedings

a against a fee title owner who

4 resides in the CVNRA when it is

shown that the property is needed

for direct park.visitor use, such

as a tangible park facility.

Althought the plaintiffs mount an

i? elaborate argument premised on the

legislative history of the CVNRA

Act, it is unnecessary for this

court to address that concern

in light of the unambiguous grant

of power to the Secretary. With

respect to "improved property"

under 16 U.S.C. § 460ff-1(c), "the

Secretary may acquire scenic

easements or such other interests

as, in his judgment, are necessary

for the purposes of the recreation

area." As noted above, there can ?

be no doubt that fee title ?

acquisition is encompassed by "such

other interests." In any event,

the legislative history of the Act

does not support the plaintiff's

claim. In pertinent part, the

legislative history of the CVNRA

provides as follows:

A-18

The use of scenic easements

should also be a major part of

the land acquisition program

for the area. The intent here

is to allow fee acquisition

to be concentrated in those

areas needed for direct visitor

use, while acquisition funds

can be spent to protect a

larger surrounding area through

easements than would be

possible by using the same

dollar amounts for the

acquisitions.

U.S. Code Cong. and Admin. News, p.

6655 (1974). (Emphasis added).

@ Furthermore:

The [annual acquisition program

report, required by § 460ff-

2(a)] should reflect the intent ,

of the Committee that the use

of scenic easements should be

an important feature of the

land acquisition program for

r the recreation area. To

achieve the maximum degree of

protection for the valley with

: the authorized funding, the

a Secretary should plan to emphasize

ee Sg

as ™ 5,45>".

. ae a ee

Fee aquisition in the areas

directly needed for public use,

while easements are used to

preserve the character of the area.

Id., p. 6657. (Emphasis added).

Clearly, the "emphasis" or

"concentration" on fee acquisitions

in areas needed for direct park

visitor use cannot be construed to

limit the Secretary's statutory

eminent domain power to instances

when acquisition of fee title is

only needed for direct park visitor

use. Indeed, the only reason for

inclusion of the "emphasis" and/or

"concentration" language in the

legislative history is the

recognition of budgetary constraints

in establishing the CVNRA. Upon

examination, this court holds that,

contrary to the plaintiffs' claim,

the legislative history of the

CVNRA Act supports the findings

made above regarding Congressional ‘

reliance on the professional . fe

judgment of the Secretary with 3

respect to acquisition of fee ‘§

titles to those properties

necessary to fulfill the purposes

of the CVNRA. Therefore, the

Secretary need not establish

A-20

that properties scheduled for fee

acquisition are required for a

direct park visitor use prior to

the invocation of his statutory

eminent domain power. Indeed, the

Secretary need not establish that

fee acquisition in necessary for

direct park visitor use at any

time.

As noted above, the plaintiffs

also contend that even if the

defendants acquire fee title under

16 U.S.C. § 460ff-1(c), they can

only do so subject to the owner's

rights to elect a life estate or a

term of years less than or equal to

twenty-five (25) years under 16

U.S.C. § 460ff-1(f). In pertinent

part, 16 U.S.C. § 460ff-1(f)

provides that "[t]he owner of an

improved property...on the date of

its acquisition, as a condition of

such acquisition, may retain for

himself, his heirs, and assigns a

right of use and occupancy of the

improved property for noncommercial

residential or agricultural

purposes, as the case may be, for a

definite term of not more than

twenty-five years, or for his life,

or the life of his spouse,

whichever is later." The statute

further provides that "[t]he owner

shall elect the term to be

A-21

» a

AY t.5 a

eae

reserved." In their motion for

summary judgment the defendants do

not dispute the fee owner's

retention rights once fee title is

- acquired through the statutory

eminent domain power. Since the

defendants concede that once the

property is acquired, the owner, if

he so desires, may exercise his

retention rights, there is no issue

before the court in regard to

retention rights on which a ruling

is necessary.

Accordingly, the defendants’

joint motion for summary judgment

on the plaintiffs' first claim is

granted. Fed. R. Civ. P. 56.

See: Smith v. Hudson, 600 F.2d 60

(6th Cir.), cert. denied, 444 U.S.

986, 100 S. Ct. 495 (1979).

The plaintiffs' second

contention may be divided into two

parts: first, the plaintiffs claim

that the defendants' land acquisition

plan is not supported by a

reasonable, detailed or lawfully

prepared EIS in violation of the

National Environmental Policy Act.

42 U.S.C. § 4331 et seq. For the

reasons which follow the court

holds both of these claims are

without merit.

A-22

16 U.S.C. § 460ff-5(b) provides

in pertinent part:

Within one year from the

date of establishment of the

at recreation area pursuant to

S sections 460ff to 460ff-5 of

this title, the Secretary

‘ shall, after consulting with

"4 the Governor of the State of

2 Ohio, develop and transmit to

3 the Committees on Interior and

Insular Affairs of the United

= States Congress a final master

plan for the development of the

recreation area consistent with

>, the objectives of sections

= 460ff to 460ff-5 of this title,

indicating:

(1) the faclities needed to

accommodate the health,

safety, and recreation

needs of the visiting

public;

(2) the location and estimated

cost of all facilities;

and

A-23

(3) the projected need for any

additional facilities

within the area.

(Emphasis added).

Clearly, 16 U.S.C. § 460ff-5(b)

requires the Secretary to "develop

and transmit to the Committees on

Interior and Insular Affairs...a

final master plan for the development

of the recreation area consistent

with the objectives of sections

460ff to 460ff-5..." In response

to this requirement, the National

Park Service submitted a "Draft

Management Plan" for the CVNRA on

June 25, 1976. A final version of

the plan was issued in July 1977. F

In both form and content the two

plans are the same and no indication

exists that the Committees on

Interior and/or Insular Affairs

were dissatisfied with them.

A-24

a Fe el eas Aili De ie ar | as = ithe aoe

16 U.S.C. § 460ff-5(b) makes no

reference to the Secretary's

statutory power of eminent domain

under 16 U,S.C. § 460ff-1(c). The

legislative history of 16 U.S.C. §$

ay 460ff-5(b) reveals that the "Final

| Master Plan" was only to serve as ,

an informational source to

Congress:

‘

4 In addition, the Secretary is

a to prepare and transmit to the

appropriate Committees within

one year from the date of

establishment of the recreation

area, a master plan for

development of the area

consistent with the objectives

of the bill. This plan is to

include descriptions, locations,

and estimated costs of all such

facilities, as well as the

projected need for any

additional facilities. Further

development authorizations may

then be based on the information

developed through this plan.

The short deadline for

submission of this plan is in

recognition of the previous

work done at the State and

local level, particularly

in working with the Bureau of

Outdoor Recreation in planning

for the protection and use of

the valley, as well as prior

National Park Service feasibility

studies. These planning

efforts should be the basis for

preparing a plan which takes

into account the recreational

efforts in the surrounding

jurisdictions. The plan could

then give special attention to

items such as transportation

systems for the area.

The legislative history of 16

U.S.C. § 460ff-5(b) provides no

indication that Congress intended

the adequacy of the master plan to

serve as a legal standard upon

which a homeowner in the CVNRA

could challenge the Secretary's

eminent domain decisions or upon

which the judiciary could review

them. In any event, such a

judicial action would be contrary

to the holding of Berman v. Parker,

supra. If, in enacting the CVNRA

Act, Congress had intended the __

Master Plan required under 16

U.S.C. § 460ff-(b) to be open to

challenge by private property

owners alleging deficiencies and/or

subject to judicial review

A-26

Sate Set hoes. Se - R

in the federal courts, such

purposes and powers would have been

expressly set forth in the Act.

Since they were not so expressed

this court will not imply them.

Accordingly, the defendants joint

motion for summary judgment claim

that the defendants' land acquisition

plan is in violation of, 46 U.S.C.

§460ff-5(b) is granted.

10. In light of this court's

holding that the requirements

of 16 U.S.C. § 460ff-5(b) do

not invest the plaintiffs with

a right of action in regard to

the Secretary's use of the

statutory eminent domain power,

their contentions with regard

to the "detailed plan" required

under 16 U.S.C. § 460ff-2(a),

infra, are untenable. Once

again, there is no indication

that the Committees on Interior

and/or Imaular Affairs were

dissatisfiet-with the reports

submitted by the National Park

Service in accordance with this

statute. 16U.S.C. § 460ff-

2(a) provides as follows:

A-27

te ; f

ae ee

10. (Continued )

Within one year after

December 27, 1974, the

Secretary shall submit, in K

writing, to the Committees a

on Interior and Insular ~*q

Affairs and to the 1

Committees on Appropriations “4

of the United States ,

Congress a detailed plan a

which shall indicate: ee

. (i) the lands and areas

S which he deems

‘ essential to the :

protection and public ,

enjoyment of this

recreation area,

(ii) the lands which he

has previously

acquired by purchase,

donation, exchange,

oe. i or transfer to the

“4 purpose of this

recreation area, and

(iii) the annual acquisition

program (including

the level of funding)

which he recommends

for the enusing five

fiscal years.

(Emphasis added.)

A»28

The plaintiffs' final contention

is that the defendants’ land

acquisition plan is not supported

by a reasonable, detailed or

lawfully prepared EIS in violation

of the National Environmental

Policy Act. 42 U.S.C. § 4331

et seq. For the reasons which

follow the court holds that this

issue must be resolved in favor of

the defendants.

The National Environmental

Policy Act of 1969, (hereinafter,

NEPA), was enacted by Congress for

the purpose of protecting the

environment in the United States.

The Act's broad goals are contained

in 42 U.S.C. § 4331(a) whitch

provides as follows:

The Congress, recognizing the

profound impact of man's

activity on the interrelations

of all components of the

natural environment, particularly

the pl eg influences of

population growth, high-density

urbanization, industrial

expansion, resource exploitation,

and new and expanding technological

advances and recognizing

further the critical importance

of restoring and maintaining

environmental quality to the

overall welfare and development

A-29

Are +

(

es 4

atte OE Rs re eee, Eee ee

hed

vf a

- hve

: &s

of man, declares that it is the

continuing policy of the

Federal Government, in

cooperation with State and

local governments, and other

concerned public and private

organizations, to use ali

practicable means and measures,

including financial and

technical assistance, in a

manner calculated to foster and

promote the general welfare, to

create and maintain conditions

under which man and nature can

exist in productive harmony,

and fulfill the social,

economic, and other reqirements

of present and future generations

@ of Americans.

al Under 42 U.S.C. § 4332(2)(c),

Ss all agencies of the federal

a government are required to “include

in every recommendation or report

on proposals for legislation and

other major Federal actions

significantly affecting the quality

of the human environment, a

detailed statement," setting forth

"(i) the environmental impact of

the proposed action, (ii) any

adverse environmental effects which

cannot be avoided should the

proposal be implemented, (iii) alter-

A-30

natives to the proposed action,

(iv) the relationship between the

local short-term uses of man's

environment and the maintenance and

enhancement of long-term productivity,

and (v) any irreversible and

irretrievable commitments of

resources which would be involved

in the proposed action should be

implemented.” Clearly, the purpose

of an EIS is to provide a review

mechanism by which agency officials

can avoid potentially serious

environmental effects of agency

action.

By its very terms, NEPA applies

to all federal age~cies. 42 U.S.C.

§ 4332 provides:

The Congress authorizes and

directs that, to the fullest

extent possible: (1) the

policies, regulations, and

public law of the United States

shall be interpreted and

administered in accordance with

the policies set forth in this

chapte™...

Although no exceptions are

provided by the statute, courts are

divided on the question of whether

an alleged failure to satisfy the

requirements of NEPA constitutes a.

valid defense to an eminent domain

action instituted by an agency of

t the federal government. Compare:

| United States v. 255.25 Acres

of Land, 553 F.2d 571 (8th Cir.

fs 1977); United States v. 178.15

Acres of Land, 543 F.2d 1391 (4th

Cir. 1976); United States v.

45,149.58 Acres of Land. 455 F.

Supp. 192 (E.D. N.C. 1978);

United States v. Three Tracts of Land,

377 F. Supp. 631 (N.D. Ala. 1974),

for the proposition that failure to

comply with the requirements of

NEPA is not a defense; with

United States v. 18.2 Acres of Land,

442 F. Supp. 800 (E.D. Calif.

1977); United States v. 247.37 Acres

a >

“TY

Pe ee

Paes gee

Se Ee Bs Fe

of Land, 3 ERC 1098 (S.D. Ohio i

1971): Gibson v. Ruckelshaus, 3 ERC a

1028 (E.D. Tex. 1971), for the | ‘

proposition that failure to comply phe

“a with the requirements of NEPA isa , “sf

x’ valid defense. See generally: ;

United States v. 0.16 Acres of Land, ‘

; 517 F. Supp. 1115 (E.D. N.Y.

1981). This court concurs

A-32

with the following reasoning

employed in United States v.

18.2 Acres of Land, supra, 442 F.

Supp. at 807:

The United States contends that

the mere taking of title cannot

be said to have any effect on

the environment. However, in

order for a taking to be valid,

it must be for a public use.

Thus, a condemnation action, by

its very nature, is a decision

to put land to a certain public

use, which may have a significant

effect on the environment. The

taking and the use cannot be

viewed separately: either the

taking is for a public use,

which requires NEPA evaluation,

or it is not for a public use,

in which case it is an improper

exercise of eminent domain....

This court does not intend

to suggest that the government

must prepare an n con-

junction with every attempt to

condemn property for blic

for th tt

use, or even, at matter,

than an BIS is required in this

case. 1t is sufficient at

A-33

CO ee a aD gg a

“ 4

eka

- .

eh ue

wi; ¢

Bhs

ug PC

“TAS

this point to hold simply

that the decision to condemn

land for a public use, just

like any other federal agency

decision, is sur aect to the

application o : ether a

Or not an environmental Impact 13

Statement is required will still |

turn, as it does in any other

context, on whether or not the

agency's action is a major

federal action significantly

affecting the environment.

(Emphasis added).

» ;

ad fo Siw

In City Blue Ash“. McLucas,

596 F.2d 709 (6th Cir. 1979), the

Sixth Circuit Court of Appeals in

confronting a NEPA issue. found that

"fclourts which have sought to

define “major federal action" have

done so in terms of such requirements

as "substantial planning, time,

resources, or expenditure." 596 q

F2d at 711. (Citations omitted).

It is clear, however, that "mere ;

neighborhood opposition to federal |

action" does not mandate that an 4

EIS be prepared. Cobble Hill Ass'n, +2

v. Adams, 470 F. Supp. 1077, 1087 53

a ee Se be ee

N. 6 (E.D. N.Y. 1979). See Also;

State v. Andrus, 483 F. Supp. 255

(D. N.D. 1980). See generally;

Sierra Club v. Hassell, 636 F.2d

1095 (5th Cir. 1981). Since

creation and maintenance of the

CVNRA has required a great deal of

planning, time, resources and

expense, this court holds that the

Secretary's land acquisition plan

constituted "major federal action"

and, therefore, was subject to

“complying with the requirements of

NEPA. For the reasons which follow

the court further holds that the

Secretary so complied.

Rather than file an EIS

delineating its plans for the

CVNRA, the National Park Service

published a "negative statement" in

the Federal Register. This

statement provided that the

National Park Service has determined

that its plan for the CVNRA would

not have a significant environmental

impact and, therefore, no EIS would

be prepared. At the same time the

National Park Service made

available to the public an

"Environment Review" and an

"Environmental Assessment." The

latter document consists

A-35

ol ae wl

, wa

of 266 pages and provides a

detailed examination of three

alternative proposals for development

of the CVNRA. With respect to each

of the three alternatives, the

"Environmental Assessment"

addresses numerous effects of park

visitors as well as other agency

actions on: (1) the natural

environment, including soils,

waterways, vegetation, wildlife,

air quality and noise; (2) cultural

resources, including, protection

for historic structures; (3) the

socio-economic environment,

including recreational activities

and the development of local

communities; and (4) existing

features and developments in the

Cuyahoga Valley, such as impacts on

roads and highways. The "Environmental

Assessment" also addresses:

(1) unavoidable adverse impacts;

(2) irreversible and irretrievable

commitments of resources; (3) mitigating

measures; (4) the relationship to

short run uses of the environment;

and (5) the maintenance and

improvement of long run productivity 5

for each of the three alternatives ra

considered. ,

“,

Pica Z

x nV eda Rees Dy

It is well established that the

decision as to whether and EIS need

be prepared for a particular

federal action lies with the

federal agency implementing such

action. Hanley v. Kleindienst, 471

he F.2d 823, 828 (2d Cir. 1972),

cert. denied, 444 U.S. 1073, 100 S.

Ct. 1019 (1980); Mid-Shiawassee County

Concerned Citizens v. Train, 408 F.

Supp. 650 (E.D. Mich. 1976),

aff'd., without opinion, 559 F.2d

E 220 (6th Cir. 1977). The National err

BA; Park Service made such a decision

4 @ when it published its "negative

=e statement" in the Federal Register. .

i Therefore, the determinative Z

oe question presented to this court is

* whether the decision of the

; National Park Service was warranted.

Resolution of this issue, however,

initially requires an analysis of

the proper “rohiee. to be applied

on judicial review.

In Vermont} Yankee Nuclear

Power Corp. v. NRDC, 435 U.S. 519,

558, 98 S. Ct. 1197, 1219 (1978),

the United States Supreme Court

held that although NEPA established

“significant substantive goals for

the nation," it imposed duties on 7a

federal agencies that are “essentially ee

procedural." Subsequently, in 2

Stryker's Bay Neighborhood Council, Inc.

bi v.-Karlen, 444 U.S. 223, 226, 100 S.

: Ct. 497, 500 (1980), the Court held

i that a federal agency, in

selecting a course of action, need

not “elevate environmental concerns

over other appropriate considerations."

¢ Indeed, the Court further held

that, [o]ln the contrary, once an

agency has made a decision subject

to NEPA's procedural requirements,

the only role for a court is to

insure that the agency has

considered the environmental

itself within the area of discretion

of the executive as to the choice

of action to be taken'." Stryker's

Bay Neighborhood Council, Inc. \

v. Karlen, supra, 444 U.S. at 226,

227, 100 S. Ct. at 500. Concerning

the scope and standard of judicial

review, the holdings of Vermont Yankee

and Stryker's Baywere succinctly

integrated by the First Circuit

Court of Appeals in Grazing Fields

Farm v. Goldschmidt, 626 F.2d 1068,

A-38

1071, 1072 (1st Cir. 1980) in which

the court reasoned:

-.-There are two aspects to a

court's review of an agency

decision subject to the

requirements of NEPA. First,

the court makes a substantive

review of the agency's action

to determine if such action is

arbitrary and capricious under

the Administrative Procedure

Act, 5 U.S.C. § 706. This

substantive review, although

conducted on the basis of the

entire administrative record,

is quite narrow in scope. The

court should only assure itself

_ that the agency has given good

faith consideration to the

environmente1l consequences of

its actions and should not pass

judgment on the balance struck

by the agency among competing

concerns.

(Citation omitted). (Footnote

@ omitted). See also: Commonwealth

of Kentucky v. Alexander, 655 F.2d

et ee Le

714 (6th Cir. 1980); Warm Springs

Dam Task Force v. Gribble, 612 F.2d

1017 (9th Cir. 1980). See generally:

Citizens to Preserve Overton Park, Ine.

v. Volpe, 401 U.S. 402, 91 S. Ct.

814 (1971).

Accord: Clark Park Citizens for

Action v. City of Detroit, 503 F.

Supp. 1099 (E.D. Mich. 1980); Mid-

Shiawassee County Concerned

Citizens v. Train, supra.

",..second, a reviewing court

must assess the agencies

compliance with the duties NEPA

places upon it. These duties

are ‘essentially procedural.'"

11. 5 U.S.C. § 706 provides as

follows:

To the extent necessary to

decision and when presented, g

the reviewing court shall y

decide all relevant questions ea

of law, interpret constitutional

and statutory provisions, and 3

determine the meaning or ie

applicability of the terms of “f

an agency action. The a

reviewing court shall-- sf

A-40

(1)

(2)

fea Te Pee Sa Os

»o

» i>"

icy

~ .

(Continued )

compel agency action

unlawfully withheld or

unreasonably delayed; and

hold unlawful and set

aside agency action,

findings, and conclusions

found to be--

(A) arbitrary, capricious,

an abuse of discretion,

or otherwise not in

accordance with law;

(B) contrary to constitutional

right, power,

privilege, or

immunity;

statutory jurisdiction,

authority, or

limitations, or short

of statutory right;

(D) without observance of

procedure required by

law;

Meo 4 Aken

TT. (Continued) rf

(E) unsupported by

substantial evidences

in a case subject to

sections 556 and 557

of this title or

otherwise reviewed on

the record of an

agency hearing

provided by statute;

;

‘

(F) unwarranted by the

facts to the extent

that the facts are

subject to trial de

@ novo by the reviewing

court.

tN aly

In making the foregoing 4

determinations, the court shall

. review the whole record or :

, those parts of it cited by a ;

: party, and due account shall be i

F @ taken of the rule of prejudicial ‘ug

error.

A-42

fe rae Or eae ess

“

Qe ee Sy aS eM fe aha pee ee ee ee ee

‘7 ? f . ana . ; 5

Grazing Field Farm v. Goldschmidt,

supra, 626 F.2d at 1072. (Citation

omitted). As noted above," [t]he

primary procural mechanism embodied

in NEPA is the requirement that an

agency prepare "a detailed

statement" discussing inter alia,

"alternatives to the proposed

& action," 42 U.S.C. § 4223(2)(c)."

Id. Simiarly, when an agency

concludes that an EIS is not

required, its conclusion must be

supported by a statement of SS

adequate reasons. Mt. Airy .

@ Refining Co. v. Schlessinger, 481

F. Supp. 257 (D.D.C. 1979).

In their brief in support of

a their joint motion for summary

i judgment the plaintiffs argue that

the preparation of an EIS for the

CVNRA was_necessary for two )

@ reasons: (1) the CVNRA will have a q

dramatic socio-economic impact on

the residents of the Cuyahoga

Valley; and (2) the CVNRA is a

"controversial" project.

“A

i“

ah a eye APS. tree

“

2 et eto n> j bis

Se OA NS ig, ee a?

er ty :

ue Ok os Se Se |

PONG ee

. ee Coe

wi fas b Sara |

A-43 te °

vf pels

Lee &

J whe

hoe

hey

‘

aan

In Breckenridge v. Rumsfeld,

$ 537 F.2d 864 (6th Cir. 1976),

‘ cert. denied, 429 U.S. 1061, 97S.

Ct. 785 (1977), the plaintiffs

, challenged a decision of the United

States Army to reduce jobs and

transfer personnel from a military

base located in Lexington, Kentucky

on the ground that the decision had

been made without preparing an EIS.

The district court enjoined the

proposed transfer until a formal

EIS was prepard by the Army. The

Sixth Circuit Court of Appeal

@ reversed. The court reasoned that

although NEPA had been construed to

apply to socio-economic impacts

“"beyond...the physical environment...,

this has been done only where there

existed a primary impact on the

< physical environment." Breckenridge

@ v. Rumsfeld, supra, 537 F.2d at

865, 866. The court further found

that "[e]nvironmental goals and wu

policies were never intended to

reach social problems such as those %

: presented here." Id. at 867.

3 (Citation omitted). Clearly, under \§

7 Breckenridge, allegations of #

‘. economic disclocation and the like ,

bs caused by the Secretary's land . “

acquisition practices are not

A-44 he

cognizable under NEPA. It is

equally clear that the Secretary's

acquisition of fee title from a

private property owner has no

effect on the physical or natural

environment. Thus, the plaintiffs’

Claim that an EIS should have been

prepared for the CVNRA on the

ground of socio-economic impact is

without merit.

Similarly, the plaintiffs'

contention that an EIS should have

been prepared because the CVNRA is

a "controversial" project does not

withstand examination. "The

expression 'controversial' relates

to situations where a substantial

dispute exists as to the environmental

effects of the proposed action and

not merely to opposition to the

intended use of the project."

State v. Andrus, supra, 483 F.Supp.

at 261. No such dispute exists in

the present case. Indeed, in light

of the expressed purpose 9s the

court finds any allegations to the

contrary untenable. As noted

above, “mere neighborhood opposition

to federal action" does not mandate

that an EIS be filed.

—

‘

-..

This court has examined in

detail: (1) the briefs in support

of the parties' motions; (2) the

CVNRA "Draft Management Plan" of

1976; (3) the CVNRA "Final

Management Plan" of 1977; (4) the

"Environmental Assessment" for the

CVNRA completed in support of the

decision of the National Park

Service not to file an EIS in 1977;

and (5) the administrative record

on file in this case and holds:

(1) that the National Park Service,

as the delegate agency of the

Secretary of the United States

Department of the Interior, in good

faith, considered the environmental

consequences of the land acquisition

plan deemed necessary for creation

and maintenance of the CVNRA; and

(2) that the decision of the

National Park Service not to file

an BIS was neither arbirtary nor

capricious. Indeed, the court

further holds that the decision as

fully in accordance with law.

See: Stryker's Bay

Neighborhood Council, Inc. v.

Karlen, supra; Vermont Yankee

Nuclear Power Corp. v. NRDC,

supra; Grazing Fields Farm v,

A-46

Goldschmidt, supra; Mid-Shiawassee

County Concerned Citizens v.

Train, supra.

Accordingly, the defendants’

joint motion for summary judgment

is granted and the plaintiffs’

joint motion for summary judgment

is denied. See: Smith v. Hudson,

600 F.2d 60 (6th Cir.), cert. denied,

444 U.S. 986, 100 S. Ct. 495

(1979); Bryant v. Commonwealth of

Kentucky, 490 F.2d 1273 (6th Cir.),

cert. denied, 396 U.S. 990, 90S.

Ct. 480 (1969); Smith v. Huntington

Publishing Co., 410 F. Supp. 1270

(S.D. Ohio 1975), aff'd., without opinion,

535 F.2d 1235 (6th Cir. 1976).

IT IS SO ORDERED.

/s/ John M. Manos

UNITED STATES DISTRICT JUDGE

A-47 y

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

CUYAHOGA VALLEY

HOMEOWNERS AND RESIDENTS

ASSOCIATION, et. al.,

Plaintiffs,

Vv.

CECIL D. ANDRUS,

et. al.,

Defendants

CASE NO. C78-1377

JUDGE JOHN M. MANOS

(Filed April 13, 1982)

ORDER

Pursuant to the Memorandum

of Opinion issued in the above-captioned

case this date the defendants’

joint motion for summary judgment Nee

is granted and the plaintiffs’ ¥

joint motion for summary judgment ‘

is denied.

IT IS SO ORDERED.

fet John M. Manos 4

A-48°

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

CASE NO. C78=-1377

JUDGE JOHN M. MANOS

(Filed May 7, 1982)

CUYAHOGA VALLEY

HOMEOWNERS AND RESIDENTS

Der ASSOCIATION, et. al.

Plaintiffs

Vv.

CECIL D. ANDRUS, NOTICE OF APPEAL

et. al.

Defendants.

hereby notify the Court, and all

parties to this lawsuit that they

are appealing the District Court's

final judgment entered herein on

April 13, 1982 to the Sixth Circuit

Court of Appeals.

% @ The Plaintiffs in this action

) Respectfully Submitted,

/s/ Barton J. Craig

i Barton J. Craig |

<i Attorney for Plaintiffs

is 725 St. Clair Avenue, N.W. |

ie Cleveland, Ohio 44113 |

(216) 696-6971 4

A-49

“- " ~ taal "7 2. oe bee) 43

x Ge av oe -

82-3324

UNITED STATES COURT OF APPEALS "

FOR THE SIXTH CIRCUIT am

a CUYAHOGA VALLEY HOME-

OWNERS AND RESIDENTS

f ASSOCIATION, DAVID

4 HAZELWOOD

et. al.,

a Plaintiffs-

Appellants,

ORDER

(Filed

July 6, 1983)

Vv.

a CECIL D. ANDRUS,

f Secretary of the

i; Interior;

@ WILLIAM H. WHALEN,

5 Director, Department of

the Interior; WILLIAM

BIRDSELL, Supt.

Cuyahoga Valley National

Recreation Area

——O eee eee ee ee Ee ES

Defendants- %

Appellees. .

BEFORE: KEITH and MERRITT, Circuit *

nie

Judges and DeMASCIO*.

The plaintiffs, Cuyahoga Valley

Homeowners and Residents Association,

et. al., brought this class action

seeking injunctive and declaratory

E relief. They sought inter alia a

judicial interpretation of the

extent of the defendants' authority

under the Cuyahoga Valley National

Recreation Act (CVNRA) 16 U.S.C. §

460ff. et. seq. Of particular

concern to the plaintiffs was the

defendants' ability to acquire

single family residential property

; located within the boundaries of

proceedings. Both parties filed

motions for summary judgment. On

April 13, 1982, the Court issued a

\ Memorandum of Opinion granting the

defendants' motion for summary

: judgment.

We On appeal three issues are

c presented for review. The first

¥ issue is whether the district court

: lacked jurisdiction. The second

a issue is whether the district court

4 erred in determining that the Act

| affords the defendants broad ia

My discretion to determine which %

properties should be condemned.

a ¢ : 4-51

The third and final issue is

whether the Act denies plaintiffs

‘ due process of law.

by As a threshold matter, the

} defendants contend that the

| district court lacked jurisdiction.

) The stated basis for jurisdiction

i was 28 U.S.C. §1331 (Federal

Question) and 28 U.S.C. §2201

(Declaratory Judgment Act). The

defendants argue that the plaintiffs

have not asserted a federal

question. Rather they maintain

that the complaint merely alleges a

a While it is clear that the

ij plaintiffs are seeking an interpretation

of a federal statute, their action

appears to be predicated as much

upon an abstract question as upon

an actual controversy. The

difference is a matter of degree.

But, where there is a substantial

dispute touching some real

interest, the case is apnrropriate

for declaratory judgment. C.

Wright, Federal Courts 498 (3rd ed.

; 1976), citing Evers v. Dwfyer, 358

4 U.S. 202 (1958). Because no actual

‘ condemnation proceedings have been

i initiated against these plaintiffs, te

z ‘> . +S. 2 a eee

Se Sk eS oe

= + . «

te See

FE22-2

ms £3? atey

we 2

A-52 a

their action seems a bit premature.

However, given the presence of an

imminent threat, we decline the

defendants’ invitation to dispose

of this case on the jurisdictional

basis.

The plaintiffs' primary

argument involves an interpretation

of the CVNRA, which was passed by

Congress on December 27, 1974.

That Act provides that a certain

body of land located in Ohio and

known as the Cuyahoga Valley shall

be converted into a national park.

The Secretary of the U.S.

Department of the Interior is

authorized, under the Act, to

employ the power of eminent domain

to acquire those parcels of land

required for park use. The Act

also contains certain explicit

restrictions with regard to the

acquisition of residential

properties encompassed within the

definition of "improved property."

16 U.S.C. §460ff-1(e). As defined,

improved property includes "a

detached single family dwelling,

the construction of which [began]

on January 1, 1975, together ‘

with...the land on which the a

dwelling is situated." a

A=-53

Id.

The challenged provision

governing eminent domain states in

relevant part:

With respect to improved

properties, as defined in

section 460ff to 460ff-5 of

this title, the Secretary may

acquire scenic easements or

such other interests as, in his

judgment, are necessary for the

purposes of the recreation

area. Fee title to such improved

properties shall not be

acquired unless the Secretary

finds that such lands are

being used, or are threatened

with uses, which are detrimental

to the purposes of the

recreation area, or unless

such acquisition is necessary

to fulfill the purposes of

sections 460ff to 460ff-

5 of this title. (Emphasis

added.) |

On appeal, the plaintiffs

A-54

argue that the district court erred

by failing to narrowly construe

this controlling statutory

provision. Specifically, they

contend that "improved property"

can only be condemned when its use

is would be "detrimental" to the park

or when it is needed for "direct

visitor use". We disagree.

The district court properly

gleaned the purpose of the CVNRA as

"preserving and protecting the

public use and public enjoyment the

historic, scenic, natural and

} recreational values of the Cuyahoga

. The Act clearly states that the

Secretary may acquire scenic

easements or other interests as, in

his judgment, are necessary. This

, provision obviously vests wide

discretion in the Secretary to

3 domain is appropriate.

“ The judiciary's role in

1 . determining whether the power of

eminent domain is being exercised

¥ for a public purpose is very

” narrow. Berman v. Parker, 348 U.S.

26 (1954). "Once the question of

the public purpose has been decided

the amount and character 3

A-55

of land for the project and the

need for a particular tract to

complete the integrated plan rests

in the discretion of the legislative

branch." Berman, 348 U.S. at 35.

In light of this narrow scope of

review, we find the district court

properly construed the challenged

provision.

Finally, the plaintiffs contend

that the statute violates the due

re process clause. They attempt to

argue that when the government

infringes upon "family needs" and

legislation must satisfy an

especially high standard of review.

See Moore v. City of East Cleveland,

431 U.S. 494 (1977). However,

Moore involved a city ordinance

which restricted the occupancy of a

@ dwelling to family members. The

ordinance also gave a restrictive

definition of "family". The Court

invalidated the ordinance under the

due process clause because the

ordinance only marginally served

the city's legitimate interests.

That decision was firmly based upon

the sanctity of the "family". It

¢: is, therefore, inapposite tc the

present controversy. The Supreme |

Court has stated that when the a

A-56

government condemns property via

eminent domain, the due process

which is owed the property owner is

"just compensation". Berman, 348

: U.S. at 36.

In conclusion, we note that the

Opinion of the Honorable Jenn M.

} Manos comprehenively reviews the

plaintiffs asserted claims. We

find no error in the court's

resolution of the issues presented

below.

Accordingly, the judgment of

the district court is affirmed.

ENTERED BY ORDER OF THE COURT

\; 6 /s/ John P. Hehman

Clerk

A-57

¥. > ietee

CASES DELINEATING THE HIGH DEGREE

OF CONSTITUTIONAL PROTECTION FROM

GOVERNMENTAL INTRUSION AFFORDED FAMILY

“PRIVACY IN THE HOME

See Boyd v. United States, 116

U.S. 616, 622, 625-631, 634-635,

(1886); Adams v. New York, 192 U.S.

585, 598, (1904); Weeks v. United States,

232 U.S. 383, 291-395, (1914);

Gouled v. United States,255 U.S.

298, 307-311, (1921); Amos v. United

States, 255 U.S. 313, 317, (1921);

Hester v. United States, 265 U.S.

57, 59 (1924; Carroll v. United States,

267 U.S. 132, 147-153, (1925);

Agnello v. United States, 269 U.S.

20, 33, (1925); Byars v. United States,

273 U.S. 28, 30, 32-33, (1927);

United States v. Berkens, 275 U.S.

149, 155, (1927) United States v. Lee,

274 U.S. 559, 562-563, 1927);

Olmsted v. United States, 277

U.S. 438, 464, (1928); Go-Bart Co. v.

United States. 282 U.S. 344, 356-

358, (1931); United States v. Lefkowitz,

285 U.S.

A-58

452, 463-464, (1932); taylor

v. United States, 286 U.S. 1, 5-6,

(1932); Nathanson v. United States,

290 U.S. 41, 46-47, (1933);

Davis v. United States, 328 U.S.

582, 592-594, (1946); Harris v.

United States, 331 U.S. 145, 151,

fn. 15, (1947); Johnson v.

United States, 333 U.S. 10, 13-15,

(1948); Trupiano v. United States,

334 U.S. 699, 705-710, (1948);

McDonald v. United States, 355 U.S.

451, 454-456, (majority), 458-460,

69 S. Ct. 194-196 (Jackson,

concurring) (1948); Lustig v. United

States, 338 U.S. 74, 78-80 (1949);

Brinegar v. United States, 338 U.S.

160, 180-181, (Jackson, dissenting)

(1949); United States v. Jeffers,

342 U.S.48, 51-54, (1951);

Silverman v. United States, 365

U.S. 505, 509-512 (1961) ("The Fourth

Amendment and the personal rights

which it secures have a long history.

At the very core stands the right

of a man to retreat into his own

home and there be free from unrea-

sonable governmental intrusion.")

Chapman v. United States, 365 U.S.

A-59

610, 613-618, (1961); Lanza

v. New York, 360 U.S. 139, 143,

(1962); Wong Sun v. United States,

371 U.S. 471, 480, fn. 8, 484-487,

(1963); Ker v. California, 374 U.S.

23, fn. 14, (Justice Clark's

Opinion), 47-64, (Justice Brennen's

Opinion) (1963); Fahy v. Connecticut,

375 U.S. 85, 87-92, (1963);

Stoner v. California, 376 U.S.

483, 486-490 fns. 4, 5, (1964);

Clinton v. Virginia, 377 U.S. 158,

(1964); Lewis v. United States, 385

U.S. 206, 213, (Justice Brennan,

concurring) (1966); Hoffa v. United States,

385 U.S. 293, 300-303, (1966);

Camara V. Municipal Court of the City and

County of San Francisco, 387 U.S.

523, 528-534, (1967); See v. City of Seattle,

387 U.S. 541, 543, (1967);

Berger v. New York, 388 U.S. 41,

44, 49-53, 58, 63-64, (1967).

A-60

ie ay 8 fe te ‘ ¢ 7 ee | "5

ithe Ren 2 x Me

a) . y .

“SUPE

AT HIS FEBRUARY 7 ION

TS ARBITRARY

"Q. Is there anything at all, in

the determination to condemn

improved residential property

in fee simple rather than in

scenic easement, that you

@ consider arbitrary?

A. No. Absolute not.

Q. Absolutely not?

A. Absolutely not.

% Yd) Q. Okay. You have taken the

7 position that there is nothing

in the decision to condemn

residential property in fee

simple rather than scenic

easement that you view as

arbitrary?

oT 7a <<

. 7%

A-61

ae "Ds ob eS are Syl at

" Lyte 2)" Fi, cdo tlie age

NE ge en Pe Bee Cte), gered

Right.

Do you recall speaking at a

meeting of the Cuyahoga Valley

Homeowners and Residents

Association on March 23, 1978?

I don't know that specific

date. I know that I have

spoken to them.

It was about that time. And

you were asked questions about,

at that time, the fee simple as

opposed to scenic easement--

taking decisions?

Oh=-huh

Okay.

I may have been.

MR. FRENCH: Do you recall:

THE WITNESS: No, I don't

really recall.

You don't recall being asked

those questions?

No, not specifically.

You don't recall being asked

questions about the fee simple,

rather than the scenic

easement--taking decision?

I could have been. I talk to

gronos three or four times a

week. I get lots of different

question.

You could have been asked?

Let me ask you if this

refreshes your recollection of

what occurred on that evening?

MR. FRENCH. I will object.

(Thereupon, the following

statements were played from a

tape cassette.)

~--"Yes. The actual guiding

light is, as I said, the kind

A-63

»p eit

of Bible that we are using is

the General Management Plan,

which is a master plan.

-.-That, with our planning

team, is what gave guidance in

determining fee and easement;

plus the Law which we have,

which asked us to consider

easement for those single- '

family residential dwellings

whenever possible.

So with park development in

those who lived there at the

time of the law in mind, is how

the determination was made. It

was not blindly considered, as

somebody--some have said 'It is

arbitrary conditions.' It

2 ’

: 6 isn't.

It is in some cases very

arbitrary, based on the plan.

But in no way is it always arbitrary

because a great deal has gone

into this decision.

(The foregoing were played

5: off a cassette tape.)

A-64

4" 4

A 7 ro | j r

a tw Py " tee 4 “ :

><> ~ sais — o 4 A ~

_ ie ee 7 7 7 - ——e” | [PT

THE WITNESS (Birdsell): It

makes a lot of difference, than

taking it out of context.

BY MR. CRAIG:

But you did admit that it was

arbitrary?

Based on the plan.

Based on the plan?

That was my statement"

A-65

TESTIMONY OF WILLIAM BIRDSELL

SUPERINTENDENT OF THE CVNRA AT

HIS AUGUS 979 DEPOS ON

"Q. Okay. Mr. Birdsell, how many

single-family residences, which

constitute improved property,

are located within the Cuyahoga

Valley National Recreation

Area?

A. I have been told, approximately,

and I have never been able to

pin it down because we are

still mapping, but approximately

300.

Q. And how many of those single-

family residences, which

constitute improved property

under the Park Act, have --

A. Pardon me. Let me correct

that. 500 of which 300 have

been acquired.

It is fair to say that there

are 500 single-family residential

improved properties located

within the park?

MR. FRENCH: Objection.

That is a good guess, but I

would not be held to that

figure exactly.

But is it approximately 500?

MR. FRENCH: As of what

date?

MR. CRAIG: As of the date

the Act became

effective

Which Act?

The Cuyahoga Valley National

Recreation Act, 1974.

The original Act. I think that

would be a reasonable figure,

500 as of that date.

Oy ak «

Q. How many of those single-family

r residential improved properties

which existed as of the date of

the effectiveness of the Act

have been acquired by the park

in fee?

MR. FRENCH: Cbjection.

A. Approximately 300.

Q. How many of those single-family

residential improved properties

that have been acquired in fee

condemnation act was filed, to

the best of your knowledge?

A. I don't know.

Q. You have no idea whatsoever?

® A. No, because there are different

condemnation actions, declaration

of taking and complaint

actions, and so I don't know.

A-68

Let me rephrase my question.

Taking into consideration every

single-family residential

improved property that has ever

been ‘dentified as located

within the boundaries of the

Cuyahoga Valley National

Recreation Area since the

inception of that area, how

many single-family residential

improved properties are there?

MR. FRENCH: If you know.

I don't know, but it would be

substantial because of some

recent additions.

How many more than 500 would it

be, approximately?

I don't know. I would guess,

perhaps, double that, maybe

even more.

In other words, the addition is

double the number of single-

family residential improved

properties located within the

Recreation Area?

A-69

Es | A. Yes. Subsequent legislation

added a great many more.

Q. And how many has the Recreation

Area acquired in fee, single-

family residential improved

property, acquired in fee?

A. The figure that comes to mind

is around 300, I believe.

A-70

TEXT OF LETTER FROM CONGRESSMAN

IMMEDIATELY DISMISS ALL PENDING FEE

~~ RESIDENCES IN THE CVNRA.

United States Senate

Committee on the Judiciary

Washington, D.C. 20310

March 14, 1980

William J. Whalen, Director

National Park Service

U.S. Department of the Interior

Washington, D.C. 20240

Dear Mr. Whalen:

Having reviewed the impact oi

recent developments on the land

acquisition program in the Cuyahoga

A-71

Valley National Recreation Area,

there are several facts that are of

immediate concern to us.

First, rapidly rising land

values have substantially increased

the cost of acquiring land for the

park. Now, funds available for

National Park Service land

acquisition in FY 81 are expected

to be severely reduced as part of

the strenuous effort being made to

bring the Federal budget into

balance. Moreover, as you know,

some residents in the park have

voiced strong objections to the

prospective purchase of fee title

to their homes.

With these concerns in mind, we

recommend that the National Park

Service thoroughly reevaluate its

land acquisition program in the

Cuyahoga Valley National Recreation

Area and, in the meantime that all

individual residents whose land is

subject to complaint action be

notified that suit will be

suspended or dropped unless the

resident expressly requests

completion of the complaint action.

A-72

While we regret that these

circumstances may slow the complete

development of this magnificent

recreational asset for the people

of Ohio and the nation, we

recognize that the battle against

inflation must have priority over

other programs and that this is an

appropriate time to reevaluate the

ie land acquisition program in

Cuyahoga.

Sincerely,

es @ /s/ John Sieberling /s/ Howard Metzenbaum

John Sieberling Howard Metzenbaum

A-73

FIFTH AMENDMENT TO THE UNITED

No person shall be held to answer

for a capital or other infamous

crime unless on a presentment or

indictment of a grand jury, except

in cases arising 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

offense 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, liberty. or

property, without due process of

law; nor shall private property be

taken for public use without just

compensation.

28 U.S.C. § 1254:

Cases in the courts of appeals

maybe reviewed by the Supreme Court

by the following methods:

(1) By writ of certiorari granted

upon the petition of any party

to any civil or criminal case,

before or after rendition of

judgment or decree;

A-74

(2) By appeal by a party relying on

a State statute held by a court

repugnant to the Constitution,

treaties or laws of the United

States, but such appeal shall

preclude review by writ of

certiorari at the instance of

such appellant, and the review

on appeal shall be restricted

to the Federal questions

presented;

(3) By certification at any time by

a court of appeals of any

question of law in any civil or

criminal case as to which

instructions are desired, and

upon such certification the

instructions or require the

entire record to be sent up for

decision of the entire matter

in controversy.

@ 28 U.S.C. 5 1291:

The courts of appeals shall have

jurisdiction of appeals from all

final decisions of the district

43 courts of the United States, the

United States District Csrurt for

the District of the Canal Zone, the

District Court of Guam, and the

District Court of the Virginia

Islands, except where a direct

A-75

PE ae ee

‘s

review may be had in the Supreme

Court.

28 U.S.C. § 1331:

The district courts shall have

Original jurisdiction of all civil

actions arising under the Constitution,

laws, or treaties of the United

States.

28 U.S.C § 2201:

In a case of actual controversy

within its jurisdiction, except

with respect to Federal taxes other

than actions brought under section

7428 of the Internal Revenue Code

of 1954 or a proceeding under

section 505 or 1146 of title 11,

any court of the United States,

upon the filing of an appropriate

pleading, may declare the rights

and other legal relations of any

interested party seeking such

declaration, whether or not further

relief is or could be sought. Any

such declaration shall have the

force and effect of a final

judgment or decree and shall be

reviewable as such.

A-76

a, >

With respect to improved properties

as defined in sections 460ff to

460ff-5 of this title, the

Secretary may acquire scenic

easements or such other interests

as, in his judgment, are necessary

for the purposes of the recreation

area. Fee title to such improved

properties shall not be acquired

unless the Secretary finds that

such lands are being used, or are

threatened with uses, which are

detrimental to the purposes of the

recreation area, or unless such

acquisition is necessary to fulfill

the purposes of sections 460ff to

460ff-5 of this title.

16 U.S.C. § 460ff-1(e)

For the purposes of sections 460ff

to 460ff-5 of this title, the term

“improved property" means: (i) a

detached single family dwelling,

the construction of which was begun

before January 1, 1975 (hereafter

referred to as "dwelling"),

together with so much of the land

on which the dwelling is situated,

the said land being in the same

ownership as the dwelling, as the

Secretary shall designated to be

reasonably necessary for the

A-77

enjoyment of the dwelling for the

sole purpose of noncommercial

residential use, together with any

structures necessary to the

dwelling which are situated on the

land so designated, or (ii) property

developed for agricultural uses,

together with any structures

accessory thereto which were so

used on or before January 1, 1975.

In determining when and to what

extent a property is to be

considered an “improved property",

the Secretary shall take into

consideration the manner of use of

such buildings and lands prior to

January 1, 1975, and shall

designate such lands as are

reasonably necessary for the

continued enjoyment of the property

in the same manner and to the same

extent as existed prior to such

date. In applying this subsection

with respect to lands and interests

therein added to the recreation

area by action of the Ninety-fifth

Congress, the date "January 1, 1978,"

shall be substituted for the date

"January 1, 1975," in each place it

appears.

A-78

16 U.S.C. § 460ff-1(f)

The owner of an improved property,

as defined in sections 460ff to

460ff-5 of this title, on the date

of its acquisition, as a condition

of such acquisition, may retain for

himself, his heirs and assigns a

right of use and occupancy of the

improved property for noncommercial

residential or agricultural

purposes, as the case may be, for a

definite term of not more than

twenty-five years, or, in lieu

thereof, for a term ending at the

death of the owner or the death of

his spouse, whichever is later.

The owner shall elect the term to

be reserved. Unless the property

is wholly or partially donated, the

Secretary shall pay to the owner

the fair market value of the

property on the date of its

acquisition, less the fair market

value on that date of the right

retained by the owner. A right

retained by the owner pursuant to

this section shall be subject to

termination by the Secretary upon

his determination that it is being

exercised in a manner inconsistent

with the purposes of sections 460ff

to 460ff-5 of this title, and it

shall terminate by operation of law

upon notification by the Secretary

to the holder of the right of such

determination and tendering to him

the amount equal to the fair market

A-79

‘as,

value of that portion which remains

e unexpired.

Within one year after December 27, 1974,

the Secretary shall submit, in

writing, to the Committees on

Interior and Insular Affairs and to

the Committees on Appropriations of

the United States Congress a

detailed plan which shall indicate:

(i) the lands and areas which he

deems essential to the

protection and public enjoyment

(ii) the lands which he has

previously acquired by

purchase, donation, exchange,

or transfer for the purpose

this recreation area, and

(iii) the annual acquisition

funding) which he recommends

for the ensuing five fiscal

years.

It is the express intent of the

Congress that the Secretary should

substantially complete the land

acquisition program contemplated by

| sections 460ff to 460ff-5 of this

4 title within six years after

.. December 27, 1974.

A-80 ;

‘

~ . '

¢ PA ( See ey ee :

ee ee Te ee nee eT

ry 16 U.S.C. § 460ff-5(b)

For the development of the

recreation area, including

improvements of properties acquired

for purposes of section 460ff to

460ff-5 of this title, there is

authorized to be appropriated

not more than $13,000,000. Within

one year from the date of establishment

of the recreation area pursuant to

sections 460ff to 460ff-5 of this

title, the Secretary shall, after

consulting with the Governor of the

State of Ohio, develop and transmit

to the Committees on Interior and

Insular Affairs of the United

@ States Congress a final master plan

. for the development of the

recreation area consistent with the

objectives of sections 460ff to

460ff-5 of this title, indicating:

(1) the facilities needed to

accommodate the health, safety,

and recreation needs of the

@ visiting public;

(2) the location and estimated cost

of all facilities; and

(3) the projected need for any

additional facilities within

the area.

A-81 .

CERTIFICATE OF SERVICE

Three copies of the attached

Petitition for Certiorari and

Appendix were served on the

attorney for all defendant

respondents by regular United

States mail on or about September 20, 1983

at the following address:

Richard J. French

Assistant U.S. Attorney

1404 East 9th Street

Suite 500

Cleveland, Ohio 44114

Attorney

Pla

tiffs (/

725 St. Clair Ave., N.W.

Cleveland, Ohio 44114

6 (216) 696-2100

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.