# Petition — Cuyahoga Valley Homeowners & Residents Ass'n v. Secretary of the Interior > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0519%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 1008 ## Text @ 8 3 a 5 2 Q wearer en US. 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 : V. 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 ii a 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. . iv . A-61 . 4-66 . A-71 28 28 28 28 28 16 16 16 16 U.S.C. U.S.C. U.S.C. U.S.C. U.S.C. U.S.C. U.S.C. U.S.C. U.S.C. am + CERTIFICA § § Y ‘ § § § § § g 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 4 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 31 2, 39, 41-41 45, 47, 48 43, 44, 45 .38 44, 45 16, 38 ze, 13-15, 38 3 Washington Market Compan “ v. Hoffman; TO! U.S. rt (1879) .30 % ‘3 vi * Pa 4 ' - y ‘ . ‘ is so ds ie te a inke dic Bae o ae 9° - oom ss OS Oe aa, R ae Lh: * ae: lal pt “ ah his - - ca a. * s pe on pee a On ae eS ea ee ee at eee eee Ay Ee a et EO Re me ey, hens, ee ee ee ir © a? eS = 7 a . B ‘ ‘wat b> % any co 4 ” f 3 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 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 18 q ‘ _ 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 © Or abuse of the homeowners who 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 © reads: "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 : ee 19 - “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’ 20 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. 21 " : : , nt 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 22 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: 23 (1) ; 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 41 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 42 sen ie : . : % ae Forte Sek “,' Se i : 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 ce ¥ 6 { ms 3 : 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 44 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 45 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 46 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 47 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. 48 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, g 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 = i 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. @ Es 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 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. ". . 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 at Up 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 $e a Ae 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 a CO ee a aD gg a “ 4 os " 4 ¥ ~ Y: eka Ke : - . eh ue wi; ¢ 7 Bhs ug PC wi “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 A. 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 3 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 ye ~y 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 © consequences; it cannot ‘interject 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 x om 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 ¥ %: re » 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; (C) in excess of 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; or | ; R =z ‘ (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 “ 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 1 hoe hey ‘ aan et 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 . +S. 2 a eee Se Sk eS oe ¥ = + . « te See se > ~ 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 ' © River..." 16 U.S.C. § 460ff-1(c). . 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 ‘ © determine when the use of eminent 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 © "family values" the impinging 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 <> ~ 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. ay 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 © have been acquired after a 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 FF 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 faie. © has deleted a great number and 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 Y ~~ 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 © of appeals to be invalid as 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 © Supreme Court may give binding 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 2 iB ‘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, > 2 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 is ‘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 © of this recreation area, (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 © program (including the level of 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 ; ‘ a ~ . ' ¢ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0519%3A1. Public record. Not legal advice.