Petition for Writ of Certiorari — Southern Pacific Land Co. v. United States

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FILED

pipe AIT FEB 13.1967

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iain F. DAVIS, CLERK

.* the Sapien Court

CMe |

United States

Ocrosan Term, 1967 . ays oon

no 1059

| Sournern Pactric _ Cian,

_ Petitioner, -

4

Unrrep States or AMERICA,

. Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

| Watrzr H. StamMer ©

\ Member of the Bar of the Supreme

Court of the United States 7)

GaLen McKnicut

| SrverHen Barnett

Epwarp D. Spurcron

700 Guarantee Savings Building

Fresno, California 93721

Roy JERoME

Member of the Bar of the Supteme

Court of the United States

hae es 65 Market Street

‘Ban Francisco, California 94105

Attorneys for Petitioner.

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94108

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INDEX >

Opinions Below : =

Jurisdiction: | cag

: Questions Presented for Review.......- : Lb 3 o

4 Constitutional Provisions and Statutes Involved... me sare ra . 3

| "Statement of the Case....... ee A a | et 4 :

Reasons for Granting Writ of Cortiorazi 8

A, ‘The Decision of the.Court of Appeals Tavelves an Im-

portant Question of Federal Law Which Has Not ae. é

___ but Should Be, Settled by This Court:

B. The Decision of the Court of Appeals Is in ‘Conflict ;

with the Decision of This Court in City of Cincinnati.

v. Vester, 281 US. 439; 50 8.C.R. 860

C. The Decision of the Court. of Avouls Is in | Conflict

with the Decisions of Other Courts of Appeals...

.D. The Court of Appeals Erred in Stating That the District

> -Gourt-Held That There Was No Evidence to Support »

the Allégations of Bad Faith or Arbitrary or Capricious

Conduct

yr

Conclusion

12:

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: gun AUTHORITIESCITED =e

: N ) CASES Pages

: City of Cincinnati v. Vester, 281 US. 439, 50 Sup. Ct.

? 360 ....: i Ae 12, 15, 17,18

- United States v. Carmack. 329 US. 230, 67 Sup. Ct. "252........ Ui

United States ex rel. T.V.A. v. Welch, 327 U.S. 546, 66 Sup. - ae

Ct. 715.,2...: ait

| United ‘States’ v. 4.5538 Aaweet Land , 208. ‘Seo. 127... 15

Seer — ConstiTuTIONAL Provisions.

Constitution of tlie United States: oat |

Amendment i sare sel ae 3, 5, 17

Fourteenth iatealanh _ ‘ a

, 7 ie - STATUTES

Cehinatetion of Beall Sow Sites one Other Uses 40 US.C.A.

See. 257 i

Declaration of Taking Act, US. aa A. See. 258a. 3,4

blic Law 968, 70 U. 8. Stat.\ |, Chapter 939 so 3, 4

28 U.S.C.A.: React er

* See. 1254(1) ..... nies abe ? : 8.

See..1294 econeniesin , eee o- 4

Sees. 1345 and 1358... . sctesceced 4

- "Rule 19(b), ules of the Supreme Court... :

por)

United’ States Court ‘of Appeals

a writ of certiorari issue to review the’ judgment of the

- ported. It is reprinted in the appendix hereto. —

United States

- Ocrozzr.- TeRM, 1967

No.»

emia: Paciric ins Company,

Petitioner,

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Unsere. Srares OF’ AmEnicA,

ee sie _ Respondent.

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Petition for a Writ of Certiorari to the

3 the o. Ninth Circuit .

Petitioner, Southern Pacific Land Company, prays that

United States Court of Appeals for the Ninth Circuit en-

tered in the above matter.

."” @PINIONS BELOW As :

‘The opinion. of the Court of Appeals is reported in 367 \ ‘

F.2d at page 161. It is reprinted in. the appendix hereto. —

-A memorandum opinion of the District Court for the South-

ern District of Califernia, Northern Division, is not re-

ue

Se Ber 2

: "JURISDICTION

This action was. ‘brought by the. United States for the

| taking of property under the power of eminent domain

and for the ascertainment and award of just compensation

to the owners and parties in interest. The appeal was taken .

‘by Southern Pacific Land oo

The judginent of the Coufof Appeals was entered on .

October. 12, 1966. A Petition for Rehearing was filed on

- November 10, 1966, and was denied on November 18, 1966.

The jurisdiction of ee Court is invoked under 28 U.S.C. A. ,

‘Section oe

a QUESTIONS PRESENTED FOR REVIEW

Respondent, United States of. America, Sought to con-

, demn the fee title to lands owned by petitioner, Southern

Pacific Land Company, :for military and naval purposes

- connected with a naval air station at Lemoore, ‘California.:

The undisputed testimony of Mr. F: A. Bantz, the Assistant

Secretary of the Navy, who made the decision ‘to condemn_

these properties and who. prepared and signed the Declara-

tion of Taking, was that the use of any oil, gas or minerals

underlying these properties ‘would be inconsistent with the

military and ‘naval purposes of the air base, that such use

was not contemplated by the Navy, and that. the use of .

_ such oil, gas and mineral Tightg-was i in no way incidental

» to the military and naval purposes for which the pene

‘were condemned. —

Petitioner did not object to: the taking _ of the ‘ities:

rights but did file an answer objecting to the taking of the.

oil, gas and. mineral rights on the ground that such taking

"was not for. the public use authorized apd stated in the -

_ Declaration of Taking and alleging that such taking was .

Lae “unreasonable, capricious, arbitrary and an abuse. of discre- . -

tion, amo’ g toa confiseation of ‘Petitioner’ 8 property

A

wee government to take private property where it is pleaded

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and depriving petitioner of its property without due process.

. of law. The United States refused to present any evidence.

in opposition to these defenses, taking the position that the

District Court had no jurisdiction to review the decision: © _

of the Assistant Secretary of the Navy to take the oil, gas<

; and mineral rights or to pass upon the defenses raised: by :

‘petitioner. The District Court found for respondent, basingg __

its decision entirely upon lack of jurisdiction.-The Court

of Appeals refused to determine. the question of jurisdiction —

but: nevertheless confirmed the judgment of the 1 District nes

Court. The questions presented are: iat 3 eee

1. - Under these circumstances ‘and. under constitutional

- guarantees of due process and the’ protection of’ private

_ property rights, does a federal court have jurisdiction to.

review a decision of an officer of an executive branch of -

that his decision to take the property .is beyond his statu-

- tory authority and ‘is unreasonable, capricious, arbitrary,

in abuse of his discretion, and in bad faith? }

oe Und r these circumstances, are the parties to this |

: action entitled to a final decision of this court on this a :

tion of jurisdiction? ve

” 8. Under these decateilaiedina: was the decision to take

the oil, gas and mineral rights without authority’ or arbi-

: trary or eepriions or.in had-faith or-an abuse of discretion?

‘CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

- Constitution: of United States, Amendment V..”

: Condemnation of Realty for Sites and Other Uses, oe

* 40U.S.C.A., Section 257. . ss I. ;

~ Declaration of » ‘Taking nets: 40 U8.C.A, Seotion ce

Public Law 968, 70 U: S. Stat 991. re h

"(Bee aaah for bai

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oie STATEMENT OF THE CASE

On J anuary 9, 1958, the United States filed a Declaration

ee _ Navy, wherein it was stated that the United States took the

‘purposes for the establishment of a Naval Air Station at

*- Lemoore, Californiq” (Declaration-of Taking, Tr. of Ree.

_#p. 225). The Declaration of Taking was filed. under and by

See virtue of the Declaration of Taking Act (40 U.S.C.A: Sec-

_ Taking to contain “a statement of the authority under which

¢ amd the public use for which said lands are taken.”

_ On the same day, the United States filed a Complaint i in

Condemnation to condemn the fee title in the lands so taken

: plaint i in Condemnation, Tr. of Ree. p: 2). The District Court

had jurisdiction of the action under 28 U.S.C.A. Sections

280. SCA. Section 1294.

“the direction of the Attorney General of the United States

and under the authority of Public Law 968 (United States

_ Statutes, Volume 70, Chapter 939) enacted by the Congress

of the United States on August 3, 1956. The only. authoriza-

tion therein given applicable to this case was to acquire

facilities for a naval air station at Lemoore, California.

_* for any use other than military and naval uses incidental

“* to the establishment of Lemoore Naval Air Station.

_ of Taking signed by F. A. Bantz, Assistant Secretary of the _

" fee title to the lands in question “for military and naval —

tion 258a) which. expressly requires the Declaration of °

. ie the purpose ‘stated in the Declaration of ‘Taking (Com- -

a 1345 and 1358. The Court of Appeels. had: one baa under

—— action was brought at the sn of Mr. Bantz under —

¢ property to tstablish or develop military installations and

Thus, it is cféar that the Assistant Secretary of the Navy- -

_ had no authority to condemn any separate or severable

_ estate in lands-owned by Southern Pacific Land Company |

y)

“Oe March n 18, 1958, Southein Pacific Land Company's an-

_ swered.the complaint, claiming just’ compensation for the —

taking of the surface rights" in said lands but objecting

, -to the taking of the oil, gas and mineral rights on the.

-—~" ground that the taking of those rights was not for the public

2 stated in the Declaration of Taking or necessary for the :

- - needs or ‘Tequirements of the Naval Air Station at Lemoore |

or for any military use incidental thereto, and that the tak-

ing was unreasonable, capricious, arbitrary, an abuse. of

discretion and in violation of the Fifth Amendment to the :

Constitution (Tr. of Ree. p. 360). Southern Pacific Land ©

Company stated its willingness to have any reservation of

the oul, gas and mineral rights in its favor subjected to all

such reasonable limitations or restrictions on the drilling,

_ exploration for or production of oil, gas or minerals as the

United States might see fit to impose during the period of >

time that the land was used by the United States as a Naval .

' Air Station or for any other military use (Tr. of Rec. p. 360).

The United States moved to strike these defenses from

_ the answer upon the ground that the court had-no jurisdic-

tion to review the decision to take or to determine those

defenses (Tr. of Rec. p. 366). The motion was denied. (Tr.

of Ree. p. 383). In denying the motion, Judge Peirson Hall

stated that. “public use” was a judicial question and that

“since the whole includes the sum of all its parts, and since ~

the question of public use can be raised as to the whole

taking, (there is) no reason why it cannot be raised as to

a part of the whole.” Judge Hall further stated that the:

. allegations of the answer that the taking was arbitrary and

_ umreasoffable were ‘sufficient to put the Government to its

proof that the taking was for a public u use Ate. of Ree, p..

384)..

On April 17, 1959," “the United States filed ; a petition es

reconsideration of Judge Hall’s bose: and for a —

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summary judgment (Tr..of Rec. pp. 386-and 388 and p.

* 408). On June 26, 1959, Judge Half filed a memorandum

order putting the motion for summary judgment off calen-.

dar, to be reset after the report of Commissioners appointed

by the court determining the preSence and value, if any, of

oil, gas.and ‘miieral deposits. Judge Hall stated the time

would ‘then be sufficient to consider the issue of public use

_ raised by petitioner (Tr. of Ree. p. 665).

Thereafter the Commissioners were discharged. Judge

M. D. Crocker replaced Judge Hall as the trial judge and

the United States again moved for a reconsideration of

_ respondent’s motion to strike these defenses. This motion

was heard by Judge Crocker and on May 3, 1961, Judge

Crocker made his order denying the motion (Tr. of Rec.

p. 703).

Prior to the trial of the eutinns: scnipciatant ana pietitionor

settled -all issues of just compensation by. a written stipu-

lation fixing the amount of just compensation to be awarded

to Southern Pacific ‘Land Company and providing that the.

fixing of such amount was by way of compromise and settle-

_ ment of that issue alone; that in determining other issues

in the case it should not be presumed or inferred that the

amount so fixed included or did not include any amount for

oil, gas and mineral ‘rights; and that neither the stipulation

-< nor the award of the amount so fixed as just compensation |

_» should be considered as in any way determining whether

. the United States was or was not entitled to take the oil, —

ee gas and mineral rights (Tr. of Ree. p. 714).

The ease went to trial solely on the taking of the'mineral

_ Tights, and at the commencement of the trial the United -

. States Attorney moved that the motion of the United States

_ for a partial summary judgment be placed back on calendar

and determined. The motion for partial summary judgment

was argued at length (R. Tr. Pp. 4-23) and was-denied (Tr,

"sof Ree. p. 726).

Rea DIP ey Ste eS oe

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Neh 7 Vos fade

During the trial the United States Attorney objected at

every stage of the proceedings to all evidence upon the -

subject of the taking of the mineral rights upon the juris- .

dictional ground. The objections were overruled and the

United States Attorney refused to introduce evidence on

behalf of the United States, relying entirely upon hisclaim

that the court had no jurisdiction (BR. Tr. pp. 23, 131 and at

various other stages of the proceedings). —_

Petitioner presented its evidence, including the Néstaiony |

of Mr. Bantz that any exploration for or production of

oil,,gas or minerals on the properties would be inconsistent

- with the military and naval purposes of the air base, that .

no sich use was contempleted by the Navy and that the use

of the oil,-gas and mineral rights was in no way incidental _

© to the military and naval purposes for which the properties

were condemned. At the close of the trial, petitioner again

invited the imposition upon it of such reasonable limita-

- tions or restrictions on the drilling, exploration and pro-

duction of oil, gas or other minerals as the parties by agree-

ment or the court in its discretion might .impose upon it so

long as the lands were used by the United States as a Naval

Air Station (R. Tr. p. 157). The case was submitted to the

court for its decision upon this evidence. | oe

- On’ October 16, 1964, Judge Crocker filed his findings

of fact and conclusions of law wherein he concluded that -

the court had no jurisdiction to review or interfere. ‘with

the decision of the Assistant Secretary of the Navy to

_ take the ol, gas and mineral rights or to pass ‘wpon or

; determine the defenses raised by petitioner to the taking

ofthe oil, gas and mineral rights (Tr. of Rec. pp. 732.

and 737). Based upon this finding and this conclusion,

Judge Crocker rendered his judgment that the entire fee

title to. the lands in question, including all oil, gas and

“8

mineral rights, vested in the United States upon the filing -

of the Declaration of Tdking (Tr. of Ree. pp. 739-743).

It was from this conelusion and this Portion of the

oe ‘that petitionér append.

REASONS FOR GRANTING WRIT OF CERTIORARI

A. ee ee

_ Sean OF renares Sate Nome Sue Met Been, Sat Sheehd Be,

‘Settled by This Court. :

From the commencement of this: action, the United

States has -Telied entirely upon its position that the Dec-.

laration of Taking was final and that the court’ had no

jurisdiction to review the taking or to pass. upon the

allegation that the taking: was in bad faith, arbitrary, ca-

“pricious and an abuse of discretion. Its confidence in this

position and its desire for a final decision to this effect. .

is demonstrated by’ the fact that it stipulated to a judg-————* ~

‘ment fixing the fair market value of the property taken

at $1,250,000. 00 without determining the ownership of

the. mineral rights (which by the undisputed testimony

in the case: were. valued at $229,847. 00), leaving open for :

judicial determination the question of the taking of acetal

rights. j

_ Prior to trial the United States enecboceatelisr filed

successive mofigns based upon the premise that as a

matter of law the court mad no saradietion to review the

. taking.

At the trial the United States again ‘ghides to rely

_ entirely upon lack of jurisdiction and refused to cross-

examine any of petitioner’s. witnesses or to: present. any:

evidence on its own behalf. Obviously, it considered a

final decision’ on this subject of greater iuaportance than

: obtaining the rights somneciven.,

£® .. 7 ‘

Southern Pacific. Land Compariy was equally anxious

also stipulated to the fair market value of the -whole

property, leaving open the question of the court’s juris- .

diction, thereby taking the risk of losing the oil, gas and

'.o mineral rights without further compensation. It then pre-

sented complete evidence in support of its defense, includ-

ing the testimony of the Assistant Secretary of the Navy

before referred to. The entire record is before this Court.

-The District Court joined with the parties in this effort

_ to have a decision in its favor upon this question. ae

to obtain a clear-cut decision on jurisdiction. Its judgment

was based entirely: upon 4n express written finding that

it did not have ‘jurisdiction. It made no finding upon

whether the Assistant Secretary of the Navy acted in —

good faith or whether he. acted arbitrarily or eapriciously :

__or in abuse of his discretion. —

The reason the’ parties and the trial court ‘olsced "$0.

much importance on the final answer to this question is

clear. If the courts have jurisdiction to review an arbi-—

trary, capricious or unreasonable taking of property, the

nei

United States. must always consider the possibility of 2

such a review in making a: decision to take property.

On the other hand, every time such a decision is made

the landowner is faced: with the question of the court’s. :

jurisdiction in determining whether ‘he. can resist the

taking or whether he must accept the decision to take:

regardless of how arbitrary, capricious or unreasonable

it may be. It is essential to both the United States and to

- all owners . of ' private property that the answer ’ to. this

question: be finally determined. ”

_The number of decisions upon the siabiject and’ the

conflict in those decisions demonstrate the unsatisfactory

state of Pe. law. This ontins. is clearly demonstrated

aby the following excerpt from the decision of the Court

_of Appeals in the present case:

“The Government: urges us to adopt. the district —

~. eourt’s holding that when the taking as a whole is |

for an suthorized@public purpose the administrative

‘agency’s decision as to the necessity for taking” par-~

ticular property or a particular interest in ‘Property

is not subject to judicial review. —-.

'" “A. substantial argument can be made for this. “posi-

tion, based upon the Supreme Court’s decision in Ber-

man v. Parker, 348 U.S. 26, 36 (1954), and upon such.

court of appeals decisions as 2953.15 Acres of Land

” y, United States, 350 F.2d 356, 360 (5th Cir. 1965);

United States.v. Mischke, 285. F. 2d 628, 631-33 (8th

Cir. 1961); United States v. Brondum, 272 F.2d 642,

646 (5th Cir. 1959); United States v. South Dakota,

212 F.2d 14 (8th Cir. 1954); United States v. Kansas

City, 159 F.2d 125, 129 (10th-Cir. 1946); and United

States v. 6.74 Acres of Land, 148. F.2d 618, 619-20

(5th Cir. 1945). It is no doubt significant that i in each

instance in which a lower court set aside a federal.

agency’s determination that it-was necessary to take

particular property or a particular interest in prop- —

erty, the lower court’s ruling was reversed on appeal.

* . “But the Supreme Court itself has declined to rule

‘ial the possibility of judicial review where the ad-

ministrative decision to condemn a particular prop-

erty or property interest is alleged to be arbitrary,

capricious, or in ‘bad faith. United States v. Carmack, ;

~ $29 U.S: 230, 243-44 (1946). And various courts of

appeal, including this one, have said that an excep-

- tion to judicial non-reviewability exists in such cir-

cumstances. Simmonds v. United States, 199 F.2d

305, 306-07 (9th Cir. 1952); United States v. 64.88

Acres of Land, 244 F.2d 534, 536 (3rd: Cir; 1957);

United States v. Certain Real Estate, 217 F.2d 920,

926-27 (6th Cir. 1954); United States v. Certain Par- .

eels of Land, 215 F.2d 140, 147 (3rd Cir. 1954); and

ne

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on pe

United States - v. Meigen; 113 F. od 387; 392, (7th Cir,

1940). See.also Wilson v. United States, 350 F.2d 901, .

906-07 (10th Cir. 1965); United States v. 91.69 Acres

of Land, 334 F.2d 229,. 231 (4th Cir... ey ands

' United States v. New Y ork, 160 F2d 479, 480 7

Cir. 1947). Moreover, limited judicial 'r

2 ministrative exercise of

- well be requir tion 10-of the Administrative. -

oe § 1009.” — so

- As above stated, this court has left the question unde-

cided. In its last’ decision in which the question was

raised, United States v. Carmack, 329 U.S. 230, 67 Sup. -

/€t. 252, this court only determiried that the question had.

not been properly placed at issue by the pleadings and

said: eae

“In this case, it is unnecessary to determine whether

or not this selection could have been set aside by the

| courts as unauthorized by. Congress if.the designated

' Officials had acted in bad faith or so ‘capriciously and

arbitrarily’ -that their action was without adequate

determining principle or was unreasoned. The record

presents no such issue here.” (p. 243) .

In the present ease the charge of bad faith and of capri-

cious, arbitrary and unreasonable action on the part of

the Assistant Secretary of the Navy was placed directly

before the Court of*Appeals by the pleadings in the case, —

: by the stipulation - of the parties, by the manner in which

_ thé, case was tried, and by the decision of: the District

Court, and the Court of Appeals actually recognized its

right to pass upon these “charges by reviewing the evi-

- dence and coricluding that Southern Pacific Land Company

‘had failed to prove.that the decision of. the. Assistant

Secretary of the Ne avy was arbitrary, capricious or in

bad faith. If. the courts have no jurisdiction to review. -

4 .

such a a saeatadint the Court of Appeals in “his case ‘had '

no jurisdiction to reach this conclusion.

However, the Court of Appeals expressly stated: that

it “need not decide” the question of jurisdiction and |

expressly left that question open. We respectfully submit

that it was necessary mi the Court of Appeals to decide.

_ this. question | before it) could. review the evidence and: .

determine that the decision of the: Assistant Secretary

of the Navy did not act in | bad faith or arbitrarily or.

e eapriciously.

The decision of the Court of Laeale doce involve’ an —

important question of federal law that a not been, but

should. be, settled Bc snc th court. ,

B. Ths Michie af the Cowra? Aipposia bo ls Conttes Wh 13 =

Se oe ee Pat Cy of Cleat 5. Vester, 231

| US. 439, 50 Sup. Cr. 360. |

In principle, the decision of this court in City of Cin-

cinnati v. Vester, 281 U.S. 439, 50 Sup. Ct. 360, is directly

_ in point in this case. The City of Cincinnati condemned

property for. street widening purposes. The determi-

nation to take the ‘property was by a resolution of the

City council and by this ordinance the city also sought

to condemn a twenty-five-foot width of land adjacent to —

the street which would be beyond the boundaries of the —

street even as widéned and which would. obviously not

be needed for that purpose. A statute required the pub-

o

‘lic body in ‘making such a condemnation to define the

public purpose for which the: appropriation was to be

‘made, The ordinance enacted pursuant to the statute

: stated that the condemnation, including the excess lands,’

was “in furtherance of said widening and necessary for —

the complete enjoyment and preservation of the benefits

: _ $2 selgae fromm the pak wae"

- 18-

‘The Supeesis Court held that ‘under the provisions of

the Constitution protecting the owner of private property

against its taking without, due process: of law, the ques-

tion of public use, ‘must be. and is a judicial one. It then ©

* held that in exercising its- discretion to.declare that a

_« condemnation was for a public use, the condemning author-

ity must’ state the public purpose for which the specific

estate is taken in sufficient detail that a court may properly

pass upon the . Bubjegt, that if excess land not needed for /

the principal purpose is taken the foregoing requirement

_applies to the excess appropriation as well as the princi-

pal appropriation, and that in.the case there under con-

sideration ‘neither the general language used in the ordi-

nance nor. the suggestion by the city that the purposes

of the project: might be advanced by a future sale of the

excess property, was sufficient to ,support the taking. In

‘affirming thé decision’ of the Circuit Court the Supreme

Court said:

“tis well established that i in : acne the appli- |

cation of the Fourteenth Amendment to cases of ex-

propriation . of: private property, the question what.

is a public use is. a judicial one. In deciding such a

question, ‘the Court has appropriate regard to the —

_- diversity of local conditions and considers with great

: respect legislative declarations and in particular the ©

judgments of state courts as to the uses considered

to be public in the light of local Srheaps But the

question remains a judicial one which Court must

decide in performing its duty of enforcing the pro-

visions of the Federal Constitution.” (p.446)

“We are thus asked to sustain the excess “appro-

ae priation in these cases upon the bare statements of

\\ the |resolution and ordinance of the City Council, by

nine Bie piscina every possible, but unde-

i

: oe a =

fined, use to which the City may put these properties,

-and by determining that such use will not be repug- -

nant to the rights sectized to the property owners |

by. the Fourteenth Amendment. We are ‘thus either

to assume that whatever the City, entirely uncon-

_ trolled by any specific statement of its purpose, may

‘decide to do with the propérties appropriated, will —

be valid under -both the state and. Federal constitu-

tions,,or to set up some hypothesis as to use and _ .

decide for or against the taking accordingly, although

the assumption may be found to be-foreign to the

- actual purpose of the appropriation as ultimately dis-

closed ‘and the appropriation may be sustained .

or defeated through a misconception, eat ” (p. 446) |

- “To the end that the taking shall be shown to be

within its authority, the municipality is called upon

- to specify definitely the purpose of the appropriation.

This is. the clear import of the provision of the

Ohio statute (Ohio General Code, sec. 3679, supra) that

the City Council, when it is deemed necessary to

appropriate property, shall pass a resolution ‘defin- .

ing the purpose of thé appropriation.’ It can not be

said that this legislative requirement relates only to

the principal appropriation and nof,to the excess

appropriation. It must be deemed to apply, accord- —

ing to-its express terms, to every appropriation of

private property by a municipality. The importance

- of the definition of purpose would be éven greater

in the case of taking property not directly to .be

occupied by a proposed public improvement than in |

the case of the latter which ‘might more clearly speak

for itself.

“The general declaration of the ‘entiitibi of the | |

City Council, and of the ordinance if that ‘may be

- read with the resolution, for the excess condemna-

tion in the present cases, is plainly not @ definition.

To define is to limit, and that which is left unlimited,

-.and is to be determined only by such future action

af

Le

. ag the City may hereafter. decide upon, is soil defined.

* The City’s contention is so broad that it defeats itself. .

‘It-is not enough that property may be devoted here-

after to a public use for which there could have

been an appfopriate condemnation. Under the guise

‘of an excess condemnation pursuant to the authority |

of the constitutional provision of Ohio, private prop-

- erty could not be taken for some. independent and |

7 undisclosed public use.” (pp. 447-48) pe

In the Cincinnati: case, the city ‘Wicinied to sais Bee

an estate in real property lying horizontally contiguous

to the estate it actually iriten ed to use for a public pur-

pose. In the present. case the United Stafes is attempting

\ 2 condemn an estate in real: property lying _vertically

| contiguous to the estate it.intends to use for the pubfic ..

purpose. There is no logical distinction between the cases.

(See decision of J udge Peirson ‘Hall in denying respond-

ent’s motion to strike defenses: in the case at bar: (Tr. of

Rec. p. 384). See also United States v, 4.5538 Acres of.

Land, 208'F. Supp. 127.)

‘In Cincinnati, a statute required the ait + ‘to state by

ordinance the public purpose for which the property was

to be condemned.- In the present case, the Declaration .

. of Taking Act requires the United States to. state inthe

Declaration of Taking the public purpose for which the

- property was to be condemned.

In Cincinnati, the Supreme. Court held that the city’s

| ‘power to condemn was limited to the purpose stated in

the ordinance. In the Present case, the power-of the United y

States to condemn is limited to the purpose stated in _

the Declaration of Taking and the Assistant Secretary

of the Navy ftankly admits the. oil, gas and mineral —

net were not to me used for that ie

16 pes |

In Cincinnati, the Court exercised its jurisdiction to deny

the taking where the evidence demonstrated that the excess

estate was not required for or taken for the public use

. stated in the ordinance. In the present case, petitioner asks

the Court to exercise its jurisdiction to deny. the taking of

__’ the excess estate where it is not required for and is not

“taken for the purpose stated in the Declaration of Taking.

: In thé present case, the Assistant Secretary of the Navy, _

conceding that the extraction of oil, gas or other minerals: :

would be inconsistent with the establishment of a.naval —

. air station, attempted to justify the taking of those rights

upon the assumption that the ownership of the mineral

rights might enhance the property’s masketability if. some

_ time in the future the Navy no longer.needed the property

for a naval air station and wished to sell it. The United .

‘ States presented no evidence té support this assumption

and the only evidence upon the subject was -the testimony

of Mr. Kenneth R. Evans, above referred to, that out of © tas al

the 37. ‘transfers of property in the area investigated by |

~ ~~him the mineral rights had been severed from. the surface

\

rights by reservations in practically’évery instance. If any © a

_inference at all may be drawn from this evidence it would _

* be that where farming land stich as this is sold in the

ordinary course of business it can be sold at least as easily

without the ‘mineral rights. This would be tru¢ because it

“could be sold for a lower price per acre. We submit that |

a decision to take private property in excess of that re-

quired for an authorized use, which in its very nature

_ ° cannot be used for such authorized use, cannot, be justified

" gapon the “reinote’ possibility that at some time in dis distant —

‘future when and if the purpose for which the property__

_ was condemned no longer exists, the inclusion of the excess

_ preperty might possibly make the entire One moré

fa easily, saleable. *

Liens

7 17 ih. 3

In Cincinnati v.Vestgr, supra, the city sought to justify

: the condemnation upon the ground that the city might

in the future recoup some of the expense of the project

from anticipated increasing vahies of the land. This Court

in that wan said: —

. if the provision means that property may. be

ist ‘for the purpose of selling it at aeprofit and pay-

ing for the improvement it is clearly invalid.’ * (e, 445)

The Court of Appeals ile to distinguish the Cin-

cinuati case by citing the statement of Mr. Justice Black. .

in United States ex rel. T.V.A. v. Welch, 327 U.S: 546 at 552

(66 Sup. Ct. 715) that “the Court’s judgmient in that case _

[the Cincinnati case] denied the power to-condemn ‘excess’

property on the ground that the state law had not authorized =

it.” This is not a distinguishing point in the case at bar..° |

_In the Cincinnati case, the statute did not authorize the

taking for any purpose for which the excess property was

to be used. In the present case, neither the statute nor the

Declaration of Taking authorized the taking for any pur-

pose for which the oil, gas and mineral rights could be used.

It is also claimed that the Cincinnati case is distinguish:

able on the ground that it involved the Fourteenth Amend-

ment rather than the Fifth Amendment. Both Amendments

contain the identical prohibition against. depriving any »

person of property, without due process of law. The Federal

Government has no greater power to deprive a citizen of

_ his property. without due process of law than has.a state

ora municipality. |

It should also be noted that i in the Welch case Mr. Justice

Reed concurred in the decision but refused to join in the.

opinion because it might be construed as holding that “there

is no, judicial review of the. Authority’s determination that -

acquisition of oe —— _— of — property

oo

NS

.

Oy et

©

i 8 18 ve |

_ is within the purposes.of the TVA Act.” Chief Justice

_ Warren agreed with Mr. Justice Reed. Mr. Justice Frank-

furter ‘joined in the, opinion of the Court only upon the

ground that he did not believe it might be’ construed as

- feared fy Mr. Justice-Reed. Mr. J ustice F¥ankfurter stated -

his — as follows:

. This Court has never + devised from the view that

canes the Constitution a claim that a taking is not

‘for public use’ is- open for judicial determination,

_ ultimately by ~ Court.” (p..557)

The Cincinnati case is direct eathesitey, first, that a

federal court will review the decision of a governmental

‘agency to take private property where it appears that the

property cannot be used for the purpose stated in the

statute permitting the taking; and, second, that such a

taking will not be confirmed upon bare statements of

“undefined” ’ or “hypothetical” uses such as were and are

relied upon in thé Cincinnati case and in the case at bar.

Petitioner submits that the decision of the Court of

Appeals confirming the taking of the oil, gas and mineral

_ Tights under the facts and evidence here presented ig in

’ direct conflict with that decision. This conflict constitutes

- an urgent. ground for review by this Court. — Rule

ie of:the Rules of the. eee Court. :

Cc. The-octilen of the Court'el lippoely la ts Contler With the

' - Decisions of Other Courts of Appeals.

. At page 2 of its opinion, the Court of Appeals points. to

” the conflict in the decisions of other circuits concerning the

right of judicial review of the decision of an administrative

- agency to. take particular property in condemnation: The

very conflict between the decisions cited by the Court of —

_ Appeals, taken together with the fact that the Court of ©.

*

SET LILLE LENSE IIE ODE RELL DDG LILLE H TE

. : 19 ‘ ‘

hints does not purport to decide that. conflict but n never-.

_ theless does review the evidence and determine that the

~~decision of the Assistant Secretary of the Navy was not

arbitrary or capricious or in bad faith, constitutes a sep-

arate ground for certiorari under Rule 19 which provides

“that the Supreme Court will consider ‘as a ground for

review ‘on writ of certiorari the fact that the Court of

Appeals has rendered a decision in conflict with decision of

other Courte of Appeals on the same. matter.

!

D. ths Cossk ab Aeppeals Moved Sect Yen is. asian Cone f

_ Held That There Was No Evidence to Support the Allegations

of Bad Faith or Arbitrary or Capricious Conduct.

At page 2 of its opinion, the Court of Appeals states that

the District Court held that there was no evidence to support

an allegation that the. Assistant: Secretary of the Navy .

acted in bad faith or arbitrarily or capriciously. The District

- Court did not so hold. 7

' The decision of the District Court is found in its formal

‘findings of fact, conclusidns-of law and judgment. The

finding upon which the judgment is based was that the court

had no jurisdiction to review the decision of the Assistant

Secretary of. the Navy. Consistent with this finding there

was no finding as to whether that decision was or was

not in bad faith or arbitrary or capricious. |

In its memorandum opinion filed prior to signing and filing

formal findings, the District Court did state in passing —

that it. found no evidence to support the allegations of

bad faith or arbitrary or capricious conduct. The Court

of Appeals-states that it may properly consider this mem-

orandum ‘opinion where it is consistent with the formal

findings. The obvious answer is that in this respect the

“memorandum opinion is inconsistent with the formal find- .

ings. Clearly, any statement of the District Court which .

pve peer rate POTS NL EES LEP OD ALOE R AE TEEPE RID REIL OL OI MO LG

20 see

purports to review the evidence is inconsistent with the

finding that it had no jurisdiction to review that evidence.

| statement quoted by the Court of Appeals he said:

bird no jurisdiction exists to review the Secretary’s ac-

(p. 8)

It should also be oe out that the statetent that

_ ;there was’ no evidence to support the allegations of bad

faith and arbitrary and capricious conduct is not supported

officer of the federal. government decides to take private

property knowing that its use is completely incompatible

with the use for which he i is authorized to take the property,

and testifies that the: United States has no intention of

using the property for that purpose; and the United States

then attempts to justify the taking solely upon the groun

that there is no limitation upon ‘its power to take, that

the court has no jurisdiction to protect the landowner, and

that such.a taking is no business of the court, there.is

evidence that the taking was in bad faith and was arbitrary

and capricious. To -hold to the contrary is to ignore the

record.

The District Judge understood this because in making the —

-. however, since it is the opinion of this court a

- tion further discussion of this point is unnecessary.” -

by the record before the Court. We submit that where an .

rs

21

CONCLUSION

For the reasons:stated above, this Court should grant the

petition and issue a writ of certiorari to. the Court of ©

ee for the Ninth Circuit. | oe By ae

Respectfully submitted, ets | | veces

Wien H. StaMMER 4

Member of the Bar of the Supreme |

Court of the United States

ae | Garten McKwicat

ee eee page SrerHen Barnett

Epwarp D. SpurGEoN :

700 Guarantee Savings Building

Fresno, California 93721

“Roy JEROME —_— Ss

' . Member of theBar of the Supreme

Court of the United States

65 Market "Street.

San Francisco, California 94105

Attorneys for Petitioner.

oa

aed

<3

"\

.

22. ; :

De eaaeaee Ta pm ee eyinpen Sol ia ay enienpei ogee: tas

oF smart be ee GIMBR eee 88 a= teeta

‘CERIFICATE OF SERVICE |

I, Rox Jegpme, one of the attornéys for Southern Pacific

Land Company, petitioner herein, and a member. of the Bar

of the Supreme Court of the United States, hereby. certify

- that, on the 10th.day of. February, 1967, I served copies of

‘the foregoing. Petition for a Writ of Certiorari on the

United States, by mailing copies in duly addressed ‘enve-

lopes, with air mail postage prepaid, to the following:

- 1.° Honorable ‘Thurgood Marshall, Solicitor General of ©

the United States, Department of J ustice, Washington,

_D.C..20530;

..2. Mr. Edwin L. Weisl, Jr., Asidetant Attorney General,

‘Department of J te, D. C.“20530;

3. Mr. Roger P. Marquis, Attorney, eeesteans of

Justice, Washington, D. C. 20530;

4. Mr. Manuel L. Real, United States Attorney, 821

‘Federal Building, Los Angeles, California 90012;

5. Mr. Richard J. Dather Assistant United States At-

ane 821 Federal a ea ea Los Angeles, California 90012.

_ Roy JERoME

65-Market Street

Sanh Francisco, Calif, 94105

Attorney for Petitioner

(Appendix Follows)

st: *

Opinion of the Court of Appeals

United States Court of Appeals

for the Ninth Circuit

* No, 19,882

\

capri mn Pace Land Company, :

Appellant,

Vs. \

\

P * —— United States of America, .

| : ' oo Appellee..

[October 12, 1966]

Appeal from the United States District Court

for the Southern District of California

Northern Division

Before: Hamley, Browning and. Duniway, Circuit Judges‘

Browning, Circuit Judge: , . |

The United States oaks é condemn. the fee simpie title to

17,750 acres of land, including the mineral interests, for the

construction of a naval air station néar Lemoore, California.

The Southern Pacific Land Company, owning 4,600 of these

acres, contends. that the mineral interests in the property .

cannot be taken. The Company .argues that property may

be taken only for a public purpose; that the only public

purpose involved was the construction of a naval air station ;

.that the Assistant Secretary did not determine that. the ©

taking of the mineral, rights in the Company’s lands was

necessary for that purpose; and if he had, his determina-

ee | ‘penile... | sey

tion would have been arbitrary and capricious, wad an abuse

of discretion, because the ‘Company i is willing to agree not

to explait these mineral rights unless and until it becomes |

possible to do so without interferi g with the operation of

the naval air station. — !

The district court held that since the establishment of

a naval air station was a public use the inquiry must.end

* there. “The extent, nature or Kee to be acquired,” the —

court held, “is solely within the province of the Assistant

Secretary of the Navy by delegation from Congress and is

not subject to judicial review.” The district court went on,

however, to hold there was “no evidence to. support an

allegation that the Assistant Secretary of the Navy acted

in bad faith or arbitrarily or capriciously.””

The Government urges us to adopt the district court’s

holding that when the taking as a whole is for an authorized

public purpose the administrative agency’s decision as to

. the necessity for taking particular property or 9 particular

interest in property is not subject to judicial review. :

A substantial argument. can be inade for this position,

_ based upon the Supreme Court’s decision in Berman v.

Parker, 348 U.S. 26, 36: (1954), and upon such court of ap-

peals decisions as 2953.15 Acres of Land v. United States,

- 850 F.2d 356, 360 (5th Cir. 1965) ; United States v. Mischke,*

- 285 F.2d 628, 631-33 (8th Cir. 1961) ; United States v. Bron-__

_ “dum, 272 F.2d 642, 646 (5th Cir. 1959); United States v. —

: South Dakota, 212 F.2d 14 (8th Cir. 1954) ; United States

7: The latter finding appears. in the district court’s ntemorandum |

opinion, but not in the formal findings prepared by the Government

‘ and signed by the court. We may properly consider the opinion’s

finding where, as here, it is direct and clear and consistent with the

formal findings, serving merely to supplement them. American Pipe

& Steel Corp. -v. Firestone Tire & Rubber Co., 292 F.2d 640, 642. -

196). see oi Stone v. Fornell, 229 ‘F.2d 750, 754-55 (9th Cir.

: &

~ 4

=f

Ca

: _ Aponte ay oF wes

- %, Kansas City, 159 F.2d 125,°129 (10th Gir. 1946) ; and

United States v. 6.74 Acres of. Land, 148 F.2d 618, 619-20

’(5th Cir. 1945). It is no doubt significant that in each in-

stance in which a lower court set aside a federal agency’s

determination that it was necessary to take particular prop- ©

erty or. a particular interest in property, the lower court's |

ruling was reversed on appeal.

' But the Supreme Court itself has declined ‘to rule out the

possibility of judicial review where the administrative de-

‘* cision to condemn a particular property or property interest

'’ is alleged to’ be arbitrary, capricidus, or in bad faith.

United States v. Carmack, 329 U.S. 230, 243-44 (1946): And

various courts of ‘quel including this one, have said

that an exception to judicial non-reviewability exists in such

circumstances. Simmonds v. United States, 199 F.2d 305,

306-07 (9th Cir. 1952) ; United States y. 64.88 Acres of Land,

244 F.2d 534, 536 (3rd Cir. 1957) ; United States'v. Certain °

Real Estate, 217 F.2d 920, 926-27 (6th Cir. 1954); United

States v. Certain Parcels of Land, 215 F.2d 140, 147 (3rd ~

_ Cir. 1954); and United States v. Meyer, 113 F.2d 387, 392 -

(7th Cir. 1940). See also Wilson v. United States, 350 F.2d

. 901, 906-07. (10th Cir. 1965) ; United Qtates v. 91.69 Acres’.

- Of Land, 334 F.2d 229, 231 (4th Cir. 1964); and United.

States v. New York, 160 F.2d 479, 480 (2d Oir. 1947). More-

over, limited judicial review of. administrative exercise of

condemning authority may: well be required by section 10

of the Administrative Procedure Act, 5 U.S:C. § 1009. .

We need not decide the question, however, for even if we :

_were to hold that a limited power of review exists, we would —

nevertheless affirm the judgment, since we agree with the.

district court that the Company failed to show that the ~

decision to take its mineral rights was arbitrary, estates

or made} jn bad faith, © | ri

4 : en

An isthiteent: Secretary of the Navy testified on-deposition

that extraction of the oil, gas or other minerals would be |

inconsistent with the establishment of the nayal air station,

and was not contemplated when the declaration of taking

was filed. He testified that the mineral rights were included

in the taking “to protect the government” in the event the -

property should no longer be nieeded: for a naval air station

at: ‘sot e time in the future. —

In eventuality the Assistant Secretary envisioned two .

possibilities. (1) If. it were decided’ to sell.the property,

ownership of. the mineral rights would enhance the prop-

/ erty’s marketability. ‘Asked whether he had in mind “pro-

= _tecting “the government. in. the sense of an investor,” he

"responded, “not necessarily. Making it that much easier.

to sell. Part of it would be-the investment, of course, | but that *

_ wouldn’t’be the: only factor.” 2) If it were decided to retain

. the property, the Government imight wish to extract the

~ minerals, for’ [I]f oil can ‘be produ from this land,-who —

knows, in the case of emergency the govatengnt may need

some additional production.”. a a2

es noted, the uncontradicted testimony of the ‘Assistant

, Secretary was that he based his decision in part upon tlie

fact that the existence of outstanding mineral interests, con-

flicting with possible surface i uses, would reduce the market-

ee ability of. the property in the event of sale. Advantageous

liquidation of the Government’s investment is a legitimate

- consideration in determining the estate to be taken. Lewis

__ 9%. United States, 200 F.2d 183, 189 {9th Cir. 1952); Sim--

_monds v. United States, 199 F.2d 305, 306. (9th Cir. 1952) ;

OF. Sweet v. Rechel, "159 U.S. 380, 394-95 (1895). Here the

ee Government was not éngaging in “an outside land specula-

_ tion,” (Brown v. United States, 263 U.S. 78, 84 (1923) ;

and we must regard appropriate ee of an invest-

Appendix — , 5

ment for-a public purpose as itself. such a public aim,” “4

United States v. New York, supra, 160 F.2d at 4812

This is but an application of the general principle that :

“The cost of public projects is a relevant element in all of

"them, and the Government, just as anyone else, is nat re-.

quired to proceed oblivious to elements of. cost.” United

States ex rel. TVA v. Welch, 327 U.S. 546, 554 (1946). See

also Wilson y. United States, supra,.350 F.2d at 907 ; United

States v. Agee, 322 F.2d 139, 142 (6th Cir. 1963).

‘A decision to take, based in-substantial part upon this con-

sideration is not arbitrary or capricious. Affirmed,

2. . The ‘Company relies heavily upon Cincinnati v. Vester, 281 -

4

‘oe US. 439 (1930). As Justice Black pointed out in United States ex

rel. TVA v.' Welch, supra, 327 U.S. at 552, “the Court’s judgment -

in that case denied the power to eondemn ‘excess’ property on the

_ ground that the state law had not authorized it,” and nothing more. . :

| ‘8. Since one of the considerations motivating the Assistant Sec-

_ retary afforded a principal] basis for his decision, we need not deter-

mine whether the other reasons given for_his decision would also

-have sufficed. United States v. Montana, 134 F.2d 194, 196-97 (9th

Cir. 1943). eae :

ns) a :

. £4 ee | ) o. an | : el : ) i me

Inthe United States District Court -

Southern District of California

N orthern Dwision

‘No. 1836-ND

- United States of America, .

ee ee ies Plaintiff,

Tee "Ste | ete:

i: ee 19,752 Acres of Land, More or Less, in

, Kings ‘and Fresno Counties, State of

California, etc, et al,

ee

MEMORANDUM DECISION ees

(As to Parcels 22, 71, 135, 141, 147, 169, 181 and 217)

This action was instituted by the United States’ of

America to acquire certain property located in Fresno

‘and Kings Counties, California, for the establishment of

a naval air station near Lemoore, California. Simulta- -

neously with the filing. of a complaint in condemnation '

_ the United States filed a declaration of taking, as pro- © = %

vided for ,in 40 U.S.C. 258a. The estate which the Govern- ~

' ment sought. to condemn by the filing of the complaint

and declaration of taking was the fee simple title.

The defendant, Southern Pacific Land Company, was

ra the owner in fee of approximately 4,600 acres of land

-._ within the area condemned. The property at the time of |

- the taking was being devoted to agricultural purposes. —

Upon being served with process in this action the de-

fendant filed an answer igh to’ the taking of jts

» 1

3 Appendix | i

| velaicina rights, inéluding the oil, gas iad hydrocarbon

substances, and agreeing to let the court impose reason-

able limitations on drilling or —t if bisects by —

defendant.

The plaintiff and the defendant entered into a stipula-

_ tion as to value prior to trial, and reserved the right of

- the parties to litigate the issue of the right to take the

minerals, which was. heard by the eourt without a jury.

on July 23, 1964. The defendant relied upon ‘three main

points in its evidence and its arguments on this issue:-

‘(1) that the minerals were not taken for a public pur-

pose; (2) that the Assistant Secretary of the Navy made.

no determination that the mineral rights were necessary

for the project; and. (3) if he did, he had acted capri-

ciously, arbitrarily, unreasonably, and had abused his

discretion in - making his determination to condemn the

mineral rights. The. Government took the position : that.

the acquisition for the naval air station was for a public

purpose as deteimined by the Congress of the. United

States and this court had no- jurisdiction to review the

action of the Assistant Secretary of the Navy in taking

the mineral rights of the defendant. The Government

declined to present any evidence on necessity or on the

‘basis for the determination by the Assistant Secretary of

_ the Navy to take the mineral rights. .

_ The most recent expression 6f: the Supreme yee on

the: issue. presented to this court is found in Berman v.

Parker, 348 U.S. 26, in which the court stated:

-. “Once 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 legis-

_ lative branche See Shoemaker v. United States, 147.

»

spe Appendix ,

US. 289, 298; United States ex rel T.V.A. v. . Welch,

supra {327 U. 8. pa 554; United States v. Carmack,

829 U.S. 230, 247.” .

In. view of the expression of the Supreme Court this .

court must first determine whether or not the defendant is

oh contesting, in this case, the necessity of the Government to

acquire the minerals or raising the question of public use.

Whereas the necessity, character and extent of a taking is

not subject to judicial review, nevertheless, the question of

whether a particular use for which property was condemned

is a publie use or not is open to judicial review. United

States v. Gettysburg Electric Railway Co., 160 U. S. 668;

Shoemaker, v. United States, 147 U. S. 282; Rindge Co. v.

‘County:of Los Angeles, 262 U. 8. *700.

~The defendant has: ‘urged upon the court the. theory that

it is contesting the issue of public use, not the issue of

necessity. It assumes the position that the minerals are

not being taken for a public purpose. Evidence has been

introduced by the defendant, in support of its position, that

production of oil and gas from the property taken would

be incompatible with the use of the land for a master jet -

air-station: The defendant has'not, however, questioned the

. fact that the naval air station, established by the Congress,

is a public purpose within the law. There are, in this court’s

opinion, few purposeg which could be determined : more nec-

essary or more beneficial to the public welfare of this coun-

try than its national defense. ‘The naval air station for which

this property was “Acquired was established for just such

a purpose,

The defendant, however, alleges that the taking of the

m mineral rights is not for a public purpose and has confused

_ the issue of public use with that of necessity. What the

defendant is actually urging is that although the acquisition

Appendiz ct 9

is for a public purpose, to wit, a naval air station, certain

interests condemned are not necessary for that public pur-

' pose. As stated in Berman'v. Parker, supra, “the argument .

pressed on us is, indeed,.a plea to substitute the landowner’s

_ standard of public need for the standard prescribed by Con-

.° gress.” This the court cannot do. The determination by the

_ Assistant Secretary of the Navy to take the fee simple title

includes by implication. a determination that the oil, gas

and mineral rights are necessary for the project. .

Turning now to the third point upon which-the defendant

relies in contesting the taking of its minerals. (that the

_ Assistant Secretary of the Navy acted arbitrarily, capri-

ciously, and in bad faith), we see that this is direetly con-

nected with the question of necessity. Unless one can show

lack of necessity he cannot show that the public official ‘to °

whom Congress delegated the authority to determine the

property and interests to be acquired acted in bad faith or

arbitrarily. It is well established that Congress may dele-

gate this authority. See Monongahela Bridge Co. v. United

States, 216 U.S.177. — p

The question, it seems, is whether ‘the courts can judi-

cially examine the right of the Government to take certain.

~ property, or interests in property for public uses where |

there has been an allegation of bad faith or arbitrary or

capricious action by the government official. empowered to

make such a-decision by Congress, This court has found

- only one reperted case that holds the court may review the

decisian to the extent of determining if the officer authorized

‘by Congress .to select the property and estate to be taken

acted in bad faith, arbitrarily or eapriciously. U nited States |

v. Agee, 322 F.2d 139. In view of the weight of authority

to the contrary, which will be hereafter discussed, this

court declines to follow the’ ruling of the Sixth Cireuit. It

is true that there are several eases which imply such a “bad

Ce a a suena yee.) .

4 * VEE ee ME RR Rr Ne ie em OE NS DOR Ee 4 als ame

7 s BS oe | pone

faith exception” to the rule that the court wiiiiail judicially

_ Teview the determination by the delegated official. United

States v. State of New York, 160 F.2d 479, and Simmonds

v. United States, 199 F.2d 305.

The defendants relied heavily upon the: Gienntads case,

‘supra, which was decided by the 9th Cireuit i in 1952. In that

ease the court held: / .

“Discretion as to the extent, amount or title of prop-

erty to be taken by the United States has been con- he

-- . ferred by legislation upon. the Secretary of the Army;

and in the absence of bad faith or abuse of that discre-

- tion his determination is final.”

One could assume from this statement that upon a show-

ing of bad faith or abuse of discretion the court could or

might hold a taking invalid; however, in the Simmonds case

no such showing was made nor did the om: Cireuit Court .

‘hold that such was the law..

The 9th Circuit was recently casisians with sine case

which involved this question of the “bad faith exception”

to the rule of law that the issue of necessity was. not subject

to judicial review. In the case of United States. v. Cobb, 828

F.2d 115, the court said:

“This court has held in United States v. Carey, 9

Cir., 143-F. 2d, 445, 450,-and in United States v. Hayes, .

vg Cir., 172 F.2d 677, 679, that when a declaration of

taking is filed and deposit is made, title vests in the

' United States and the district court is powerless to

dismiss the proceedings. In accord is United States v. |

2,974. 49 Acres, 4 Cir., 308 F.2d 641. There. was no men-

tion in those cases of a possible question of bad faith.

Nor is there any holding that it is within the power of

the district court, on the basis of a finding of lack of

_ good faith, to set aside or vacate a declaration of tak-

.. ing. In re United States, 5th Cir., 257 F.2d 844, holds

- * that there.is no such power. The statute contains no

such provision. If such power exists it must be.implied.

*

rg 9

: Appendix ss . Il

We agree with the Fifth Circuit ‘Sections just cited, .

particularly in view of the fact that there.is no con-

trary authority, and despite a few dicta or references

to the possibility of vacating a declaration of faking ,

on the ground of lack of good faith.”

"The effect of the defendant’s claim in ‘this ease is to —

this court: to .vacaté that part of the declaration of taking

by which the plaintiff took the defendant’s mineral rights

on the grounds of bad faith on the part of the Assistant

Secretary of the a : .

This i is not.a case\of first i impression. The questions of

- law raised by the defendant’s answer have been considered

by other circuits as well as the 9th Circuit. This court finds

it impossible to distinguish this case from United States v.

. State.of South Dakota, 212 F.2d 14, 8 Cir. (1954), where

_ an answer was filed denying the Government’s right to take

the defendant’s mineral rights. The district court held that

the mineral rights were taken for a use that was not public

and that the mineral rights were not necessary. In revers-

ing, the circuit court held: :

“The determination of what is ‘necessary’ for the —

purpose for which the land is sought is delegated ae

Congress to the Secretary of the Army in this case,

and his decision is not reviewable by the courts.”

(Emphasis supplied) .

The question of judicial review of public use and neces-

sity was carefully reviewed and decided by the Fifth Circuit

in United States v. Mischke, .285 F.2d 628. In that case the

district court made a specific finding that the action of the

delegated Government official in selecting the property con-

, demned was arbitrary and capricious. The Circuit Court

“ clearly. and emphatically ruled that the district court was

without jurisdiction to review the determination of the

12 : Appendix

- Seeretary of: the Army relative to the necessity or expedi-

- eney of the Government’s acquisition. |

In this connection it is interesting to note that Congress,

in enacting the. so-called Declaration of Taking Act, 40°

US.C., 258a, provided:

“Upon the filing said declaration of. taking and of *

_ the deposit in the court, to: the use of the persons en-

titled thereto, « of the amount of the estimated compensa-

tion stated in said declaration, title to the said lands

in fee simple absolute, or such less estate or interest

therein as is specified in said declaration, shall vest in - 3

the United States of America, and: said lands shall be.-

deemed to be condemned and taken for the use of the

United States, and the right to just compensation for

_ ‘the’ same shall vest in the persons entitled we a

Although Congress ~ specifically enumerated the powers

* delegated to the.courts under this act, in the last two para.

graphs thereof it did not qualify the statute in any manner

. by granting to the-court’s jurisdiction to review the’ decision

made on the estate to be condemned.

The defendants in the present case took the depositions

of Mr. F. A. Bantz, former Assistant Secretary of the Navy,

as well as the depositions of navy dnd civilian personnel, ee

stationed at the naval air station. Portions of these deposi- |

tions were offered in evidence at the hearing on the Govern-

ment’s right to take the minerals. This court has found no

- evidence to support an allegation that the Assistant Secre-

tary of the Navy acted in bad faith or arbitrarily. or capri-.

ciously ; however, since it is the opinion of this court that |

no jurisdiction exists to review the Secretary’s action fur- .

_ ther discussion of this point is unnecessary. ;

_Tt is the opinion of this court, based upon the cases cited .

herein and the applicable statutes, that the issue raised by

- the defendant, Southern. Pacific Land Company, involves

ot Appendix pe —-_

one of necessity rather than one of public use or public

purposes. The fact that the property may or may not be

used for the public purpose involves a question of necessity _

and ‘not one of public use. ‘The fact that the Government ~

may or may not conduct mining or drilling operations on

_ the property is as immaterial as whether it will or will not

put runways or other improvements on the specific property

condemned, There is no rule of law known to this court that

_ requires the Government to put every acre of land taken,

or every interest taken, to a spedific use. U. 9.1%. Willis, 211

F.2d 1 (8th Cir.). The use for which the subject property —

was condemned in this action was a public use. The extent, |

nature or estate to be acquired i is solely within the province

of the Assistant Secretary of the Navy by delegation from

Congress and is not subject to judicial review. - HESS:

_ Therefore, judgment shall be entered that the plaintiff,

United States of America, had and has the right to condemn

the estate and interests set forth in its complaint and decla-

ration of taking on file herein, including the mineral rights

of the defendant, Southern Pacific Land Company.

Dated: —_ 31, 1964.

!

M. D. Cacoxim

United States District Judge

Constitutional Provisions and Statutes

: ConstrroTion OF Usrrep Srares, AMENDMENT V

“Criminal Proceedings and Condemnation of Property ©

“Section 1. No person shall be held to answer for a capi-

tal; or otherwise infamous crime, unless on a presentation

or indictment of a grand jury, except in cases. arising in the

land or naval forces, or in the militia, when in actual serv-

(be : ; Bs - bs

é

APNE II TOC RN mI Se RI Be os 5 , Oh nie room scones Y «appa enna panna see

.

% .

\Coxpmaxamos oF REAuTy For SITES AND Oran Usks, True

Appendix

.. ice in time of war or public danger; nor shall any person be .

4,

~ 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 ere

> \\ tion.” (Emphasis ’added.)

40 U.S.C.A. Szcrion 257

th every case in which the Secretary of the Tre gury or |

a vrdie yer or for. other public uses, he may a quire

: the same for the United States by condemnation, under

advantageous to the Coverinans to do so, and the Attorney

General of the United States, upon every application of the

Secretary of the Treasury, under this section and section

258 of this title, or such other officer, shall cause proceedings

to be commenced for condemnation within thirty days from

receipt of the application at the Titebond of Justice.”

(Emphasis added.) “at - ; eee

DECLARATION or TAKING Act, Trrte 40 U.S8.C.A., Section’

2088

_ “In any proceeding in any court of the United States out-

side of the District of Célimbia which has been or may be

_ instituted by and in the name of and under the authority of

_ the United States for the public use, the petitioner may file -

in the cause, with the petition or at any time before judg-

*

ment, a declaration of taking signed by the authority em-

| powered by law to acquire the lands described in the peti-

' _ tion, declaring that said lands are thereby taken for, the use

.. of the United States. Said declaration of ren shall con-

s

tain or have annexed thereto—-

NAAN PLE Se Re eee Setter APH REO ERCNASN NON NS NS Paienpme th

8

_ tives of the United ‘States of America _ in Cogs: atte

sembled, tia ter

' ing projects: : *

>

ae

_ Appendiz Ae 15

“(1) A statement of the authority under which and the

public use for which said lands are taken. . .”* (Emphasis

added.) . ‘ .

Pustic. Law 968, 70 sisson STATEs iain 991 aint

“Be it enacted by the Senate and House of Representa- ~

'see8)

“See. 201. “The aaseains of: ‘the Navy may establish or *

develop military installations and facilities by acquiring,

constructing, converting, rehabilitating, or installing per-

‘manent or temporary public works, including site prepara-

tion, appurtenances, utilities and equipment, for the follow-

_

“Naval air station, Lemoore, California: Plans and speci-

fications’ for development of a jet aircraft facilities,

and. ‘land acquisition, $10, 089 ,000. .