Petition for Writ of Certiorari — Ehrlander v. Department of Transportation of Alaska

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: Supreme Cour, U.S,

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96 188 2 way 27 9h

OFFICE OF THE CLERK

IN THE UNITED STATES SUPREME COURT

October term 1997

Lars W. Ehrlander,

Petitioner

The State of Alaska. DOT, et al

Respondents

On Petition For Wat of Certoran

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

LARS W. EHRLANDER, Pro Se

161 Palace Circle

Fairbanks, Alaska 99701

Telephone: (907) 451-8342

QUESTIONS PRESENTED FOR REVIEW

Whether dismissing bifurcated and post trial issues on res

judiuata and the Eleventh Amendment, absent

compensation, is permissible, when the State and its

4

officers engaged in fraud, and when due process was

denied and abused in the state courts.

LIST OF PARTIES |

Mr. Lars W. Ehrlander, pro se petitioner.

v.

The State of Alaska, Department of Transportation,

and Messers John Athens; Raymond Funk; John Miller, Donald Baum,

in their personal and official capacities, and the Federal Highway

Admunistration.

TABLE OF CONTENTS

PAGE

COUIRIINE . cnseereccnesvnssiesonsennscenstnsggiilivaniiian siiibialiaaibimmneaiaehiaiaiiciai I

Re OE TIA, scccsesisissinnsistiaitineeecekicaeriiadnicemeaiene aieaaaaitataman ada II

TAREE GIS Shiites II

TE CA TE oseccctnceivissinsnintcainaiaiiiaiaiananns Il]

Citations of Orders and Opinions. ...........c..cecseccsssasecsecseseees 1

Statement of the bases for US Supreme Court Junsdicton 1

Date of judgment

Date of reheanng

Statutory provision to confer junsdiction to this Court to

review

Constitutional provisions, statutes and regulations ............ 2

Seaton OE Gai WI, sscicsstssesieniascenanaediiaiamaaaiiaimaaneamai miei 3

PG SIU, scccenicicscssosnsscesaiisesscieiaiiaindabainaihaldnctncaidamnias 3

Basis for federal jurisdiction in the court of first instance 7

DEERE oereeverencrcrssnniesscenaseatiiisticinininiailalianiiaiainiiaiiiiaatiatitiin 7

Reasons for grantng a Wnt of Certioran ..........0ccssecssesees 7

SUNUAIIIOI xascnsanssissivinicidsieisiiiiaieteiaibaiaandeiiainiaialiaaaiiaamieatmibaindnaeat 7

The Bifurcation Agreement ............cssscsssssssssseeeees 10

Res padicate / Dune Pencess q.........c.c.ccccseccnsenseseseees 12

The Fifth Amendment .............:cccccseececeeseeseeenesseees 15

The Seventh Amendment .............:sccccssscseesseesseeees 15

Tine Heagietis ame cenncsecesnccccescsnsinersnetceens 16

The Eleventh Amendment ...........:scccscscssesseseeeeees 16

The Thirteenth Amendment ...............:cccceeeeeeeeeees 16

The Fourteenth Amendment ...............csccsseeeeeeeees 17

Dine Seats SIND eccciccscennnienitinnssncinensionti 18

1. The baghnest amid best Use ..2....escnecccccescsesesesse 18

7 18 |

3. Fair market value on date of taking ............... 19 ;

I

4. Neither AS 34.60.120(3) nor 49 CFR

Sec. 24.103(b) are wnitten clearly .............:000000 19

Be MIE ceiccnttecnnciescnstnsnesseercesvmnevsnsnesanenanenseeneee 20

The Alaska Supreme Crt. taking on roll of fact finder 21

PIII seiteststestinenievsssstoosonsonsensosonoemnnsonncoesonssensuoseaeee 21

GEE PENINIIIIDD cevccnccccnccccesessastonnsnatensecnovesscosenee 22

I II sc enrnsensninsebonennndipminiceie 24

III eltecratisdinepettncscentesetessenstcnivcnasescncseesnsotsncqtanssonmesecenecene 25

RII SRIIIIIIE sccepsncnonnsciacconccssinnnoncnsanstosmesonnssscososoeianeet A.1

TABLE OF CITED AUTHORITIES.

CASES

Bell v. Burson

LT 14, 17, 21

Board of Regents v. Roth

FT 17, 18, 22

Burlington Northern v. Nebraska Public Power Dist.

931 F Supp 1470 (D.Neb. 1996) ou... eeescesecesceeseeeseesees 16

Carter v. Carter Coal Co.

aida ksacdaevurasivaisouievienevowsctoeveevinns 10, 24

City of Los Angeles v. Decker

eae) sg ) re 24

Defeo v. Sill

$10 F.Supp 648 (ED PA 1993) . ...............c-c-csrcsesosseserees 10, 24

State of Alaska v. 6.313 Acres, more or less and Lars W. Ehrlander

(Case 4FA-86-886) (First trial) 220.0... eeeceeeeeeeeeenenees 16

Ehrlander v. State DOT (Case 4FA-86-2287CI

TI WIE OUND occ cnsccnacsrsncescencscvesecasesesssesesesncaes 16

First Ev. Chur. Glendale v. LA

csc scvecnivanrvnnswansanshenicceensosoren 24

First Lutheran Church v. Los Angeles

mets 41986 .................................. 11, 14, 15, 19, 21

|

F. Giannini v. First National Bank of De Plains

483 NE 2d 924 (IIL App. 1985) o.cceecccssscsssssssesnseeees 20

Hafer v. Melo

EL, | a nae 22

Howard v. Grinage

82 F.3d 1343 (6th Cir. 1996) cecccssccsesssscsessesssnsseseeennees 24

Hughes v. Washington

Ee ED pisisniisscicertavecicansctimsentsencpsenptnioniens 22

Irwin v. City of New York

902 F.Supp. 442 (SD.N.Y¥. 1995) occcccssssssssssssessense 22, 24

JB v. Washington County

SOS FBamm. 907 (1). CWiamla 1995) ann ccssisscnccosncsssncovssovessvecs 21

Ketron v. Chattanooga - Hamilton County Hospital

919 F Supp 280 (B.D. Tem. 1996) ...........0.0.cececsserscccsseseee 22

Kirby Forest Industries, Inc. vy US

ek ae 11, 15, 19

Lake Havasu Com. Hosp v. Ariz Title Ins.

GT PE ST CAR, BP TBE) ances tisensscssesccsenesnoesnensisess 20

Lange v. State of Washington

RF I eiieitaceenicnsdioeiciapastinicacteanncicainse 18, 19

Logan v. Zimmerman Bruch Co

M55 US 422 (19GL) cancencccenennssseneescesennne 12, 13, 14, 16, 27

Marden v. Intern. Ass’n of Machinist ETC

DOOR TEE —— eiissnitntincerieeercinmniinses 20

Middlesex County Ethics Comm. v.Garden State Bar Ass’n

ae 8 = --——C—(C(Cé#Nbtsicnhnceacas cin in scincaspuigdtaa 10

Parratt v. Taylor

451 US 524 (1981) .......... 9, 10, 11, 12, 15, 16, 18, 21, 23, 24

Pedring v. Chun

906 F Supp 1377 (D. Hawaii 1995) o..cccccccsccsssssssseenees 18, 20

IV

Pruneyard Shopping Center v. Robins

ET TI FP I | nxcncssivisescsesicnsnesasssnsnorvennstiverienecetrareeetiin 9, 22

Roberts v. NY

TO TE TO RII oes sss cscnsensnsnnincsereivennaneonvaneeiiinn 17, 21, 22

Ruckelshaus v. Monsanto Co.

GET UG DOG (UGG) on nceesicncssvecssecesvenrscotonenconsioesvencencononnsen 15, 24

Sanfilippo v. County of Santa Cruz

415 F Supp 1340 (N.D.Cal. 1976) 2........sseeseeeeeeseeseeeeee 22

Sheerbonnet, Ltd. v. American Express Bank, Ltd.

905 F.Supp. 127 (S.D.N.Y. 1995) ......seesecssesseeseesteenessees 21

State v. Glen

GO2 P.2d. 253 (OR. 1979) .......n.cnscvssessesnresssosessescnssosancansescs 23

State v. Lewis

LS Le ee 23

State v. Terrace Land Co., INC.

298 So2d B59 (Loui. 1974) ........c.ccscsccssessssnscssssesessensoneneees 19

State v. Waggoner

319 S..W.2d 930 (Miia. 1959) ..........nsceccscsceseccnsecseseseorononsens 24

Stevens v. McHan

SF3d 1204 (Sth Cir. 1993) ........-ccsccssscssvscessncensssssnsonscessoorees 22

US v. Gaudin

See aM NET 16

US v. Twin City Power Co.

DD TT BC oisisciccsstnssssssssciersseconnssnninsessnsnesnin 11, 15, 19

US v. Virginia E&P Co.

365 US 624 (Sup. Ct. 1961) .......... tons 11, 15, 19, 20

Valdez v. City of New London

903 F.Supp. 286 (D.Comn. 1995) eesscscssessssssssesseeenseee 22

Wilson v. Jones

902 F Supp 673 (B.D.Va 1995) ........sscssessscessessessnsessensenes 16

V

CITATIONS OF ORDERS AND OPINIONS

06-26-96 Judge Singleton (fed. distr. crt.) Order dismissing all issues.

07-19-96 Judge Singleton Order upholding dismissal on reconsid.

03-24-97 Appellate Court upheld dismissal.

05-05-97 Appellate Court demed reheanng and heanng en banc.

JURISDICTIONAL BASES FOR THIS COURT

1. The District Court dismissed all issues on June 26, 1996, and denied

reconsideration on July 19, 1996.

2. The Ninth Circuit Court of Appeals upheld the dismissal on March

24, 1997, and demed rehearing on May 5, 1997.

3. This Court has junsdiction to review the judgment by the Alaska

Supreme Court and the Ninth Circuit Courts of Appeals under USC.,

28 Sec. 1254, 1257.

"

:

4

.

CONSTITUTIONAL PROVS.- STATUTES - REGULATIONS

US Constitution Alaska Constitution Art. 1. Sec. 1.

Artcle 3 Sec. 2 Inherent nghts.

Article 4 Sec. 1, 2 A.C. Sec. 6, petition.

Artcle 6. A.C. Sec. 7, due process.

Amdmt. 5, eminent domain. AC. Sec. 14, seizures.

Amdnmt. 7, tnal by jury. A.C. Sec. 16, tual by jury.

Amdnmt. 8, excessive fines. A.C. Sec. 18, emiment domain.

Amdnmt. 13, involuntary servitude.

Amdmt 14, due process of law.

AS 34.55.046 USC 28 Sec. 1358

AS 09.10.070

AS34.60.040(1)(2)(3c,a) USC 28 Sec. 1367

AS 09.25.010

AS 34.60.070 USC 42 sec. 1983

AS 09.25.020 (1)(4)

AS 34.60.090 (4) USC 42 Sec. 1985 (2)

AS 09.45.630

AS 34.60.120 (3)(9) USC 42 Sec. 1986

AS 09.55.310 (1)(2)

AS 34.60.130. 49 CER Sec. 24.101

AS 09.55.320 (@)() a

AS 34.60.150 49 CER Sec. 24.102

AS 09.55.330

AS 44.88.38 49 CER Sec. 24.103

AS 09.55.370 0

USCS 23 Sec. 127 (b) 49 CER Sec. 24.103

AS 09.55.430 (3) ath, iad ©)

USC 28 Sec. 1331, 49 CFR Sec. 24.304

AS 09.55.460 (b) 0 vps

USC 28 Sec. 1343(a) 49 CFR Sec. 24.306

AS 24.40.010

USC 28 Sec.1346(a2)(b)Rule 72, (5)E

USC 28 Sec. 1347. Canon 2, 3.

AS 34.55.004 (1)(2)(3) S ates

USC 28 Sec. 1355

2

STATEMENT OF THE CASE

FACTUAL STATEMENT.

Because of a third party’s involvement, the parties stipulated to

only determine the impaired value of the raw land in the first tnal, and

the issues of decreases attributed to the highway project and business

damages were bifurcated to a second tnal [A.14, Bifurcation Agreement

(court order) A.29, State appraiser lists bifurcated issnes|. The first tial was

held, and the impaired value was established [A.16, Bench ruling in 886

case]. After having benefited from partally implementing the

Bifurcation Agreement [A.14] by keeping valuable property nghts from

the first trial, the State of Alaska and its officers decided to breach and

default on our agreement (bilateral contract) to hold a second tnal on

the issues of decreases and damages. The Alaska Supreme Court has

ruled that it was then too late to appeal the first tual, where the issues

normally would have been heard, thus allowingthe State to take several

valuable vested property rights, which were protected by the federal

Constitution, absent compensation and due process [A.31, affidavit state

appraise.

The Alaska Supreme Court took on the role of the jury, sua

sponte, by establishing the facts of the case, but without the benefit of

knowing the real facts. Other courts have now relied on those illusory

facts. The High Court also took on the role of legislating by simply

ignoring applicable state and federal condemnation laws. The High

3

Court ruled that we had our day m court in the first tnal, and it simply

ignored the Bifurcation Agreement on the second tnal) The Court

remanded the case back to the lower court to reestablish whether there

had been an mverse taking, essentially based on the same business

interference scenano that had previously been established by the lower

court. The lower court (new judge) again found that there was an early

taking, this tme m 1984. However, compensation was lmited to

interest on the value of raw land in 1986 when the property was severely

impaired by the mumpact of the highway project, and no compensation

for fixed improvements was considered [A.17, State admission in 886 case}.

Even though both state and federal laws prohibit the state from

benefiting from pre condemnation impairments, and even though the

property had never been appraised at its highest and best use [A17,

Bench ruleng 886 case| and all the fixed improvements had been excluded

from the first tual based on the Bifurcation Agreement, the state courts

demied our several requests to litigate those issues m the current cases

[A.17, AK Supreme Crt denies motion to litigate the sulyect issues in the 2287

sister case).

I was forced to mitiate federal htgation, as the state courts

refused access to litigate the bifurcated property nghts [A.17]. In the

process of conducting my research, I leamed that I had to exhaust state

remedies on all issues pnor to federal tigation. The state courts had

never ruled on the bifurcated issues; they simply ignored the Bifurcation

4

Agreement. Moreover, there were additional post trial taking issues’

and civil rights violation issues” that had never been ruled on by any

court. The federal issues had been formally preserved from previous

litigation without objection from the state [A-30}.

Ironically and erroneously, Judge Savell dismissed all taking

issues on res judicata, and he dismissed the civil nghts violations on

immunity and time bar, even though these violations were performed by

state officers under the color of state law and equitable estoppel should

have applied, as we were continuously pursuing altemative remedies.

I initiated federal litigation. The state courts had refused access

to litigate the bifurcated or post tnal issues [A.17], and they abused

process by permitting the State and its officers to fraudulently bifurcate

valuable federal property nights from the first tual, apparently with the

intention of breaching our contract when it was too late for me to raise

the issues in the first trial. Judge Singleton dismissed all issues based on

res judicata and the Eleventh Amendment. The Singleton court held that

a federal court has no authority to review a state court even when it is

wrong [A.3, A.6]. His ruling was upheld by the Ninth Circuit [A.9,

A 13}.

, The State failed to build an access road, six years later, which it bad

committed to build in the taking documents, leaving lots land locked.

: Besides the fraudulent Bifurcation Agreement, the State and its offwers

enforced an illegal department policy of taking expensive land for as little as possible,

by fraudulent means, including ignoring and violating state and jederal condemnation

statutes, constitutional provisions and regulations [A. 19-28].

5

I contend is that a federal court does have the authonty to

review the process. This is different from reviewing a decision on its

ment. If federal due process and civil nghts laws shall have any

meaming, the federal courts must review whether a litigant was accorded

due process in the state courts.

The Ninth Circuit misread the facts. It listed all the sister cases

as evidence that we had our day in court. The crucial fact is that the

current issues were either preserved, bifurcated, or are post tual issues.

Our statement that we “raised” all issues m the state courts did not

mean that the issues were heard on them ments. The only way they

were “raised” were in our motions for leave to litigate the issues in the

sister cases. These motions were denied. The 870 Savell case was

imtiated to exhausted state remedies. In that case Judge Savell

dismissed all issues on res judicata, mmmunity or tme bar without even

permitting discovery. Judge Savell had several conflicts of mterest in

that case, one conflict was that he was a likely witness, another was that

the wife of the accused officer worked under Judge Savell. Dismissing

formally preserved issues [A.30], bifurcated [A.14], and post tral issues

on res judicata does not reach the federal standard for due process. The

Savell Court simply ignored the Bifurcation Agreement. The fallacy in

Judge Savells dismissal is further illustrated by Judge Stemkruger’s

9-28-96 order [A.18] from the 886 sister case where she held “Civil

rights, extortion claims must be litigated in a separate action.”

Judge Stemkruger was the judge in the sister cases.

THE BASIS FOR FEDERAL JURISDICTION IN THE

COURT OF FIRST INSTANCE

The Federal District Court has jurisdiction pursuant to 28

USC. Sec. 1343. The Ninth Circuit has jurisdiction pursuant to 28

U.S.C. Sec. 1291.

ARGUMENT

Reasons for granting a Wat of Certomn.

A United States court of appeals has entered a decision m

conflict with the decision of another United States court of appeals on

the same important matter, has decided an important federal question in

a way that conflicts with a decision by a state court of last resort, or has

so far departed from the accepted and usual course of judicial

proceedings, or sanctioned such a departure by a lower court, as to call

for an exercise of this Court’s supervisory power.

STATEMENT

States must abide by the Fifth and the Fourteenth

Amendments. Without federal recourse, the Amendments would have

no meaning. The Fourteenth Amendment reads:

All persons bom or naturahzed in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States wherein they reside. No State shall

make or enforce any law which shall abndge the

7

puvileges or mmmunities of citizens of the United

states; nor shall amy State deprive any person of life, liberty,

or property, without due process of law, nor deny to any person

within its purisdiction the equal protection of the laws.

The Eleventh Amendment hmits persons from one state from suing

another state. Some courts, m their “legislative” capacity, also have

decided to limit citizens from maintaiming a suit agamst their own states.

The Fourteenth Amendment, however, was instituted after the Eleventh

Amendment in order to balance the lmitatons on individuals with

justice and faimess in the form of hmits on states. The mtent is clear,

one may not maintain a suit against a non consenting state as long as

that state is providing reasonable due process. This is a case where

the State has failed to provide due process. This is a case where

there was no post taking process available. This is a case where the state

has abused due process. This is a case where the state has agreed to

htigate the federal issues in the federal court. This is a case where the

Fourteenth Amendment would have no meaning if it were not enforced

by a federal court. The federal provisions under the Fourteenth

Amendment set a minimum standard, and as long as the State stays

within that standard, no federal suit can be maintained against a state.

However, a state is hable for failing to mamtam that standard. Further,

the Eleventh Amendment immunity does not extend to officials in

their personal capacity. The Fourteenth Amendment was enacted to

provide a civilized forum to settle disputes.

A state is bound by the just compensation clause

of the Fifth Amendment. Pruneyard Shopping Center

v. Robins 447 US 74 (1980)

Our reasoning in Lloyd, however, does not ex proprio

vigore limit the authority of the State to exercise its

police power or its sovereign nght to adopt in its own

Constitution individual liberties more expansive than

those conferred by the Federal Constitution. Pruneyard

Shopping Center v. Robins 447 US 74 (1980)

[t]he determimation whether a state law unlawfully

infringes a landowner’ property in violation of the

Taking Clause requires an examination of whether the

restriction on private property “forc[es] some people

alone to bear public burdens which, m all faimess

and justice, should be bome by the public as a whole.

This examination entails inquiry mto such factors as

the character of the government action, its economic

impact, and its imterference with reasonable

investment-backed expectations. Pruneyard Shopping

Center v. Robins 447 US 74 (1980)

The national govemment of the United States, while

coexisting with the 50 states which make it up, is

supreme over them to the extent of its authonity under

Article VI of the Federal Constitution. Paratt v.

Taylor 451 US 524 (1981)

Insofar as 42 USCS Sec. 1983 affords a civil remedy for

deprivations of federally protected nghts by persons

acting under color of state law without any express

requirement of a particular state of mind, the mitial

inquiry in any Sec. 1983 action must focus on whether

two essential elements to a Sec. 1983 action are

present, that is, whether the conduct complained of

was committed by a person acting under color of state

law, and whether this conduct deprived the person of

rights, privileges, or immunities secured by the

Constitution or laws of the United States. Parratt v.

Taylor 451 US 524 (1981)

Nothing in the Fourteenth Amendment protects

against all deprivations of life, or property by the state,

but only against depravations without due process of

law; . . .Parratt v. Taylor 451 US 524 (1981)

[On] motion for a new tnal, the court shall give

judgment after an examination of the entire record,

without regard to techmical errors, defects, or

exemptions which do not affect the substantial nghts

of the parties, does not change the well-settled mule that

an erroneous rulmg which relates to the substantial

nghts of a party is ground for reversal unless it

affirmatively appears from the whole record that it was

not prejudicial. Carter v Carter Coal Co. 298 US 342

(1935)

{e}stablished state procedure as lacking 1 in due process

and a property damage clan amnsing out of the

misconduct of state officers, the state action not

necessanly being complete im the latter situation.

Parratt v. Taylor 451 US 524 (1981)

The Bifurcation Agreement

This case 1s not about dissatisfaction with previous compensation as the

Ninth Circuit stated. This case is about state officers’, under the color

of state law, fraudulently entenng mto an agreement to bifurcate

property nghts to a second tnal and then breaching that agreement

when it was too late to appeal the first of the two bifurcated tals. It is

about the State of Alaska’s taking $350,000 worth of fixed

improvements without providing any process or compensation.

The state proceedings did not afford an adequate opportunity to raise

the federal claums. Defeo v. Sill 810 F.Supp. 648 (B.D. Pa. 1993).

“Federal courts may decline to abstain upon a showing

of “bad faith, harassment, or some other extraordinary

circumstance that would make abstention

mappropnate.” Middlesex County Ethics Comm. v.

Garden State Bar Ass’n, 457 U.S.435

10

= i

All these factors exist in our case, and in addition, the state did not

adhere to basic condemnation law. “Just Compensation” was based on

a value two years after the property was actually taken, when it was

severely impaired from the highway project, and did not include

consideration for the fixed mmprovements.

It is settled that the “just compensation” required by

the Fifth Amendment to be paid for the taking of

private property for public use is the value at the very

time of the taking to the person from whom taken.

United States v. Virginia E. & P. Co. 365 US 624

(1961), First Lutheran Church v Los Angeles County

482 US 304 (1987), Kirby Forest Industnes, Inc. v

United States, 467 US 1 (1984)

The United States no more than a state, can be excused

from paying just compensation measured by the value

of the property at the time of the taking merely

because it could destroy that value by appropmate

legislation or regulation. United States v. Twin City

Power Co. 350 US 222 (1955)

The State ended up taking $2 million worth of fixed

improvements and other post tnal property nghts absent any hearing on

the ments of our clams.

The fundamental requirement of due process is the

opportunity to be heard and this opportunity must be

granted at a meaningful time and in a meaningful

manner, some kind of hearing is required at some time

before a state may finally deprive a person of his

property interests, and merely because a state may be

excluded from providing a meaningful heanng before

deprivation of property because it is not impracticable,

but impossible, to do so does not mean that the state

can take property without providing a meaningful

post-deprivation hearing. Parzatt v. Taylor 451 US

524 (1981)

11

“Many controversies have raged about the cryptic and

abstract words of the Due Process Clause but there can

be no doubt that at a minimum they require that

depnvation of life, liberty or property by adjudication

be preceded by notice and opportunity for heanng

appropnate to the nature of the case.” At the outset,

then, we are faced with what has become a familiar

two-part inquiry: we must determine whether Logan

was deprived of a protected mterest, and, if so, what

process was his due. Logan v. Zimmerman Brush Co

455 US 422 (1982)

Res judicata/Due Process

The state courts should not have dismissed our claims without a hearing

on the ments of the claims. I can accept any decision that comes from a

jury, but find being denied access to the courts extremely frustrating.

There is no way that issues that were not even known dunng previous

litigation could be subject to 7es judicata. | also find it frustrating that our

state is practicing land fraud and is getting away with it.

[w]here a plamtffs claim had been dismissed for

failure to comply with a tnal court’s order — the Court

read the “property” component of the Fifth

Amendments Due Process Clause to mnpose

“constitutional imitations upon the power of courts,

even in aid of their own valid processes, to dismiss an

action without affording a party the opportunity for a

hearing on the ments of his cause.” Parratt v. Taylor

451 US 524 (1981)

Similarly, the Fourteenth Amendments Due Process

Clause has been mterpreted as preventing the States

from denying potental litigants use of established

adjudicatory procedures, when such [455 US 430] an

action would be “the equaling of denying them an

opportunity to be heard upon their claimed nght{s]} 401

US 371 Logan v. Zimmemman Brush Co 455 US 422

(1982)

12

Each of our due process cases has recognized, either

explicitly or implicitly, that because “minimum

[procedural] requirements [are] a matter of federal

law, they are not diminished by the fact that the State

may have specified its own procedures that it may

deem adequate for determining the preconditions to

adverse official action.” Logan v. Zimmenmnan Brush

Co 455 US 422 (1982)

[D]ue process clause grants the apprieved party the

opportunity to present his case and have its merits

fairly judged. Logan v. Zimmerman Brush Co 455 US

422 (1982)

If the State is permitted to ignore laws and take what it wants without

paying for it, how can people be expected to have respect for the laws.

[t]he state may not finally destroy a property interest

without first giving the putative owner an opportunity

to present his claim of enttlement. Logan _v.

Zimmerman Brush Co 455 US 422 (1982)

“[a]bsent a countervailing state mterest of overnding

significance, persons forced to settle their claims of

right and duty through the judicial process must be

given a meaningful opportunity to be heard. 401 US

377. Logan v. Zimmennan Brush Co 455 US 422

(1982)

Guarding the federal highway trust fund is not good enough reason for

the state not to pay for what it takes. Clearly the federal courts cannot

deny access to due process when the state is refusing or abusing process

and is ignoring and misreading federal law.

[w]e agree that a due process right of access to the

courts exists when fundamental mterests are present

and the State has exclusive control over “the

adjustment of [the] legal relationship(s} involved.

Logan v. Zimmerman Brush Co 455 US 422 (1982)

fijts guarantee “to all individuals [of] a meaningful

opportunity to be heard. 401 US 379 Logan _v.

Zimmerman Brush Co 455 US 422 (1982)

13

[t]he State may not depnve someone of that access

unless the balance of state and private mnterests favors

the govemment scheme. Logan v. Zimmennan Brush

Co 455 US 422 (1982)

The heanng required by the due process clause of the

Fourteenth Amendment must be meaningful and

appropnate. ... [p]rocedures adequate to determme a

welfare clam may not suffice to try a felony charge.

[w]e look to substance, not to bare form, to determine

whether constitutional mimumums have been honored.”

Bell v Burson 402 US 535 (1971)

The State and its officers should not have fraudulently

stpulated to bifurcate valuable property nghts to a second tral and then

breached that partially mmplemented agreement when it was too late to

appeal the first tnal.

It is a proposition which hardly seems to need

explicaton that a hearing which excludes

consideration of an element essential to the

decision . . . does not meet this standard Bell v

Burson 402 US 535 (1971)

The Fifth Amendment’s just compensation provision is

designed to bar government from forcing some people

alone to bear public burdens which, in all faimess and

justice, should be bome by the public as a whole. First

Lutheran Church v Los Angeles County 482 US 304

(1987)

[mjany of the provisions of the Constitution are

designed to limit the flexibility and freedom of

govemment authonties, and the Just Compensation

Clause of the Fifth Amendment is one of them. First

Lutheran Church v Los Angeles County 482 US 304

(1987)

The Fifth Amendment provides for due process ard just

compensation. The standards set by this Court have been ignored by

the state courts, and the federal courts have dismissed all issues based

14

on the erroneous state rulings. Taking property nghts absent a heanng

on the issues and not paying for fixed improvements does not reach the

federal standard. The State can adopt its own Constitution and statutes,

but they may not fall below the federal standards. Ferst Lutheran

Church v. Los Angeles County 482 US 304 (1987), Unsted States v.

Virginia E.c7P. Co. 365 US 624 (1961), Kerby Forest Industries, Inc. v.

United States 467 US 1 (1984), Unsted States v Twin City Power Co.

350 US 222 (1955), Parratt v. Taylor 451 US 524 (1981), Ruckelshous

v. Monsanto Co. 467 US 986 (1984). No court has ruled on whether

the Eleventh Amendment gives a state the night to abuse fedenally

protected property nghts. The catch 22 situation that exists im this case,

where one must first raise the claims in the state courts, and the federal

courts’ refusing access to federal litigation based on es judicata and the

Eleventh Amendment, regardless of what process was provided in the

state courts clearly violates our federal Constitution.

The Seventh Amendment provides for a jury’s deciding

factual issues. The Alaska Supreme Court did not have the night to deny

a jury trial on factual issues. The High Court had no authonty to act as

a jury and make factual findings that have all shown to be erroneous

once the record was established. We are still handicapped by all other

courts’ having adopted the erroneous facts. Burisngton Northern o

Nebraska Public Power Dist. 931 F Supp 1470 (D.Neb. 1996), Unsted

15

ee ee rer

States v Gaudin 132 L Ed 2d 444 (1995). For opposing view, Welson v.

Jones 902 F Supp 673 (E.D.Va 1995).

The Eighth Amendment provides for no excessive fines or

cruel and unusual punishment. Taking vested property nghts absent

just compensation, destroying our business, singling out our family to

pay a disproportionate share ($2 million) of a public project, and taking

our property for less than our cost -- less than we owed the bank --

making us subject to a judicial foreclosure, all because we did not appeal

the 886 case, even though the relevant issues had been preserved in a

Bifurcation Order for litigation in a future tmal, is an excessive fine and

cruel and unusual punishment. The federal issues were also formally

preserved [A.30] for federal htgation in the previously litigated cases

[4FA-86-2287, 886], without State objection. (no rulings on the issue)

The Eleventh Amendment. The Fourteenth Amendment,

was adopted after the Eleventh Amendment and was specifically

intended to provide a balance of nghts for mdividuals agamst the

Eleventh Amendment. The federal court should have reviewed

whether at least minimum federal due process standards were adhered

to_befoxe dismissing all issues. It should also mquire into whether

federal law was properly applied.

The Thirteenth Amendment provides for no mvoluntary

servitude. We have never intentionally waived our nghts to just

16

compensation. Being singled out to pay a disproportionate share of a

public project violates this Amendment. (No rulings on the issue)

The Fourteenth Amendment provides for due process of law

when taking private property and for equal protection of the laws. The

Fourteenth Amendment makes it clear that the State must provide due

process in conjunction with taking private property. It also makes it

clear that it is a federal mandate not subject to sovereign immunity, or

the Fourteenth Amendment would have no meaning. The Alaska

Supreme Court’s taking on the role of fact finder and denying a hearing

on the post trial and bifurcated issues [A.29], violated this Amendment.

Singling out our family to pay more than our fair share of the highway

project violates this Amendment. Parraét p. Taylor 451 US 524 (1981),

Logan v. Zimmerman Brush Co 455 US 422 (1982), Bell ». Burson 402

US 535 (1971), Roberts ». New Yorke 295 US 264 (1934), Board of

Regents ». Roth 408 US 564 (1972).

The constitutional requirement of an opportunity for

some form of hearing before depnvation of an interest

encompassed by the Fourteenth Amendment's

protection of liberty and property does not depend

upon any narrow balancing process. Roberts v New

York 295 US 264 (1934)

Yet, while the Court has eschewed ngid or formalistic

limitations on the protection of procedural due

process, it has at the same time observed certain

boundaries. For the words “liberty” and “property”

in the Due Process Clause of the Fourteenth

Amendment must be given some meaning. Board

of Regents v Roth 408 US 564 (1972)

17

[S]tipulated dismissal of judgment will generally not

support claim of issue preclusion, because issues would

not have been actually litigated and decided. Pednng v

Chun 906 F.Supp. 1377 (D. Hawan 1995)

{e}stablished state procedure as lacking in due process

and a property damage clam ansing out of the

misconduct of state officers, the state action not

necessarily bemg complete in the latter situation.

Parratt v. Taylor 451 US 524 (1981)

The State’s and its officers’ ignoring laws

The Alaska Supreme Court must adhere to state and federal

laws. In our case all condemnation laws were ignored [A.19-28]:

1. The biphest and best use. The Alaska Supreme Court’s demial of

compensation based on the highest and best use for which the property

was suitable on the date of taking, contradicts the law of the land.

Judge Blair and Judge Stemkruger both found the highest and best use

to be as subdivided lots [A.17]. Yet, we were only compensated for a

single tract of unimproved raw land [A.17]. Carl R. Lange vo. State of

Washsngton 547 P2d 282 (Wash. 1976).

2. Development profd. The Stemkruger Court demied “develop-

ment profit” based on the erroneous belief that it was not available in

Alaska. The only issue should be the fair market value on the date of

taking. If our business created that value or if it denved from some

other factor should be irrelevant. The State should not have deducted

for an umaginary developer and for items completed and paid m full.

State v. Terrace Land Co. Ime. 298 So2d 859 (Loui. 1974), US ».

Verginsa E ¢ P. Co. 365 US 624 (1961).

3. Faw market value on date of taking. The Alaska Supreme

Court's denial of compensation for the fair market value on the date the

property was actually taken, before it became impaired by the pendency

of the highway project, violates AS 34.60.120(3) and 49 CER Sec.

24.103(b). It ignores those issues’ having been preserved for future

htigation in a partially implemented Bifurcation Agreement [A.14]. This

is contrary to the law of the land. Further, the Alaska Supreme Court

adopted the Lange taking scenario from the Washington Court, but it

ignored the most important aspect, that of moving back the date of

value to a time before the Property became impaired by the highway

project. This concept is echoed by a multitude of Courts. Carl R.

Lange v. State of Wash. 547 P2d 282 (Wash 1976), Ferst Lutheran

Church v. Los Angeles County 482 US 304 (1987), Unsted States v.

Twin City Power Co. 350 US 222 (1955).

Just compensation, as required by the Fifth

Amendment, means the value of what is taken at the

very time it is taken and to the person from whom

taken. Kerby Forest Industries, Inc. v. United States,

467 US 1 (1984).

4. Neither AS 34.60.120 (3) [p.217] or 49 CFR Sec 24.103

(6) {p.220] are written clearty.

Accordingly, the impact of that event upon the

likelihood of actual exercise of the easement cannot be

considered. As one writer has pointed out, “[i]t would

19

be manifestly unjust to permit a public authonty to

depreciate property values by a threat .. [of the

construction of a goverment project] and then to take

advantage of this depression m the price which it must

pay for the property” when eventually condemned.

Unsted States o Vergimia E. & P. Co. 365 US 624

(1961).

The framers mtended for decreases to be excluded, not disregarded, as

held by the Alaska Supreme Court.

5. Damages The Alaska Supreme Court ened im denying

compensation for damages to our business that was located on the

premises and to our investment backed housing project. The addition

of the word “damaged” to our Constitution [p.212] made compensation

for damages a federal vested property nght. Nor should our business or

our investment backed project have been taken absent just compensa-

tion. The stipulated agreement estops the State from now opposing

damages and decreases. F.Gsannsns v. Ferst Natsonal Bank of De

Plasns 483 NE 2d 924 (Ill. App. 1985).

Pretnal stipulation has the effect of amending the

complaint. Lake Havasu Com. Hosp v. Arsz Title Ins

687 P2d 371 (Ariz App 1984).

Stpulaton does not evaporate with new counsel.

Stpulaton will stand; when one reaped the benefits

one cannot deny stipulation. Marden vo. Intern. Ass'n

of Machsnsst ETC. 576 F2d 576 (1978).

[O]}ral contract with respect to mterest m land may

become enforceable, in spite of statute of frauds, where

there has been part performance. Pedring v. Chun 906

F.Supp. 1377 (D.Hawan 1995).

The “just compensation” provision m the Fifth

Amendment is designed to bar govemment from

forcing some people alone to bear a public burdens

which, in all faimess and justice, should be bome by

the public as a whole. First Lutheran Church v. Los

Angeles County 482 US 304 (1987).

The Alaska Supreme Court's taking on the roll of fact finder

The Alaska Supreme Court’s taking on the role of fact finder

prevented our having an opportunity to explain evidence and develop a

full factual record. The limited format of an appeal does not provide

that process.

Right to j

We have the nght to have a jury decide whether property nghts

were taken absent just compensation and whether the State and its

officers violated our civil rights and whether there were business

damages or decreases caused by the highway project. Parratt v. Taylor

451 US 524 (1981). The Due Process Clause guarantee “to all

individuals [of] a meaningful Opportunity to be heard. 401 US 379

Logan v. Zimmerman Brush Co 455 US 422 (1982), JB ». Washington

County 905 F Supp 907 (D.Utah 1995), Sheerbonnet, Ltd. v. American

Express Banke LTD 905 F Supp 127 (S.D.N-Y. 1995).

The hearing required by the due process clause of the

Fourteenth Amendment must be meaningful and

appropnate.... Itis a proposition which hardly seems

to need explication that a hearing which excludes

consideration of an element essential to the decision . .

. does not meet this standard Bel] p. Burson 402 US

535 (1971).

The constitutional requirement (of a heanng before

deprivation of a property nght) does not depend upon

any narrow balancing process. Roberts ». New York

21

295 US 264 (1934), Board of Regents v. Roth 408 US

564 (1972).

Civil Rights Violations

Permitting the State’s entenmg mto a Bifurcation Agreement to

remove vested property nghts from the first tnal for future htgation

and then to breach this bilateral contract after partial implementation is

contrary to the law of the land. The State’s and its officers’ habitually

misrepresenting to the courts what property nghts were taken, enforcing

an illegal department policy to take property for as little as possible,

regardless of applicable laws, also violates federal law. CKetron ov.

Chattanooga - Hamilton County Hosp. 919 F Supp 280 (E.D.Tenn.

1996), Hafer v. Melo 502 US 21 (1991), Stevens v. McHan 3 F3d 1204

(8th Cir. 1993), Valdez v Csty of New London 903 F Supp 286

(D.Conn. 1995), Pruneyard Shoppeng Center v. Robins 447 US 74

(1980), Roberts v. Cety of Forest Acres 902 F Supp 662 (D.S.C. 1995),

Sanfilippo v. County of Santa Cruz 415 F.Supp 1340 (N.D.Cal. 1976).

.. . whether breach affects interest sufficiently grave to

tngper due process scrutiny, court must look to effect

of breach on claimant and determine whether effect is

so dramatic and nghts implicated so fundamental that

Constitution provides remedy. Inven v. Coty of New

York 902 F Supp 442 (S.D.N.Y. 1995).

Taking — Result. It does not matter how it was done,

technical label, it is the result that matters. Hughes ov.

Washsengton 389 US 290, 298 (1967)

Insofar as 42 USCS Sec. 1983 affords a civil remedy for

depnvations of federally protected nghts by persons

acting under color of state law without any express

requirement of a particular state of mind, the mital

22

inquiry in any Sec. 1983 action must focus on whether

two essential elements to a Sec. 1983 action are

present, that is, whether the conduct complained of

was committed by a person acting under color of state

law, and whether this conduct deprived the person of

nghts, privileges, or immunities secured by the

Constitution or laws of the United States. Parratt v.

Taylor 451 US 524 (1981).

The Alaska Supreme Court’s denial of compensation for the

$350,000 worth of fixed improvements that our business (Unique

Builders) had completed in the take area and the enhanced value

attributed to those improvements, as well as from the property’s having

been subdivided city lots, is unprecedented, contrary to the law and to

every other state or circuit court’s ruling. Moreover, it is contrary to the

rulings of this Court. Further, the State’s failure to build the frontage

road to which it committed in the taking documents, leaving some lots

landlocked after the taking, was an additional compensable taking of

property nghts. State ». Glen 602, P2d 253 (Or. 1979), State v. Lewis

785 P2d 24 (AK 1990).

While there is no set formula for determining when justice and

fairness require that economic injuries caused by a public action must be

deemed a compensable taking, and the inquiry into whether a taking has

occurred is essentially an ad hoc, factual inquiry, several factors should

be taken into account when determining whether a governmental action

has gone beyond regulation and effects a taking, among which are the

character of the govemmental action, its economic impact, and its

23

interference with reasonable imvestment-backed expectations.

Ruckelshaus v. Monsanto Co. 467 US 986 (1984), Howard o. Grenage

82 F3d 1343 (6th Cir. 1996), State v. Waggoner 319 S.W.2d 930 (Mis.

1959), Cety of Los Angeles v. Decker 558 P2d 545 (Cal. 1977).

Constitutional Violations

Singling out our family to subsidize this highway project with

our working capital and savings by paying less than our cost for the

property and less than what we owed to the bank, making our family

subject to a judicial foreclosure, making us substantially poorer, violated _

the Alaska Constitution that provides for damage compensation. A

Constitutional violation is self-execuung. [W]here a plamuffs claum had

been dismissed for failure to comply with a tal court's order -- the

Court read the “property” component of the Fifth Amendment’s Due

Process Clause to umpose “constitutional imitations upon the power of

courts, even in aid of their own valid processes, to dismiss an action

without affording a party the opportunity for a hearing on the ments of

his cause.” Parratt v. Taylor 451 US 524 (1981), Carter ». Carter Coal

Co. 298 US 342 (1935), First Ev. Chur. Glendale v. LA 482 US 304

(1987), Defeo v. Sill 810 F Supp 648 (ED. PA. 1993), Inwin v. City of |

New York 922 F Supp 442 (S.D.N.Y. 1955).

DATED this 15th day of May, 1997 at Fairbanks, Alaska.

By: pm Ay thane’

Lars W. Ehrlander, prv se WA,

24 .

APPENDICES

DIRECTORY OF APPENDICES

Opinions, Orders, Findings of Facts and Conclusion of Law:

6-26-96 Case F-021 - Judge Singleton - ORDER

Dorsemissing 08 federal s00t00s. «.n.n.......020s0.sscecssescssesesessessens A.3

7-15-96 Case F-021 - Judge Singleton - ORDER

Pile emntaceah Gor GUUNCNIIN <n senscscscsnsssnssecassisncnsonsnens A.6

3-24-97 Ninth Circuit upheld dismissal ...............:.cccseseseeseseeeeee A.9

5-05-97 Ninth Circuit demied rehearing ...........::cccsecscseseeseseseseens A.13

Opinions, Orders, Findings of Fact and Conclusion of Law in

Companion Cases:

11-20-87 Case 886 & 2287 - Judge Blair - ORDER

Fe I eriactnsiensetiisn erent encarcltbiersiccensinenns A.14

12-10-87 Case 886 - Judge B. at - BENCH RULINGS AT TRIAL A.15

Coit - FE TI PUI acesscsncinsesscnssecsncisssctiensonensseernentnonse A.16

Do not talk about ‘83 - ‘86 damages 1n first tal .............. A.16

If based on ‘83 subdivided value - no second trial, except

on carrying charges, impaired value ...........::s:csscseseeeeseeseees A.17

State’s appraisal assumes taking unimproved property ..... A.17

Highest and best use 1s as subdivided ...............::s:sessseeseseees A.17

4-30-96 Case 2287, 870 - ALASKA SUPREME COURT ORDER

DENYING MOTIONS:

1. To amend points on appeal

2. To merge 2287 & 870 and to stay

3. To waive final judgment in the 886 case

4. To enforce AS 34.60.120 (3)

5. For judgment on Kopping damages

6. For compensation for improvements

7. For highest and best use

8. To enforce the Bifurcation Agreement .................+. A.17

9-28-96 Judge Steinkruger case 886 - Litigate civil nghts claims

Sh UE I nis ssnsenssacnssnantesesessontennace A.18

CONSTITUTIONAL PROVISIONS

IIE: cient cnsincncvesccinrinsusimvasarersntaancicntsins A.19

a Pes IN sapiicccstorohcsiscsniccawesnioucntinpeccmiinnsielten sniiccodsen A.19

PI I aiasiich recs ccsiscentmsetss rn etccisanidaceamnmapniaks A.20

Pe I ih eiitredcinicintecastesshcenisensvechinanineaokandaulasonnaties A.24

Nene NOON: icsstssnscsieciasasnonensencencenrsotsasatseaheadbinsesbcins A.26

I ii tdaeteliscctoarigicrcehadeanleenis diighiicaieelsaasebicinkeandetonenankodiniavies A.28

EVIDENCE OF BIFURCATED ISSUES

State’s amended appraisal instructions .............:.00:0e0e0e A.29

A. 2

ina sie nee

Reserving federal issues ............0:.cccsssssssssesssssssesessssoeeossses.. A.30

Bifurcation Agreement ...........:..csesccsseescsssessssssse. ( A. 14)

EVIDENCE OF THE PROPERTY BEING IMPAIRED

Affidavit Glen Potts, State in-house appraiser ............ A.31

Potts’ 1984 valuation estimate .0.......cccccsssssssscssssseeesee A.33

Letter from City of Fairbanks regarding improvements A.34

yyeyeeessssscssensnesnsnssnsnnnnnnnnny

OPINIONS, ORDERS, FINDINGS OF FACTS AND

CONCLUSIONS OF LAW

MINUTES OF THE UNITED STATES DISTRICT COURT

DISTRICT OF ALASKA

Lars Ehrlander v. State of Alaska

Case No. F96-0021 CV (JKS)

By: THE HONORABLE JAMES K. SINGLETON

Deputy Clerk: Patty Demeter, Case Management: 271-3235*

PROCEEDINGS: ORDER FROM CHAMBERS

Lars Ehrlander ("Ehrlander") sues the State of Alaska ("State")

and various of its agents and officers asserting claims under 42 U.S.C.

Sec. 1983. This court has jurisdiction. 28 U.S.C. § 1343.'

Defendants move to dismiss, asserting various grounds. Docket

Nos. 15, 23. The motion is opposed and Ehrlander requests oral

argument. Docket Nos. 22, 30. After reviewing the record, the Court

concludes that oral argument will not be helpful. D. Ak. LR .1@). All of

Ehrlander's claims against the State must be dismissed on the basis of

Eleventh Amendment immunity. We must then turn to Ehrlander's

Claims against certain state agents in their personal capacity. The

A. 3

gravamen of Ehrilander’s claim is that the State condemned his property

and did not pay him what it was worth. The State correctly poits out

that all of the issues in this case have been litigated in state court and

judgments entered. See Ehriander v. State of Alaska, 797 P.2d 629 (Alaska

1990); 4FA-95-870 Civil; 4FA-86-2287 Civil; and 4FA-86-886 Civil.

Those judgments are binding on both parties under the doctrines of res

judicata and collateral estoppel. See, ¢. g. , Eilrich v Remas, 839 F.2d 630

(9th Cir. 1988) (if issues have been litigated in state court or before state

administrative agency and state would give them preclusive effect, the

federal court must give state determinations preclusive effect). The State

concludes that Ehrlander is bound by the various actions in which he

has litigated these issues. Diedrich v. City of Ketchikan, 805 P.2d 362,

369-70 (Alska 1991). It is umportant to mention that the state court

decisions are binding on the parties, whether they are correct or not. If

Ehrlander received ineffective assistance of counsel, ze: , was the victum

of malpractice, his remedy is an action for malpractice in state court.

Absent diversity of citizenship, Ehrlander cannot sue his attorney im

federal court.”

' The State coftectly points out that the First Amendment bars any action at law or m

equity against the State, its agencies, and its officers in their official capacity. The State is

not a "person" for purposes of Sec. 1983. Thus all of these claims must be dismissed.

* Ehrlander essentially makes four claims. First, he was not paid what his property was

worth. The value of the property and the circumstances surrounding the acquisition

were thoroughly litigated in state court and the judgments in those cases are res judicata,

which means that, as to such issues, Ehrlander cannot lingate any issue that could have

been raised and considered. Res judicata is not limited to that were actually raised.

Second, Ehrlander argues a number of tort claims which cannot be brought in federal

court absent diversity of citizenship. Third, Ehrlander asks, in effect, for this Court to

'T IS THEREFORE ORDERED:

The motion for summary judgment at Docket No.15 is

GRANTED. The Clerk of Court is directed to enter judgment in favor

of the State and its officers and against Ehrlander dismissing his action

with prejudice. Each party shall bear its own costs. The motion to

reject service at Docket No. 13 is DENIED as MOOT since this entire

case 1s dismissed. The motion to set the record Straight at Docket No.

25 1s moot and is therefore DENIED. The motion for judgment on

lability at Docket No. 22 is moot and is therefore DENIED. * The

request for oral argument at Docket No. 30 is DENIED. The motion

to inform the court of new important discovery at Docket No. 31 is

DENIED.

Entered at the direction of the Honorable James K. Singleton,

United States District Court Judge.

DATE: June 26, 1996

review decisions of the state court and particularly Judge Savell’s failure to recuse.

Docket No: 31. This Court has no junsdicton to review decisions of state courts

applying state law. Finally, Ehelander claims he was dented due process the state and its

agents fooled the state court. Claums of this kind must be litigated in the court allegedly

fooled. Ehrlander's clams of fraud on the courts are sumply arguments that the courts

made the wrong decisions in his cases. Such claims cannot be litigated in federal court.

The decision in this case ss without prejudice to Ehrlander’s pending lingation in state

court.

MINUTES OF THE UNITED STATES DISTRICT COURT

DISTRICT OF ALASKA

Lars Ehrlander v. State of Alaska

Case No. F96-0021 CV (JKS)

By: THE HONORABLE JAMES K. SINGLETON

Deputy Clerk: Patty Demeter, Case Management: 271-3235*

PROCEEDINGS: ORDER FROM CHAMBERS

On July 15, 1996, this Court issued an order denying Lars

Ehrlander's motion for reconsideration. Docket No. 36. The Court now

sets out an explanation regarding denial of the moton for

reconsideration.

Ehrlander sought reconsideration of this Court's order dismissing

this action with prejudice to further action in federal court pending final

decisions in the state court and with prejudice to further proceedings in

any court regarding issues that were litigated or could have been

A. 6

litigated in prior state proceedings. Docket No. 35. Ehrlander raised no

new issues. Takings claims are not mpe until they have been presented

to the state courts. Wiléamson County Regional Planning Comm'n v. Hamilton

Bank of Johnson City, 473 U.S. 172 (1985); Jones Intercable of San I Diego v. City

of Chula Vista, 80 F.3d 320, 323-24 (9th Cir.1996). Any claims that were

submutted to the state court or could have been submitted to the state

court are barred under the doctrine of res judicata. Palomar Mobilehome

Park Ass'n v. City of San Marcos, 989 F.2d 362 (9th Cir.1993). This Court

was of the view that all of Ehrlander's claims had either been presented

to the state courts and rejected on their merits or should have been

submutted and were therefore-within the doctrine of res judicata.

Alternatively, the claims are not mpe. Ehrlander has hardly shown that

the Alaska court's treatment of inverse condemnation claims renders

resort to state courts futile. See, e.g., Suttum v. Taboe Regional Planning

Agency, 80 F.3d 359 (9th Cir. 1996). Further, to the extent that

Ehrlander is making claims against the State or its officers in their

official capacity his claims are barred by the Eleventh Amendment.

Such claims could be pursued in the state court. Finally, Ehrlander

argues that he has claims against certain state officials in their personal

capacity that do not relate to the taking of his property in inverse

condemnation but relate to unfair mampulation of the state judicial

Proceedings. Such claims are also not mpe until they have been

A. 7

presented to the state courts and the state judgments have been set

aside. See, e.g., Heck v. Humpbrey, 114 S. Ct. 2364 (1994}. While Heck

deals with claims alleging actons whose unlawfulness would render a

conviction or sentence imvahd, there ts no reason not to apply its

rationale to claims alleging actions whose unlawfulness would render a

state civil yudgment mvalid. The Alaska Supreme Court 1s prepared to

set aside a yudgment which resulted from a fraud on the court. See, e. g.

, Higgins v. Municipality of Anchorage, 810 P.2d 149 (Alaska 1991); Aden ».

Bussell, 558 P.2d 496 (Alaska 1976).'

In rewewing the order at Docket No. 32, 1t became clear that a

typographical error occurred in n. | where the reference to the First

Amendment clearly should have been a reference to the Eleventh

Amendment. The First Amendment has absolutely nothing to do with

this case.

iT IS THEREFORE ORDERED:

Footmote 1 in Docket No. 32 1s amended to replace the reference to

the First Amendment with a reference to the Eleventh Amendment. In

all other respects, the motion for reconsideration at Docket No. 35 1s

DENIED.

Entered at the direction of the Honorable James K. Singleton, United

States Distnct Court Judge.

DATE: July 19, 1996

' Ehelander reties on Dodd pv. Hood River County, 59 F.3d 852 (9th Cir.1995). In Dodd the

parues specifically reserved certain issues to be decided in a federal court proceeding that

was pending at the same time. Here, while there may have been a bifurcation of issues as

Ehrlander contends, they were separated for later consideration in the State court, not

the federal court, and as Ehrlander concedes, subsequent judgments were entered. In

tact, the final judgment found that all of Englander's claims were barred by res pudicata

That decision is in itself res judicata in this Court even if erroneous, as Ehrlander

contends, because this Court must give the same prechisive effect to state court

judgments that the state court would, see 28 U.S.C. § 1738, and the state courts give

preclusive effect to decisions, even if erroneous, mchuding decisions resolving

constitutional claims. See, also, 28 U S. C § 1738; DeNardo v. Jobnstone, 772 F. Supp. 462

(D. Alaska 1991)

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Filed Mar. 27, 1997

LARS W. EHRLANDER, No. 96-35915

Plainuff-Appellant, D.C. No. CV-96-00021-JKS

v.

STATE OF ALASKA, DEPARTMENT OF

TRANSPORTATION; JOHN ATHENS:

RAYMOND FUNK; JOHN MILLER: DONALD

BAUM; FEDERAL HIGHWAY

ADMINISTRATION,

Defendants-Appellees .

MEMORANDUM*

Appeal from the United States District Court

for the District of Alaska

James K. Singleton, District Judge, Presiding

A. 9

Submutted March 24, 1997**

Be fore: SNEED, FARRIS, and THOMAS, Caircust Judges.

Lars Ehrlander appeals pro se the distnct court’s grant of summary

judgment in favor of the defendants m his 42 U.S.C. 1983 action

alleging that the State of Alaska, the Alaska Department of

‘Transportation, two Department of Transportation employees, and two

Alaska assistant attorneys general parncrpated (foot notes)

* ‘This disposition 1s not appropnate for publication and may

not be cited to or by the courts of this circuit except as

provided by 9th Cir. R. 36-3.

** ‘The panel unanimously finds this case suitable for decision

without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4.

(end of foot note) m a scheme to take his property without just

compensation. We have junsdiction pursuant to 28 U.S.C. § 1291, and

affirm.

Ehrlander contends the distnct court erred by concluding that his

clams were barred by res judicataa We review the district court’s

apphcation of res judicata de novo. See Hiser v. Franklin, 94 F.3d

1287, 1290 (9th Cir. 1996), cert. denied, 65 U.S.L.W. 3596 (U.S. Mar. 3,

1997) (No. 96-895). Federal courts must give a state court judgment the

same preclusive effect that the yudgment would have im state court. See

Palomar Mobilehome Park Ass’n_ v. City of San Marcos, 989 F.2d 362,

A. 10

364 (9th Cir, 1993); aee also

Sansez v. City of Santa Ana, 936 F:2d

1027, 1035 (9th Cir. 1990) (federal courts look to law of the state for

applicability of res judicata Principles). In Alaska, res judicata holds that

a final judgment will bar any subsequent suit between the same parties

or their privies where the matter raised in the subsequent suit was or

could have been decided in the first suit. See Summerville v:_ Denali

Cntr , 811 P.2d 1047, 1050 (Alaska 1991).

Here, Ehrlander claims that he has not been fairly compensated for

the taking of his property, and that various state employees participated

i a conspiracy to deprive him of his Property for as little as possible.

However, these issues either have been or could have been lingated in

prior state Court proceedings. See State v. Ehrlander, No. 0825 (Alaska

July 31, 1996) (condemnation and inverse condemnation); Ehrlander y.

Alaska, 797 P.2d

629 (Alaska 1990) (inverse condemnation); State v.

Ehriander, No. 4FA-86-2287 (Alaska Super. Ct. March 21, 1988)

(condemnation); Ehrlander v. State, No. 4FA-86-2287 (Alaska Super.

Ct Feb. 3, 1993) (inverse condemnation); Ehrlander v. State, No.

4FA-95-0807 (Alaska Super. Ct. March 4, 1996) (state tort and civil

mghts action). Ehrlander is therefore barred by the doctrine of res

judicata from relingating these claims in federal court. See Palomar

Mobilehome Park Ass’n, 989 F.

2d at 365; see also Sanchez, 936 F.2d

at 1035 (stating that where a federal constitutional claim is based on the

A. 11

same asserted wrongs as a state action, res judicata will bar the federal

constitutional claim whether or not it was asserted im state court). 1/

Ehrlander concedes that "fa]ll issues in this case have been raised in

the state courts." However, he argues that none has been “fully

litigated." He apparently believes that because he did not receive all of

the damages he sought in state court, his issues were not fully litigated.

This argument fails. Ehrlander has exhaustively litigated his claim that

he did not receive adequate compensation for the taking of his property

in state court. While Ehrlander is dissatisfied with the outcome of the

prior litigation, and believes that the Alaska superior court and supreme

court erred because he did not receive the full measure of damages he

sought, we do not have jurisdiction to review state (foot note)

Although assistant attorney general Raymond Funk and the two

Alaska Department of Transportation employees were not parties to the

state court proceedings, we conclude that they are privies of the parties

to the state court proceedings. See Fund for Animals, Inc. v. Lujan, 962

F.2d 1391, 1398 (9th Cir. 1992); Tolstrup v. Miller, 726 P.2d 1304, 1307

(Alaska 1986). (end of foot note)

court rulings. See MacKay v. Pfeil, 827 F.2d 540, 543 (9th Cir.1987)

(per curiam).

Ehrlander also contends that the district court erred by applying res

judicata because, in the condemnation and tmverse condemnation

proceedings, he reserved the nght to proceed in federal court on his

federal claams. See Dodd v. Hood R.iver County, 59 F.3d 852, 861-62

A. 12

(9th Cir. 1995). This argument fails. In his action against the State of

Alaska and assistant attorney general John Athens, see Ehrlander v.

State, No. 4FA-95-0807 (Alaska Super. Ct. March 4, 1996), Ehrlander

expressly raised his federal claims and those claims were decided against

him on summary judgment. 2/

AFFIRMED.

(FOOT NOTE) Although Ehrlander also filed a reservation of federal

claims in his action against the State of Alaska and assistant attorney

general Athens, the reservation was filed after the Alaska superior court

granted the defendants’ motion for summary judgment.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Filed May 5, 1997

LARS W. EHRLANDER, No. 96-35915

Plainuff-Appellant, D.C. No. CV-96-00021-JKS

V.

STATE OF ALASKA, DEPARTMENT OF

TRANSPORTATION; JOHN ATHENS;

RAYMOND FUNK; JOHN MILLER; DONALD

BAUM; FEDERAL HIGHWAY

ADMINISTRATION,

Defendants-Appellees .

Before: SNEED, FARRIS, and THOMAS, Circuit Judges.

The panel has voted to deny appellant’s petition for rehearing. Judge

Thomas votes to reject the suggestion for rehearing en banc and Judges

Sneed and Farris so recommend.

The full court has been advised of the suggestion for rehearing en

banc and no active judge has requested a vote on whether to rehear the

matter en banc. See Fed. R. App. P. 35.

The petinon for reheanng 1s demed and the suggestion for

rehearing en banc 1s rejected.

OPINIONS, ORDERS, FINDINGS OF FACT AND

CONCLUSIONS OF LAW IN COMPANION CASES

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

lars Ehrlander, plainnff,

VS.

Karrbanks North Star Borough and State of Alaska, Department of

‘Transportation and Public Facihtnes, defendants.

Case No: 4FA-86-2287 Crvil

and

State of Alaska, plainnff,

VS.

6.313 acres, more or less, Lars W. Ehrlander, et al, defendants.

Case No. 4FA-86-886

Project No. RS-RRS-M-OOOS(52)

Parcel No. 2O0A

Date of Order. November 20, 1987

ORDER

The Court, bemg fully advised in the premises, and upon stipulation

of the parties,

IT IS HEREBY ADJUDGED, ORDERED, AND DECREED

that the above-captioned case shall be bifurcated, with the

condemnation case, pertaming to the summons and complaint filed on

A. 14

Apnil 29, 1986, being med during the week of December 7, 1987, and

under the appropriate provisions of the existing pretrial order.

'T IS FURTHER ADJUDGED, ORDERED AND DECREED

that the inverse condemnation taking case, with respect to the complaint

filed by Lars Ehrlander, shall be reassigned for a trial date subsequent to

the condemnation case, and that the issues to be determined in that case

shall be the damages and compensation due Ehrlander for that penod

of tme from August 24, 1983 until Apni 29, 1986, and that the parties

shall apply to the court for a new tnal date with respect to that inverse

condemnation case.

Date: Nov. 20, 1987 Signed, James R. Blair, Superior Court Judge.

Case No. 4 A-86-2287 & 4FA-86-886 Civil.

IN THE SUPERIOR COU

State of Alaska, plainnff,

VS.

6.313 acres, more or less, Lars

Case No. 4FA-86-886

RT FOR THE STATE OF ALASKA

W. Ehrlander, et al, defendants.

December 7, 1987 TRIAL

improvements)

Judge Blair, superior court judge

on 1986 value. (impaired and absent

Mr. Vancil, counsel for the State

Mr. Satterberg, counsel for defendant.

(Mary Ehrlander Direct) From 1987 trial franscript page 220:

MR. VANCIL: Your Honor, then could I ask for the most explicit

ruling you can give about the degree to which anything relating to the

‘83 to ‘85 temporary taking should be excluded, for instance . . .

THE COURT: _ No, all I ever ruled was that we’re going to do this

case based on the 1986 values.

MR. VANCIL: Yes, Your Honor.

THE COURT: So I don’t know what you’re saying as to I said

something else.

MR. VANCIL: Well, Your Honor, I’m saying that as I understood

your order, you were not going to allow us to talk about damages

resulting from the 1983 to ‘85 taking and...

THE COURT: _ That’s nght and I’m not.

MR. VANCIL: _. . . and those damages are presumed not to have

occurred in this appraisal, so that if...

THE COURT: _ If Karl Sopp comes in and testifies that the property

is worth “X” in 1985, $1,500,000.00 -- or 86, $1,5000,000.00 and that’s

based upon the fact it should have been zoned or platted in 1983 and

Mr. Vancil (sic) walks away with a $1,500,000.00 verdict, that ends any

discussion as far as additional damages except the ones that I’ve already

indicated exist.

A. 16

MR. SATTERBERG: | Sure.

; THE COURT: — From 3 to ‘86, that is possible sales that could have

taken place before ‘86 that would have been more and possible Carrying

charges or things of that nature the he’s talked about.

MR. VANCIL: My problem, Your Honor, is that the appraisers have

different assumptions. The State appraisers do not assume anything

other than we have an ‘86

ont Patina sabe.

nt in caine are AO SC Lame

in ld a nbc Si

taking of unimproved property. The

: consequence of that difference is large.

THE COURT: The highest and best use was a subdivision in 1986

and the Borough should have granted a plat to allow that to be used as a

) subdivision in 1986, which | Suess everybody agrees they should have

done. ...

THE SUPREME COURT OF THE STATE OF ALASKA

| State of Alaska, Department of T ransportation and Public Facilities,

i Appellant and Cross Appellee,

4

: v.

Lars Ehrlander, Appellee and Cross Appellant.

: Supenior Court No. 4FA-86-2287

. Supreme Court No. S-6075/6076/7135

4-30-96 ORDER

) DENIED: Motion to amend points on appeal -- motion to merge and

Stay, and oppositions -- motion to waive final judgment in the 886 case,

to merge (2287 & 886) - motion to enforce AS 34,60,120 (3)

mouon for judgment on Klopping damages --

motnon for compensation

A. 17

for the improvements -- motion to enforce the Bifurcation Agreement

-- motion for the highest and best use.

THE SUPERIOR COURT FOR THE STATE OF ALASKA

State of Alaska, Plainnff,

v.

6.313 Acres, more or less;

and Lars W. Ehrlander, Defendant.

Superior Court Case No. 4FA-86-886 Civil

Judge Niesje J. Stemnkruger

September 28, 1996

ORDER DENYING EHRLANDER’S CROSS-MOTION

FOR CIVIL RIGHTS VIOLATIONS, EXTORTION, ETC.

The court having considered Ehrlander’s Cross-Motion for

Civil Rights Violations, Extortion, Etc., and the opposition of the State

of Alaska,

IT IS HEREBY ORDERED that said motion ts demed. Any

Civil nghts, extortion claims must be litigated in a separate action. The

motion for reconsideration of the 8-26-96 Order is Denied.

Dated: 9-28-96

Signed Niesje J. Stemnkruger, Judge of the Supenor Court

LISP ANSISD SDSS PASI ISIS I PDP PDP DARD APD PRADA AS

CONSTITUTIONAL PROVISIONS, STATUTES AND

REGULATIONS

CONSTITUTIONAL PROVISIONS

Alaska Const. Art. 1. Sec. 1. Inherent rights. . . all persons have

natural nights to life, liberty, the pursuit of happiness, and the enjoyment

of the rewards of their own industry; that all persons are equal and

entitled to equal rights, Opportunities, and protection under the law...

A.C. Section 6., Petition. The nght of the people to petition the

government shall never be abridged.

A.C. Section 7. Due Process. No person shall be deprived of life,

liberty, or property, without due process of law. The nght of all persons

to fair and just treatment in the course of legislative and executive

investigations shall not be infringed.

A.C. Section 14. Searches and seizures. The nght of the people to

be secure in their persons, houses and other property, papers, and

effects, against unreasonable searches and seizures shall not be violated.

A.C. Section 16. Civil Suits: Trial by jury. In civil cases where the

amount in controversy exceeds two hundred and fifty dollars, the right

to tal by a jury of twelve is preserved to the same extent as it existed at

common law...

A.C. Sec. 18 Eminent domain. Private property shall not be taken or

damaged for public use without just Compensation.

US Constitution Article 3, Section 2. The judicial power shall extend

to all cases. No State may infringe on rights protected by the US

Constitution.

Article 4 Sec. 1, 2. Citizens of each State shall be treated equally.

Article 6. This Constitution, and the Laws of the United States which

Shall be made under the authority of the United States, shall be the

Supreme Law of the Land; and the Judges in every State shall be bound

thereby, anything in the Constitution or Laws of any State to the

contrary notwithstanding.

Amendment 1. Congress shall make no law ... abridging ... the right of

the people .. to petition the Government for a redress of grievances.

Amendment 5. Due process; emment domain. ... 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.

A. 19

Sno a ‘

Amendment 7. In suits at the common law, where the value in

controversy shall exceed twenty dollars, the nght of tnal by jury shall be

preserved, and no fact tried by a jury shall be otherwise reexamined in

any Court of the United States, than according to the rules of the

common law.

Amendment 8. ... nor excessive fines imposed, nor cruel and unusual

punishments inflicted.

Amendment 11. The judicial power of the united States shall not be

construed to extend to any suit im law or equity, commenced or

prosecuted against one of the United States by Citizens of another State,

or by Citizens or Subjects of any foreign State.

Amendment 13. Section 1. Neither slavery nor involuntary servitude,

except as a punishment for crme whereof the party shall have been duly

convicted, shall exist within the United States, or any place subject to

their jurisdiction.

Amendment 14. Section 1. All persons bor or naturalized in the

United States and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State shall make

or enforce any law which shall abridge the pnvileges or ummunities of

citizens of the United States; nor shall any State deprive any person of

life, liberty or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.

STATUTES

AS 09.10.070 Establishing Equitable Estoppel Reliance on

musrepresentations result m a party's failing to pursue a remedy timely.

Equitable Tolling. There is no need to pursue two similar remedies at

the same time.

AS 09.25.010 Statute of Frauds (a) In the following cases and under

the following conditions an agreement, promise, or undertaking 1s

unenforceable unless it or some note or memorandum of it is in wnting

and subscribed by the party charged or an agent of that party...

AS 09.25.020 Exemptions to statute of frauds. A contract, promise,

or agreement which is subject to AS 09.25.010, which does not satisfy

the requirements of that section, but which 1s otherwise valid 1s

enforceable if

(1) there has been full performance on one side accepted by the other

im accordance with the contract; or

A. 20

the party against whom enforcement is sought admits, voluntarily or

involuntarily, in pleadings or at any other Stage of this or any other

action or proceeding the making of an agreement:

AS 09.40.230 Authorization for injunction. (2) the defendant is

$Omng, OF threatens or is about to do, oF is procuring or suffering to be

done some act in violation of the plaintiff's rights concerning the

subject of the action and tending to render the judgment ineffectual.

(1) the value of the sought to be condemned, and all

improvements on it pertaining to the realty, and of each separate estate

Of interest in it; if it consists of different parcels, the value of parcel and

each estate or interest in each parcel shall be separately assessed.

(2) if the property sought to be condemned constitutes only a

part of 2 larger parcel, the damages which will accrue to the portion ner

sought t be condemned by reason of its severance from the portion

sought to be condemned, and the c ion of the improvements in

the manner Proposed by the plaintiff...

A. 21

AS 09.55.370 Final order of condemnation. When payments have

been made and the.. the court shall make a final order of

condemnation...

AS 09.55.430 Content of Declaration of Taking. (3) A description

of the property sufficient for the identification of it;

AS 09.55.460 (b) Effect of appeal The plaintiff may not be divested

of a title or possession acquired except where the Court finds that the

property was not taken by necessity for a public use or purpose im a

manner compatible with the greatest public good and the least private

injury. In the event of that finding, the court shall enter the judgment

necessary to (1) compensate the persons entitled to it for a period

during which the property was in the possession of the planuff...

restore the property to the condition in which it existed at the time of

the filing of the declaration of taking unless such restoration is

impossible, in which case the court shall award damages to the proper

persons as compensation for any diminution in value of the property

caused by the plaintiff's wrongful possession.

AS 24.40.010 Invalidity generally. A conveyance or assignment, in

writing or otherwise, of an estate or mterest in lands, or in goods, or

things in action, or of rents or profits issuing from them or a charge

upon land, goods, or things in action, or upon the rents or profits from

them, made with the intent to hinder, delay, or defraud creditors or

other persons of their lawful suits, damages forfeitures, debts, or

demands, or bond, or other evidence of debt given, action commenced,

decree or judgment suffered, with the like intent, as against the persons

so hindered, delayed, or defrauded 1s void.

AS 34.40.090 Fraudulent intent question of fact. The question of

fraudulent intent in a case arising under the provisions of this chapter 1s

a question of fact, and not of law.

AS 34.55.004 Fraudulent and prohibited practices. It is unlawful

for a person, in connection with the offer, sale or purchase of

subdivided land directly or indirectly, to knowingly

(1) employ a device, scheme, or artifice to defraud;

(2) make an untrue statement of a maternal fact or omit a

statement of a material fact necessary m order to make the statements

made, in light of the circumstances under which they are made, not

musleading; or

(3) emgage in an act, practice, or course of business that

operates or would operate as a fraud or deceit upon a person.

A. 22

AS 34.55.046 Definitions. (7) "subdivision" and "subdivided land"

means land that is divided or is proposed to be divided for the purpose

of disposition into two or more lots, parcels units, or interests and also

includes any land whether contiguous or not if two or more lots, parcels

units, Or interests are offered as a part of a common promotional plan

of advertising and sale; if the land is contiguous or is known, designated,

or advertised as a common unit or by a common name, the land shall be

presumed, without regard to the number of lots covered by each

individual offering, as being offered for disposition as part of a common

promotional plan.

AS 34.60.040 Relocation payments.

(1) actual expenses in moving a person, the person's family,

business ...

(2) actual direct losses of tangible personal property as a result

of moving or discontinuing a business...

(3) actual reasonable expenses in searching for a replacement

business. (c) A displaced person eligible for payment under (a) of this

section who is displaced from a place of business ... and who elects to

accept the payment authorized by this subsection in place of the

payment authonzed by (a) of this section, may receive a fixed payment

amount equal to the average annual net earnings of the business ...

except that this payment shall not be less than $1,000.00 or more than

$20,000.00.. 10

AS 34.60.070 Expenses incidental to transfer of property. ... The

State agency... shall reimburse the owner, to the extent the department

considers fair and reasonable, for expenses necessarily incurred for

(1) recording fees, transfer taxes, and similar expenses

incidental to conveying the real property to the state agency;... AS

34.60.080. Litigation expenses. (a) (c) ... agency ... shall award ... a sum

that will in the opinion of the court reimburse the owner for reasonable

costs, disbursements, and expenses, including reasonable attorney,

appraisal, and engineering fees, actually incurred because of the

condemnation proceeding.

AS 34.60.090 Relocation services. (4) assist a person displaced from

the person's business or farm operation in obtaining and becoming

established in a suitable replacement location...

AS 34.60.120(3) Do not consider Decreases caused by the project.

"A decrease in the value of property caused by the public improvement

for which the property is acquired or by the likelihood that the property

A. 23

would be acquired for the wmprovement must be disregarded m

determining just compensation.”

(9) If the acquisition of only part of the property would leave

its owner with an uneconomic remnant, an offer to acquire the entire

property shall be made.

AS 34.60.130. Uniform acquisition policy for improvements. .. if

a state agency acquires any interest in real property, the state agency

must acquire at least an equal mterest in all buildings, structures or other

improvements located upon the real property which the state agency

requires to be removed from the real property or which the state agency

determines will be adversely affected by the use to which the real

property will be put.

(b) For the purpose of determining just compensation to be

paid for a building, structure, or other umprovement required to be

acquired under (a) of this section, the building , structure, or other

improvement is considered to be a part of the real property to be

acquired. ... and the fair market value which the building, structure, or

improvement contnbutes to the fair market value of the real property to

be acquired...

AS 34.60.150 Definitions. (1) “business” means any lawful

activity...

AS 44.88.38 Personal liability. An officer, employee, or agent of the

authority may not be held personally lable in a civil action for damages

for an act done or omitted in good faith while performing the functions

of office, employment, or agency under this chapter. USCS 23

Sec. 127 (b) — Reasonable access. No State may enact or enforce any law

denying reasonable access to motor vehicles subject to this title to and

from the Interstate

USC 28 Sec. 1331 The district court shall have orginal jurisdiction of

all civil actions arising under the Constitution, laws, or treaties of the

United States.

USC 28 Sec. 1343 (a) (1, 2, 3, 4,) Civil rights and elective francise

(a) The district court shall have original jurisdiction of any civil action

authonzed by law to be commenced by any person:

(1) To recover damages for injury to his person or property, or because

of the deprivation of any nght or pnivilege of a citizen of the United

States, by any act done in furtherance of any conspiracy mentioned in

section 1985 of Title 42;

(2) To recover damages from any person who fails to prevent or to aid

in preventing any wrongs mentioned in section 1985 of Title 42 which

he had knowledge were about to occur and power to prevent;

(3) To redress the depravation, under color of law, statute, ordinance,

regulation, custom or usage, of any night, privilege or immunity secured

by the Constitution of the United States or by any act of congress

Providing for equal rights of citizens or of all persons within the

jurisdiction of the United States:

(4) To recover damages or to secure equitable or other relief under any

Act of Congress providing for the protection of civil nghts, including

tenant. The district court shall have onginal jurisdiction of any civil

action commenced by any tenant in common or jot tenant for the

partition of lands where the United States is one of the tenants in

common or joint tenant.

USC 28 Sec. 1358 The district court shall have onginal jurisdiction of

all proceedings to condemn real estate for use of United States or its

departments or agencies

USC 28 Sec. 1367 Supplemental Jurisdiction

(a) Except as provided in subsection (b) and (c) or as expressly

provided otherwise by Federal Statute, m any civil action of which the

district courts have original jurisdiction, the district courts shall have

supplemental jurisdiction over all other claims that are so related to

claims in the action within such original jurisdiction that they form part

of the same case or controversy under Article III of the United States

Constitution. Such supplemental jurisdiction shall include all claims that

involve the joinder or intervention of additional parties.

(c) The district court may decline to exercise supplemental jurisdiction

over a claim under subsection (a) if—

(1) the claim raises novel or complex issues of State law,

(2) the claim substantially predomunates over the claim or claims over

which the district court has onginal jurisdiction,

(3) the district court has dismissed alll claims over which it has original

jurisdiction, or

(4) im exceptional circumstances, there are other compelling reasons for

doctininn snsiadicsi

USC 28 Sec. 1991, 1992, 1995

A. 25

USC 42 Sec. 1455(c)(1)

USC 42 Sec. 4625

USC 42 sec. 1983 Civil action for deprivation of rights.

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress. For the purpose of this section,

any Act of Congress applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of Columbia.

USC 42 Sec. 1985 (2) ...if two or more persons conspire for the purpose

of impeding, hindering, obstructing, or defeating, in any matter, the due

course of justice in any State or Terntory, with intent to deny to any

citizen the equal protection of the laws, ...

USC 42 Sec. 1986 Action for negiect to prevent.

Every person who, having knowledge that any of the wrongs conspired

to be done, and mentioned in section 1985 of this title, are about to be

committed, and having power to prevent or aid im preventing the

commission of the same, neglects or refuses so to do, if such wrongful

act be committed, shall be liable to the party imjured, or his legal

representatives, for all damages caused by such wrongful act, which

such person by reasonable diligence could have prevented; and such

damages may be recovered in an action on the case; and any number of

persons guilty of such wrongful neglect or refusal may be jomed as

defendants in the action . . . . but no action under the provisions of this

section shall be sustained which is not commenced within one year after

the cause of action has accrued.

FEDERAL REGULATIONS

49 CFR Sec. 24.101 -- Real Property Acquisition

Sec. 24.101 Applicability of acquisition requirements.

(a) General. The requirements of this subpart apply to any acquisition of

real property for a Federal program or project, and to programs and

projects where there is Federal financial assistance in any part of project

49 CFR Sec. 24.102 -- Basic acquisition policies

A. 26

Lice Pa a dans a aalbat Nesa LS 2E% tn

(k) Uneconomic remnant. \f the acquisition of only a portion of a property

would leave the owner with an uneconomic remnant, the Agency shall

offer to acquire the uneconomic remnant along with the portion of the

property needed for the project. (See Sec. 24.2 (w).)

(1) Inverse condemnation. If the Agency intends to acquire any interest in

real property by exercise of emment domain, it shall institute formal

condemnation proceedings an not intentionally make it necessary for

the owner to institute legal proceedings to prove the fact of the taking

of the real property.

49 CFR Sec. 24.103 — Criteria for appraisals

(a)(2) An adequate description of the property being appraised (and, in

the case of a partial acquisition, an adequate description of the

remaiming property), a statement of the known and observed

encumbrances, if any, title information, location, zoning, present use, an

analysis of highest and best use, and at least a 5-year sales history of the

property.

(3) All relevant and reliable approaches to value consistent with

commonly accepted professional appraisal practices. When sufficient

market sales data are available to reliable support the fair market value

for the specific appraisal problem encountered, the agency, at its

discretion, may require only the market approach. if more than one

approach is utilized, there shall be an analysis and reconciliation of

approaches to value that are sufficient to support the appraiser’s opinion

of value.

(5) (6) Influence of the project on just compensation. To the extent

permutted by applicable law, the appraiser shall disregard any decrease or

increase in the fair market value of the real property caused by the

project for which the property is to be acquired, or by the likelihood

that the property would be acquired for the project, other than due to

physical deterioration within the reasonable control of the owner.

(e) Conflict of interest. No appraiser or review appraiser shall have any

interest, direct or indirect, in the real property being appraised for the

Agency that would in any way conflict with the preparation or review of

the appraisal. Compensation for making an appraisal shall not be based

on the amount of the valuation. ....

49 CFR Sec. 24.304 - Reestablishment expenses — nonresidential moves

In addition to the payments available under Sec. 24.303 of this subpart,

a small business, as defined in Sec. 24.2(t), farm or nonprofit

Orgamzation may be eligible to receive a payment, not to exceed

$10,000, for expenses actually incurred in relocating and reestablishing

A. 27

such small business, farm or non profit organization at a replacement

site.

49 CFR Sec. 24.306 -- Fixed payments for moving expenses --

nonresidential moves.

(a) Business. A displaced business way be eligible to choose a fixed

payment mm heu of the payments for actual moving and related expenses

and actual reasonable reestablishment expenses provided by Sub Sec.

24.303 and 24.304. Such fixed payment, except for payment to a

nonprofit organization, shall equal the average annual net earnings of

the business, as computed im accordance with paragraph (e) of this

section, but not less than $1,000 nor more than $20,000. . . .

RULES

Rule 72 (3)-- Dismissal of Action. By order of the court. Any time

before compensation for property has been determmed and paid, the

court may dismiss the action as to that property after moton and

hearing, except that the court may not dismiss the action as to any part

of the property of which the plainnff has taken possession or m which

the plainnff has taken ttle or a lesser mterest, but shall award just

compensation for the possession, title or lesser interest taken. . .

Rule 72 (5)f — Amendment of Pleadings. The phintiff may amend

the complaint without leave of court at any time before tnal of the issue

of compensation and as many times as desired . . . .

Rule 72(2)(iv) — a description of the property to be taken sufficient to

identify and locate it; that each imterest taken, to "each separate piece"

of property be specified.

MISCELLANEOUS

Right to earn livehhood —- A property nght.

Fraud in consideration -- Misrepresenting something bemg bought or

sold. By benefiting from half of the Bifurcation Agreement, the State

purchased developed land at the price of undeveloped land.

Chapter 17.10.020 Jurisdiction; “Subdivision” Defined.

Fraud in inducements -- inducing us, in order to compromise our

position, to enter an agreement that the state had no mtention of

hononing.

A. 28

nnn rnmnmnennnnnnnnmnnmnnnnnnnmnnnw

EVIDENCE OF ISSUES BIFURCATED

ACQUISITION SERVICES, INC.

Mr. Gary Vancil, Attorney December 3, 1987

P. O. Box 75373

Fairbanks, AK 99707

Re: Appraisal of Parcel 20-A [Ehrlander)

Proyect No. RS-RRS-M-OOOSIS2)

Geist Road Extension: Peger to College

CHANGE TO CONDITIONS AND SERVICES:

Mr. Hoagland, state appraiser April 13, 1988.

This Amendment is necessary to provide a concise written report on

parcel 20A to establish the following facts: (1) The date of taking the

court alleges took place prior to the State’s date of taking on said parcel;

(2) To determine whether any business losses occurred as alleged by

imverse proceedings; (3) To provide engineering costs; (4) To

penne compensation, if any. (5) To determine if any diminution of

value to property took place as a result of taking; and (6) To establish

damages, if any... .

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

FOURTH JUDICIAL DISTRICT

LARS EHRLANDER,

Plainnff,

V.

STATE OF ALASKA, DEPARTMENT

OF TRANSPORTATION AND PUBLIC FACILITIES,

Defendants.

a a, Sar .

A. 29

Case No. 4FA-86-2287 Civil

Case No. 4FA-86-886 Civil

RESERVATION OF FEDERAL CLAIMS AND ISSUES FOR

FEDERAL COURT

COMES NOW Lars Ehrlander, by and through his counsel

Robert John the Law Offices of William R. Satterberg, Jr., and hereby

notifies this Court that he intends to pursue any federal constitu-

tional or statutory claims in federal court following the conclusion of

State court proceedings in this matter. Accordingly, to the extent that

Lars Ehrlander’s federal law claims and issues have not been previously

addressed and determined in this matter and may otherwise be

pursued against the State and others in federal court following the

conclusion of proceedings im this matter, Lars Ehrlander reserves

such claims and issues for determination in federal district court

following the conclusion of this case. Correspondingly, Lars Ehrlander

reserves the nght to petition to the United States Supreme Court for

a wnt of certioran in this case concerning those federal claims and

issues which are not reserved for federal court following the conclusion

of this case.

While Lars Ehriander may refer to decisions of the United

States Supreme Court and other courts concerning federal

constitutional and statutory claims and issues, any such references have

not been intended to and are not intended to constitute the lingating of

A. 30

a federal claim or issue. Rather, such references to decisions of the

United States Supreme Court and other courts concerning federal

claims and issues are made solely for their persuasive authority.

DATED this 7th day of August, 1992, at Fairbanks, Alaska.

THE LAW OFFICE OF WILLIAM R. SATTERBERG, JR.

BY Robert John

Attomey for Lars Ehrlander

AAA AAA AAA AASAAAAAAAAANNNASAYYS

EVIDENCE OF IMPAIRMENTS

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

Lars Ehrlander , plainnff,

’

State of Alaska and Public Facilities, Defendants.

Case No. 4FA-86-2287 Civil

AFFIDAVIT OF GLENN POTTS, State appraiser

Glenn Potts, being first duly sworn, deposes, and says:

1. He has knowledge of the facts herein.

2. I was employed by the State of Alaska as a real estate appraiser in

1983 and 1984. In this capacity, I was asked by the State in late 1983 or

early 1984 to establish the fair market value of an area of Lars

Ehrlander's property south of the proposed Geist Road Extension

which the State was contemplating selling to Golden Valley Electric

Association after the State acquired the property from Mr. Ehrlander.

A. 31

3. After thoroughly examining the area and the pertinent market, |

estimated that the fair market value of the property was $4.50 per

square foot, as set forth in Exhibit 1 to this affidavit.

4. Property such as that which Lars Ehrlander sought to subdivide

for residential purposes in 1983 and 1984, but could not due to the

pendency, of the State's Geist Road Extension (now the Johansen

Expressway), is particularly vulnerable to substantally impaired

marketability due to pending acquisition by the State since families and

other with long term housing needs rarely, if ever, desire to

purchase, lease, rent, or otherwise obtain an mterest in property when

that imterest may be destroyed m a forthcommg condemnation,

necessitating those persons to incur the hardships attendant in moving

and obtaining other property to satisfy their housing needs.

5. The Alaska Statutes, AS 34.60.1203) (Exhibit 4), requires

that for just compensation purposes property be appraised

without including any decrease im value due the pendency of the

project for which it 1s eventually acquired. The State of Alaska's

appraisal by Gary Hoagland which the State utilized in the formal

condemnation case, 4FA-86-886 Civil, however, failed to exclude

the decrease in value .to Lars Ehrlander’s property resulting from the

pendency of the Geist Road Extension, but instead specifically included

the decreased, depressed value im its determimation of just

A. 32

Ds Pawel Aa

compensation. This fundamental error in Mr. Hoagland's appraisal is

evident on its very face as indicated in the cover letter to the appraisal, a

copy of which is attached as Exhibit 2 to this affidavit. Only by virtue

of the Stipulation and Order (Exhibit 3) reserving for the

above-captioned case the damages to Mr. Ehrlander’s property due to

the pendency of the State's Geist Road Extension, could the

prejudicial effects of Mr. Hoagland’s appraisal and testimony be cured.

FURTHER AFFIANT SAYET NAUGHT.

Sworn on December 11, 1991 Glen Potts, Affiant

Value of Ehrlander’s Property - Estimate (by Glen Potts)

It is estmated that the Right of Way (ROW) will encompass 3.8+

acres or 165,000 sq. ft. and an uneconomic remainder of 3.5+ acres or

152,460 sq. ft. will lie between the road and railroad. Due to actions

initiated by the Borough without the Department of Transportation's

(DOT & PF) concurrence, this Ehrlander property of 23.3+ acres was

only Partially subdivided. It is assumed that the property must be

appraised as though totally subdivided and DOT & Pf. were purchasing

individual lots on the basis of $4.50 per sq. ft. Prior to deriving a value

for the areas needed for the project, net subdivision lot areas must be

calculated and development cost not incurred to date must be

subtracted from the gross square foot lot cost. After all these factors

are considered, it is my opinion that the value of the ROW is $330,000.

A. 33

and the damaged uneconomic remainder is $290,000 for a total of

$620,000.

The potential value of the uneconomic remnant in assemblage

to the Golden Valley Electric Association (GVEA) holdings with an

industrial use is estimated to be $1.00/sq. ft. or $152,460. the degree of

need that GVEA might have for this parcel is unknown. They have

indicated a desire to purchase at a bargain price. I will assume that a

price of 50 cent on the dollar would be a sufficient amount to entice

GVEA to purchase. Therefore, the value of the remainder is

$75,000(R_).

Signed Glenn Potts

QADADAADMNMDMDMDMMmmrmmmmmmmmpppr—w—v"

EVIDENCE OF THE PROPERTY BEING IMPROVED

CITY OF FAIRBANKS

February 5, 1987

Subject: Royal Court Village

Dear Mr. Ehrlander-.

In response to your recent mquiry, sewer and water connection

charges were calculated on the basis of the City providing water

for distribution and sewer treatment service to the property as shown on

the attached preliminary plat for Royal Court Village. The charges

were specified in the annexation ordinance (see attached Ordinance No.

4265, adopted September 12, 1983) and payment was received m the

A. 34

full amount of $44,137.22 on July 5, 1984. The sewer and water

system constructed has the capability of providing sewer and water

service to the enture subdivision as shown on the preliminary plat.

Sincerely, J, C. Phillips, City Engineer

“The Golden Heart City”

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

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