Opposition Brief — Aleutian Livestock Co. v. United States

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CITATIONS

Cases :

Chicago ¢ Alton R. R. v. Tranbarger, 238 U. S. 67...... 13

Gallagher’s Steak House v. Bowles, 142 F. 2d 530, certi-

orari denied, 3222 U. 8. 764.....................05. 14

Hadacheck v. City of Los Angeles, 239 U. S. 394........ 13

Hamilton v. Kentucky Distilleries Co., 251 U. 8. 146.... 13

Hirabayashi v. United States, 320 U.S. 81.............. 10, 12

Jacob Ruppert v. Caffey, 251 U. S. 264................ 13

Marks, et al. v. United States, 187 F. 2d 724, certiorari

denied October 8, 1951, No. 141, this Term........... 12

Miller v. Schoene, 276 U. S. 272...................00. 13

Mugler v. Kansas, 123 U. S. 623...................... 13

Bey GOW VW. UNI, BOE Oe OP. ik svi ciceeeveesis 13

Korematsu v. United States, 323 U.S. 214.............. 10, 12

Oro Fina Consolidated Mines, Inc. v. United States, 92

F. Supp. 1016, certiorari denied, 341 U. S. 948....... 14

ANTON, TN-VE, 280 Oty ONO hoi icici ews sos ee bin ss 13

St. Regis Paper Company v. United States, 110 C. Cls.

271, certiorari denied, 335 U. 8. 815................. 14

Samuels v. McCurdy, 267 U.S. 188.................... 13

Shreveport Engraving Co. v. United States, 143 F. 2d 222,

certiorari denied, 323 U. S. 749..................... 14

Steuart & Bro. v. Bowles, 322 U.S. 398................ 14

United States v. Causby, 328 U.S. 256................. 14

United States v. Freight Ass’n, 166 U.S. 290........... 13

United States v. General Motors Corporation, 323 U. S. ;

PRES RE EM ISPD eras ene age 14

United States v. Irwin, 127 U. 8. 125.................. 15

United States v. Pacific Railroad, 120 U. S. 227........ 10

United States v. Russell, 13 Wall. 623................. 15

Constitution and Statute:

Constitution of the United States:

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II

Miscellaneous:

Ynthe Supreme Court of the Winited States

OctoBER TERM, 1951

No. 315

ALEUTIAN LIVESTOCK CoMPANY, INC., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Claims (R. 32-35) is

reported at 96 F. Supp.-626.

JURISDICTION

The judgment of the Court of Claims was en-

tered on April 3, 1951 (R. 35) and a motion for a

new trial, filed on April 23, 1951 (R. 35), was de-

nied on June 5, 1951 (R. 35-36). On August 21,

1951, the time for filing the petition for certiorari

(1)

2

was extended by Mr. Chief Justice Vinson until

September 13, 1951 (R. 36). The petition for a

writ of certiorari was filed on September 12, 1951.

The jurisdiction of this Court is invoked under

28 U.S.C. 1255.

QUESTION PRESENTED

Petitioner operated a sheep ranching business on

Umnak Island, Alaska. In July 1942, the island

was threatened with an attack by Japanese forces

operating in the Aleutian area and the United

States military authorities deemed it necessary

that all civilians be evacuated from the island.

Petitioner’s employees were among those evacu-

ated. As a result of the evacuation, petitioner’s

sheep were left untended and petitioner suffered

considerable loss. The question presented is

whether in the circumstances of this case the evacu-

ation order constituted a taking of petitioner’s

property which is compensable under the Fifth

Amendment.

STATEMENT

Petitioner brought this suit in the Court of

Claims to recover just compensation for an alleged

taking of its property—a leasehold, buildings,

equipment, and livestock used in a sheep ranching

business '—on Umnak Island, Alaska. The United

tates denied that there was a compensable loss.

1 The court below treated the alleged taking of the livestock

as the only issue in the case. Petitioner presumably acqui-

esced in the court’s view of the case, and its petition seems

also to treat the livestock as the only part of its property taken.

——

The facts as found by the Court of Claims are as

follows: :

3

Umnak Island is one of the Aleutian chain. It

lies about 140 miles west of Dutch Harbor, 260

miles east of Atka, 310 miles east of Adak, 560 miles

east of Kiska and 740 miles east of Attu. Umnak

Island is about 75 miles long and 12 miles wide

at the widest point (R. 19). From December, 1935

to July 5, 1942, petitioner had carried on a profit-

able venture in sheep ranching on the island, the

entire area of which it had leased from the Gov-

ernment (R. 20,29). Prior to 1942, petitioner had,

at considerable cost, developed a cross-breed of

sheep well adapted to heavy wool production and

the climatic conditions on the island (R. 20). The

sheep so developed produced an unusually clean

fleece of wool of an unusually high average weight

per fleece. Petitioner’s operations were carried on

by a foreman, who lived continuously on the

island, with the aid of three or four helpers (R.

21).? Successful operation of the business re-

quired continuous attendance, careful supervision

of breeding, and shearing during the period June

to September of each year (R. 21).

At the time of the Japanese attack on Pearl

Harbor, the Alaska territory was on the alert and

construction of a number of defense bases had al-

ready been begun (R. 22). The area was, however,

2 The foreman was a Basque with long experience in sheep

raising in this area. All helpers were natives who were em-

ployed as needed.

4

far from ready for war at that time. The Naval

Base at Dutch Harbor was manned by only 67

Naval personnel in addition to civilian workmen,

and the Army had approximately 3,000 officers and

men spread over ten garrisons in the area (R. 22).

Within six weeks after the attack on Pearl Harbor,

a secret airfield was established on Umnak Island,

which was garrisoned by about 950 officers and men

(R. 22).

About May 20, 1942, it became clear to United

States military authorities that the Japanese were

preparing to attack in the Aleutians. Their ob-

jectives were thought to be: ‘‘ (1) to safeguard their

vulnerable northern flank in the Kuriles and, (2)

to threaten Alaska and the northwestern coasts of

Canada and the United States, while creating (3)

a diversion for their primary thrust in the central

Pacific by way of Midway” (R. 22). It was ex-

pected that a powerful enemy force consisting of

aircraft carriers, submarines, and destroyers

would proceed, with train, to the Aleutians. To

meet this attack, and the expected main thrust in

the Midway area, the United States had only slim

forces available (R. 23). On May 21, Admiral

King, Chief of Naval Operations, declared that a

state of fleet-opposed invasion would exist until an

invasion in force of Kodiak or the Alaskan main-

land occurred or was imminent, when a state of

land-opposed invasion would be in effect (R. 23).

On May 27, it was estimated that the Japanese

would strike about June 1 with carrier-based planes

ee

5

at the Umnak-Dutch Harbor-Cold Bay area, and

that the air attack would be followed immediately

by an attempt to seize a base in that area. It was

agreed that if such a base were secured, invasion

of the mainland would be imminent (R. 23).

On June 3, 1942, Japanese carrier-based planes

attacked Dutch Harbor, causing considerable

damage; at the same time, two collateral attacks

were intercepted over Umnak Island by Army

fighters. The air action was indecisive and there

was no surface action (R. 23). Enemy surface

vessels—one aircraft carrier, two heavy cruisers,

and three destroyers—were located about 165 miles

from Dutch Harbor and 135 miles from Fort Glenn,

the airfield on Umnak Island (R. 24). The move-

ments of the remainder of the Japanese task force

were unknown. Because of fog, it was difficult to

maintain contact with or determine the disposition

of the enemy surface vessels (R. 24).

The attack of the enemy in the south was stopped

in the battle of Midway, June 3 to 6, 1942. Between

June 3 and June 11, the Japanese occupied Attu

and Kiska and made untenable the American posi-

tionon Atka. Atka natives were evacuated on June

13 and the enemy attacked three days later (R. 24).

On June 18,* it was thought by the military author-

3 At that time, the enemy was estimated to have the follow-

ing naval strength in northern waters:

3 aircraft carriers, 2 battleships, 5 heavy cruisers, 3 light

cruisers, 1 seaplane tender, 20-22 destroyers, 7-11 sub-

marines, 2-3 converted carriers, 4-6 transports, 2-3 cargo

ships, 8 flying boats, 27 Kurile-base bombers (R. 24).

6

ities that the enemy task in the Aleutians was, in

order of probability, as follows (R. 25) :

(1) To protect Kiska and Attu from hostile

forces ;

(2) Toattack and nullify Umnak and Dutch

Harbor;

(3) To deny Nome to our use.

About June 28, the Navai Commander for the

Alaskan Sector ordered the evacuation of all na-

tives from the Aleutian Islands. At the time of

that order it was known that the Japanese occupied

Attu, Kiska and Agattu Islands, but it was not

known what other islands in the chain they had

occupied or what was their potential for further

operations in the area. The order was deemed a

matter of military necessity in order to hinder any

further enemy activities in the Aleutian Islands

(R. 25).

As of July 4, the Army maintained only four

radar stations in Alaska, one of which was on

Umnak Island. The airfield and the radio station

on the island were the westernmost installations of

their kind in possession of the United States.

There were no other fortified islands between

Umnak and the islands known to be held by the

Japanese (R. 25).

On July 5, 1942, the military authorities

evacuated all civilians, except a school teacher,

who acted as a radio operator, and an engineer,

from Umnak. The evacuees included petitioner’s

7

foreman and its other employees. The evacuation

was without notice to petitioner or its foreman

and without its consent (R. 25). Asa result of the

evacuation, petitioner’s sheep were left unattended

from July 5, 1942 until about December 15, 1942,*

at which time petitioner’s employees returned to

the island (R. 26).

The Court of Claims found that as a result of

petitioner’s inability to care for its livestock dur-

ing the period from July 5 to December 15, 1942,

it lost—in addition to its ordinary operating loss

of 21.3 percent per annum—some 6,369 sheep, and

that the fair value of the sheep lost was $12.50

per head.°

* Permission to return to the island was granted in September

1942, but petitioner was unable to secure a qualified foreman

willing to go to Umnak and to transport him and necessary

supplies to the island before December.

5 The court also found that certain losses of sheep and other

supplies occurred through depredation of the Armed Forces

and that petitioner’s claim for such losses was settled by pay-

ment to the plaintiff of $1,477.50—in consideration of which

petitioner on February 8, 1946, executed an amended claim

and acceptance agreement which read as follows:

* * * the undersigned agrees to accept [$1,477.50] in

full satisfaction and final settlement of all claims against

the United States for damage to or loss or destruction

of property arising out of the activities of the United

States Army on Umnak Island, Alaska, during the period

from 6 July 1942 to 31 December 1942.

It is understood that the execution of this release shall

be without prejudice to the right of The Aleutian Livestock

Company, Inc., to seek further relief either by way of a

private relief bill in Congress for any losses or damages

sustained by said company in the ranching and stock-

raising or other business conducted by it on said Umnak

Island, or by way of a bill in Congress to confer juris-

diction upon the United States Court of Claims to hear,

8

The court further found that plaintiff was the

beneficiary of a policy of war risk insurance is-

sued to it by the War Damage Corporation—a

corporation created by the Reconstruction Finance

Corporation pursuant to Section 5(d) of the Re-

construction Finance Corporation Act, as amended

(R. 30). In consideration of the payment of the

premium on the policy, the corporation agreed

‘*to indemnify the Insured * * * against direct

physical loss of or damage to the property * * *

which may result from ENEMY ATTACK INCLUDING

ANY ACTION TAKEN BY THE MILITARY, NAVAL OR AIR

FORCES OF THE UNITED STATES IN RESISTING ENEMY

ATTACK.’’ (Emphasis in record, R. 30-31). The

amount of the policy was $75,000. Petitioner

accepted $38,500.00 (the amount of the insurance

on livestock) in full compromise and settlement

of its claims under the policy. It executed an

Article of Subrogation in which it was stated

(R. 31):

Further, that on & after the 2nd day of July

1942 an evacuation was necessary, by which the

property so insured was damaged or destroyed

to the amount of Thirty-eight thousand five

hundred and no/100 Dollars. Said evacuation

having been caused due to occupation of other

determine, and render judgment upon the claim or claims

of said company for such losses or damages.

Petitioner brought this suit under 28 U.S.C. 1491, and not

pursuant to any private relief act or act conferring jurisdiction

on the Court of Claims for petitioner’s special benefit (R. 29-

30).

9

Islands in the vicinity by enemy Japanese

military & naval forces.

The Court of Claims held that there was no tak-

ing of petitioner’s sheep within the meaning of the

Fifth Amendment (R. 33) and that petitioner’s loss

was ‘‘an incident to the exercise of the sovereign

power and duty to protect the people from attack

by a hostile power.’’ (R. 34). The Court held that

losses occasioned by such action on the part of the

Government are not compensable as of right (R.

34).

ARGUMENT

The only questions decided by the lower court

which are presented by the petition® are (1)

whether the loss of livestock because of the evacua-

tion of petitioner’s employees was the result of a

taking of petitioner’s property by the Government

and therefore compensable under the Fifth Amend-

ment; and (2) whether the finding of the value of

the sheep by the court below ($12.50 per head)

was arbitrary and not supported by the evidence.

Since the first question is dispositive of the case,

we will not, in this brief, discuss the latter to any

extent.’ We submit that the Court of Claims’ deci-

® The petition (page 2) also presents as a question for the

decision of this Court whether petitioner is estopped from

asserting a claim against the United States because it had been

reimbursed in part for its loss under a war damage insurance

policy issued by the War Damage Corporation. (See p. 8,

supra). This question was not decided by the lower court.

“Petitioner-complains-thatthe Court of Claims disregarded

the “uncentradieted- testimony” of -petitioner’s_president—that

10

sion was correct and should not be reviewed by this

Court.

The petition challenges the application to the

facts of this case of the long-standing rule that

destruction of property or deprivation of rights

by the military authorities, when reasonably nec-

essary to protect armies in the field from enemy

action, is damnum absque injuria. United States

v. Pacific Railroad, 120 U. 8. 227, 236, 238, citing

American State Papers, Class XIV, Claims,

pp. 199, 835; President Grant’s Veto Message,

Cong. Globe, 42nd Cong., 2d Sess., Part V, pp.

4155-4156; cf. Hirabayashi v. United States, 320

U.S. 81; Korematsu v. United States, 323 U.S. 214.

Compensation for injury occasioned by such action

is not required by the Fifth Amendment. ‘“‘If a

Government makes compensation under such cir-

cumstances, it is a matter of bounty rather than

of strict legal right.’’ President Grant’s Veto

Message, supra.

Petitioner does not deny that the action taken

here was a military necessity but would restrict

the application of the rule to situations involving

what it calls ‘‘actual combat activities,’’ and would

exclude the fact situation involved here from its

definition of ‘‘actual combat activities.’’ But there

is no basis in history or logic for the limitations

which petitioner suggests. It is true that in this

the-value of the sheep-was-$25-00-per-head,—Sinee-petitioner

has.not-brought up any part-of the-transeript of testimony,-no

basis for-reversal.of that. finding. of-fact-is-presented-here.

—

11

case there was no invasion of Umnak Island, and

that no fight between the enemy forces and those

of the United States took place on the island.

But it cannot be denied that the military situation

in the Aleutian Islands was critical at the time

the evacuation was ordered. It was known that

the Japanese had effective possession of Kiska,

Attu and Agattu. It was not known whether the

Japanese were in possession of other islands closer

to the mainland, nor was the military potential

of the enemy ground forces known. It was known,

however, that the Japanese had in the area naval

forces far more powerful than those immediately

available to the United States and that our military

installations were undermanned. Umnak Island:

was the western-most fortified island in possession

of the United States. Three vital military installa-

tions—the most exposed airfield and radio station

and one of four radar stations in the area—were

located on Umnak Island. It was expected, rightly

or wrongly, but certainly not unreasonably, that

the Japanese planned to strike in the area and,

if possible, to secure a foothold on the Alaskan

mainland. The military authorities, therefore,

ordered the evacuation of all except two civilians

from the island.

Even if we accept petitioner’s interpretation of

the rule which would require that the evacuation

have been ordered in the course of ‘‘actual combat

activities,’’ it would be difficult to exclude this fact

12

situation from its scope. Cf. Marks, et al. v.

United States, 187 F. 2d 724 (C.A. 9), certiorari

denied October 8, 1951, No. 141, this Term. Peti-

tioner’s interpretation would require, in this case,

that the enemy have attacked the island and the

evacuation appear now to have contributed to the

defense against that attack. But the rule requires

only that the action taken have been reasonably

thought necessary at the time. Nichols, Eminent

Domain, Sec. 96. There can be no serious question

that the action taken by the military authorities

was, in the light of the facts then known, eminently

reasonable.®

In any event, the class of cases in which property

rights may be destroyed without compensation is

not so narrow as petitioner contends. It has long

been established that the states or the United States

may, in the exercise of their war or police powers,

deny to individuals the right to pursue certain

activities without compensation for losses occa-

sioned by that denial. In Hirabayashi v. United

States, supra, this Court held that the military

authorities could establish a curfew on United

States citizens of Japanese ancestry residing on

the Pacific Coast. In Korematsu v. United States,

8 It is significant in assaying the reasonableness of the action

taken that, as late as 1944, petitioner and the War Damage

Corporation believed that these losses were compensable under

war risk insurance, which insurance was specifically provided

to cover otherwise uncompensable losses and which was pay-

able only if the losses resulted from enemy action or action

of our own forces necessary to resist the enemy.

POT AAS FE

13

supra, this Court went beyond its previous decision

and held that citizens of Japanese ancestry could

be physically uprooted from their homes and re-

located in camps remote from what were consid-

ered critical areas. In neither of those cases could

there be any proper contention that the military

situation in the affected area was nearly so critical

as the situation in the Aleutian Islands at the

time of this case.

It can scarcely be doubted that the war power

is equally as broad as the federal interstate com-

merce power or the police power of the states, and

it has long been held that the deprivation of rights

and values by the prospective operation of the ex-

ercise of those powers does not violate the due-

process clause or give rise to the right to compen-

sation. See Mulford v. Smith, 307 U. 8.38; Mugler

v. Kansas, 123 U. S. 623; In re Rahrer, 140 U. S.

545; United States v. Freight Ass’n, 166 U.S. 290;

Hadacheck v. City of Los Angeles, 239 U.S. 394;

Chicago & Alton R. R. v. Tranbarger, 238 U.S. 67;

Jacob Ruppert v. Caffey, 251 U. S. 264; Samuels

v. McCurdy, 267 U.S. 188; Miller v. Schoene, 276

U. S. 272; and Hamilton v. Kentucky Distilleries

Co., 251 U.S. 146.

In World War II, the Government frequently

took action designed to secure maximum utilization

of national resources, in the course of which action

many individuals were denied the right to pursue

profitable enterprises. This Court and the lower

14

federal courts have consistently upheld the validity

of such action and have never required compensa-

tion under the Fifth Amendment for losses

occasioned by those orders. Steuart & Bro.

v. Bowles, 322 U. S. 398, 405; Gallagher’s Steak

House v. Bowles, 142 F. 2d 530 (C.A. 2), cer-

tiorari denied, 322 U. S. 764; Shreveport Er -

graving Co. v. United States, 143 F. 2d 222 (C.A.

2), certiorari denied, 323 U.S. 749; St. Regis Paper

Company v. United States, 110 C. Cls. 271, certio-

rari denied, 335 U. S. 815; Oro Fina Consolidated

Mines, Inc. v. United States, 92 F. Supp. 1016

(C. Cls.), certiorari denied, 341 U. S. 948. The

principle established by these and similar cases,

in none of which were ‘‘actual combat activities”’

involved, is that the United States may in the

proper exercise of its war powers for the public

good render useless property of individual citizens

without its action constituting a taking. In those

cases, as here, the order, as a result of which the

complainants were injured, was a general order

reasonably deemed necessary for the protection of

the United States, and the injuries complained of

were incidental to the exercise of the power.

The cases cited by petitioner as establishing a

contrary principle are not in point. United States

v. Causby, 328 U. S. 256, involved the taking of

property by flight at low altitudes over respondent’s

property located near a military airfield in Greens-

boro, North Carolina. In United States v. General

15

Motors Corporation, 323 U. 8S. 373, the only ques-

tion involved was the value of a leasehold interest

in a Chicago warehouse condemned in an eminent

domain action. In United States v. Irwin, 127

U. S. 125, a suit was brought pursuant to a private

bill conferring on the Court of Claims jurisdic-

tion to compensate the petitioner for property

taken and impressed into service by the United

States, to keep it from falling into the hands of

the enemy. In United States v. Russell, 13 Wall.

623, the United States appropriated to its own use

ships needed to carry freight for the armed forces.

In all those cases it was clear that the United States

appropriated the property in question to its own

use.

Here, the Government did not appropriate pe-

titioner’s property to its own use. All that the

Government did was to take militarily necessary

action, in an advanced combat zone, when enemy

invasion was imminent, which made it impossible

for petitioner to pursue its ordinary course of busi-

ness for a brief period. As we have shown, com-

pensation in such instances is not obligatory. To

the extent that there is a moral obligation on the

Government to compensate for losses sustained in

those circumstances, that obligation has been satis-

fied in this case by payments made under the war

risk insurance policy. That the Government did

not choose to compensate for all incidental damage

caused to petitioner’s property is irrelevant.

16

CONCLUSION

The decision below is correct, there is no conflict

of decisions, and further review is not warranted.

The petition for a writ of certiorari should there-

fore be denied.

Respectfully submitted.

Puiure B. PERLMAN,

Solicitor General.

HoLMEs BALDRIDGE,

Assistant Attorney General.

SaMUEL D. SuabDe,

ARTHUR W. Murpnry,

Attorneys.

OctToBER 1951.

~ w U. S. GOVERNMENT PRINTING OFFICE: 1951 972424

339

In THE

Supreme Court of the United States

October Term, 1951

No. 315

AxguTman Livestock Company, Inoc., Petitioner,

Vv.

Tue Unrrep States, Respondent.

PETITION FOR REHEARING

Comes now the Aleutian Livestock Company, Inc.,

through its counsel of record, and respectfully petitions

the Court for a rehearing of its Petition for Writ of Cer-

tiorari, denied by order of this Court on November 13,

1951.

Rehearing is requested on the ground that after the

present case was submitted to this Court, the United

States Court of Claims rendered a decision in another

ease which is probably in conflict with that Court’s deci-

sion here. Caltex (Philippines), Inc. v. United States

x

a

se i.

=

4

Be

.

POR SS a ne aa oa

2

and other cases Nos. 48,324, 48,265 and 48,319, decided

November 6, 1951. It is assumed that the decision in

those cases was not considered by this Court in connec-

tion with its order of November 13 in the present case.

It was held in those cases that the plaintiffs were en-

titled to just compensation under the Fifth Amendment

‘to the Constitution for property taken by the armed

forces solely for demolition during combat activity to

prevent its falling into the hands of the closely approach-

ing enemy. The property involved consisted of terminal

facilities at Manila in the Philippine Islands. The armed

forces of the United States took possession of the facili-

ties on December 27, 1941 in the face of plain necessity

of surrendering the port to the enemy, then in occupation

of the city of Manila proper. After three days spent in

placing demolition charges the property was demolished

by our own armed forces on December 31, 1941, and the

sites were surrendered to the Japanese on January 2,

1942.

The conduct of the government toward the property of

the plaintiffs in those cases and its conduct toward the

property of the plaintiff in the present case was sub-

stantially the same. The only difference was that actual

destruction of the property was fortunately not required

in the present case. The situations would have been iden-

tical had surrender of Umnak Island to the Japanese be-

come necessary during the summer and fall of 1942.

Presumably such surrender would also have been preceded

by destruction of all of petitioner’s property that would

have been beneficial to the enemy. The government has

argued here as in the Calter cases that the action was

taken as a matter of military necessity in the face of

threatened military invasion.

We respectfully submit that the Petition for a Writ

of Certiorari in this case should be reconsidered in the

ERLANG LEASES EMG NE NOL TED ENO ES A

* a an East re Oe ee RT ae Od Ce eee

3

light of the aparently opposite result reached in the

Caltex and other cases, decided by the Court of Claims

on November 6.

Ernest L. WILKINSON,

Ray R. Murpocg,

Kerra L. SEEGMILLER

Attorneys for Petitioner.

I hereby certify that the poepd petition for rehear-

ing is presented in good faith and _~ slay oe ha a

Kerrn L. SEEGMILLER.