# Opposition Brief — Aleutian Livestock Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_0880%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1951 - **Citation:** 342 U.S. 875 ## Text Page NE? Soars 1 Da png aw Sdn eihcor biva eb aaa 1 I 265504 usb v Vig o's 4. WY bees hake CPR he Vimeb en 1 NE che i gk tho ee Wk ER RN ATOR ENR NEL RCSD 2 ee aay Ls eth sake BE CDE VATES UR Oa Oe ees 2 £555 ay avn Feb Sot ad Ok SES AYE PAL ROK ONE 9 ENTS 1S ae ey Lah k eis pee tet Med way culate ye 16 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: ee IE ico eas ch pF Luke DR ee oe 9,10 IN ME Seda 5 deat che ks waeruacoicepecunsakewas 8 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_0880%3A2. Public record. Not legal advice.