Case 40

United States v. 45,149.58 Acres of Land, 455 F. Supp. 192 (E.D.N.C. 1978).

The United States sought to condemn land for the Air Force to use as a bombing range. There was some question as to whether buildings eligible for inclusion in the National Register of Historic Places existed on the site. The owners of the land filed a separate action against the Government, alleging that the Government had failed to comply with Section 106 of the National Historic Preservation Act (NHPA). The court consolidated the two suits, treating the owners' claims as defenses to the Government's condemnation action.

The court first noted that the landowners had failed to state a claim under NHPA upon which relief could be granted, but it nevertheless ordered the Air Force to conduct a survey of the area to ascertain whether historic sites existed and, if so, to comply with NHPA. 455 F. Supp. at 203. Furthermore, the court held that noncompliance with NHPA is not a valid defense to a condemnation action. Id.

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