Case 86

United States v. 162.20 Acres of Land, 639 F.2d 299 (5th Cir. Unit A), cert. denied, 454 U.S. 828 (1981), on remand, 567 F. Supp. 987 (N.D. Miss. 1983), aff'd, 733 F.2d 377 (5th Cir. 1984).

The United States sought to condemn property to be incorporated into the Barton Ferry Recreation Area, part of the Tennessee Tombigbee Waterway Project. On the property, on the site of the abandoned town of Barton, sat a house known as Cedar Oaks. Both Barton and Cedar Oaks were listed in the National Register of Historic Places as within a multiresource district created for the purpose of listing historic sites in the project area.

The property owners raised as a defense to the condemnation the allegation that the Government had failed to comply with the National Historic Preservation Act (NHPA).

The Fifth Circuit agreed with the district court that noncompliance with NHPA did not amount to a defense against taking. Under the Declaration of Taking Act, the filing of the declaration of taking and deposit of estimated compensation accomplishes the taking. The court must then decree the transfer of title to the Government. 639 F.2d at 303. The vesting of title in the Government is a neutral act vis-à-vis NHPA, for Federal agencies must comply with NHPA regardless of the public or private character of the property involved. Id. at 304.

Because the role of the courts in condemnations is limited to the bare consideration of whether the United States has the legal authority to take, the court reasoned that noncompliance with NHPA is not a defense to the taking absent an express statement to the contrary by Congress. Id.

Nevertheless, although the court cannot stay passage of title, it may withhold physical possession and enjoin any activity that may disturb the environment‹cultural or physical‹pending compliance with NHPA. Id. Thus, in the words of the court, "while the NHPA does not provide a legal shield against the exercise of the Federal condemnation power, it can provide the condemnee with a sword which he may use to seek judicial scrutiny of compliance with the congressional command that adverse impact upon historical features of the condemned land be mitigated." The appellate court remanded to the district court to determine whether the United States had complied with NHPA. Id. at 305.

On remand, the district court noted that the Army Corps of Engineers, the Federal agency responsible for the project, had entered into a Memorandum of Agreement (MOA) with the Advisory Council on Historic Preservation and the Alabama and Mississippi State Historic Preservation Officers in 1977 under the Council's regulations implementing Section 106 of NHPA.

The Corps agreed in the MOA to develop a plan for the treatment of structures meeting the National Register criteria that would be affected by the project. The Corps prepared the plan and obtained the Council's concurrence in the plan in 1983.

The court rejected plaintiffs' claim that the Corps had not complied with the provision of the MOA that required a treatment plan. First, the court determined that Section 800.6(c)(3) of the Council's regulations, which states that a ratified MOA shall evidence satisfaction of the Federal agency's responsibility under Section 106 of NHPA, creates a "presumption of compliance." 567 F. Supp. at 989-90. Even without this presumption, the court held that the Government's documents demonstrated compliance with the terms of the MOA. Id. at 990.

The court dismissed plaintiffs' NHPA claims and held that further action withholding possession of the condemned lands on these grounds would not be warranted. Id. The Fifth Circuit affirmed. 733 F.2d at 380.

The district court also found that the Corps' programmatic environmental impact statement (EIS) prepared under the National Environmental Policy Act on the entire waterway project sufficiently addressed the impacts of the project on cultural resources. No site-specific EIS for Cedar Oaks and Barton township was needed. 567 F. Supp. at 991. The appellate court affirmed. 733 F.2d at 381.

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