Opinion
Case No. 1:18-cv-00281
2019-01-11
UNITED STATES of America UPON the RELATION and for the Use OF the TENNESSEE VALLEY AUTHORITY, Plaintiff, v. A TEMPORARY RIGHT TO ENTER UPON LAND IN MEIGS COUNTY TENNESSEE and Greg A. Vital, Defendants.
James S. Chase, Office of General Counsel, Knoxville, TN, for Plaintiff. C. Crews Townsend, Michael Heith Frost, Roger W. Dickson, Miller & Martin, PLLC, Chattanooga, TN, for Defendants.
James S. Chase, Office of General Counsel, Knoxville, TN, for Plaintiff.
C. Crews Townsend, Michael Heith Frost, Roger W. Dickson, Miller & Martin, PLLC, Chattanooga, TN, for Defendants.
ORDER
HARRY S. MATTICE, JR., UNITED STATES DISTRICT JUDGE Before the Court is Defendant Greg A. Vital's (hereinafter "Defendant" or "Mr. Vital") Motion for Relief from the Court's Order of Possession [Doc. 8]. The Tennessee Valley Authority (hereinafter "TVA") has responded to the Motion [Doc. 15], and the Defendant has filed a Reply [Doc. 17]. The Court has reviewed the parties' submissions and this Motion is now ripe for disposition. For the reasons explained more fully below, Defendant's Motion for Relief will be DENIED , and the Court's Order of Possession [Doc. 5] will stand undisturbed.
I. PROCEDURAL BACKGROUND
TVA commenced this civil action on November 20, 2018, by the filing of its Complaint [Doc. 1]. The Complaint recites that it is being filed "for the taking of a temporary right under the power of eminent domain and for the ascertainment and award of just compensation to the owners and parties in interest." Id. ¶ 1. It further recites that "[t]he authority for the taking is the Tennessee Valley Authority Act of 1933, as amended , 16 U.S.C. §§ 831 - 831 ee (2012)." Id. ¶ 2. The Complaint also recites that "[t]he land affected by the temporary right herein condemned is located in Meigs County, Tennessee, identified as parcel 087 on tax map 001.02, in the office of the Tax Assessor of said county and state, and described in a deed recorded in Deed Book T5, page 343, in the office of the Register of Meigs County, Tennessee, which description is incorporated herein by reference and made a part hereof." Id. ¶ 5.
Attached to the Complaint is a Declaration of Taking [Doc. 1-2], which provides additional descriptive information regarding the affected land, and attached to that is an aerial photograph of the property [Doc. 1-3]. The Declaration of Taking recites that "[o]ne dollar ($1) is the amount estimated by the Tennessee Valley Authority to be just and liberal compensation for the temporary right taken." [Doc. 1-2, ¶ 2]. On the same date, TVA filed a Notice of Tendering Deposit [Doc. 2], which recited that $1 was delivered to the Clerk of Court. The Complaint and the Declaration of Taking describe the estate or interest in land being taken as "a temporary right to enter upon land designated in the records of the Tennessee Valley Authority as tract number ECG-1002-TE for the purpose of conducting surveys, core drilling, appraisals, title investigations, and related activities to determine what portion of said land or interest therein is necessary for the erection, operation, and maintenance of electric power transmission circuits...." [Doc. 1, ¶ 4; Doc. 1-2, ¶ 1].
The next day, on November 21, 2018, TVA filed a Motion for Entry of an Order of Immediate Possession [Doc. 3], along with a Memorandum in Support thereof. [Doc. 4]. On November 29, 2018, the Court issued its Order of Possession [Doc. 5], which is the subject of Defendant's Motion.
II. ANALYSIS
The instant motion evinces some confusion regarding the proper role of the Court in this matter. Accordingly, a brief discussion of the legal backdrop against which this action takes place is in order.
When the Government seeks to take property for public use, it can, "[b]roadly speaking," do so "in one of two ways." United States v. Dow , 357 U. S. 17, 21, 78 S.Ct. 1039, 2 L.Ed.2d 1109 (1958). The first, and perhaps most straightforward approach, is for the Government simply to "enter into physical possession of property without authority of a court order." Id. The second approach, which TVA has employed here, permits the Government to "institute condemnation proceedings under various Acts of Congress providing authority for such takings." Id. One such statute is the so-called Declaration of Taking Act, 40 U.S.C. § 3114 et seq. (hereinafter the "DTA"), which provides, in pertinent part, as follows:
If the first method were selected, a so-called "inverse condemnation," the landowner's only recourse against the federal government is under the Tucker Act, 28 U.S.C. § 1346(a). Under that act, for inverse condemnations exceeding $10,000, the United States Court of Federal Claims, an Article I tribunal, has exclusive jurisdiction. Appeals from that tribunal are directed to the United States Court of Appeals for the Federal Circuit. That latter court has repeatedly held government entry onto property to conduct a survey is not a compensable taking under the Fifth Amendment. See Boise Cascade Corp. v. United States , 296 F.3d 1339, 1356 (Fed. Cir. 2002) (holding brief repeated government entries onto land to conduct owl surveys over a five-month period did not constitute a compensable taking).
§ 3144. Declaration of taking
(a) Filing and content .—In any proceeding in any court of the United States outside of the District of Columbia brought by and in the name of the United States and under the authority of the Federal Government to acquire land, or an easement or right of way in land, for the public use, the petitioner may file, with the petition or at any time before judgment, a declaration of taking signed by the authority empowered by law to acquire the land described in the petition, declaring that the land is taken for the use of the Government. The declaration of taking shall contain or have annexed to it—
(1) a statement of the authority under which, and the public use for which, the land is taken;
(2) a description of the land taken that is sufficient to identify the land;
(3) a statement of the estate or interest in the land taken for public use;
(4) a plan showing the land taken; and
(5) a statement of the amount of money estimated by the acquiring authority to be just compensation for the land taken.
(b) Vesting of title. —On filing the declaration of taking and depositing in the court, to the use of the persons entitled to the compensation, the amount of the estimated compensation stated in the declaration—
(1) title to the estate or interest specified in the declaration vests in the Government;
(2) the land is condemned and taken for the use of the Government; and
(3) the right to just compensation for the land vests in the persons entitled to the compensation.
....
(d) Authority of court. —On the filing of a declaration of taking, the court—
(1) may fix the time within which, and the terms on which, the parties in possession shall be required to surrender possession to the petitioner; and
(2) may make just and equitable orders in respect of encumbrances, liens, rents, taxes, assessments, insurance, and other charges.
(e) Vesting not prevented or delayed. —An appeal or a bond or undertaking given in a proceeding does not prevent or delay the vesting of title to land in the Government.
40 U.S.C. § 3114 (2018).
The Supreme Court has observed that while "the ‘exact effect’ " of subsection (b) of the above-quoted provision "is not entirely clear," it does entitle the Government to "enter immediately" after filing a declaration. Dow , 357 U.S. at 23, 78 S.Ct. 1039 (quoting Catlin v. United States , 324 U.S. 229, 240, 65 S.Ct. 631, 89 L.Ed. 911 (1945) ). Courts since Dow have consistently reaffirmed that the Government's satisfaction of the prerequisites of the DTA give it a "right to immediate possession" of the condemned property. E. Tenn. Nat. Gas Co. v. Sage , 361 F.3d 808, 825 (4th Cir. 2004) ; see also Kirby Forest Indus., Inc. v. United States , 467 U.S. 1, 5, 104 S.Ct. 2187, 81 L.Ed.2d 1 (1984) (holding that upon filing a declaration, "[t]itle and right to possession thereupon vest immediately in the United States" (emphasis added)). Referring to what is now subsection (d) of § 3114, quoted above, the court in East Tennessee Natural Gas Company held that "[a]lthough the district court fixes the time and any terms of the possession, the government takes possession of the condemned property as a matter of course , unless the landowner or occupant demonstrates some undue hardship that warrants a delay." 361 F.3d at 825. (emphasis added).
In effect, then, any authority the Court may have in this matter is, under the DTA, limited to examining "the equities of the matter to evaluate whether some undue hardship to the present landowner or occupant might warrant some temporal gap between the filing of the declaration of taking and the owners' surrender of possession." United States v. 74.57 Acres of Land, More or Less , Civ. Action No. 12-0239, 2012 WL 1231933, *2 (S.D. Ala. April 11, 2012). Although this affords the Court some limited discretionary administrative power over how and precisely when the Government may possess the property, ultimate possession by the Government is inevitable, and is not at issue in this lawsuit. See, e.g. E. Tenn. Nat. Gas Co. , 361 F.3d at 825.
The question, then, is given its limited authority in this matter, exactly what is it that the Defendant would have the Court do? This is not entirely clear.
Defendant complains that the description of the estate or interest in land as set forth in TVA's Declaration of Taking is so vague or insufficient that Mr. Vital is now uncertain of the legal rights he retains in the subject property. The Court, however, finds TVA's description – "the temporary right to enter upon land [described elsewhere] for the purpose of conducting surveys, core drilling, title investigations, and related activities for the acquisition of an easement and right-of-way for the erection, operation, and maintenance of electric transmission circuits and communications circuits" – to be more than adequate to satisfy the requirements of the DTA and, quite frankly, to put Mr. Vital on notice regarding changes, if any, in his property rights. As to the latter point, the Court finds that it is neither the duty nor the place of either the Court or TVA to advise Mr. Vital regarding the current status of his property rights. Competent real estate counsel of his choosing can do that. Presumably, and as TVA points out in its response, Mr. Vital's current property rights are identical to those he possessed previously, subject only to those rights now vested in TVA by virtue of the filing of the Declaration of Taking. [Doc. 15, p. 9].
It could be that Mr. Vital is attempting to mount an as-applied void-for-vagueness challenge to the DTA itself. If this is the case, it is not clear to the Court from the motion before it. If Mr. Vital does seek to mount such a challenge, much further elucidation and elaboration will be necessary.
Moreover, it is unclear to the Court, at least at this juncture, that any of the rights now vested in TVA are in any way inconsistent with the property rights enjoyed by Mr. Vital. At least there is no indication in Mr. Vital's papers that there is any "undue hardship" imposed upon him by virtue of TVA's exercise of its rights. If and when such a hardship should arise, Mr. Vital may seek relief pursuant to 40 U.S.C.A. § 3114(d).
Mr. Vital also complains the nominal one dollar estimate of just compensation deposited with the Court is wholly inadequate to fulfill TVA's ultimate legal obligation to provide "just and liberal compensation" for that which is taken. As was made clear in its Order of Possession, the Court presently neither agrees nor disagrees with this assertion. It is, at this point, without jurisdiction to do so. [Doc. 5, p. 2, n.1]. Mr. Vital then asks "that he be permitted the opportunity to present proof on the just compensation of the actual taking that has resulted." [Doc. 9, p. 9]. The Court assures Mr. Vital that he will be afforded this opportunity at the appropriate time.
Mr. Vital's consternation with what is transpiring in this action is understandable and very familiar to this Court. The whole idea of federal eminent domain may seem somehow to run counter to an incredibly powerful American value, one enshrined in the United States Constitution – the sanctity of private property. Nevertheless, as American law has evolved since the Founding, federal eminent domain has become a settled, if not routine (and certainly not popular), feature of American life.
For an excellent historical survey of the legal development of the federal power of eminent domain, see William Baude, Rethinking the Federal Eminent Domain Power , 122 Yale L.J. 1738 (2013).
III. CONCLUSION
After reviewing the submissions of the parties, the Court is satisfied that it has acted as it should – and as it must – in response to the filing of TVA's Declaration of Taking [Doc. 1-2], and that its Order of Possession [Doc. 5] should stand undisturbed as issued. Defendant Greg A. Vital's Motion for Relief from the Court's Order of Possession [Doc. 8] is DENIED.
SO ORDERED this 11th day of January, 2019.