United States v. 30.60 Acres of Land
United States v. 30.60 Acres of Land
Opinion of the Court
ORDER
In this condemnation action the defendant landowner challenges the authority of the United States to take two parcels of land on Bird Island in Brunswick County, North Carolina, for use in connection with the Little River Inlet Navigation Project, a project of the Army Corps of Engineers designed to stabilize the inlet to improve navigation. As raised in the parties’ cross-motions for summary judgment, the challenge to the government’s authority to take the property presents two questions, one requiring construction of a federal statute and the other requiring construction of a provision .of the North Carolina Constitution. The motions are ripe for disposition.
Congress has given the United States Army Corps of Engineers blanket authority “to construct, operate, and maintain any water resource development project” for purposes, inter alia, of improving navigation, subject to two limitations. First, the “estimated Federal first cost of constructing such project” must be less than $15,000,-000. Second, the project must be “approved by resolutions adopted by the Committees on Public Works of the Senate and House of Representatives, respectively.” 42 U.S.C. § 1962d-5(a). It is undisputed that in 1972 the estimated Federal first cost of the Little River Inlet Project was $6,271,-000.00 and that the project was approved at this estimated cost by resolutions of the House and Senate Committees on Public Works on October 12,1972. It is also undisputed that in September, 1981, the “Reasonable Construction Contract Price” of the project was $18,200,000. The landowner asserts that because the estimated cost is now over $15,000,000.00, the project is outside the blanket authorization of 42 U.S.C. § 1962d-5 and must be specifically approved by act of Congress. Accordingly, it is contended that the government is presently without authority to condemn the land. Resolution of this question turns on the meaning of “estimated Federal first cost” as used in Section 1962d-5.
The government contends that the appropriate figure is that submitted to Congress by the Corps of Engineers at the time of project authorization, regardless of future effects of inflation.
Neither party has presented case authority on point and none has been found by the court. Common sense, however, weighs heavily in favor of the government. Should the landowner’s position be accepted, much of the government’s fiscal planning and letting of contracts would be thrown into complete disarray as the actual cost of projects unexpectedly exceeded the fifteen million dollar limit at some time during construction. Congress did not, as it could have, limit the authority of the Corps to undertake projects to those with actual costs of less than fifteen million dollars. Some fixed figure must be chosen as the “estimated Federal first cost” of the project and the most logical choice is the estimate upon which the Congressional committees rely in making their determination of whether to authorize the project.
The court is aware that this result leaves the Corps great latitude to seek and obtain early authorization of projects while the estimate is below the ceiling, even knowing that the actual cost may eventually exceed that ceiling. Here, for example, there has been an eight-year hiatus between Congressional authorization and the actual taking, during which cost estimates have tripled. Nevertheless, Congress always retains control over the project since money must be appropriated for it.
In connection with the project, Brunswick County has entered into an agreement with the United States pursuant to which the county agreed, inter alia, to provide the land and easements necessary for the project, to indemnify the government from certain damages that may result from construction and maintenance of the project, and to establish regulations prohibiting discharge of pollutants into the channels.
Turning first to the constitutional issue, the landowner contends that Article V, Section 4, of the state constitution requires an agreement by a county such as the present one between Brunswick County and the United States to be submitted for approval by a majority of the qualified voters, which was not done in this case. The landowner’s argument inexplicably relies entirely on a constitutional provision that was amended effective July 1,1973, specifically to avoid the result for which the land
For these reasons, the defendant’s motion for summary judgment is denied, and the plaintiff’s motion for summary judgment is granted as to all issues except the amount of just compensation due the defendants.
SO ORDERED.
. It is not contended that the increase in estimated cost since 1972 is due to changes in the project, so the court assumes that the project is presently being constructed as proposed in 1972, with the cost increase being the result solely of inflation.
. Furthermore, acceptance of the landowner’s argument would for practical purposes force the Corps to acquire land long before the taking became necessary, simply to avoid the possibility that inflation might push actual project costs over the $15,000,000 ceiling. It is fundamental that the government retains wide discretion in determining when to take land needed for a public use. E.g., United States v. Bowman, 367 F.2d 768 (7th Cir. 1966).
. Although the agreement obligates the county to provide the property necessary for the project, the United States is actually taking the land, to be reimbursed by the county.
Reference
- Full Case Name
- United States v. 30.60 ACRES OF LAND, etc.
- Status
- Published