UNITED STATES v. CLARKE

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Argument of Harlon L. Dalton

Chief Justice Warren E. Burger: We'll hear arguments next in United States against Clarke.

Mr. Dalton, I think you may proceed whenever you're ready.

Mr. Harlon L. Dalton: Thank you.

Mr. Chief Justice and may it please the Court.

In this case, the Court is called upon to determine the means by which states and municipalities may acquire rights of way across land allotted to Indians and held in fee by the United States.

The precise question presented today is whether the Municipality of Anchorage may, invoking Section 357 of Title 25, acquire a private road running across the allotment of one Bertha Mae Tabbytite by simply taking over that roadway and saying, in effect, “sue me.”

In 1954, Ms. Tabbytite entered onto the land in question and began to homestead it.

Four years later, Respondents, Clarke and Baker, filed a homestead application on an adjoining-80 Acres and, two months after that, bulldozed a road across the Tabbytite allotment without seeking or obtaining her consent and without obtaining an easement from anyone.

Tabbytite protested and continued to protest for the 11 years from the construction of the road in 1958 until this suit was commenced in 1969, without success.

Now, from 1968 to 19 -- 1958, rather, to 1966, Clarke -- neighbors Clarke and Baker interposed three contests to Tabbytite's application for a homestead patent as a result of which, she was unable to perfect that application during the pendency of those contests.

Clarke and Baker, however, were able to obtain, in 1961, a homestead patent for their property and they properly subdivided it into 40 parcels which were essentially sold before this suit was instituted.

Also, in 1961, the City of Glen Alps, third-class City of Glen Alps, was incorporated and took over maintenance of the road.

Essentially, that city covered the territory surrounding the property of all of the aforementioned parties to this litigation.

Justice William H. Rehnquist: It wasn't annexed to Anchorage.

It was just incorporated as a city.

Mr. Harlon L. Dalton: Exactly.

In 1966, apparently despairing of ever obtaining the -- her homestead patent, Tabbytite elected to take her land as an Indian allotment, as she was entitled to do.

In 1967, she attempted to block the road.

Prior to that, her attempts to block trespassers essentially amounted to posting “no trespassing” signs.

In 1967, she tried physically to block the road, but pulled back when Glen Clarke indicated to her that she could be arrested for so doing.

At that point, she turned to the Bureau of Indian Affairs with her predicament.

In 1969, the United States Government instituted this suit to close the road and to seek damages.

In 1973, the district court, in fact, awarded damages but declined to enter injunction holding that the road across the Tabbytite allotment constituted a way of necessity, and that to close it would create undue hardship for the defendants.

Now, that determination was reversed by the Ninth Circuit in 1976.

Just a few months before that reversal, however, Anchorage and Glen Alps merged in effect.

There was a unification of Anchorage and two smaller communities, and as the resulted entity of the Municipality of Anchorage took over maintenance of the road and entered this lawsuit.

Now, on remand, the Municipality of Anchorage opposed the Government's injunction -- request for injunction on the grounds that its predecessor in interest, Glen Alps, had, in effect, condemned the land inversely back in 1961 when it took over the road.

The district court entered two opinions, the second time around, which together held that Glen Alps did not have the power of inverse condemnation and, therefore, had not acquired the land in 1961 but that in 1975, when Anchorage and Glen Alps were unified, Anchorage had effectively obtained the land by inverse condemnation and that that was satisfactory within the meaning of Section 357.

Chief Justice Warren E. Burger: You say that inverse condemnation is, perhaps, synonymous with de facto condemnation?

Mr. Harlon L. Dalton: No, I would not s --

Chief Justice Warren E. Burger: Would you say?

Mr. Harlon L. Dalton: On the contrary.

The Government's position is 180-degrees away from that position.

Our position is that, despite the similarity of terminology, inverse condemnation and condemnation are by no means equivalent and, indeed, I may not use the term “inverse condemnation” again today.

What inverse condemnation is essentially is the second half of a taking by seizure.

Reverse condemnation is a phrase that's been used to des -- really to describe the fact that land owners whose land is taken inadvertently by the sovereign had a constitutional right to just compensation and the so-called reverse condemnation proceeding --

Chief Justice Warren E. Burger: Well, does it have to be inadvertent?

There's nothing inadvertent about this, was there?

They knew the road was going over some --

Mr. Harlon L. Dalton: Absolutely and, indeed, one of our contentions is that, though this is somewhere further down the line of my argument, that is a general proposition we're taking our purposeful it is a policy of the United States and the policy of the State of Alaska that those takings proceed by condemnation not by seizure.

Justice William H. Rehnquist: In inverse condemnation actions they brought under the Tucker Act, isn't there a long line of federal authorities holding that if the Government may defend such an action by saying Congress had not authorized the intrusion and, then, the person's remedy is simply to have a person -- have their land back?

Mr. Harlon L. Dalton: I'm not familiar with that line of authority, but I trust that it exists.

It strikes me as helpful to the Government's argument.

Justice William H. Rehnquist: I would think it would be helpful to your case.

Mr. Harlon L. Dalton: Absolutely.

The issue before this Court is not whether Anchorage has the power under Alaska law -- eminent domain law to affect takings this by seizure and that's because this land is owned in fee by the United States and absent the consent of the United States, there is no method by which Anchorage can acquire a roadway across the Tabbytite allotment.

Now, Section 347, on its face, appears to consent to be a waiver of the United States' sovereign immunity with reference to state's attempts to condemn allotted land.

I suppose it's incumbent upon me to acknowledge, as the Court is aware, that Respondent Tabbytite draws into question whether even Section 357, at this point, constitutes a waiver of sovereign immunity when rights of way are at issue and particularly when roadway rights of way are at issue.

But, if we assume for the moment that Section 357 does apply, it should be construed narrowly, both because it constitutes a waiver of sovereign immunity and because takings under it, condemnation under it, in effect, potentially results in derogation of interest of Indians.

Justice John Paul Stevens: Mr. Dalton, excuse me for interrupting, but one question keeps running through my mind.

You're denying that there was a taking here, that the Indian inverse condemnation, and the Government, as I remember it, is seeking an injunction.

You want to stop traffic from going over the road until the state institutes a condemnation proceeding.

Is that what you want in the case?

Mr. Harlon L. Dalton: Well, we certainly take the position that Section 357 has to be adhered to and that means that, until a formal condemnation proceeding is brought, this taking constitutes a trespass and, so, I think --

Justice John Paul Stevens: And, therefore, you close off the road to traffic until the condemnation proceeding is concluded.

Mr. Harlon L. Dalton: Yes.

I take it, that would, by the way, impose no hardship on the Municipality of Anchorage, in that, when Glen Alps --

Justice John Paul Stevens: A few commuters may be unhappy, I suppose.

Mr. Harlon L. Dalton: Again please?

Justice John Paul Stevens: A few commuters may be unhappy.

It's sort of a main thoroughfare, isn't it?

Mr. Harlon L. Dalton: It is a main thoroughfare in the context of a dirt road and one lane going either direction but, for that part of the world, it is a main thoroughfare.

But, when Glen Alps was involved in this litigation, it, in fact, filed a counterclaim for formal condemnation in the event that its way of necessity argument was rejected by the court.

Now, at that point, the district court did uphold that argument.

The court of appeals reversed.

At that point, the Municipality of Anchorage essentially reserve the right within 30 days of in adverse decision to it in this litigation to bring a formal condemnation action until it strikes me that they're quite prepared to proceed in that fashion if necessary.

Justice John Paul Stevens: I see.

Mr. Harlon L. Dalton: Anchorage has insisted in its brief that the term “condemnation” -- that the definition of the term “condemnation” in Section 357 is subject to state law because Section 357 provides that condemnation may proceed under the laws of the states where the property is situated, but we submit that that simply cannot be.

The term “condemnation” is central to what Congress was about in Section 357.

It's determinative of the extent of the waiver of sovereign immunity and, to leave states free to define the very right which Congress confers in that section, we submit, would stand the whole notion of consent and waiver on its head.

The decision below and Anchorage in its brief also suggest that United States seeks to deny Indians the right to bring suits for just compensation.

We certainly don't oppose the rights of Indians to receive just compensation but that, of course, can be obtained in the context of a formal condemnation proceeding.

Our point, rather, is that the state cannot relegate Indian allotees to an action for just compensation because, as I indicated in response to your first question, Mr. Chief Justice, the phrase proceeding for just compensation, while fairly mutual on its face, really carries with it the reality that, at some point, a taking by seizure has occurred or is being contemplated.

And, since it's our position that a taking by seizure cannot be squared with Section 357, it is inconsistent to place allottees in the position of having to -- the burden of bringing an action for just compensation.

Now, there may be a case in which there would be inadvertent taking in which an allottee ought to be freed to elect to proceed in an action for just compensation, but that's not this case.

That need not happen pursuant to Section 357.

That is, as this Court has said more than once, essentially a constitutional right.

We, of course, acknowledge that seizures by taking do exist.

That the Tucker Act, in federal practices is the proceeding by which persons whose land has been taken, may indeed proceed for just compensation.

This existed at the turn of the century at the time 357 was enacted as it exists today.

In general, we agree that it's an appropriate remedy for inadvertent takings, but it does not follow that this land owner's remedy can be converted into a means by which a sovereign, like the Municipality of Anchorage, can acquire a roadway affirmatively purposefully across an Indian allotment.

With the Court's permission, I'm looking at the clock, I've got about a minute, I can enter into my next argument or I can pick it up in the morning.

Chief Justice Warren E. Burger: Well, we'll let you pick it up in the morning then.

Mr. Harlon L. Dalton: Thank you.

Chief Justice Warren E. Burger: Counsel.

We'll resume at 10:00.

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Argument of Harlon L. Dalton

Chief Justice Warren E. Burger: We will resume arguments in United States against Clarke.

Mr. Dalton, you may proceed when you're ready.

Justice Harry A. Blackmun: Mr. Dalton, can I ask you a question before you start?

Mr. Harlon L. Dalton: Sure.

Justice Harry A. Blackmun: Would you be joining Mrs. Tabbytite's arguments if they had been raised below and on a petition for cert?

Mr. Harlon L. Dalton: Yes.

I also might add that if the Court has mind to entertain those arguments, then the Government would be pleased if the Court would reach them in this case because it appears that even if the Government prevails on the arguments that we've made, those arguments could be raised in the context of condemnation proceeding, and this proceeding has already gone on for 10 years.

So, it may be better to end it once and for all at this juncture.

As I think I indicated yesterday, the heart of the Government's case is the proposition that takings by seizure are not the functional or the legal equivalent of takings by condemnation.

Both modes, of course, ultimately result in dispossession of the land owner, at least to the extent of the interest involved, but there the similarity ends.

Before land can be taken by condemnation, several events must occur.

A notice must be given to all parties with an interest in the land, and that's particularly important in the allotment context since allottees need not reside on their allotments and the United States Government certainly does not.

Before land can be taken by condemnation, the land must be described.

There must be determination of authority for the taking and this case illustrates the significance of that requirement, in that, given the dispute over the power of the City of Glen Alps to proceed by eminent domain.

Fourteen years after Glen Alps took over the road, a court finally determined that it did not even have the power to proceed in any fashion by eminent domain.

Justice Harry A. Blackmun: There certainly are these differences. Doesn't the case really come down to the date?

That's --

Mr. Harlon L. Dalton: Well, that's --

Justice Harry A. Blackmun: That's your argument about, isn't it?

Mr. Harlon L. Dalton: Yes.

Even once -- let's assume the taking has occurred, the proceeding for just compensation does not make up for the deficiencies prior to that point because the date of taking fixes the time of evaluation or the property and, in a taking by seizure, that date that possession or seizure occurs whereas in a condemnation proceeding, the evaluation of the land does not occur until condemnation is actually-- until con -- compensation is actually paid and, that's significant because there are necessarily delays when a taking by seizure occurs.

In fact, there are incentives for delay and --

Justice William H. Rehnquist: You say the evaluation of the land in a condemnation proceeding doesn't take place or as of the date of payment?

Mr. Harlon L. Dalton: Or at the date of the bringing of the condemnation proceeding.

Justice William H. Rehnquist: The date of the appro --

Mr. Harlon L. Dalton: I'm sorry.

Justice William H. Rehnquist: Bringing --

Mr. Harlon L. Dalton: Yes, sir.

Justice William H. Rehnquist: Of the action.

Mr. Harlon L. Dalton: Date of the action, yes, sir.

Chief Justice Warren E. Burger: But, absent an action, there is no fixed price until there is an action.

Mr. Harlon L. Dalton: Correct.

Chief Justice Warren E. Burger: That's your position?

Mr. Harlon L. Dalton: Yes, precisely, and so, in that sense, the --

Chief Justice Warren E. Burger: And, in this case, no price can be fixed, from your point of view, until they commenced an action -- a true action and not this --

Mr. Harlon L. Dalton: Precisely.

Chief Justice Warren E. Burger: -- in this called inverse condemnation.

Mr. Harlon L. Dalton: Exactly.

There's one other major distinction in terms of the additional -- well, in terms of the deficiencies of a proceeding by inverse condemnation that I'd like to draw to the Court's attention and that's the fact that, in an -- in a proceeding for just compensation or an inverse condemnation proceeding, ordinarily, the land owner cannot challenge the authority for the taking.

Contrary to suggestions in the Municipality's brief, the Crosby case in Ala -- from the Alaska Supreme Court does not stand for the proposition that the authority for taking can be challenged in a compensation proceeding.

And, indeed, the line of cases, Mr. Justice Rehnquist, to which you alluded yesterday in the Toccara cases involving unauthorized takings, certainly in those cases, the court determined that the takings were unauthorized, but it was in a peculiar posture because the Government asserted the unauthorized nature of the taking as a defense to payment of compensation.

Chief Justice Warren E. Burger: Assume a governmental agency having the power of eminent domain, without commencing any proceeding, moves in and takes over a building and either removes the occupants or occupies a building that's not occupied, are they -- in your point of view, are they no different from any other squatter?

Mr. Harlon L. Dalton: Yes sir.

Chief Justice Warren E. Burger: No different?

Mr. Harlon L. Dalton: Yes sir.

Chief Justice Warren E. Burger: That they being clothed with the power of eminent domain, to you, means that they must exercise it in a traditional way.

Mr. Harlon L. Dalton: Yes, precisely.

Thank you.

Justice William H. Rehnquist: Well, the Government, being clothed with eminent domain does not mean that it can simply -- that the Bureau of Land Management can simply wander around the country and seize various pieces of property requires an authorization by Congress as to the particular property.

Mr. Harlon L. Dalton: Yes and, indeed, I think that's the force of the cases that you brought to my attention yesterday, yes sir.

With the Court's permission, if I have any time remaining, I'd like to reserve it for rebuttal.

Chief Justice Warren E. Burger: Very well, Mr. Dalton.

Mr. Pelcyger.

Argument of Robert S. Pelcyger

Mr. Robert S. Pelcyger: Mr. Chief Justice and may it please the Court.

There are two issues of statutory construction presented in this case.

The first is whether Section 357 permits the condemnation of allotted Indian lands by seizure or, put another way, whether would be condemnors are required to file a judicial condemnation proceeding.

The second is whether highway rights of way across Indian-allotted lands can be obtained by condemnation at all or, rather, as Tabbytite contends, whether the statutes authorizing the Secretary of the Interior to grant rights of way over allotted Indian lands, subject to his conditions and requirements, is the exclusive means of obtaining the right of way.

Now, briefly, a textual argument with regard to the first issue.

The statute says that allotted Indian lands “may be condemned.”

It does not say “may be seized.”

It does not say “may be taken.”

It doesn't even say “may be acquired.”

Now, when land has been seized, we don't say it's been taken -- we do say it's been taken, we don't say it's been condemned.

Condemnation requires one of two things, either a judicial proceeding initiated by the condemnor or a land owner's suit for just compensation which has come to be known as an inverse condemnation suit.

Now, that, I should say, there's no indication that the term “inverse condemnation” had been used at all in 1901 when Section 357 was enacted.

But the important point is that the land owner's suit for just compensation is the land owner's remedy and the condemnation cannot occur without either one of those two preconditions, either the land owner suit or the suit by the governmental authority.

And, in this case, neither of those things has occurred, so that neither condition precedent is present.

Therefore, the lands have not been condemned within the meaning of the statute.

Now --

Justice Harry A. Blackmun: Do I understand you then you take the position that inverse condemnation always violates due process or just in this case?

Mr. Robert S. Pelcyger: Your Honor, our position on that is that seizure -- a blatant seizure of property without notice or an opportunity to be heard violates due process.

Inverse condemnation, again, is a land owner's remedy and, in a sense, when a land owner sues for compensation, he is acknowledging his notice.

He is, himself, pursuing his suit in a forum of competent jurisdiction.

So, in a sense, the procedural due process issues on -- do not arise in an inverse condemnation setting, but seizures -- there is -- I would draw a distinction between advertent and inadvertent seizures.

On many cases, most of the so-called inverse condemnation cases that have come to this Court involved situations where there's a good faith dispute between the Government and the land owner about whether Fifth Amendment-protected property rights have actually been invaded.

A classic example of that would be the Crosby case involving whether an invasion of air rights constituted a violation of a compensable property interest.

Of course, the Court held that --

Justice William H. Rehnquist: You think, in answer to Justice Blackmun's question, it's consistent with our decision in the railroad reorganization cases?

Mr. Robert S. Pelcyger: I'm not sure.

I don't know the answer to that Your Honor.

But, our position is certainly that Section 357 should be construed to -- in compliance with procedural due process requirements and, certainly, state and local authorities proceeding under Section 357 should be required to do what they should be doing in any event, namely, to provide opportunity and a notice to be heard to property owners whose rights stand to be invaded, just like they were required to do before terminating welfare benefits, before garnishing wages, before suspending driver's licenses.

Indeed, it's hard to imagine how compensable property rights are entitled to any less procedural process protection than our -- other kinds of lesser property interests.

Chief Justice Warren E. Burger: I sh -- I suppose a threshold issue in any formal condemnation proceeding is whether the condemnor, in law, has the power of eminent domain, is that not a threshold question?

Mr. Robert S. Pelcyger: Yes, it is.

Chief Justice Warren E. Burger: So, that would be your first question here?

Mr. Robert S. Pelcyger: That's correct.

Now, the procedural due process aspects of the case are further highlighted by the declaration of takings laws in both federal and state laws, providing very meticulous procedures and, indeed, a court order before possession can be transferred prior to the payment of just compensation.

And, indeed, if seizures are permitted, these declarations of takings statutes are rendered completely superfluous.

Alaska statutes in that regard are especially meticulous in protecting the rights of affected property owners.

Now, aside from general procedural due process, the court -- this Court has been especially vigilant in assuring special fairness to Indians.

For example, in 1978, the -- this Court decided in Santa Clara Pueblo against Martinez that Congress could not have intended to have created and employ cause of action by tribal officials against tribal officials because tribal officials had not had a prior opportunity to present their views to the Congress in the consideration of the 1968 Indian Civil Rights Act.

The Court relied on “the overriding duty of our federal government to deal fairly with Indians.”

Similarly, in the 1974 decision, Morton against Ruiz, needy Indians who were living near but off-Indian reservations were held not to be able to be denied welfare benefits by the Bureau of Indian Affairs by an unpublished ad hoc agency determination.

The Court held that their denial of assistance under these circumstances “is inconsistent with the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and, sometimes, exploited people.”

Justice William H. Rehnquist: But that was based largely on statute, wasn't it?

That the Government -- that the BIA had represented in appropriations hearings time after time that it was providing assistance.

Mr. Robert S. Pelcyger: I wouldn't say it would -- primarily, there was that aspect of the decision, but the Court also held that, even if the Bureau of Indian Affairs had the authority by Congress to reduce welfare benefits or even to eliminate them to off-reservation Indians, they haven't done it in a proper way in this case.

So, it is even more difficult to ascribe to Congress an intent to allow Indian lands to be taken by seizure, a procedure, incidentally, that the Ninth Circuit itself, in another case and not an Indian case, described as “high-handed Government conduct and not to be favored.”

Now, the second issue that's presented by Tabbytite was left open in this Court's decision 40 years ago in Minnesota against the United States.

At that time, Solicitor General Jackson argued on behalf of the United States that highway rights of way across allotted lands could not be obtained by condemnation at all, but rather require the consent of the Secretary of the Interior pursuant to 25 U.S.C., Section 311 which, incidentally, was part of the same statute that also included Section 357, the 1901 Indian Appropriations Act.

Justice Harry A. Blackmun: Was this ever been raised in the Ninth Circuit?

Mr. Robert S. Pelcyger: No, it was not, Your Honor.

The Ninth Circuit, though, has a controlling precedent on point which is contrary to our position.

So, even if it were, it's doubtful that the Ninth Circuit would have reconsidered that decision.

Justice Harry A. Blackmun: Is that the reason it wasn't raised?

Mr. Robert S. Pelcyger: I'm not sure why it wasn't raised, Your Honor.

I wasn't involved in the case at that time.

I would, however, join Mr. Dalton's remarks that to decide this case solely on the ground presented in the petition for certiorari and sending it back and requiring the Municipality to, then, file a condemnation action on which, then, Mrs. Tabbytite would defend on the grounds that the right of way can't be acquired by condemnation would prolong this already decade-long litigation which has already been twice to the Ninth Circuit.

Justice William H. Rehnquist: But that's, in effect, the Ninth Circuit's reasoning, isn't it, that it's just a -- two horses that are -- maybe have different labels, but they're the same thing?

Mr. Robert S. Pelcyger: Well, they're not really the same thing, particularly in the context of -- when you consider 12 million acres of allotted Indian land scattered across the country to say that the land has been condemned through seizure without notice or an opportunity to be heard is a --

Justice William H. Rehnquist: I think that point is a valid one, but I -- it seems to me, when you feel back on the idea that we might as well wrap up this whole ball of wax here now that you're, in effect, using the same type of reasoning that the Ninth Circuit did?

Mr. Robert S. Pelcyger: Except that the decision make up would be completely different.

If the-- if Anchorage was required to apply to the Secretary of the Interior for a right of way, then it would not -- Anchorage would not have the power of condemnation under that statute.

It's within the Secretary's discretion and he could impose conditions that are favorable to the interest of the Indian allottee.

It would be a very different kind of a resolution than the one that was affected by the Ninth Circuit in this case.

Now, in fact, the kinds of problems that have arisen in this case would not have come up at all if the Secretary of the Interior has the exclusive power to authorize the use of Indian-allotted lands for highway rights of way.

And, indeed, those matters would be considered administratively by the Interior Department, rather than in the federal courts.

As we point out in our brief, Tabbytite's position on the second statutory argument is supported by all of the applicable canons of construction.

The 1901 Indian Appropriations Act is ambiguous on its face because it has these two sections, arguably, which one applies to the acquisition or which one or both of them apply to the acquisition of rights of way across allotted lands.

Well, that ambiguity should be resolved in favor of the Indians and the specific statute should take hold of the general one and the statute should not be rendered insignificant or superfluous.

Thank you.

Chief Justice Warren E. Burger: Mr. Weinig.

Argument of Richard A. Weinig

Mr. Richard A. Weinig: Mr. Chief Justice and may it please the Court.

This is a case in eminent domain.

The issue before the Court is to construe a simple unambiguous statute, 25 U.S.C., Section 357.

It reads, “the lands allotted in severalty to Indians may be condemned for any public purpose under the laws of the state or territory where located in the same manner as land owned in fee may be condemned and the money awarded as damages shall be paid to the allottee.”

The issue of state law concerning what constitutes condemnation, substance, and procedure are rendered applicable in this st -- in this case by virtue of the language of Section 357.

Section 357 is both a substantive and procedural statute concerning the law of eminent domain and is to be governed by the law of the state.

The specific issues before us involve a sub-specie of condemnation or its synonym, eminent domain, which is called inverse condemnation or de facto condemnation.

Inverse condemnation, which is identical with de facto condemnation, is a taking of private property authorized pursuant to the laws of the state for public purpose without the prior filing of formal judicial eminent domain proceedings and requires subsequent payment and just compensation.

The specific task before this Court, in construing Section 357, is to determine whether it allows condemnation of lands allotted in severalty to Indians to be taken through a taking in the nature of inverse condemnation or de facto condemnation if the laws of the state applicable, allow a taking in the nature of inverse condemnation or de facto condemnation, as well as by formal eminent domain proceedings.

Now, the United States has attempted to categorize this case as a feud between two homesteaders on a remote mountain top in Frozen Alaska with the issue being whether one could obtain the right to trespass across the lands of another.

This is not so.

It is misleading.

The issue is whether a roadway used as a public roadway, wholly within city boundaries, and maintained as the principal street of the city between 1961 and 1975, and by the Municipality of Anchorage, a home rule of municipality created in September of 1975, constitutes a taking in the nature of eminent domain of inverse condemnation, a de facto condemnation for a public, not private road.

Justice Potter Stewart: But, your -- if your position is correct, the same rule would apply if the state or some Municipality of Alaska purported to seize a roadway in some remote mountain top in some other part of the state with nobody there, I mean, the allottee not in possession, wouldn't it?

Mr. Richard A. Weinig: Yes, it would --

Justice Potter Stewart: I mean, some of the facts of this particular case aren't all that important.

Mr. Richard A. Weinig: The facts are not terribly important, except in the sense that the laws of the State of Alaska, since the Crosby case was decided in 197-- 1966, have a continuous train of cases from their City of Anchorage versus Nesbett and the Wickwire case have recognized that a taking in the nature of inverse condemnation is equally valid to a formal eminent domain proceeding as long as just compensation is paid in the proceeding.

Justice Potter Stewart: That could occur on a remote mountain top.

Mr. Richard A. Weinig: It certainly could, it certainly could.

Chief Justice Warren E. Burger: Now, the United States --

Justice Harry A. Blackmun: Just a matter of curio --

Chief Justice Warren E. Burger: Go ahead.

Justice Harry A. Blackmun: Just a matter of curiosity, is this right in the built up section of Anchorage?

Mr. Richard A. Weinig: It is.

It is up on the hillside.

It is one of the more desirable subdivisions and residential areas of Anchorage.

It is situated at about 2,000-Foot level in the Chugach Mountain area, an area that's fre -- very rapidly developing.

It is an area, for instance, that has probably the finest view of any subdivision of Anchorage, but it is in the hilltop area.

Justice Harry A. Blackmun: One more question, if you knew before hand that you were taking property for a public purpose, under Alaska law, do you have an obligation to bring formal condemnation proceedings?

Mr. Richard A. Weinig: The Supreme Court of Alaska has not ruled upon issues specifically, but I think that if a Government entity knew in advance that it were to bring eminent domain proceedings, it would be proper for it to file a complaint, not necessarily with a declaration of taking because that is discretionary with the public agency.

But I think there'd been -- the facts of this case are critically important because the city -- the Municipality of Anchorage did not exist during the time of the transgressions which have been outlined by the United States and Mrs. Tabbytite.

It was not created until September of 1975 and I would like to review the facts of this case for you because I think they're critical to an understanding of it.

And, I think the first thing to examine in the facts of this case --

Justice William H. Rehnquist: Mr. Weinig --

Mr. Richard A. Weinig: Excuse me.

Justice William H. Rehnquist: -- could I ask you a question before you get to --

Mr. Richard A. Weinig: Surely, sir, you can.

Justice William H. Rehnquist: -- those facts?

You say the mun -- condemning authority would have to file a c -- an action in condemnation, but not necessarily a declaration of taking.

What would be complaint in condemnation have to describe with particularity, the property that was to be taken?

Mr. Richard A. Weinig: Normally, it would, sir.

Justice William H. Rehnquist: Well, are there circumstances under which it would not?

Mr. Richard A. Weinig: If a deliberate act were made to go out and file a formal eminent domain proceeding, it would have to be described.

Chief Justice Warren E. Burger: Now, the Government has told us that there are 12 million acres of land in this particular category.

I suppose you'd agree that the real parties in interest are not likely to know what's going on in all of those 12 million acres, nor is any Indian agent.

Is that reasonably correct?

Mr. Richard A. Weinig: Well, I would, first, answer that the allegation of the 12 million acres is not of record in this case.

I --

Chief Justice Warren E. Burger: Well, let's suppose it's six million or two million.

That's a lot of acres, isn't it?

Mr. Richard A. Weinig: Right.

Chief Justice Warren E. Burger: Well, isn't the notice function just fundamental in due process to al -- to let a property owner or a claimant to property know that someone is taking or about to take?

Mr. Richard A. Weinig: The notice function is integral to due process.

However, in the cases of inverse condemnation which have been decided by this Court, the notice function has never been held to be a constitutional deficiency to the taking.

For instance, take the United States versus Crosby case, the over flight cases, the Griggs case.

The over flights, of course, were direct intentional actions on the part of the particular agency, but there was no finding by this Court in either case that the lack of notice was a jurisdictional or constitutional infirmity here.

Now, I think that the same situation would apply with regard to a taking in the nature of de facto or inverse condemnation with regard to the Indian lands, but if a party knew in advance that this government entity were going to go out and condemn land, the notice, I think, would be essential.

But, the fact in this case is that when Anchorage began maintenance of this road in 1975, in September of 1975, there was notice to both the United States and Tabbytite that this action was being taken.

Now, the history of the litigation is critical to this.

As I've mentioned previously, before September of 1975, the history of local government is critical to this case.

Before September of 1975, the regional government in the area was the Borough, and there were a number of cities therein Anchorage --

Justice Thurgood Marshall: But, as you go along, will you tell me why the Borough, the state, or the City of Anchorage, or anybody at any time paid this woman any money, were they named?

Mr. Richard A. Weinig: We -- since Anchorage -- the answer, directly, is no, except for trespass damages which, I believe, were paid pursuant to the judgment of the District Court in 1973.

We have been willing to adjudicate the issue of just compensation in this case since 1976.

Justice Thurgood Marshall: Why didn't you --

Mr. Richard A. Weinig: Because the --

Justice Thurgood Marshall: go ahead and --

Mr. Richard A. Weinig: Excuse me, sir, I didn't --

Justice Thurgood Marshall: Why didn't you condemn it?

Mr. Richard A. Weinig: Because --

Justice Thurgood Marshall: Too much trouble?

Mr. Richard A. Weinig: No.

We --

Justice Thurgood Marshall: Too much cost?

Mr. Richard A. Weinig: No, not in the least, sir.

Justice Thurgood Marshall: So, what -- then what is it really?

Mr. Richard A. Weinig: There are two reasons.

Justice Thurgood Marshall: Easier?

Mr. Richard A. Weinig: No.

Justice Thurgood Marshall: Is it an Indian?

Mr. Richard A. Weinig: No.

Justice Thurgood Marshall: Well, I give up.

Mr. Richard A. Weinig: Alright, there [Laughter] -- as I indicated, there are two reasons why we did not condemn immediately after the Ninth Circuit decision came down in February of 1976.

Justice Thurgood Marshall: My question wasn't why you didn't condemn immediately.

My question was why didn't you condemn ever or why didn't you ever condemn, either way you want to put it.

Mr. Richard A. Weinig: Alright.

Let's take it from the beginning of time, in September of 1976, when the Municipality, a newly created government began maintenance of the road.

At that time, there was a final judgment by the District Court for the State of Alaska binding upon the Municipality as successor to Glen Alps, binding upon the United States, and binding upon Tabbytite at that time that the road was a public road right of way through an easement of necessity.

For the next five months, the Municipality maintained that road, snow-plowing it through the rigorous of Alaskan winter pursuant to a final judgment of the District Court of the State of Alaska.

After the Ninth Circuit rendered its decision in February of 1976, as soon as the file was returned from the Ninth Circuit in San Francisco to Anchorage so that the new party, the Municipality, could examine what the prior course of litigation was, we filed a motion for summary judgment to determine whether, as a consequence of the actions, a taking in the nature of inverse had occurred.

After the district court judge in S -- in November of 1976 ruled that it did not because the former City of Glen Alps did not have the power of eminent domain but invited us to re-file a motion, determining whether the new status of law of the Municipality, which clearly granted the power of eminent domain, would be there.

The Municipal Assembly, in December of 1976, held a public hearing tha -- upon the issue of whether a formal eminent domain proceeding should be instigated on that road.

At that public hearing and the transcripts can be available to this Court if you wish them, Mrs. Tabbytite, the Indian, and her attorney appeared and spoke with great earnestness and great fervor requesting the Municipality not to file formal eminent domain proceedings upon this road.

Pending further negotiations of the parties and pending further outcome of the litigation, which was then in process, pursuant to the request of the District Court or an invitation to re-file a motion determining whether the issue of inverse condemnation had been changed because a new government entity was involved.

Pursuant to the District Court's invitation in November of 1976 and pursuant to the request of Tabbytite before the Municipal Assembly not to file a formal eminent domain proceeding, we filed a su -- motion for summary judgment, determining the issue of inverse condemnation.

In April of 1977, the District Court for the State of Alaska ruled that it was unnecessary to file a formal eminent domain proceeding because a taking in the nature of inverse condemnation had taken place.

This was appealed by the United States to the Ninth Circuit.

The Ninth Circuit ruled in January of 1979 that an inverse taking had occurred.

Now, throughout all this time period, the position of the Municipality has been, and this can be documented by the record and I have cited to the record in my brief that, at any time, we were willing to adjudicate the issue of just compensation in this case.

Justice Thurgood Marshall: Did you ever offer the people 5 cents?

Mr. Richard A. Weinig: Excuse me, sir?

Justice Thurgood Marshall: Did you ever offer them any money for their land?

Mr. Richard A. Weinig: This is not of record, but I will answer your question.

The answer is --

Justice Thurgood Marshall: If it's not in the record, I don't want an answer because I don't know --

Mr. Richard A. Weinig: Well, it's --

Justice Thurgood Marshall: I don't know how correct it will be.

Mr. Richard A. Weinig: Well, it's -- it was in the course of negotiation with the United States Attorney of Anchorage --

Justice Thurgood Marshall: Well, who has title to it right now under your peculiar Alaska procedure?

Mr. Richard A. Weinig: I would think that the -- until just compensation is paid in this case, the title would rest in the United States as trustee.

Justice Thurgood Marshall: How can you get it out of there --

Mr. Richard A. Weinig: Well --

Justice Thurgood Marshall: -- except by eminent domain --

Mr. Richard A. Weinig: We are willing --

Justice Thurgood Marshall: -- except by eminent domain?

Mr. Richard A. Weinig: Your Honor, eminent domain and inverse condemnation are the same thing.

We're willing to pay just compensation at this case at any time in which the United States is willing --

Justice Thurgood Marshall: Is there anything in the legislative history of this Act that says they meant both?

Mr. Richard A. Weinig: Excuse me?

Justice Thurgood Marshall: That the statute, is there anything in the legislative history that says that it's meant inverse --

Mr. Richard A. Weinig: Yes, sir --

Justice Thurgood Marshall: -- condemnation?

Mr. Richard A. Weinig: There is nothing in the legislative history but there is plenty of contemporary interpretation of contemporary statutes which allowed what is now known as inverse for statutes using the words “condemnation” as Section 357 does, or condemnation under judicial process as Section 7 of the Reclamation Act of 1902 does which was passed by the same Congress that enacted 19 -- Section 357.

Both of -- the most persuasive evidence of contemporary usage in absence of any legislative history is Section 7 of the Reclamation Act of 1902, cited in my brief, I believe, pages 32 and 33.

That statute enacted by the same Congress that enacted Section 357 in 1901 allowed condemnation under judicial process.

This phrase was interpreted by this Court in the United States versus Buffalo Pitts Company in 1914 to allow a taking in the nature of seizure or is now known as inverse condemnation.

This statute was further interpreted by the Ninth Circuit in the case of State versus Rank, 1961, affirmed by this Court in Dugan versus Rank in 1963, to allow language in a statute condemned under judicial process that is more restrictive than the word “condemnation” under our statute to allow what is, in essence, a taking in the nature of inverse condemnation.

Justice Thurgood Marshall: It doesn't go after this statute (Inaudible)

Mr. Richard A. Weinig: It -- the other statute was enacted by the same Congress one year after this --

Justice Thurgood Marshall: This is 1967, isn't it, or probably no later than this.

Mr. Richard A. Weinig: Yes, it was, but the primary interpretation of Section 7 of the Reclamation Act of 1902 was in 1914 and that's highly contemporary.

Justice Lewis F. Powell: May we come back --

Mr. Richard A. Weinig: Yes.

Justice Lewis F. Powell: -- to a question that was put to you a little earlier?

Mr. Richard A. Weinig: Yes.

Justice Lewis F. Powell: Let's assume that the Municipality wanted to acquire either right of way or title to land override.

Forget all the facts in this case, the city council says “we need the land” and they consult the city attorney and he says the quickest way to get it is to proceed under 357, exercising what you describe as a de facto right.

Now suppose the city simply goes out with a bulldozer and knocks down a building or two, giving no notice to anybody, purporting to exercise their right under 357 that I understand you are setting here today, what would be the consequences of that?

Mr. Richard A. Weinig: I think that the consequences would be in that case, that it would not be a valid condemnation under Section 357 and for this reason that there is a requirement of good faith, I believe, on the part of the condemnor in exercising its powers of eminent domain.

In the case that you raise, I think that good faith would not be present, but that is not the case before us with the Municipality of Anchorage.

Justice Lewis F. Powell: Is your case entirely dependent on the facts that would enable you to argue as you are arguing, perhaps correctly, that the city was ignorant of the situation and did not understand that the proper procedure required that it go through judicial condemnation?

Well, putting it differently, are you saying that this statute conveys a right knowingly to condemn property by force without resort to judicial proceedings?

Mr. Richard A. Weinig: No, it does -- I would not think that it conveys a right to go out and condemn property by force, but again, that is not the situation in our case.

Justice Lewis F. Powell: I understand that, but --

Mr. Richard A. Weinig: No --

Justice Lewis F. Powell: -- I'm just testing your theory that 357 authorizes both de facto and judicial condemnation.

Mr. Richard A. Weinig: Well, I do not think that the theories concerning inverse condemnation or de facto condemnation that have been evolved over the years would allow a taking by brute force premeditated in that regard, but there are of course any number of instances, for instance, in which the United States Government has gone out and taken land.

You have the Edel case, the Dickinson case that whole string of cases where the United States has gone unto someone's land and taken it, probably with the premeditation of the individual officer involved, but I can only emphasize that that is not the case in our situation.

We began maintenance of the road under a binding decision of the District Court and we have been engaged in good faith litigation as to its status ever since.

Justice Byron R. White: Could I -- doesn't – doesn't the section refer to state law?

Mr. Richard A. Weinig: Yes sir.

Justice Byron R. White: And it doesn't -- it doesn't authorize any condemnations of state law, does it?

And that, I suppose an adequate answer to a question like Mr. Justice Powell might be if there were some Alaska law that Alaska law just, itself, doesn't allow inverse condemnations of the kind that he referred to.

Is there some Alaska law about inverse condemnations or not?

Mr. Richard A. Weinig: There is a great deal of Alaska law about inverse condemnation.

The leading cases that are --

Justice Byron R. White: Does it go any further than -- does it -- do they go as far as to say that you may condemn by force rather than by process?

Mr. Richard A. Weinig: They do not say that you may go out and rally the tanks and move on to somebody's property sir, but let's take a look at the two leading cases that have been involved in the Alaska Supreme Court on inverse condemnation.

The Crosby case is a prime example.

The State of Alaska built a road across somebody's property and they did so under mistaken fact.

They thought it was a section line right of way and it, in fact, wasn't.

And, the State Supreme Court of course found that the road was there.

The road had been built.

The road had, in fact, been placed there under good faith under a mistake, very similar to the mistake, I believe, in municipality --

Justice Byron R. White: So, your -- I take it, your submission then is that whatever happened here is wholly consistent with Alaska law --

Mr. Richard A. Weinig: Yes, sir.

Justice Byron R. White: -- and is authorized by Alaska law.

Mr. Richard A. Weinig: Yes sir, it is.

Justice Byron R. White: And that it doesn't violate any constitutional limitations and, hence, you should win?

Mr. Richard A. Weinig: That is absolutely right sir.

Now, I think it's important --

Justice Byron R. White: And if some other situation comes up some time different there may be some constitutional limitations on what the State of Alaska and, hence, what this federal statute can authorize, but you -- I suppose you suggest that nothing like that is here?

Mr. Richard A. Weinig: I was suggesting that, in this case, nothing like that is here and, this is why it is very important.

In light of the presentation of Tabbytite and of the United States to bear in mind the difference between the status of the municipality language and the former City of Glen Alps, the homesteaders on the mountain, everything else because we weren't -- we did not exist at the time that such transgressions, if transgressions they were, occurred.

I am suggesting that since the municipality was created and it is the responsible body here today, that Mrs. Tabbytite has been afforded every due process required by both the Constitution and the State of Alaska eminent domain laws.

Justice Byron R. White: Under Alaska law, this is one of those situations where an inverse condemnation is permissible.

Mr. Richard A. Weinig: Yes sir, it is.

Justice Byron R. White: And, you say that since it is permissible under Alaska law, it should be permissible here unless there's some constitutional prohibition and you say there isn't.

Mr. Richard A. Weinig: I say that there is -- in this case, there has been no constitutional prohibition and I say that, in this case, Section 357 allows condemnation under the laws of the state where the property is located.

Yes, I think it is authorized by statute in this circumstance.

I see no denial of due process or constitutional impediment by the Municipality of Anchorage.

Justice William H. Rehnquist: Does the State of Alaska allow unorganized municipality such as Glen Alps, as I understand was at one time, to condemn?

Mr. Richard A. Weinig: Well, the answer to the question, no, unorganized municipalities may not.

Glen Alps was not an unorganized municipality.

It was organized pursuant to court order as a third-class city in 1961.

Justice William H. Rehnquist: So, at all times, it has been a third-class city and not just a collection of people around an or -- a municipality.

Mr. Richard A. Weinig: That is correct.

Justice Byron R. White: I suppose, if the -- if this property -- if this property hadn't been taken to the Anchorage but is still owned by Glen Alps, I suppose -- and since it didn't have power to condemn, it didn't have power to inversely condemn either and so this section wouldn't authorize any kind of condemnation --

Mr. Richard A. Weinig: Well --

Justice Byron R. White: -- because the section depends on state law?

Mr. Richard A. Weinig: If Glen Alps were the only party involved pursuant to the judgment of the District Court in November of 1976 that would be correct, but let – my --

Justice Byron R. White: And then you'd have to give the property back if there was no other --

Mr. Richard A. Weinig: If the municipality did not exist?

Justice Byron R. White: Yes.

Mr. Richard A. Weinig: Can I refer very briefly to the trial of this case in which eminent domain was in issue in June of 1972?

Eminent domain had been posed as an issue by the City of Glen Alps.

There was hearing on the issue of necessity placed on the road, and the expert testimony is summarized in my brief.

The issue of authority by virtue of the Glen Alps counterclaim was before the court at that time in June of 1972, but because the court found an alternative theory of law upon which to make its decision that the road was public, an easement of necessity.

It dismissed the Glen Alps counterclaim as moot and refused to rule upon the issues that would otherwise have been presented if it had chosen an eminent domain theory upon which to rely.

It may well have chosen the same decision in June of 1972 that it did in November of 1976 that Glen Alps did not have that power, but it should not be thought by this Court that these issues were not before the trial court in June of 1972.

It just ruled on a different theory of law.

The issue has been before the courts on eminent domain by Glen Alps at every -- at all times since December of 1970.

Might I add two other quick observations, if I may?

The date of evaluation nationwide, if this Court determines that -- I take it, the nature of inverse is allowed by Section 357 need not always be at the date of physical invasion.

Under the laws of each state, the date of evaluation differs.

Now, under Alaska law, City of Nesbett versus Anchorage is under United States law, Dow versus United States, that date is in fact the date of invasion, but it varies from place to place.

Other states have the date of evaluation at the time of filing of complaint.

Some, like California, under certain circumstances, have the date of evaluation at the time of trial or the payment of the award.

So, it's not uniform.

Now, two other things, one, the allegation is made by the United States in Tabbytite, “we would like to have an election of remedies.

We would like to have trespass and injunction as we -- as opposed to just compensation.”

Again, under the laws of the eminent domain statutes of each state, this varies from state to state.

Under the State of Alaska, clearly, there is no election of remedies.

The Wickwire versus Jubelirer case decided that, but that's not uniform nationwide.

For instance, Colorado is at the other extreme.

If you take the Aspen case versus Mountain States Telephone and Telegraph, cited by the Supreme Court of Alaska in 1974, the condemnee, if in a situation of inverse condemnation, was given such election remedies.

So, this isn't a uniform thing nationwide.

Now, I would like to make two other observations, slight corrections in my brief.

I'd indicated in my brief that leg -- that administrative opinion and practice was of little consequence.

At that time, I had not had access to the briefs of Minnesota, but I believe that the Minnesota case, 113 F.2d, Administrative Procedure is persuasive in this case.

The last thing I wish to bring to the attention of the Court is that I have found one case in the reply brief of Tabbytite which is unfavorable to my client and I feel an ethical obligation to disclose this to the Court.

In the United States versus Northern Trading and Transport Company, Justice Brandeis ruled that condemnation and implied contract were different beasts.

However, in subsequent cases following that, the next year, the United States versus Rogers, 255 US 163, a similar situation was found to stem directly from the Fifth Amendment.

In Seaboard Airline versus United States, 261 US 299, 1923, another requisition for military goods cause of action found to stem directly from the Fifth Amendment, and the same in Phelps versus United States, 274 --

Chief Justice Warren E. Burger: What's the last cite?

Mr. Richard A. Weinig: Phelps versus United States, 274 US 341.

My only explanation for the Northern Transport case, if you look at the briefs that were submitted, there are -- there was no claim in the petition of the court of claims which alleged a taking under the Fifth Amendment.

There were two common counts for debt and breach of contract and in light of the subsequent cases, I can only believe that Justice Brandeis ruled as he did by narrowly construing in the face of the complaint.

Chief Justice Warren E. Burger: When you mentioned that one alternative date for fixing compensation was the date of payment, did you mean payment or tender?

Suppose you had a tender by the municipality or the condemning authority and it was rejected, and the payment was made a year later.

It -- tender would be the more accurate or the more equitable date, would it not?

Mr. Richard A. Weinig: I would -- I would think, Your Honor, that it would be a more equitable date.

I think that, in terms of policy, it definitely would.

In terms of law, I think this is a matter that is probably fixed by the eminent domain laws of each state.

Chief Justice Warren E. Burger: Of the state.

Mr. Richard A. Weinig: And it varies widely.

It's a good equitable decision.

Chief Justice Warren E. Burger: Thank you.

I believe the time is all consumed.

Thank you, Gentlemen.

Justice Byron R. White: I take it that you still object or your brief says we should not consider the -- one of the statutory grounds that's raised here for the first time.

Mr. Richard A. Weinig: Yes, I think that -- well, there are two statutory grounds that are raised for the first time on appeal.

The first of which is the argument that Section 311 concerning secretarial grants --

Justice Byron R. White: Yes.

Mr. Richard A. Weinig: -- controls over Section 357 --

Justice Byron R. White: Yes.

Mr. Richard A. Weinig: -- because it is more specific.

Justice Byron R. White: Yes.

What's the other one?

Mr. Richard A. Weinig: The other one is the allegation that there has been a repeal by implication of 357 by the Act of February 5, 1948 which currently contains Title 25 --

Justice Byron R. White: You mean they're both raised by Tabbytite?

Mr. Richard A. Weinig: These are both raised by Tabbytite for the first time.

Justice Byron R. White: And I suppose that if you were to prevail on either one of those, we would avoid reaching constitutional questions that seem to be hovering in them.

You can't win – you can't win without our -- on your ground without our rejecting whatever constitutional arguments that are being made here, right?

Mr. Richard A. Weinig: That is always the case when a constitutional issue is raised.

Justice Byron R. White: Well, that's so -- but we wouldn't reach them if we decided against you on any statutory ground.

Mr. Richard A. Weinig: Your Honor that is correct and that is the situation that the Court must face at any time --

Justice Byron R. White: Yes.

Mr. Richard A. Weinig: -- an appellant raises --

Justice Byron R. White: Exactly.

Mr. Richard A. Weinig: -- a constitutional issue.

Justice Byron R. White: Thank you very much.

Chief Justice Warren E. Burger: Very well.

Thank you, Gentlemen.

The case is submitted.