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United States v. 162.20 Acres of Land

Citation: 11 ELR 20230
No. No. 80-3707, 639 F.2d 299/(5th Cir., 03/13/1981)

The court rules that noncompliance with § 470f of the National Historic Preservation Act (NHPA) is not a defense to an action to condemn private property for a federal project under the Declaration of Taking Act (DOTA). The Corps of Engineers sought to condemn appellant's property, which was listed on the National Register of Historic Places, for recreational uses adjacent to the Tennessee-Tombigee Waterway Project. The court rejects appellant's claim that the Corps must comply with § 470f of the NHPA prior to condemning the property. In a condemnation proceeding under the DOTA, the filing of the declaration of taking vests title in the United States. The role of the district court is merely to consider the legal authority to take and to decree the transfer of title. The agency must comply with the NHPA regardless of the ownership status of the property. Once title has passed, however, the court has power under the DOTA to withhold possession from the government until it has complied with the NHPA. The court thus remands the case to the district court to determine compliance.

Counsel for Appellant
Thomas R. Trout
Darden, Summers, Carter & Trout
P.O. Box 6, New Albany MS 38652
(601) 534-6326

J. Arthur Smith III
Smith & Osborne
524 France St., Baton Rouge LA 70802
(504) 383-7716

Counsel for Appellee
Jacques B. Gelin, James W. Moorman, Anne S. Almy
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2762

Before GOLDBERG, GARZA and TATE, Circuit Judges.