Jump to Navigation
Jump to Content

United States v. 18.2 Acres of Land

Citation: 8 ELR 20318
No. No. S-75-240, 442 F. Supp. 800/(E.D. Cal., 12/15/1977)

On plaintiff's motion for summary judgment in an action brought by the federal government to condemn rights-of-way across defendant's land providing access to timber acreage, defendant may raise as a defense the government's alleged failure to comply with the requirements of the National Environmental Policy Act (NEPA). Despite defendant's failure specifically to raise such a defense in its answer, as required by FED. R. CIV. P. 71(A), a proper application of that rule, as well as due consideration for the broad mandate of NEPA, compels a finding that the defense was not waived. Whether NEPA requires the preparation of an environmental impact statement in this case turns on whether the proposed condemnation constitutes a major federal action significantly affecting the environment, a question which must be resolved at trial. Plaintiff's assertion that defendant lacks standing to raise a NEPA defense is rejected by the court on the grounds that the proposed condemnation and ensuing logging and recreational activities will injure the environmental, as opposed to economic, characteristics of defendant's property sufficiently to satisfy the two-pronged standing test of injury in fact to an interest protected by the statute. The court also denies plaintiff's motion to strike the defense that the proposed condemnation is invalid as an arbitrary and capricious use of the eminent domain power. No Notwithstanding the general rule that exercises of the condemnation power are not judicially reviewable, an exception to that rule recognized by the Ninth Circuit allows review where the governmental action appears to have been arbitrary and capricious. Defendant has sufficiently documented this defense to warrant fuller examination of the question at trial.

Counsel for Plaintiff
Dwayne Keyes, U.S. Attorney; Richard H. Jenkins, Ass't U.S. Attorney
2058 Federal Bldg., 650 Capitol Mall, Sacramento CA 95814
(916) 440-2331

Counsel for Defendant
Richard Murray, Carl Lippenberger
McCutchen, Doyle, Brown & Enersen
3 Embarcadero Center, San Francisco CA 94111
(415) 393-2000