Free Motion to Vacate - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) Plaintiffs, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________ ) LAND GRANTORS IN HENDERSON, UNION, AND WEBSTER COUNTIES, KENTUCKY AND THEIR HEIRS

No. 93-648X Judge Susan G. Braden

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION TO VACATE THE NOVEMBER 24,1998 ORDER

Nancie G. Marzulla Roger J. Marzulla MARZULLA LAW 1350 Connecticut Avenue, N.W. Suite 410 Washington, DC 20036 (202) 822-6760 M. Stephen Pitt Merrill S. Schell Jean W. Bird WYATT, TARRANT & COMBS, LLP 500 West Jefferson Street Suite 2800 Louisville, KY 40202-2898 502.562.7372 March 6, 2008

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TABLE OF CONTENTS I. II. INTRODUCTION............................................................................................................... i BACKGROUND ................................................................................................................3

III. FACTS................................................................................................................................4 IV. ARGUMENT......................................................................................................................6 A. B. The Hearing Officer Improperly Confined the Inquiry to the Language of the Proposed Bill. ....................................................................................................................9 The Hearing Officer Incorrectly Interpreted the Language of the Proposed Bill. ................12 1. 2. 3. 4. C. D. E. "Condemnation" Occurred with the Filing of the Condemnation Petitions and the Orders of Possession. .................................................................................................12 The Term "Sold," as Used in Eminent Domain Matters, Includes all Means by Which the Government Acquires Title to Property. ...............................................................18 "Grantors" of the Camp Breckinridge Lands Include All Those Whose Properties Were Condemned................................................................................................................22 The Intent of the Bill's Congressional Sponsor Supports a More Expansive Interpretation of S. 794. .............................................................................................23

The Court is not Required to Reopen Landowner Judgments in Order to Decide Plaintiffs' Equitable Congressional Reference Claims. .....................................................25 All Former Landowners and Heirs Are Included in the Class.............................................30 Suggested Procedures And Remedy For The Court's Final Report.....................................34

APPENDIX Exhibit A: April 23, 1998 letter from former Senator Wendell Ford

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TABLE OF AUTHORITIES FEDERAL CASES

Best v. Humboldt Placer Mining Co., 371 U.S. 334, 83 S.Ct. 379, 9 L.Ed. 2d 350 (1963)................................................................... 14 Blacklock v. United States, 208 U.S. 75 (1908)........................................................ 10, 11 Burkhardt v. United States, 113 Ct.Cl. 115, 82 F.Supp. 333 (1949) ......................... 26, 27 California Canners & Growers Ass'n v. United States, 9 Cl.Ct. 774, 785 (1986) ........... 25 Danforth v. United States, 308 U.S. 271, 60 S.Ct. 231, 84 L.Ed. 240 (1939).......21, 23, 33 Florida Power & Light Co. v. United States, 66 Fed.Cl. 93 (2005) .................................. 4 Foster v. United States, 607 F.2d 943 (Ct.Cl. 1979) ...................................................... 14 Herman B. Taylor Constr. Co. v. Barram, 203 F.3d 808 (Fed.Cir. 2000)....................... 31 Higginson v. United States, 384 F.2d 504 (6th Cir. 1967) .............................................. 17 J.A. Zachariassen & Co. v. United States, 136 Ct.Cl. 63, 141 F.Supp. 908 (1956) ......... 26 John R. Sand & Gravel Co. v. United States, 128 S.Ct. 750 the Court dismissed parallel civil action No. 93-648-1L................ 1 KLK, Inc. v. United States Department of the Interior, 35 F.3d 454 (9th Cir. 1994) ....... 12 Kinkead, 150 U.S. at 497 (emphasis added)................................................................... 11 Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 104 S.Ct. 2187, 81 L.Ed. 2d 1 (1984) .............................20, 21, 23, 33 Kochendorfer v. United States, 193 Ct.Cl. 1045, 1055 (1970)........................................ 25 Land Grantors in Henderson, Union and Webster Counties, Kentucky v. United States, 64 Fed.Cl. 661 (2005) ....................................... passim Land Grantors in Henderson, Union and Webster Counties, Kentucky v. United States, 74 Fed. Cl. 518 (2006)....................................................................................... 35 Landmark Land Co. v. United States, 46 Fed.Cl. 261 (2000) ......................................... 36

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Landmark Land Co. v. Federal Deposit Ins. Corp., 256 F.3d 1365 (Fed. Cir. 2001) ...... 36 Lutz v. United States Postal Service, 485 F.3d 1377 (Fed. Cir. 2007)............................. 31 Marconi Wireless T. Co. of Am. v. United States, 320 U.S. 1 (1943)................................ 4 Mizokami v. United States, 188 Ct.Cl. 736, 414 F.2d 1375 (1969) ................................. 17 Mizokami v. United States, 414 F.2d 1375, 188 Ct.Cl. 736 (1969) ........................... 27, 28 Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S.Ct. 1447, 131 L.Ed. 2d 328 (1995).................................................................................... 27 Paul v. United States, 20 Cl. Ct. 236 (1990), aff'd., 21 Cl.Ct. 758 (1990)....................... 10 Pope v. United States, 323 U.S. 1, 65 S.Ct. 16, 89 L.Ed. 3 (1944) ........................... 28, 29 Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. 420, 11 Pet. 420 (1837)......................................................................... 22 R.J. Widen Co. v. United States, 357 F.2d 988 (Ct.Cl. 1966) ......................................... 14 Sargent v. Columbia Forest Products, Inc., 75 F.3d 86 (2nd Cir. 1996)......................... 29 Saulsberry v. Maddix, 125 F.2d 430 (6th Cir. 1942) ...................................................... 30 Shane v. United States, 3 Cl.Ct. 294, 304 (1983) ........................................................... 26 The Atlantic Works v. United States, 46 Ct.Cl. 57 (1911)............................................... 10 United States v. $277,000 U.S. Currency, 69 F.3d 1491 (9th Cir. 1995).......................... 36 United States v. 26.3765 Acres of Land, 62 F.Supp. 910 (E.D. N.Y. 1945) .................... 16 United States v. 40,379 Square Feet of Land, 58 F.Supp. 246 (D. Mass. 1944).............. 13 United States v. 45,149.58 Acres of Land, 455 F.Supp. 192 (E.D. N.C. 1978)................ 13 United States v. $515,060.42, 152 F.3d 491 (6th Cir. 1998)............................................ 36 United States v. 72 Acres of Land, 37 F.Supp. 297 (N.D. Cal. 1941).............................. 33 United States v. Armour & Co., 402 U.S. 673, 91 S.Ct. 1752, 29 L.Ed.2d 256 (1971).... 31 United States v. Catlin, 142 F.2d 781 (7th Circuit 1941)................................................ 16

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United States v. Certain Parcels of Land in Sewickley Tp, 54 F.Supp. 943 (W.D. Pa. 1944) ........................................................................ 13 United States v. Clarke, 445 U.S. 253, 100 S.C. Ct. 1127, 63 L.Ed.2d 373 (1980) ......... 12 United States v. Dow, 357 U.S. 17, 78 S.Ct. 1039, 2 L.Ed. 2d 1109 1958)..................... 12, 13, 14, 16, 17 United States v. Forbes, 259 F. 585 (M.D. Ala. 1919) ................................................... 33 United States v. General Motors Corporation, 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945) ............................................... 14 United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336 (1943) ...................... 17 United States v. Realty Co., 163 U.S. 427, 16 S.Ct. 1120, 41 L.Ed. 215 (1896).............. 29 United States v. Union Pac. R. Co., 353 U.S. 112, 77 S.Ct. 685, 1 L.Ed.2d 693 (1957).. 22 Webb v. United States, 192 Ct.Cl. 925, 932 (1970) ........................................................ 25 Wolfchild v. United States, 68 Fed.Cl. 779 (2005) ........................................................... 4 STATE CASES Harris v. Strawbridge, 330 S.W.2d 911 (Tex. Civ. App. 1959)...................................... 23 Hendrickson v. Dept. of Highways, 196 S.W.2d 876 (Ky. 1946).................................... 23 Higginbothom v. Higginbothom, 177 Ky. 271, 197 S.W. 627 (1917) ............................. 37 Jennings v. Jennings, 299 Ky. 779, 187 S.W.2d 459 (1945) .......................................... 37 Porreca v. LaFerrierre, 543 A.2d 102 (N.J. Super. 1988) ............................................. 17 Rose v. Bryant, 251 S.W.2d 860 (Ky. 1952) .................................................................. 23 White v. Rosenthal, 35 P.2d 154 (Cal. App. 1934) ......................................................... 23 FEDERAL STATUTES 40 Stat. 241, 50 U.S.C. §171 ........................................................................................... 6 40 U.S.C. §257 ............................................................................................................. 20 40 U.S.C. §258(a) ..............................................................................................13, 17, 20

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10 U.S.C. §2663.............................................................................................................. 6 40 U.S.C. §3113............................................................................................................ 20 40 U.S.C. 3114(b) ................................................................................................... 17, 20 28 U.S.C. §1491(a)(1) ..................................................................................................... 1 28 U.S.C. § 1492............................................................................................................. 9 28 U.S.C. §2509(c) ................................................................................................. 26, 27 28 U.S.C. §798(c) ......................................................................................................... 36 28 U.S.C. §2507............................................................................................................ 35 S. 794, 103d Cong., 1st ................................................................................................... 7 STATE STATUTES KRS, Ch. 391................................................................................................................ 37 RULES FRCP 71A .................................................................................................................... 20 Fed.R.Evid. 803(3)........................................................................................................ 24 Fed.R.Evid. 807 ............................................................................................................ 24 RCFC 53................................................................................................................. 36, 37 MISCELLANEOUS 7 U.S.Op.Atty.Gen. 114, 1855 WL 2289 (U.S.A.G., April 24, 1855)............................. 19 Black's Law Dictionary, p. 700 (6th Ed. 1990) .............................................................. 22 Nichols on Eminent Domain (3rd ed.), Vol. 8, §18.01[2][a] ............................................. 8 S. 794, 103d Cong., 1st ................................................................................................... 7

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I.

INTRODUCTION

In its April 1, 2005 "Interim Report and Memorandum Opinion," Land Grantors in Henderson, Union and Webster Counties, Kentucky v. United States, 64 Fed.Cl. 661 (2005) ("Land Grantors I"), the Court referred to the November 24, 1998 Order ["1998 Order" Docket No. 65], which effectively dismissed from the case Plaintiffs owning approximately 75% of the acres comprising Camp Breckinridge: [if] the court exercises jurisdiction under 28 U.S.C. §1491(a)(1), then the November 24, 1998 Order in this case should be vacated and all former landowners and heirs that complied with the court's deadline and were named as Plaintiffs in the September 22, 1995 First Amended Complaint are entitled to receive their proportionate share of damages. In the event the court is reversed on appeal, the court would lift the stay, reinstate the November 24, 1998 Order, finalize this Interim Report, and forward it to the Review Panel. In the event the court is affirmed on appeal, Plaintiffs can proceed to enforce the judgment. Id. at 717-718 (emphasis added). The Court never finally exercised jurisdiction under 28 U.S.C. § 1491(a)(1) and there has been no reversal on appeal. Accordingly, it appears that the 1998 Order is still in effect. Subsequent to Land Grantors I, and in light of the January 8, 2008 United States Supreme Court decision in John R. Sand & Gravel Co. v. United States, 128 S.Ct. 750 (2008), the Court sua sponte dismissed parallel civil action No. 93-648-1L, leaving this congressional reference action to proceed. But the efficacy of the 1998 Order does not depend upon whether Plaintiffs' claims proceed under the Tucker Act or as a congressional reference. The 1998 Order was wrongly decided and should be vacated prior to entry of the Court's final congressional reference report.

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This action was filed on January 12, 1994 in the name of "the Breckinridge Land Committee." Subsequently, on September 22, 1995, the Plaintiffs filed a First Amended

Complaint in which 1,011 former landowners and heirs were named as individual Plaintiffs. 1 On February 14, 1998 the Government moved to dismiss a substantial number of Plaintiffs whose claims it argued were beyond the scope of S. 794, 103d Congress, 1st Session (1993), the proposed bill giving rise to this congressional reference action. In the 1998 Order, the previous hearing officer, Hon. James F. Merow, Senior Judge, granted the Government's motion in substantial part, holding that only those landowners who "sold" their properties to the Government "under threat of condemnation" were covered under S. 794. According to the hearing officer, this meant those "individuals who agreed to sell their land after initiation of condemnation proceedings but before declarations of taking were filed and estimated compensation deposited in the district court." [1998 Order at 6]. Individuals "whose land was acquired by the Government through declarations of taking or final judgments entered in the condemnation proceedings" were dismissed as Plaintiffs [Id. at 9]. The 1998 Order effectively removed from the case Plaintiffs representing about seventy-five percent (75%) of the total acreage acquired for Camp Breckinridge, i.e., 26,995.37 acres out of a total of 35,854.88.2

1

On October 3, 2005, a Second Amended Complaint was filed in which 1,092 individual Plaintiffs were named.
2

Owners of 137 properties comprising some 8,859.51 acres (25%) entered into negotiated option agreements with the Government after the United States filed condemnation petitions relating to their properties but before any declarations of taking were filed. The owners of 290 properties, some 16,558.68 acres (46%), reached negotiated selling prices with the Government after the filing of declarations of taking on their properties but before trial. The owners of 67 properties involving 10,436.69 acres (29%) went to trial and had the sales price of their properties determined by a jury. No landowner conveyed his or her property to the Government prior to the filing of a condemnation petition and entry of an order giving immediate possession to the Government. See, CX 79, 80 (excluding easement tracts) and CX 260 (Table 1, p. 25).

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The 1998 Order was entered long before highly relevant condemnation-related documents had been produced by the Government, overlooked crucial facts, relevant legal precedents and principles, misinterpreted S. 794 and, in short, was incorrectly decided. Because the 1998 Order impacts approximately 75% of the acreage involved in this action, Plaintiffs urge the Court to reconsider and vacate it before making its final report and recommendation. II. BACKGROUND This is a highly unusual case. Indeed, this Court itself has characterized it as "unique and sui generis." See Land Grantors I, 64 Fed.Cl. at 707, 713, 716. Many important facts and documents only came to light in last-minute pretrial discovery, after Plaintiffs' document requests went unanswered for nearly a decade. The documents believed by the Plaintiffs to be the universe of documents through and including 1998 were largely comprised of a one-box "administrative record" made available by the Government in January, 1996. Prior to Summer, 2004, neither the parties nor the Court had seen many of the court files relating to the various condemnation petitions. The former hearing officer was not provided those petitions and did not have the benefit of the excellent historians' reports generated by Drs. Johnson and Brigham in 2004. Nor did the Court or the parties have court files that revealed the contractual agreements reached by almost 300 landowners whose properties were condemned but who were sued in declaration of taking actions, and settled with the Government as to price prior to any trial regarding compensation. Thus, the former hearing officer was not aware of all the facts and arguments necessary to arrive at a fully informed and accurate conclusion as to the scope of S. 794. Given the undeniably unique nature of this case, and the serious ramifications of the 1998 Order, this Court can and should reconsider that order before issuing its final report to the review panel. The Court has the power to reconsider earlier rulings in a case prior to the case 3

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becoming final. In fact, this Court's "Memorandum Opinion and Order granting Plaintiffs' Motion for Class Certification," reported at 71 Fed.Cl. 614 (2006) ("Land Grantors III"), is on point: It is well established that the court has authority to reconsider prior rulings before the entry of a final judgment. See Marconi Wireless T. Co. of Am. v. United States, 320 U.S. 1 47-48 (1943)(holding that the trial court has the power, "at any time prior to entry of its final judgment...to reconsider any portion of its decision and reopen any part of the case.")(citations omitted); see also Wolfchild v. United States, 68 Fed.Cl. 779, 784 (2005)("At an interlocutory stage, the common law provides that the court has power to reconsider its prior decision on any ground consonant with application of the law of the case doctrine.")(citations omitted); Florida Power & Light Co. v. United States, 66 Fed.Cl. 93, 96 (2005)("The decision to grant or deny a motion for reconsideration under the Federal Rule lies largely within the discretion of the trial court.")(citation omitted). In light of the amendment to RCFC 23 after the entry of Senior Judge Merow's December 23, 1997 Order Denying Class Certification and the court's well-reasoned decision in Barnes, the court has decided to reconsider entry of the December 23, 1997 Order. Id. at 621. Applying this reasoning, the Court should reconsider and vacate the 1998 Order. III. FACTS The facts necessary for consideration of this motion, facts not considered by the former hearing officer, are largely set out in Land Grantors I, 64 Fed.Cl. 661 at 666-673, where the Court discussed in detail the five petitions condemning the acreage needed for Camp Breckinridge and noted the subsequent declarations of taking filed incidental to the second of those petitions. The First Condemnation Petition The evidence before the Court established that in the summer of 1941 the Government began preparations for the acquisition of land for, and construction of, Camp Breckinridge. As this Court noted,

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"On February 14, 1942, the local U.S. District Attorney filed the first petition under the War Powers Act of 1917, 40 Stat. 241, condemning 10,427.70 acres in Union County, Kentucky [Civil Action No. 74]. On February 16, 1942 Deputy U.S. Marshal O.A. Denton served the first 121 Orders to Vacate 99 condemned tracts of land... Thereafter, each of the landowners was visited by a member of the Corps of Engineers' negotiating team... Landowners and the families were given until March 3, 1942 to vacate so that construction could begin by March 15, 1942." 64 Fed.Cl. at 668-669 (brackets added). Thereafter, as the Court found, "[a]pproximately 85% of the owners of the 10,427.70 acres in Union County agreed to voluntary sales and to deliver to the United States [general warranty deeds conveying fee simple title.]" Id. at 669 (brackets added). The Second Condemnation Petition In its Interim Report, the Court similarly noted that a second condemnation petition under the War Purposes Act was filed on March 31, 1942 "condemning 19,517 acres located in Union and Henderson counties," (Civil Action No. 77) and that "On April 2, 1942 ...the second group of landowners were served with notices to vacate by May 18, 1942." Id. The Court discussed a May 14, 1942 public meeting "where a majority of the landowners expressed continued dissatisfaction with the prices being offered, despite the fact that many had sold their land to the Government at a negotiated price, rather than insisting on a jury determination." Id. at 670. "By May 21, 1942, over half of the landowners in the second condemnation of 20,000 acres agreed to negotiated prices." Id. The Third, Fourth and Fifth Condemnations Petitions "On June 22, 1942, the U.S. District Attorney for the Western District of Kentucky filed a third Petition pursuant to the War Powers Act condemning 824 acres in Union County." Id. at 671 (Civil Action No. 81). "On October 23, 1942, the fourth Petition was filed

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to condemn 5,400 acres located in northwestern Webster County." (Civil Action No. 88) Id. "On May 12, 1944, the local U.S. District Attorney filed a fifth Petition to condemn 16.37 acres, located in Union County, Kentucky." (Civil Action No. 134). Id. at 672. The acreage condemned by the five condemnation petitions totaled 36,185.07.3 Condemnation Petition Nos. 74 and 77, the first two filed, comprised almost 30,000 of the total acreage acquired for Camp Breckinridge. The fourth condemnation petition, in Civil Action No. 88, involved the third largest taking, 5,400 acres. See JX503 at CON3830. This, along with the third condemnation petition condemning 824 acres, brought the total to 36,168.70 acres. Land Grantors I, 64 Fed.Cl. at 671. The fifth petition, filed in 1944, condemned another 16.37 acres. JX529. Pursuant to the War Purposes Act,4 immediate possession was granted to the Government after it filed each Petition. 5 The Government then filed various declarations of taking subsequent to each Petition.6 Id. at 670-671. IV. ARGUMENT S. 794, a proposed Bill "For the relief of land grantors in Henderson, Union, and Webster Counties, Kentucky, and their heirs," provides, in relevant part: Section 1. Authorization.

Compare Land Grantors I, 64 Fed.Cl. at 664 (35,849.28 acres) and S. 794 (35,684.99 acres). The Government may not have ultimately taken title to all of the condemned acres.
4 5 6

3

40 Stat. 241, 50 U.S.C. §171, currently codified at 10 U.S.C. §2663. See Land Grantors I, 64 Fed.Cl. at 669-670.

Four declarations of taking were filed under the first condemnation petition, Civil Action No. 74. JX 206a ­ JX 206d. Seven declarations of taking were filed incident to the second condemnation petition, Civil Action No. 77. JX 264a ­ 264j.

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The Secretary of the Treasury is authorized and directed to pay, out of money not otherwise appropriated, to the individuals (and in any case in which such individual is deceased, the heirs of such individual) who sold their land in Henderson, Union, and Webster Counties, Kentucky, to the United States Government under threat of condemnation in order to provide the 35,684.99 acres necessary for the military training camp known as Camp Breckinridge, the sum of $__________, such sum being in full satisfaction of all claims by such individuals against the United States arising out of such sale. Section 2. Reason for Relief. The individuals described in Section 1 assert that they were(1) promised they would be given priority to repurchase land sold by them if sold by the United States Government; and (2) paid less than reasonable value due in part to the refusal of the United States Government to compensate the owners for mineral, oil and gas rights.7 S. 794, 103d Cong., 1st Session (1993) (emphasis added). The Government argued in its 1998 motion to dismiss that landowners whose properties were acquired by the Government after the filing of declarations of taking did not technically fall within the scope of S. 794, i.e., they had not "sold" their properties under "threat of condemnation" and the acquisitions of property by the Government through judgments were not through "sales." Thus, at the urging of the Government, Judge Merow focused on the word "sold" and the phrase "under threat of condemnation" in interpreting the congressional reference. Without considering the five condemnation petitions or, apparently, the several individual declarations of taking under each, the previous hearing officer concluded that in order to be covered by S. 794, a landowner must have "sold" his or her property to the Government
7

The Court has ruled that proof established both assertions by a preponderance of evidence. Land Grantors I, 64 Fed.Cl. at 697.

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under "threat" that the landowner's property would be condemned if the landowner did not negotiate a "voluntary" sale. Both the facts of this case and the law relating to federal eminent domain proceedings, particularly under "quick-take" statutes such as the War Purposes Act, demonstrate the flawed underpinnings of the 1998 Order. The hearing officer construed S. 794 based upon a strict and technical interpretation of its language. Hearing officers, however, are not strictly bound to the language in a congressional reference bill but are compelled, as fact-finders, to report facts back to Congress in order to permit that body to appropriately frame the ultimate legislation, which may be different than the bill referred. Judge Merow incorrectly equated the filing of "declarations of taking" with the word "condemnation" contained in S. 794 and concluded that all events preceding the filing of declarations of taking were before "condemnation," and were thus "under threat of condemnation," whereas events after the declarations of taking were filed were no longer "under threat" of "condemnation." The 1998 Order was thus based on the faulty conclusion that any landowner who agreed to a price for his or her property prior to the filing of a declaration of taking for that property "sold" "under threat of condemnation,"8 and were covered by the reference. Conversely, under Judge Merow's rationale, those properties which were acquired by the Government after the filing of relevant declarations of taking were not obtained "under threat of condemnation" and were thus not within the scope of the reference. Most respectfully, that To the extent the phrase "threat of condemnation" has any particular technical meaning in eminent domain matters, it has been referred to as that period of time after the public becomes aware that a public project is being contemplated and before the actual filing of the condemnation petition. Property values may decrease rapidly on some properties during the period of uncertainty, i.e., while there is only a "threat of condemnation." See, Nichols on Eminent Domain (3rd ed.), Vol. 8, §18.01[2][a]. There is no evidence, however, that that definition has any application to this action.
8

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was not the law in 1942 and 1943 and is not the law today. That analysis is inaccurate, at least in quick-take condemnation matters. Under the law, "condemnation" occurs as soon as a condemnation petition is filed and certainly no later than the date the Government is given possession of the property. In situations like those under the War Purposes Act, possession routinely is granted the Government immediately after the filing of the petition. In such cases, a subsequent declaration of taking has little practical or legal meaning despite the import placed on it in the 1998 Order. Further, the word "sale," or "sold," as used in connection with condemnation proceedings, has a much broader meaning than in common parlance and includes all ways in which the Government takes title to property after the filing of a condemnation petition. Thus, pinpointing the time of "condemnation" in the 1998 Order as the date when declarations of taking were filed is inconsistent with well-settled law, as well as this Court's own interpretation in the Interim Report. The 1998 Order's restrictive interpretation of the word "sold" is likewise incorrect. A. The Hearing Officer Improperly Confined the Inquiry to the Language of the Proposed Bill.

Under the congressional reference statute, either house of Congress is authorized to refer a bill, excluding those for pensions, to the Chief Judge of the Court of Federal Claims for a report. See 28 U.S.C. § 1492. Upon referral, a designated hearing officer investigates the facts and formulates conclusions sufficient to inform Congress whether the demand is a legal or equitable claim or gratuity, and if applicable, the amount due from the United States to the claimant. Id. Several cases discuss the extent to which the Court is bound by the literal language of proposed bills when issuing its report to Congress. This Court's predecessor court described its responsibilities in congressional reference cases as follows:

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The court is "to find the facts" on every bill properly referred ... and report "conclusions". ... Every issue material to a full investigation must be found and reported...This means an independent investigation by the court of all the facts material to a full understanding of the merits of the matter referred so that the conclusions shall unmistakably show the nature and character of the proposed measure to the end that the Congress may not be left in doubt in framing legislation for relief if any be sought further. The Atlantic Works v. United States, 46 Ct.Cl. 57 (1911) (emphasis added). Other cases support this interpretation of the Court's expansive fact-finding function in congressional reference cases. In Paul v. United States, 20 Cl. Ct. 236 (1990), aff d., 21 Cl.Ct. 758 (1990), for example, an attorney for a group of native Alaskans sought a bill for additional compensation for services provided in connection with the Alaska Native Claims Settlement Act. Paul contended that a strict reading of the proposed bill and referring resolution "virtually required" a favorable recommendation to Congress. Id. at 265. The Court described Paul's position as a "misunderstanding of Congressional procedures, as well as a misstatement of the reasons a bill is referred to the court for a report." Id. The Court ruled that "[t]he reference of the bill for a report under 28 U.S.C. § 2509 does not amount to adoption of the language of the bill to be referred " Id. (emphasis added). It opined that "[t]he function of the

congressional reference procedure that is most beneficial to Congress is the clarification and determination of the many tenuous and frequently complex facts that a claimant alleges to apply to equities in the claim." Id. at 266. Thus, the Court ruled that it was not strictly bound by the language of the proposed bill. The plaintiff in Blacklock v. United States, 208 U.S. 75 (1908), similarly argued that the Court of Claims should be bound by the language of a proposed bill. In Blacklock, the plaintiff law firm contended that the language in a proposed bill required the court to determine that the firm had a lien on certain real property superior to the Government because the proposed bill stated that the firm "had a prior lien." Id. at 84. The Supreme Court flatly rejected this 10

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argument, finding that the statement merely recited claims made by the plaintiff and "could not have been intended as an admission by Congress that no [prior] lien existed in favor of the United States." Id. The Court found it "well settled `that a mere recital in an act, whether of fact or of law, is not conclusive unless it be clear that the legislature intended that the recital should be accepted as a fact in the case.'" Id. at 85, quoting, Kinkead v. United States, 150 U.S. 483, 497 (1893). The Court found that such an intent could not be imputed to Congress. Rather, the very referral of the matter to the Court of Claims made it "manifest that Congress intended that the claim of the parties was to be judicially investigated and determined according to all the facts as disclosed by the evidence adduced." Id. Accordingly, the Court held that regardless of the language in the proposed bill, it was required to independently find whether the United States had a prior lien on the property as revealed by its investigation. In Kinkead, the petitioners unsuccessfully argued that recitals in the act of Congress referring the matter to the Court of Claims should be accepted as true and should thereby estop the court from considering the question of title to the real property at issue. The Supreme Court dismissed this argument: "it is impossible that [C]ongress could have intended by the recital to estop the court of claims from passing upon the very question referred to it for judicial determination." Kinkead, 150 U.S. at 497 (emphasis added). These cases demonstrate that the Court, as hearing officer, is not restricted to a blind technical interpretation of the language in a proposed bill when hearing a congressional reference case.9 Judge Merow was incorrect in so fettering himself. Rather, the Court must
9

Indeed, this Court's finding, at Land Grantors I, 64 Fed.Cl. at 664, that "35,849.28 acres" were acquired by the Government, which is not precisely the number of acres recited in S. 794 ("the 35,684.99 acres"), suggests the Court's recognition that slavish adherence to the bill's wording is not required.

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conduct an independent and thorough judicial investigation of all material facts, so that it can make fully informed conclusions to pass on to Congress for use in its ultimate legislative decision. Accordingly, this Court is not strictly bound by the imprecise and general language in proposed bill S. 794 when issuing its report to Congress. Because the 1998 Order improperly rested on an unnecessarily strict and erroneous construction of ambiguously stated proposed legislation, rendered before any factual investigation had occurred, this Court should vacate it before issuing its congressional reference report for consideration by the review panel. B. The Hearing Officer Incorrectly Interpreted the Language of the Proposed Bill. 1. "Condemnation" Occurred with the Filing of Condemnation Petitions and the Orders of Possession. the

In the 1998 Order, the previous hearing officer erred in equating the time of "condemnation" with the filing of declarations of taking. To the contrary, it is well-settled in cases from both the United States Supreme Court and elsewhere in the federal system that when the Government files a condemnation petition and takes possession of the subject property at the outset, the "taking" occurs at that point and any subsequent declaration of taking is merely "ancillary or incidental." In United States v. Clarke, 445 U.S. 253, 254 100 S.C. Ct. 1127, 1128, 63 L.Ed.2d 373 (1980), the United States Supreme Court defined "condemnation" as " a judicial proceeding instituted for the purpose of acquiring title to private property and paying just compensation for it." (emphasis added). "Condemnation" occurs "when the government

initiates condemnation proceedings against property prior to seizing the property." KLK, Inc. v. United States Department of the Interior, 35 F.3d 454, 455, n.1 (9th Cir. 1994) (emphasis added). United States v. Dow, 357 U.S. 17, 78 S.Ct. 1039, 2 L.Ed. 2d 1109 (1958) is the seminal case in this area. Like this case, Dow involved a condemnation under the War Purposes 12

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Act where the United States filed a condemnation petition and the district court ordered the Government into immediate possession of the property.10 The issue in Dow was whether the date of taking was the date of the Government's entry into possession of the property or the date of a subsequent filing of a declaration of taking under 40 U.S.C. §258(a). The Supreme Court ruled that: [I]n cases where there has been an entry into possession before the filing of a declaration of taking, such entry has been considered the time of "taking" for the purposes of valuing the property and fixing the date on which the Government's obligation to pay interest begins to run. 78 S.Ct. at 1045. The Court reasoned: The Taking Act does not bestow independent authority to condemn lands for public use. On the contrary, it provides a proceeding "ancillary or incidental to suits brought under other statutes," [citing case]. Such a proceeding can be instituted either at the commencement of the condemnation suit under the `other statutes' or, as in this case, after such a suit has been commenced and either before or after the Government has taken possession. In both situations the Taking Act enables the United States to acquire title simply by depositing funds for "on account" of the just compensation to be awarded the owners, rather than by making payment pursuant to a court order. In those cases where the Government has not yet entered into possession, the filing of the declaration enables it to enter immediately and relieves it of the burden of interest from the time of filing to the date of judgment in the eminent domain of proceedings. Id. (emphasis added, citation omitted).

This procedure is typical in condemnation actions under the War Purposes Act, under which the Government obtains the right to immediate possession. See, e.g., United States v. Certain Parcels of Land in Sewickley Tp, 54 F.Supp. 943 (W.D. Pa. 1944); United States v. 40,379 Square Feet of Land, 58 F.Supp. 246 (D. Mass. 1944) (characterizing a declaration of taking filed after the Government already had filed its condemnation petition and secured an order of immediate possession as an "ambivalent" practice.); United States v. 45,149.58 Acres of Land, 455 F.Supp. 192 (E.D. N.C. 1978).

10

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Other Supreme Court cases state the same principle. For example, in Best v. Humboldt Placer Mining Co., 371 U.S. 334, 340, 83 S.Ct. 379, 384, 9 L.Ed. 2d 350 (1963), the Court ruled: [the Government] may take property pursuant to its power of eminent domain, either by entering into physical possession of the property without a court order, or by instituting condemnation proceedings under various Acts of Congress. [citing Dow]. Title to the property passes later, though the entry into possession marks the taking, gives rise to the claim for compensation, and fixes the date as of which the property is to be valued (emphasis and brackets added). In such cases, the Government's taking of "possession" is not limited to actual physical possession, but may arise from a deprivation of the owner's possessory rights. In United States v. General Motors Corporation, 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945), another War Purposes Act case, the Court wrote: The courts have held that the deprivation of the former owner rather than the accretion of a right or interest to the sovereign constitutes the taking. Governmental action short of acquisition of title or occupancy has been held, if its effects are so complete as to deprive the owner of all or most of his interest in the subject matter, to amount to a taking. 323 U.S. at 378. The former Court of Claims similarly has defined a taking by the Government as "a direct interference with or disturbance of property rights." R.J. Widen Co. v. United States, 357 F.2d 988, 993 (Ct.Cl. 1966). See also Foster v. United States, 607 F.2d 943, 951, n. 8 (Ct.Cl. 1979) ("property is deemed taken when the Government substantially disturbs the owner's use and possession of the subject property.") In Land Grantors I, this Court recognized and discussed the distinction between the two methods of land acquisition. 64 Fed.Cl. at 688. In the Camp Breckinridge landowner cases, the Government already had entered into possession at the outset, well before any declarations of taking were filed. The Government acceded to the right of possession of the 14

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subject Camp Breckinridge properties immediately after the filing of its condemnation petitions relating to those properties. See Land Grantors I, 64 Fed.Cl. at 668-669. This Court has found that the Government obtained possession of the properties needed to form Camp Breckinridge immediately after it filed the five War Purposes Act petitions. See 64 Fed.Cl. at 666-667. Under the War Purposes Act, "immediate possession [of the properties] may be taken to the extent of the interest to be acquired and the lands may be occupied and used for military purposes[.]" Id. at 667. In fact, immediately after the filing of the first two Camp Breckinridge condemnation petitions (totaling almost 30,000 acres), on February 14 (No. 74) and March 31, 1942 (No. 77), motions for immediate possession were made and granted. Even though the Government

permitted the landowners two or three weeks to vacate the properties, the Government had the right of immediate possession and, at a minimum, materially disturbed the landowners' rights in their properties. Within weeks, the landowners' actual physical possession had ceased. Yet, in establishing the date "condemnation" occurred, the previous hearing officer made no reference to the condemnation petitions that were filed pursuant to the War Purposes Act or the fact that the landowners' legal rights to possess their properties were taken away immediately upon the filing of the petitions. As the Court also has found, after the first condemnation petition was filed on February 14, 1942, the landowners were only given until March 3, 1942 to vacate and on February 16, 1942 the U.S. Marshal "served the first of 121 Orders to vacate 99 condemned tracts of land." 64 Fed.Cl. at 669 (emphasis added). The Court likewise has found that on March 31, 1942 the second petition was filed "condemning 19,517 acres" and that on "April 2, 1942 the second group of landowners were served with notices to vacate by May 18, 1943." Id. at 669 (emphasis added).

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Thus, this Court has recognized that the first 10,427.70 acres were "condemned" with the filing of the first petition and the second petition was filed on March 31, 1942 "condemning" another 19,517 acres. The Court has similarly found that the Government

acquired the right to immediate possession of those some 30,000 acres and ordered the landowners and families to be off the properties within a short time. Land Grantors I, 64 Fed.Cl. at 668-669. Directly to the point, this Court stated: Once property was judicially condemned, the landowners either could voluntarily negotiate a sale price with federal agents or require "just compensation" to be determined by a jury trial. Id. at 664 (emphasis added). The properties were judicially condemned with the filing of each petition. Thus, this Court already has recognized the fundamental mistake in Judge Merow's 1998 Order: the "voluntary" negotiations and jury trials all occurred after condemnation, i.e., the filing of the petitions--not "under threat of condemnation." The hearing officer, however, relied upon the dates the United States filed the declarations of taking as key for purposes of construing S. 794. But using the declaration of taking dates as the "condemnation" dates ignores Dow and other cases holding that declarations of taking are merely "ancillary or incidental" in cases like this, where the Government has filed its condemnation petition and already obtained possession of the property well before the filing of the declaration of taking. In such cases, "the filing of a declaration of taking is optional with the Government and purely incidental to the main suit," and its "primary purpose... is to diminish interest liability." United States v. 26.3765 Acres of Land, 62 F.Supp. 910, 911 (E.D. N.Y. 1945)(emphasis added), citing United States v. Catlin, 142 F.2d 781 (7th Circuit 1941);

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United States v. Miller, 317 U.S. 369, 381, 63 S.Ct. 276, 87 L.Ed. 336 (1943).11 While "title" may pass with the filing of a declaration of taking and depositing of estimated funds for payment,12 S. 794 speaks in terms of "condemnation," not the passing of title. The dates of the declarations of taking filed relative to the Camp Breckinridge properties do not carry the significance ascribed to them by Judge Merow. They are not the dates on which "condemnation" of the properties occurred. The former hearing officer's choice of the declarations of taking dates for establishing the date after which a "threat of condemnation" no longer existed was incorrect and, most respectfully, leads to a nonsensical result. Since "condemnation" actually occurred with the filings of the petitions, under the 1998 Order even the landowners who are said to have "voluntarily sold" before the filing of a declaration of taking arguably would not qualify as plaintiffs. They sold after condemnation. Thus, the former hearing officer's conclusion could render all landowners and heirs ineligible to be plaintiffs. That result would cause S. 794 to be meaningless and this action to be futile ab initio. See Mizokami v. United States, 188 Ct.Cl. 736, 414 F.2d 1375, 1379 (1969) (improper to "presume that Congress passed the bill in question merely to send plaintiffs to this forum for a ... dismissal of their petition.")13

See also, Higginson v. United States, 384 F.2d 504, 508 (6th Cir. 1967)(declaration of taking statute is an "ancillary statute...used to implement" the War Purposes Act).
12 13

11

See Dow, 78 S.Ct. at 1045; 40 U.S.C. 3114(b) (previously codified at 40 U.S.C. 258).

Porreca v. LaFerrierre, 543 A.2d 102, 105 (N.J. Super. 1988) put in another way: "`[s]tatutes are to be read sensibly rather than literally and the controlling legislative intent is to be presumed as `consonant to reason and good discretion.' [citations omitted]. And `where a literal reading of the statute leads to absurd consequences `the court must restrain the words' and seek the true legislative intent.'" Statutory construction must not be "`at odds with the sense of the situation.'"

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Any interpretation of S. 794 that results in 75% of the landowners--or, indeed no landowner--being covered is, to say the least, worthy of reconsideration. To the contrary, the only logical intent of S. 794 was to provide compensation to all landowners (and their heirs) whose properties were condemned with the filing of each of the five condemnation petitions. They include (1) those who negotiated sale prices and signed options prior to the filing of declarations of taking, (2) those who negotiated and reached sales agreements with the

Government after the declarations of taking were filed but before a jury set the price, and (3) those who went to trial and had the jury tell them how much they should receive. Land Grantors I, 64 Fed.Cl. at 664. That interpretation is consistent with the intent of one of the bill's primary sponsors, former Sen. Wendell H. Ford,14 whose interpretation to that effect the previous hearing officer refused to consider. See, Order of November 24, 1998 [Docket No. 64], denying

Plaintiffs' motion to submit an explanatory letter from Sen. Ford. Any conclusion that results in either all or a great majority of landowners not being covered by S. 794 is unsupportable and incompatible with the congressional reference. It could not have been the result that Congress contemplated when it referred the matter to this Court. 2. The Term "Sold," as Used in Eminent Domain Matters, Includes all Means by Which the Government Acquires Title to Property.

In the 1998 Order, the former hearing officer put great emphasis on the word "sold" contained in S. 794. The hearing officer, however, mistakenly failed to apply the term in a manner that comports with the intent to provide relief to the "grantors" of the Camp See Land Grantors I, 64 Fed.Cl. at 685-686, where Sen. Ford's role in assisting the landowners is discussed. Sen. Walter D. Huddleston, an original co-sponsor with Sen. Ford, left the Senate after the 1984 election. He was succeeded in 1985 by Sen. Mitch McConnell, who from the beginning of his service strongly supported the legislative effort to compensate the former landowners and heirs, and does so today. See, 64 Fed.Cl. at 718.
14

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Breckinridge acreage, as is required. "Sold" was not put in its proper context in the 1998 Order. Judge Merow interpreted the language of S. 794 as being unambiguous in its use of "sold," thus requiring no broader inquiry or consideration. While the word "sold" may have one definition in common parlance, it has quite another in the context of eminent domain matters. A broader definition of "sold" and similar words in property condemnation settings has been recognized for many years. Consistent with the historic nature of the instant case, reference to historic, as well as legal, precedent is appropriate. An 1855 U.S. Attorney General's opinion from Attorney General Caleb Cushing (1853-57) to U.S. Secretary of War Jefferson Davis, addressed a question concerning the Government's acquisition of private property in Maryland for the construction of an aqueduct. A statute under which the property was actually being acquired by the Government under eminent domain procedures stated that "no public money shall be expended upon any site or land hereafter to be purchased by the United States...until the written opinion of the Attorney General shall be had in favor of the title, and also the consent of the legislature of the State in which that land or site may be, shall be given to said purchaser." 7 U.S.Op.Atty.Gen. 114, 1855 WL 2289 (U.S.A.G., April 24, 1855)(emphasis added). In opining as to whether the Government had acquired clear title to the property, which had been obtained by the United States through eminent domain rather than by means of traditional "purchase," which the literal language of the enabling statute would have seemed to require, the Attorney General recognized that: [I]n common parlance, "purchase" imports the buying of property by contract, and therefore would not include the present case of acquisition by statute or by condemnation and expropriation. But the legal meaning of purchase applied to real estate, goes much beyond this, for the phrase "title by purchase," is often employed to embrace all the forms of acquisition except that by "descent"... When accurately defined, the distinction is between titles acquired through some agreement or other act [italics 19

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original] of the party acquiring, which is "purchase;" and titles acquired by the mere devolution of law, without any act of the party, which is "descent."... Undoubtedly, the present case, of title to the United States by expropriation, is purchase within the scope of the statute, and is a form of acquisition justified by acts of Congress not less than by the Constitution of the United States. As to all this part of the subject, then, my conclusion is that the acquisition of land by the United States for the use of the Washington Aqueduct, through the means of a statute process of expropriation, is a lawful purchase such as, if done in strict accordance with the form of the statute, may be certified by the Attorney General as vesting a valid title in the United States. (Brackets and some emphasis added; citations omitted). 7 U.S.Op.Atty.Gen. at 121-122 (brackets and some emphasis added; citations omitted). This definition of "purchase," as embracing all the forms of acquisition, including through statutory condemnation, has continued to be recognized by the federal courts. A similar question arose in Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 104 S.Ct. 2187, 81 L.Ed. 2d 1 (1984). There, the Government filed a traditional "straight-condemnation" petition under 40 U.S.C. §25715 to acquire over 2,000 acres of timberland for a national reserve. Unlike this case and other "quick-take" petitions filed under statutes such as the War Purposes Act, the Government did not seek immediate possession of the property or file a "declaration of taking" under 40 U.S.C. §258(a),16 which would have permitted immediate possession upon the payment into court of the estimated value of the property. Rather, it chose to proceed under FRCP 71A, which prescribes the filing of a "complaint in condemnation," a trial on the question of the amount of compensation due the owner, followed by payment and possession. Interest was awarded from the date of the judgment. The landowner objected, claiming that interest should

15 16

Currently codified at 40 U.S.C. §3113. Currently codified at 40 U.S.C. §3114.

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have been calculated from an earlier date. In its opinion, the Supreme Court equated the final judgment in a condemnation case with an option to purchase on the part of the Government: The practical effect of final judgment on the issue of just compensation is to give the Government an option to buy the property at the adjudicated price. Danforth v. United States, 308 U.S. 271, 284, 60 S.Ct. 231, 236, 84 L.Ed. 240 (1939). If the Government wishes to exercise that option, it tenders payment to the private owner, whereupon title and right to possession vest in the United States. If the Government decides not to exercise its option, it can move for dismissal of the condemnation action. (Emphasis added). 104 S.Ct. at 2191 (emphasis added). Similarly, in Danforth v. United States, 308 U.S. 271, 284, 60 S.Ct. 231, 236, 84 L.Ed. 240 (1939), a condemnation case under the Flood Control Act of 1928, the Court was asked to determine the date on which the Government actually took the owners' property, in order to determine when interest began to run. As in Kirby Forest Industries, the Court equated the final judgment in a condemnation case to contractual offer and acceptance: Unless a taking has occurred previously in actuality or by a statutory provision, which fixes the time of taking by an event such as the filing of an action [e.g., the War Purposes Act], we are of the view that the taking in a condemnation suit under this statute [the Flood Control Act of 1928] takes place upon the payment of the money award by the condemnor. No interest is due upon the award. Until taking, the condemnor may discontinue or abandon his effort. The determination of the award is an offer subject to acceptance by the condemnor and thus gives to the user of the sovereign power of domain an opportunity to determine whether the valuations leave the cost of completion within his resources. Condemnation is a means by which the sovereign may find out what any piece of property will cost. "The owner is protected by the rule that title does not pass until compensation has been ascertained and paid..." 60 S.Ct. at 236, citing, Hanson Lumber Co. v. United States 261 U.S. 581, 587 43 S.Ct. 442, 444, 67 L.Ed. 809 (emphasis and brackets added). A reading of S. 794 in its proper context

demonstrates that the Senate could not have intended to limit potential claimants to only those 21

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who had "voluntarily sold" their properties to the Government before a declaration of taking had been filed. Indeed, there is no factual support or reason for any such restriction. In addition, the word "sold" in S. 794 is modified by the phrase "in order to provide the 35,684.99 acres necessary" to establish Camp Breckinridge (emphasis added). That language demonstrates that the owners (and heirs) of all of the 35,684.99 acres were covered. If the language in S. 794 had been "sold...in order to provide some (or part) of the 35,684.99 acres," then an intent to limit the scope of possible claimants arguably might be inferred. But such limiting language is not contained in S. 794. 3. "Grantors" of the Camp Breckinridge Lands Include All Those Whose Properties Were Condemned.

The title of S. 794 also assists in defining its scope: A Bill "For the relief of land grantors in Henderson, Union and Webster Counties, Kentucky, and their heirs." (emphasis added). A "grantor" is defined as "[t]he person by whom a grant is made. A transferor of property." Black s Law Dictionary, p. 700 (6th Ed. 1990). In turn, "grant" is defined as: A conveyance; i.e. transfer of property real or personal by deed or other instrument. A generic term applicable to all transfers of real property, including transfers by operation of law as well as voluntary transfers. Id. at 699 (emphasis added). Both the United States Supreme Court and the courts of Kentucky echo this interpretation. For example, in Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. 420, 457, 11 Pet. 420 (1837), the Court described the ability of a state to exercise its condemnation powers as extinguishing the rights of the "grantor" to the land. Similarly, in United States v. Union Pac. R. Co., 353 U.S. 112, 131-132, 77 S.Ct. 685, 695, 1 L.Ed.2d 693 (1957), Justice Frankfurter noted in his dissent case law holding that if future use of condemned property were to be inconsistent with that of a railroad, the land should revert to the "grantor." 22

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See also, Rose v. Bryant, 251 S.W.2d 860, 861 (Ky. 1952)(upon abandonment, condemned property would revert back to the "grantor"); Hendrickson v. Dept. of Highways, 196 S.W.2d 876, 877, 878 (Ky. 1946)(recipients of funds from condemnation referred to as "grantors" of the property.) Other state court cases identify the "grantor" as the actual source of the property conveyed. White v. Rosenthal, 35 P.2d 154, 155 (Cal. App. 1934), for example, holds that "grantor" applies to all transfers of real estate, including those by operation of law, and that "[t]he sale under the decree of foreclosure of a mortgage is a judicial sale and is regarded at law as a sale by the judgment debtor." This, by analogy, applies equally to judicial condemnations where the condemnee is regarded as the seller. Similarly, Harris v. Strawbridge, 330 S.W.2d 911, 915 (Tex. Civ. App. 1959) holds that the "grantor" of property is the person who receives the consideration, i.e., the former owners of the Camp Breckinridge properties. The nomenclature in both the encyclopedia and cases demonstrates that "grant" encompasses both voluntary and involuntary transfers of property. Such an involuntary transfer would arise by operation of law as part of a condemnation proceeding. This is perfectly

consistent with the Supreme Court's broad use of "sale" and "purchase" language in Kirby Forest Industries and Danforth, as well as in Attorney General Culver's 1855 opinion to Secretary of War Davis. 4. The Intent of the Bill's Congressional Sponsor Supports a More Expansive Interpretation of S. 794.

The former hearing officer's restrictive definition of "sold" in the 1998 Order is contrary to the settled usage in the eminent domain context, and is not justified or required by the language of S. 794. This is borne out by an April 23, 1998 letter from then-Senator Ford, one of the original sponsors and backers of this congressional reference, a life-long resident of

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Owensboro, in the western Kentucky area near Camp Breckinridge. In his letter [attached as Exh. "A"], Sen. Ford stated, inter alia: I wrote and sponsored legislation in the United States Senate which was intended to allow a group of individuals the opportunity to have their day in court. There has been a great deal of speculation as to the scope of this legislation. I can assure you that the intent behind my legislation was to include a class of individuals (and in any case in which any such class member is deceased, the heirs of such member) who were the former owners of properties located in Henderson, Union and Webster Counties, Kentucky which were condemned or otherwise procured by the United States Government in order to provide the approximately 36,000 acres necessary for the military training camp known as Camp Breckinridge. To be quite clear, my legislation was never intended to be limited to only those individuals who negotiated sales with the federal government. (Emphasis added). S. 794 is not currently the law of the land and may never be in its present form. It is, at most, proposed legislation. As discussed above in Section IV. A., the language may change, depending upon the result of this Court's investigation and report to Congress, and that body's decision-making process. In the absence of a record of discussion or debate on S. 794, a reliable source of information concerning its intent is the word of one of the bill's authors and sponsors, Senator Ford. Were S. 794 an existing statute, passed by Congress and signed by the President, for which there is an existing legislative history, perhaps Senator Ford's statement of intent would have less weight. That is not the case, however, and Senator Ford's opinion can and should be considered by the Court as further support of the most reasonable interpretation of S. 794.17

17

Senator Ford's letter may be considered by the Court pursuant to Fed.R.Evid. 803(3) or Fed.R.Evid. 807. It contains a clear and unequivocal statement of his intent at the time S. 794 was drafted and voted upon. Pursuant to Fed.R.Evid. 803(3), Senator Ford's then-existing state of mind as to intent is capable of consideration. Moreover, under the "Residual Exception" provision of Fed.R.Evid. 807, Senator Ford's statement has "equivalent circumstantial (continued...) 24

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C.

The Court is not Required to Reopen Landowner Judgments in Order to Decide Plaintiffs' Equitable Congressional Reference Claims.

Notwithstanding a footnoted suggestion by the previous hearing officer in the 1998 Order [at 5, n. 2.], the inclusion of these landowners (or their heirs) as Plaintiffs does not mean that this Court would have to reopen, vacate, or somehow go behind the judgments rendered in the 67 cases that went to trial on the issue of price, or the 290 others who negotiated agreed-upon settlements. The purpose of S. 794 is to benefit all grantors of Camp Breckinridge lands who were paid less than fair and reasonable value because of not receiving appropriate value for their minerals. Honoring this purpose would not require the Court in any way to inquire behind, or set aside, those judgments. The Court's restitution recommendation would simply supplement amounts that landowners (or heirs) originally received, whether by negotiated agreement as to pr