UNITED STATES OF AMERICA, PETITIONER V. 156.81 ACRES OF LAND, MORE
OR LESS, SITUATE IN COUNTY OF MARIN, STATE OF CALIFORNIA, ET AL.

   No. 82-552

   In the Supreme Court of the United States

   October Term, 1982

   The Solicitor General, on behalf of the United States, petitions
for a writ of certiorari to review the judgment of the United States
Court of Appeals for the Ninth Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

            TABLE OF CONTENTS
   Opinions below
   Statutes involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D

                            OPINIONS BELOW

   The opinion of the court of appeals (App. A, infra, 1a-12a) is
reported at 671 F.2d 336.  The opinions of the district court (App. C
and D, infra, 15a-19a) are unreported.

   The judgment of the court of appeals was entered on March 12, 1982,
and rehearing was denied on June 1, 1982 (App. B, infra, 13a-14a).  On
August 18, 1982, Justice Rehnquist extended the time for filing a
petition for a writ of certiorari to and including September 30, 1982.
 The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                           STATUTES INVOLVED

   40 U.S.C. 257 provides:

         In every case in which the Secretary of the Treasury or any
      other officer of the Government has been, or hereafter shall be,
      authorized to procure real estate for the erection of a public
      building or for other public uses, he may acquire the same for
      the United States by condemnation, under judicial process,
      whenever in his opinion it is necessary or advantageous to the
      Government to do so, and the Attorney General of the United
      States, upon every application of the Secretary of the Treasury,
      under this section and section 258 of this title, or such other
      officer, shall cause proceedings to be commenced for
      condemnation within thirty days from receipt of the application
      at the Department of Justice.

   40 U.S.C. 258a provides in pertinent part:

         In any proceeding in any court of the United States * * * for
      the acquisition of any land or easement or right of way in land
      for the public use, the petitioner may file in the cause, with
      the petition or at any time before judgment, a declaration of
      taking signed by the authority empowered by law to acquire the
      lands described in the petition, declaring that said lands are
      thereby taken for the use of the United States.

                      * * * *

         Upon the filing said declaration of taking and of the deposit
      in the court, to the use of the persons entitled thereto, of the
      amount of the estimated compensation stated in said declaration,
      title to the said lands in fee simple absolute, or such less
      estate or interest therein as is specified in said declaration,
      shall vest in the United States of America, and said lands shall
      be deemed to be condemned and taken for the use of the United
      States, and the right to just compensation for the same shall
      vest in the persons entitled thereto;  and said compensation
      shall be ascertained and awarded in said proceeding and
      established by judgment therein, and the said judgment shall
      include, as part of the just compensation awarded, interest at
      the rate of 6 per centum per annum on the amount finally awarded
      as the value of the property as of the date of taking, from said
      date to date of payment;  but interest shall not be allowed on
      so much thereof as shall have been paid into the court.

                        QUESTION PRESENTED /*/

   Whether interest in an action for condemnation pursuant to 40
U.S.C. 257 runs from the date the award is paid and the government
obtains possession and title to the land, whether or not the land is
improved.

                               STATEMENT

   1. Two types of condemnation are provided for by statute:  under
the Declaration of Taking Act, 40 U.S.C. 258a, the government may
obtain title and possession immediately by filing a declaration of
taking and depositing with the court the estimated amount of just
compensation.  If the judicially determined amount of just
compensation is greater than the amount deposited, the government must
pay the difference with interest from the date the declaration of
taking is filed;  no interest is due on the amount originally
deposited.  The alternative condemnation method, "straight
condemnation," is initiated by filing a complaint in condemnation
pursuant to 40 U.S.C. 257.  The government makes no deposit with the
court, and the landowner retains possession and title until the
judicial proceedings have been completed and the government has paid
the judgment awarded.  This case raises the question of when interest
begins to accrue in a straight condemnation case.

   2. On July 12, 1976, the United States filed a complaint pursuant
to 40 U.S.C. 257 to condemn property located in Marin County,
California, for inclusion in the Golden Gate National Recreation Area.
 /1/ Beginning on June 20, 1977, a jury trial was held to determine
the amount of just compensation to be paid for the interest condemned
by the United States.  On July 14, 1977, the jury reached a verdict of
$3,799,400.  On November 9, 1977, final judgment was entered in favor
of the landowners in that amount.

   On November 17, 1977, the United States moved for a new trial, or,
in the alternative, for remittitur, followed by extensive briefing by
the parties.  The motion was denied by the district court on June 20,
1978, and, on August 11, 1978, the United States filed a notice of
appeal;  the landowners then cross-appealed.  By stipulation of all
parties, the appeals were withdrawn on October 30, 1978.

   On November 17, 1978, the Assistant United States Attorney
deposited the full amount of the award with the clerk of the court in
satisfaction of the judgment.  Ten days later, the government
deposited an additional $239,802.90, representing interest at the rate
of 6% on the judgment for the year between the entry of final judgment
and the payment of that judgment.  Distribution of the additional
deposit was made subject to a further order of the court.  On March 5,
1979, the United States filed a motion for an order to disallow
interest on the judgement.

   3. On June 21, 1979, the district court granted the government's
motion and issued an order disallowing interest on the judgment (App.
C, infra, 15a-17a).  Relying on the established principle that
"interest is allowable only from the time of the 'taking' to the date
of the payment of the award," see, e.g., Danforth v. United States,
308 U.S. 271 (1939), the court found that the United States had not
exercised "control and dominion" over the land prior to payment of the
judgment (App. C, infra, 17a).  In its order denying the landowners'
motion for reconsideration, the court found no support in the record
for the landowners' claim that "the land had increased in value during
the time that elapsed from the entry (of verdict) until the
Government's taking" (App. D, infra, 19a).

   4. The United States Court of Appeals for the Ninth Circuit
reversed, Judge Wallace dissenting.  The court held that interest
running from the judgment date should be allowed.  Recognizing that
"(w)here the property is income-producing, the condemnation judgment
is not a taking" (App. A, infra, 7a), the court distinguished this
situation, where the land was undeveloped, and hence producing no
current economic benefits for the owners.  In that situation, the
court reasoned, the existence of the judgment in condemnation produced
a "cloud on the title" that precluded the development or sale of the
land, and thus "denied the landowners any economically viable use of
their land" (App. A, infra, 8a).  Accordingly, the panel majority
concluded that the date of taking of undeveloped land is the date of
judgment, mandating the award of post-judgment interest (ibid.).

   Judge Wallace dissented, relying on "the long-standing rule that
absent a taking by physical possession or by statutory provision, no
taking occurs until payment of the condemnation award." App. A, infra,
9a.  He could see no reason for drawing a constitutional distinction
between the owner of unimproved and improved property in these
circumstances;  both are in the same situation as owners whose ability
to sell or develop their land is thwarted by publicly announced
government plans to condemn property (App. A, infra, 11a).  All alike
suffer economic burdens that are significantly less than "the kinds of
substantial deprivations which have heretofore been recognized as
constitutional 'takings'" (App. A, infra, 11a-12a).  Judge Wallace
concluded that any change in the rules applicable to unimproved
property should "come from Congress rather than the federal courts"
(App. A, infra, 12a).

                   REASONS FOR GRANTING THE PETITION

   This case presents an important and recurring /2/ question
concerning the government's obligation to pay interest in straight
condemnation cases.  The court of appeals' resolution of that question
is inconsistent with this Court's decision in Danforth v. United
States, 308 U.S. 271 (1939), and its more recent just compensation
cases.  In addition, it will be difficult for condemnation courts to
apply, and will substantially increase condemnation costs while
unfairly discriminating between owners of developed and undeveloped
land.  A landowner suffering injustices as a result of delays in the
payment of a straight condemnation award has alternative remedies free
from these disadvantages.

   1. Although the potential financial impact on the government of the
decision below cannot be predicted with any accuracy, it is bound to
be large.  As of September 1982, pending cases filed under 40 U.S.C.
257 involve more than 6,000 tracts of land, valued by the government
at more than $100 million.  The landowners' valuations are, of course,
much higher.  Most of these condemnations are for the use of the Park
Service, and thus presumably involve unimproved land.  Assuming that
only half of the land involved is determined to be non-income
producing, and that there is on the average only 6 months of interest
awarded and only at 6% straight interest, the total extra interest
obligation under the analysis of the court below would still be about
one and a half million dollars for currently pending cases alone.  The
actual figure would doubtless be substantially in excess of that
estimate.

   Congressional appropriations to finance these condemnations have
been based on the long-standing assumption, recognized by the dissent
below (App. A, infra, 9a), that in straight condemnation cases where
the government has not entered into possession, the date of taking is
the date that the government pays the condemnation award, /3/ so that
no interest is due.  In carving out an exception to this general rule
for non-income producing land, the court below imposed an
unanticipated increase in the cost of acquiring such land, thereby
reducing the agencies' abilities to implement congressional
directives.

   2. In Danforth v. United States, supra, 308 U.S. at 284, this Court
concluded that "(u)nless 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, we are of the view that the
taking in a condemnation suit * * * takes place upon the payment of
the money award by the condemnor.  No interest is due upon the award."
(Footnote omitted).  In concluding that there has "in actuality" been
a previous taking when unimproved lands are involved, /4/ the court
below overlooked the analysis upon which the Danforth conclusion was
based:

         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 eminent 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.  (Footnotes
      omitted.) Ibid.

   The argument adopted by the court below that the land was taken
when the condemnation judgment denied the landowners "any economically
viable use" of their property (App. A, infra, 6a) is the same as the
claim of the Danforth landowner that the government "took" a flowage
easement in his farmland /5/ either when Congress passed the Flood
Control Act that authorized the condemnation or when the government
built levees as part of the project, because these actions had, as a
practical matter, reduced his ability to use or sell his land.  This
Court rejected that claim, holding that this reduction in the value of
the land, like other changes in value that are incidents of ownership,
"cannot be considered as a 'taking' in the constitutional sense" (308
U.S. at 285).  There is no suggestion that the size of the change in
value, or a complete inability to sell the land, would have affected
the Court's reasoning.  /6/

   This Court has recently reiterated the teaching of Danforth, in
again rejecting the claim that the pendency of condemnation
proceedings constitutes a constitutional taking of property.  Agins v.
City of Tiburon, 447 U.S. 255, 263 n.9.  ("Mere fluctuations in value
during the process of governmental decisionmaking, absent
extraordinary delay, * * * cannot be considered as a 'taking' in the
constitutional sense").  Cf. Penn Central Transportation Co. v. New
York City, 438 U.S. 104, 124 (1978);  Andrus v. Allard, 444 U.S. 51,
65-66 (1979) (no taking where statute forbids sale of property).

   3. The court of appeals' distinction between "vacant, unimproved
land" and income-producing land (App. A, infra, 6a-7a) does not
withstand analysis.  First, vacant, unimproved land may be income
producing, for instance if it is used for grazing or timbering (See,
e.g., Kirby Forest Industries, supra, where the district court, using
an analysis like that of the court below, concluded that a timber lot
was unimproved, and thus not income producing).  And, of course,
improved land may be difficult, or even impossible, to rent or to use
at a profit for all or part of the time the condemnation suit is
pending.  It is not clear how the court of appeals would treat such
situations.  /7/ Perhaps more seriously, the distinction assumes that
unimproved land is necessarily held for speculative purposes, while
improved land is not.  But improved land may well be held with the
intention of upgrading its use, and unimproved land may be held
without any intention of deriving any present economic benefit from
it.  As the dissent below recognized (App. A, infra, 9a-12a), there is
no reason why only the speculative interests of unimproved landowners
merit protection.  /8/

   The difficulty is not resolved by requiring the court to evaluate
the particular motivations of all owners of condemned land, whether
income producing or not.  A major advantage of the fair market value
standard of valuation is to avoid requiring the condemnation court to
consider such particular values of the individual tract to the
landowner.  See, e.g., 1 L. Orgel, Valuation Under the Law of Eminent
Domain, Sections 14, 74-76 (2d ed. 1953).

   4. Fairness does not require the award of interest to the landowner
who remains in possession for the period between the entry of judgment
and the vesting of title on the payment of that judgment.  In
Danforth, supra, this Court recognized the justice of permitting the
government a reasonable time to decide whether to acquire the
property, once its cost has been established.  See also Tiburon,
supra, 447 U.S. at 263, n.9.  /9/ If that decision is unreasonably
delayed, the landowner may move for dismissal pursuant to Fed. R. Civ.
P. 71A(i)(3).  In the absence of such a motion, it is reasonable to
assume that the landowner does not object to the delay in the payment
of the judgment, because he prefers to retain possession of his land,
for economic or non-economic reasons.

   If the landowner does move for dismissal, he is free at the hearing
on the motion to present adequate evidence of any increase in value of
the property in the interim in order to demonstrate the inequity of
permitting the government to recover on the stale judgment.  Cf.
United States v. Clarke, 445 U.S. 253, 258 (1980).

   Where, as here, no such evidence has been presented by the
landowner /10/ the district court correctly refused to assume that the
land had increased in value (App. D, infra, 16a-17a).  /11/ Accord,
Gould v. United States, 301 F.2d 557, 560 (D.C. Cir. 1962).  In this
situation, it is surely reasonable to treat the condemnation
transaction like the usual commercial transaction -- when payment is
received at the time that title and possession of the goods are
transferred, no interest is due.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   CAROL E. DINKINS

      Assistant Attorney General

   HARRIET S. SHAPIRO

      Assistant to the Solicitor General

   RAYMOND N. ZAGONE

   JACQUES B. GELIN

   CLAIRE L. MCGUIRE

      Attorneys

   SEPTEMBER 1982

   /*/ Additional defendants below were:  Frank W. Lynch, Ellenora C.
Lynch, Edward R. Fitzsimmons, Elizabeth S. Fitzsimmons, Karl Melchers,
Karen W. Melchers Stackhouse and Helene Goode Stackhouse.

   /1/ The Act of Oct. 27, 1972, Pub. L. No. 92-589, 86 Stat. 1299, 16
U.S.C. 460bb et seq., established the Golden Gate National Recreation
Area and authorized acquisition of lands within its boundaries by the
Secretary of the Interior.

   /2/ The courts that have recently considered the issue have
selected various points in the straight condemnation process for the
beginning of the accrual of interest.  The issue is currently pending
in the Court of Appeals for the Fifth Circuit.  United States v.
2,715.86 Acres of Land in Hardin and Jefferson Counties, Texas, &
Kirby Forest Industries, 5th Circuit No. 81-2402.  The district court
in Kirby Forest Industries, 520 F. Supp. 75 (E.D. Tex. 1981), awarded
interest from the date the complaint was filed, some seven months
before trial.  See also United States v. 59.29 Acres of Land in Hardin
County, Texas, 495 F. Supp. 212 (E.D. Tex. 1980) (interest due from
the date of the filing of the report and findings of the Commission
appointed pursuant to Fed. R. Civ. P. 71A to determine just
compensation);  United States v. Certain Lands in Eastham, Truro, and
Wellfleet, County of Barnstable, Commonwealth of Massachusetts, Nos.
68-208C et al.  (D. Mass. May 28, 1982) (same);  United States v.
15.65 Acres of Land in the County of Marin, State of California, Nos.
81-4062 & 81-4101 (9th Cir. May 25, 1982, rehearing denied, Sept. 10,
1982) (interest due from stipulated date of valuation, more than a
year before trial).

   /3/ Cf. S. Rep. No. 1597, 90th Cong., 2d Sess. 5 (1968), directing
the Park Service to utilize straight condemnation proceedings to
preserve the option to reconsider, after judgment award fixes cost of
acquisition.  The option is important:  "(t)he cost of public projects
is a relevant element * * *, and the Government, just as anyone else,
is not required to proceed oblivious to elements of cost," United
States ex rel. TVA v. Welch, 327 U.S. 546, 554 (1946).

   /4/ If the government were to enter into possession of the land
before the payment of just compensation, that would effectuate a
taking "in actuality", which would require that interest be paid to
compensate the landowner for the delay in payment.  United States v.
Dow, 357 U.S. 17, 24 (1958).  In the instant case, however, the
district court specifically found that the government had not
exercised control and dominion over the land until after it deposited
the amount of the verdict in the registry of the court (App. C, infra,
17a).

   /5/ See Brief for William H. Danforth, Petitioner, No. 309, 1939
Term at 4.

   /6/ Indeed, the Court quoted (308 U.S. at 285, n.20) the reference
in Brown v. United States, 263 U.S. 78, 85-86 (1923) to "the
presumption * * * that the valuation included the practical damage
arising from the inability to sell or lease after the blight of the
summons to condemn."

   /7/ The same classification problem arises if the land is largely
unproductive, but has a few improvements that do produce some income.
See, e.g., United States v. Holden, 268 F. Cas. 223, 224 (N.D.N.Y.
1920) (large tract of land;  "for the most part it is a swamp and
unproductive", but contains two buildings rented for $25 a month).

   /8/ Indeed, to the extent that interest is designed to compensate
the landowner for the loss of the use of the property between the date
of the taking and the payment of the award, the owner of
non-productive land -- who had no current income from the land before
the taking, and thus lost nothing that he previously enjoyed -- has a
less worthy claim to interest than an owner of income producing
property whose ability to continue to gain a return on his land is
dimimished by the pendency of the proceeding.  Cf. United States v.
Holden, supra, 268 F. Cas. at 224.

   /9/ If the government abandons the proceedings, it generally
becomes liable to pay the condemnee reasonable attorneys' fees and
other litigation expenses.  (42 U.S.C, 4654(a)(2)).

   /10/ The landowner bears the burden of proving the value of the
land.  United States ex rel. TVA v. Powelson, 319 U.S. 266, 273
(1943).

   /11/ Indeed, as the district court noted (App. C, infra, 17a), the
record evidence indicating "the uniqueness of this land and the
particular problems that its development would entail" made reliance
on any general escalation in real estate prices particularly
inappropriate here.

   Appendix Omitted