UNITED STATES of America, Plaintiff-Appellee, v. 191.07 ACRES OF LAND, Defendant, and Milan Martinek, Defendant-Appellant.
No. 04-35131
United States Court of Appeals, Ninth Circuit
April 4, 2007
Argued and Submitted Feb. 9, 2006.
PER CURIAM.
In light of the California Supreme Court‘s decision in Grisham v. Philip Morris USA, Inc., 40 Cal.4th 623, 54 Cal. Rptr.3d 735, 151 P.3d 1151 (2007), and in light of the Joint Report of the Parties Re: Decision of the California Supreme Court on the Certified Questions, the judgments of the district court are VACATED and we REMAND to the district court for further proceedings consistent with the opinion of the California Supreme Court. In light of the Joint Report of the Parties Re: Decision of the California Supreme Court on the Certified Questions, we also VACATE our previous order of March 16, 2007 сalling for supplemental briefing from the parties in Cannata v. Philip Morris, 03-56018.
Kelly A. Johnson and Katherine W. Hazard, U.S. Department of Justice, Washington, DC, for the appellee.
Before: FARRIS, LEAVY, and RYMER, Circuit Judges.
FARRIS, Circuit Judge:
Milan Martinek appeals the district court‘s award of $339,850 in compensation for the taking by the United States of his unpatented gold-mining claims in Denali National Park and Preserve. He argues that the district court erred when it determined that he was not entitled to a trial by jury of just compensation for his claims, when it selected a valuation method different from those proposed by the parties, and when it set the rate of prejudgment interest. We affirm.
I. BACKGROUND
In 1986 Martinek was devised eleven unpatented goldmining claims comprising 191.07 acres within what is now Denali Park, Alaska. In 1980 Congress expanded Denali Park‘s boundaries to encompass the eleven claims, which thereby came under the National Park Service‘s surface management jurisdiction pursuant to the Mining in the Parks Act,
The Park Service also formulated a plan for acquiring the mining claims in Denali Park, see
On March 10, 1998, the United States brought this condemnation action pursuant to
On January 25, 2000, the district court entered an order holding that Martinek had only one claim for just compensation but that he could argue the nature of the taking at trial. The parties were to litigate when the taking occurred, which would determine the date that interest on
On February 4, 2000 Martinek and the government stipulated “that the dates of taking to be used for determining the amount of just compensation that the United States is to pay for the taking of all the mining claims at issue [in the consolidated cases] ... shall be January 31, 1992 [for the Little Audrey and Alder Claims], and the date of taking for the Yellow Pup [Claims] ... shall be September 8, 1995.” Both dates were prior to the government‘s declaration of taking. The district court subsequently denied Martinek‘s demand for a jury trial. It held that since the parties had stipulated to a taking date earlier than the declaration of taking, the taking was accomplished through inverse condemnation and therefore Martinek was not entitled to a trial by jury.
In January 2003, the parties agreed to waive a bench trial on the issue of just compensation and to submit the case on the written record. Both parties used the discounted cash flow method to derive their fair market value estimates, but the district court rejected this method and concluded that the estimated royalty income approach was the appropriate measure of fair market value.
The court relied on the evidence provided by the parties’ experts to calculate a fair market value of $339,850. After briefing by the parties on the question of the appropriate rate of interest, the court concluded that the rate of interest owed to Martinek on the deficiency in the government‘s deposit and the judgment was the rate established in the Declaration of Taking Act,
II. ENTITLEMENT TO A JURY TRIAL
A. Appellate Jurisdiction
The government argues that Martinek waived his right to appeal the question of his right to a jury trial by failing to timely seek an interlocutory appeal of the issue and by stipulating to submit the case on written evidence without specifically reserving the issue.
Failure to pursue an opportunity fоr interlocutory appeal normally does not constitute a waiver. See Nat‘l Union Elec. Corp. v. Wilson, 434 F.2d 986, 988 (6th Cir.1970); 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2322 (1982) (“Although it is possible to get intermediate review of a denial of jury trial by the devices just mentioned [including interlocutory appeal and mandamus], the party who wishes a jury is not required to proceed in this fashion. Alternatively, the party may have review of the denial of a jury on an appeal from the final judgment.” (footnotes omitted)). In the absence of any indicatiоn that Martinek affirmatively waived his rights to a post-judgment appeal of this issue, his failure to timely pursue an interlocutory appeal did not waive his right to appeal the question of his right to a jury trial.
In White v. McGinnis, 903 F.2d 699, 703 (9th Cir.1990) (en banc), we held that “knowing participation in a bench trial without objection is sufficient to constitute a jury waiver.” However, we have declined to expand White “to find a waiver of a right to a jury trial where a plaintiff actively contests the district court‘s decision to refuse the demand.” United States v. Cal. Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1380 (9th Cir.1997). A “con-
Although Mobile Home and Nordbrock arise in the context of
B. The District Court‘s Selection of a Fact Finder
We review de novo Martinek‘s entitlement to a jury trial. See KLK, 35 F.3d at 455.
Of the three statutory methods available to the United States for acquiring private land for public use through direct condemnation, Kirby Forest Inds., Inc. v. United States, 467 U.S. 1, 4 (1984), the Park Service used the “expeditious procedure” prescribed by
The form of proceedings in a direct condemnation action is governed by
Where the United States does not acquire privately owned land statutorily but instead physically enters into possession or institutes regulations that restrict the land‘s use, the owner has a right to bring an “inverse condemnation” action to recover the value of the land. Kirby Forest, 467 U.S. at 4-5. “Such a suit is ‘inverse’ because it is brought by the affected owner, not by the condemnor. The owner‘s right to bring such a suit derives from the self-executing character of the constitutional provision with respect to condemnation.” Id. at 5 n. 6 (citations and quotations omitted). Express consent by the United States to a jury trial in direct condemnation proceedings does not extend to inverse condemnation actions brought under the MPA; compensation is instead determined by a trial to the court. KLK, 35 F.3d at 457.
Though the parties stiрulated to a date of taking for each claim, they did not expressly state whether the condemnation was direct or inverse. Nevertheless, the stipulated single date of taking answers that question. The parties stipulated that the taking occurred before the declaration of taking was filed by the government on March 10, 1998.1 Prior to that date, any taking necessarily resulted from government restrictions on Martinek‘s ability to
We recognize that in some circumstances courts may fix the date of a direct taking prior to the date of the government‘s filing of a declaration of taking. See United States v. Dow, 357 U.S. 17 (1958); United States v. Herrero, 416 F.2d 945 (9th Cir.1969). For example, where the government assumes physical possession of land prior to instituting condemnation proceedings, the district court may fix the date of taking as the date of рhysical possession. See, e.g., Herrero, 416 F.2d at 947. However, that is not the case here, and Martinek provides no persuasive explanation as to why the district court should have applied a direct condemnation approach to a taking that Martinek stipulated occurred prior to the filing of the declaration of taking.
III. VALUATION METHOD AND RATE OF INTEREST
The district court erred by applying a valuation method to which no one testified and which lacks a basis in the record. However, the compensation awardеd on the district court‘s theory was higher than it would have been if the district court had accepted Martinek‘s approach. The error was harmless. Cf. United States v. Block, 160 F.2d 604, 607 (9th Cir.1947) (no error in admitting valuation from later date where no prejudice to appellants); see also
Martinek‘s expert determined what the value of the claims would be if the court‘s preliminary, core findings of fact (which with few exceptions became its final findings) were applied in the discounted cash flow calculation. Even allowing for the few changes in the factual findings between the district court‘s preliminary and final decisions, the discounted cash flow method applied to the court‘s undisputed fact findings would yield a value slightly lower than that calculated by the court using the royalty rate. The error in choosing a valuation methodology is therefore harmless.
The error does not become harmful on aсcount of the fact that the court cited to general reference materials and treatises in its order. Cf. Verizon Commc‘ns, Inc. v. FCC, 535 U.S. 467, 476, 484-87 (2002) (citing telecommunications treatises); Quinn v. Robinson, 783 F.2d 776, 792-96 (9th Cir.1986) (citing literature and treatises on the political offense exception to extradition). Nor does it offend
Martinek fails to identify the evidence he contends that the district court improperly admitted under the scope of the project rule, and he doеs not demonstrate any harm from the admission of such evidence.2 As Martinek acknowledges, a
Selection of the statutory rate of interest is a factual issue and we will not disturb it in the absence of clear error. See United States v. 429.59 Acres of Land, 612 F.2d 459, 464 (9th Cir.1980). The district court‘s selection, after it considered alternative investments and rejected one as too risky, accords with Ninth Circuit precedent, id. at 465, and the prudent investor standard as established by the Third Restatement of Trusts. See RESTATEMENT (THIRD) OF TRUSTS § 227 (1992). The district court did not commit clear error.
IV. CONCLUSION
The stipulated dates of taking are prior to the filing of the declaration of taking. The district court correctly concluded that the issue of just compensation was part of the inverse condemnation action and Martinek had no right to a jury trial. The district court did not commit reversible error for any of the other reasons asserted by Martinek.
AFFIRMED.
LEAVY, Circuit Judge, dissenting:
I respectfully dissent from Part II.B of the majority opinion which concludes that Martinek has no right to a jury trial of the issue of just compensation for the property interest taken by the United States through filing of the Declaration of Taking. In this case, there were two takings: one by inverse condemnation through government regulation which began on the date stipulated by the parties and ended when the government filed its Declaration of Taking; and the other by direct condemnation which occurred when the government filed its Declaration of Taking.
When Martinek filed his inverse condemnation action in the district court he owned no interest in the mining claims. They had already been taken by the filing of government‘s Declaration of Taking. Martinek had a right to a jury trial of just compensation for the property interest taken when the United States filed its complaint and Declaration of Taking. He did not forfeit that right by bringing an inverse condemnation action asserting that, in addition to the taking which occurred when the government filed its Declaration of Taking, the government had also previously taken his mining claims through regulation.
The following additional background facts are important to resolution of this issue. After the National Park Service (NPS) had completed and submitted to Congress its plan for acquisition of the mining claims in Denali Park, it was by no means clear when the claims would be acquired or whether, in the meantime, mining operations would be permitted in the park. In a 1990 communication with mining claim owners, NPS stated:
Our expectation is that given adequate Congressional funding the acquisition of all mining claims will bе accomplished over the next 10-15 years. . . . Pending acquisition, the National Park Service will receive and process [mining] plans of operations. Plans of operations that fully meet the requirements of the National Park Service Mining in Parks regulations (
36 CFR 9A ) and would have no significant adverse impacts on park resources could be approved.
Thus, in 1991, Martinek brought an inverse condemnation action against the United States in the Court of Federal Claims asserting that the NPS regulations had effeсted a taking of his mining claims. Martinek subsequently agreed to dismissal of his action so long as the government
When Martinek filed his second invеrse condemnation action against the United States in the district court, alleging that the mining claims had been the subject of a regulatory taking before the United States filed its Declaration of Taking, the district court only had jurisdiction over Martinek‘s action under a provision of the Mining in the Parks Act,
Thus, uniquely at issue in this appeal is the interplay between a direct condemnation action initiated by the United States to acquire mining claims and an inverse condemnation action brought by the claim holder in the same court concerning an earlier and temporary regulatory taking of the same property interest. Martinek asserts that, becausе the United States initiated a direct condemnation action, he is entitled to a jury determination of just compensation. With respect to the property right that vested in the United States upon the filing of the Declaration of Taking, he is correct.
The United States generally has available two statutory methods of acquiring private land for public use. Kirby Forest Inds., Inc. v. United States, 467 U.S. 1, 4 (1984).1 The first condemnation method is prescribed in
give[s] the Government an option to buy the property at the adjudicаted price. If the Government wishes to exercises 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 the option, it can move for dismissal of the condemnation action.
Id. (citations omitted).
A second method, the one used by the NPS to acquire Martinek‘s mining claims, is the “more expeditious procedure” prescribed by
The statute governing a direct condemnation action,
Vesting of title. On filing the declaration of taking and depositing in the court, to the use of the persons entitled
to the compensation, the amount of the estimated compensation stated in the declaration—
(1) title to the estate or interest specified in the declaration vests in the Government;
(2) the land is condemned and taken for the use of the Government; and
(3) the right to just compensation for the land vests in the persons entitled to the compensation.
The form of proceedings in the statutory direct condemnation action is governed by
When it filed its Declaration of Taking and deposited the funds into the court registry, the United States immediately became the owner of the mining claims and Martinek had only a vested right to just compensation.
A property owner cannot file a counterclaim in a direct condemnatiоn action. United States v. 40.60 Acres, 483 F.2d 927 n. 1 (9th Cir.1973). Thus Martinek‘s only remedy for the earlier regulatory taking of his mining claims was through an inverse condemnation action, discussed below.
Where the United States does not acquire privately owned land through one of the statutory methods, but instead appropriates private land by physically entering onto possession or regulation which restrict its use, the owner has a right to bring an “inverse condemnation” action to recover the value of the land. Id. As noted by the Court in Kirby, “[s]uch a suit is ‘inverse’ because it is brought by thе affected owner, not by the condemnor. The owner‘s right to bring such a suit derives from the self-executing character of the constitutional provision with respect to condemnation.” Id. at n. 6 (citations and quotations omitted).
A regulatory taking may be temporary in nature and still trigger the Just Compensation Clause, imposing a duty on the government to make payment for the temporary taking. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, 482 U.S. 304, 317-18 (1987). “The Court has recognized in more than one case that the government may elect to abandon its intrusion or discontinue regulations.” Id. at 317. Abandonment “results in an alteration in the property interest taken—from full ownership to one of temporary use and occupation. In such cases compensation would be measured by the principles normally governing the taking of a right to use property temporarily.” United States v. Dow, 357 U.S. 17, 26 (1958).
This express consent by the United States to a jury trial in a direct condemnation action does not extend to inverse condemnation actions brought under the MPA. KLK, Inc. v. U.S. Dept. of Interior, 35 F.3d 454, 457 (9th Cir.1994). Thus, Mаrtinek has a right to a jury trial in the government‘s direct condemnation action but not in his inverse condemnation action.
Martinek asserts that he did not lose his right to a jury trial by stipulating that the government took his property through regulation at a date prior to its filing of the
The parties’ stipulation could not back-date the taking that occurred when the United States filed its complaint and Declaration of Taking. The legal effect of the filing of the Declaration of Taking was to vest immediate title in the United States аs of March 10, 1998. Under the unique direct condemnation procedure, “[t]he nature and extent of the property interest to be acquired is discretionary with those authorized officials within the executive branch and may not be increased or decreased by the courts.” United States v. 40.60 Acres of Land, 483 F.2d 927 (9th Cir.1973). We cannot alter the property interest acquired. The parties certainly are without power to do so by stipulation. Therefore, the legal effect of the stipulation was to establish a second, tempоrary, taking through inverse condemnation beginning on the stipulated dates and ending on March 10, 1998.
Where, as in this case, the landowner asserts that an additional property interest has been taken, the proper course is to recognize that “two separate takings are involved.” United States v. 45.50 Acres of Land, 634 F.2d 405, 407 (8th Cir.1980) (landowner claimed that additional land had also been taken by the government). In one taking, the direct condemnation by the government, Martinek has a right to a jury trial. In the other, his inverse condemnation action, he does not. Absent the jurisdictional grant in
The Fifth Circuit‘s decision in United States v. 101.88 Acres of Land, 616 F.2d 762 (5th Cir.1980) provides additional suрport for this bifurcated approach. When considering an analogous situation where the landowner sought damages in a condemnation proceeding for the Government‘s use of lands contiguous to those condemned, the Fifth Circuit held that the landowner had to seek compensation “in a separate proceeding.” Id. at 770. When ruling, the Fifth Circuit was aware that its determination affected the landowner‘s “right to a jury trial concerning compensation” for the contiguous lands. Id. at 766; see also United States v. 21.54 Acres of Land, 491 F.2d 301, 304 (4th Cir.1973) (“if, ultimately, it is determined that the government has taken more than it has formally condemned and paid for, the landowner may recover under the Tucker Act for the additional take.“).
Martinek has a right to a jury trial of just compensation for the property interest taken when the United States filed its Declaration of Taking. He neither lost nor expanded that right to a jury trial by seeking compensation for the government‘s temporary taking of the same property through regulation in his inverse condemnation action.