1937 - 1958 The Early Years

 American Environmental Photographs 1891 - 1936. Courtesy of the Library of Congress.

Appellate Section | An Informal History

The work of the early Appellate Section includes preparation of Court of Appeals and Supreme Court briefs, presentation of oral arguments, and preparation of appeal recommendations for the Solicitor General. Much of the Section's work involves land acquisition, arising from major federal programs to acquire lands and interests for navigation, flood control, irrigation projects, grazing districts, slum clearance, the farm tenancy program, and general soil conservation. World War II brought the need to acquire airports, naval stations, fleet bases, bombing fields, proving grounds, cantonments, and other military sites. Indian claims are another source of appeals, as are disputes over ownership of federal lands and interests, both onshore and offshore. In the 1950s, water and Reclamation Act cases become an increasingly important part of the Section's docket.


Assistant Attorney General Carl McFarlandBirth of the Section - Due to the rapid growth of the Lands Division of the Department of Justice during the New Deal years, Assistant Attorney General Carl McFarland finds it necessary to divide the Division into Sections. In 1937, the Appellate Section is created to handle appeals arising from the other sections, particularly the Trial Section and Condemnation Section, and to assist the Solicitor General with cases in the Supreme Court. In its first year, the Appellate Section prepares 46 briefs, 36 recommendations on appeal to the Solicitor General, four petitions for certiorari (two of which are granted) and seven briefs in opposition to certiorari. Among the original attorneys in the section are Vernon L. Wilkinson, Charles R. Denny, Jr., Norman McDonald, Ely Maurer, and Frank J. Dugan. In this early period, many appeals involving the Department of the Interior are handled by the Solicitor of Interior, without apparent participation by the Department of Justice.


The Appellate Section’s Most Prolific Attorney - Roger Marquis joins the section, and goes on to have a long and distinguished career. His first argued appeal is in a case involving the deed for a post office in Oklahoma. Welch v. United States, 108 F.2d 722 (10th Cir. 1939). He is appointed Appellate Section Chief in 1945, and serves in that position until his retirement in 1969. Westlaw lists him as having argued or participated in the briefing of 1,085 federal court cases and 42 state court cases, the highest number of Westlaw hits for any Appellate Section attorney. He becomes an authority on condemnation law, among other subjects, and authors large parts of the Division's condemnation handbook.


Establishing Favorable Rules for Land Acquisition - Charles Denny and Roger Marquis work on a case that becomes a landmark in condemnation law: United States v. Miller, 317 U.S. 369 (1943), which defines just compensation to exclude enhancements, such as particular value to the taker.


Developing the Law of the Seabed - George W. Swarth joins the Appellate Section in 1944 and begins working on issues involving the seabed and its  resources. He plays a central role in developing positions for the United States that are adopted almost in whole by the Supreme Court, such as that the federal government, not states, has paramount authority over the seabed. According to the 1969 Lands Division Journal, this was "the most important area of litigation, at least in terms of economic impact upon the United States, ever handled by the Department of Justice," and Swarth had become "the foremost legal authority on offshore matters in the United States government, if not the entire country." Swarth worked in the Appellate Section until 1969, when he became the first section chief of the new Marine Resources Section.


Defending Indian Fishing Rights - The Section successfully appeals from an adverse ruling concerning Indian fishing rights, and establishes that a State cannot interfere with a Tribe's fishing rights on its Reservation. Moore v. United States, 157 F.2d 760 (9th Cir. 1946).


Establishing Federal Ownership of Offshore Areas - George Swarth participates in the Supreme Court briefing of United States v. State of California, 332 U.S. 19 (1947), which establishes the United States' dominion over oil and other resources of the seabed below the low water mark, and clarifies that many ordinary rules of property litigation cannot be applied to deprive the government of its lands and interests.


First Female Attorney - Elizabeth Dudley joins the Appellate Section as its first female attorney. She works in the Section until 1967.


Protecting Native Fishing - Roger Marquis argues before the Supreme Court in Hynes v. Grimes Packing Co., 337 U.S. 86 (1949). In a 5-4 decision, the Court upholds the authority of the Secretary of the Interior to include coastal waters in an Indian Reservation and to bar non-Indian fishermen from these areas.


Indian Claims - The Section participates in the litigation of United States v. Alcea Band of Tillamooks, 341 U.S. 48 (1951), which establishes that the United States is not generally liable for interest on claims under the Indian Claims Act.


A “Small and Compact” Section - A study of the Lands Division by a management consultant reports that the Appellate Section consists of a chief, an assistant chief, 9 other attorneys, 2 secretaries, 1 stenographer, and 1 “telephone operator.” By way of contrast, the Land Acquisition Section at that time has 47 attorneys and 32 clerical employees. In 1952, the Appellate Section files 50 briefs, produces 46 memoranda to the Solicitor General (SG), and receives 67 new cases. The study calculates that Appellate Section attorneys are handling an average of .8 “cases per man month,” and concludes that “the section is small and compact and does not present any supervisory or administrative problems that warrant a change in organization.”


Condemnation in the Supreme Court - In United States v. Dow, 367 U.S. 17 (1958), the Supreme Court establishes helpful rules for determining the date of a taking. The case is argued in the Supreme Court by Lands Division Assistant Attorney General Perry Morton, assisted in briefing by Roger Marquis.


Updated May 13, 2015

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