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Old World Map courtesy of NARA.

NRS | World of Inverse Condemnation

Created in 1855 as the "Court of Claims,"1its original purpose was to hear claims by citizens and report its findings to Congress, which could then act upon those findings in any manner that it saw fit.2   This structure quickly proved untenable, and in 1863 Congress gave the Court of Claims authority to render final judgments, with appeals going to the United States Supreme Court.3

The first Court of Claims case to address the Fifth Amendment was Brooke v. United States, 2 Ct. Cl. 180 (1866), in which the court awarded $2,272 as compensation for the taking of certain drugs and medicines for use in a military hospital.  However, the Constitution was addressed only in the context of the Due Process Clause, and compensation was awarded under an implied breach of contract theory.

Nearly thirty years would pass before the Court of Claims saw a claim for compensation under the Fifth Amendment in a form that would be recognized today.   This is not surprising, however, since the early jurisdictional statutes made no mention of constitutional claims.  It was only with the enactment in 1887 of the Tucker Act, § 1, 24 Stat. 505 (1887) (now codified at 28 U.S.C. § 1491; see n.3, supra.), that the court achieved the breadth of jurisdiction that exists today, including monetary claims arising under the United States Constitution.

The first Court of Claims case addressing the Just Compensation Clause was Merriam v. United States, 29 Ct. Cl. 250 (1894).  That case, brought by residents of Ohio who owned property along the Muskingum River, alleged that the operation of a dam five miles downstream caused the permanent inundation of their property.  The court, citing to the expanded jurisdiction of the Tucker Act, as well as recent state court precedent that recognized the obligation of the sovereign to pay compensation for the taking of property, overruled the government's demurrer and allowed the claims to proceed.4

At the time of the creation of the Public Lands Division in 1909, Fifth Amendment takings claims against the United States remained an exceedingly rare occurrence.  Indeed, the entire docket of the Court of Claims could hardly be considered a wellspring of legal activity.  Located in the building that today holds the Smithsonian's Renwick Gallery, the court had just five active judges and had published just 45 volumes of decisions in its 54 year history. 

AAG Ernest KnaebelAt its inception, the Public Lands Division did not appear to have any specific role relating to the Court of Claims.  Rather, the Division's sole charge was the "enforcement of the public land law, including suits or proceedings to set aside the conveyance of allotted lands."5 There appears to have been little thought at that time to the new Division having a role in the defense of private land claims.  Of course, there would have been no one to handle them - at its inception, the Division did not have a staff of its own, but only an "attorney in charge,"6 Ernest Knaebel, who would not receive the title of Assistant Attorney General until 1911, along with an annual salary of $5,000.7

By 1912, AAG Knaebel had a complement of four Attorneys, four Special Assistants to the Attorney General, one Assistant Attorney, and two Law Clerks.8   However, the Division's role had not expanded from its inception,9   and did not appear to include Court of Claims litigation.  Instead, defense of Court of Claims proceedings resided with a separate component of the Department of Justice, headed by a different Assistant Attorney General, John Q. Thompson, with a staff of ten Attorneys and seven Assistant Attorneys, and separate offices closer to the court, at 8 Jackson Place, N.W.10

AAG Ira WellsIt is difficult to ascertain which case was the first to be defended in the Court of Claims by an attorney affiliated with the Public Lands Division, as reported decisions published during that era did not specify a Department of Justice Division.11  However, much like today, court opinions generally did include the name of the Assistant Attorney General supervising the assigned trial attorney.  The first Assistant Attorney General for the Division so recognized was Ira K. Wells, the sixth Assistant Attorney General, serving from 1924-25.12 Mr. Wells' name appears on two 1925 decisions:

  • Gilbert v. United States, 60 Ct. Cl. 1005 (1925), a breach of contract suit brought by the trustee in bankruptcy for a shipbuilding company, and
  • Pittsburgh & W. Va. Ry Co. v. United States, 61 Ct. Cl. 11 (1925), a  tax case.

    As neither of these cases involved  real property or causes of action that would be thought of as falling within the jurisdiction of the Public Lands Division, the demarcation of responsibilities among the various divisions appears to be less than absolute.13

    Interestingly, though, an Assistant Attorney General for the Lands Division, W.D. Riter, represented the United States before the Supreme Court in one of the seminal cases involving the intersection between contract and takings, Omnia Commercial Co. v. United States, 261 U.S. 502 (1923).  That case, which was on appeal from the Court of Claims, involved the requisition by the United States government of Omnia's entire production of steel plate, as well as an order prohibiting Omnia from fulfilling the terms of an existing contract with private parties.  While recognizing that contracts are property, the court held that the consequential interference with a contract is not compensable under the Fifth Amendment.  Omnia remains good law today and is frequently cited for this important proposition.

    It was not until 1932 that an Assistant Attorney General for the Division participated in a Court of Claims case involving subject matter that falls within the Division's current responsibilities.14  In 1932, attorneys for the Division, including the eighth Assistant Attorney General, Seth W. Richardson, represented the United States in Chickasaw Nation v. United States, 75 Ct. Cl. 426 (1932).  In that suit, the Indian Nation alleged that the United States had improperly sold land belonging to the Chickasaws.  Holding that the land had been ceded to the United States pursuant to an 1866 treaty, the Court of Claims dismissed the complaint.

    Washington DC circa 1030By 1933, with the arrival of the ninth Assistant Attorney General, Harry W. Blair, it was firmly established that the Division would be responsible for the defense of Indian Claims.  More than twenty decisions involving Indian Claims bore his name in the ensuing four years.

    Responsibility for Fifth Amendment takings cases within the Lands Division would begin much later.  The first takings case in the Court of Claims bearing the name of an Assistant Attorney General of this Division was Kan. City Life Ins. Co. v. United States, 109 Ct. Cl. 555 (1947).  Like most early federal takings cases, this suit sought to recover compensation for flooding of property along a tributary to the Mississippi River in Alton, Illinois, caused by a government dam.  Finding for the property owner and awarding $22,519.60 in just compensation, the court held:

    One of the valuable incidents of the plaintiff's ownership, before the dam was built, was that the surface and underground water passed off his land leaving it available for profitable agriculture.  That incident has now been impaired, in order to benefit navigation on the Mississippi.  It is the kind of an incident of ownership that could have been granted by the plaintiff to the Government or a neighbor.

    In the instant case . . . the Government was not privileged . . . to 'take' without compensation. . . .

    Id. at 654-55.  This decision was later affirmed by the Supreme Court.  United States v. Kan. City Life Ins. Co., 339 U.S. 799 (1950).15

    Perhaps more noteworthy was the second takings case handled by the Lands Division, Causby v. United States, 109 Ct. Cl 768 (1948), which is still favorably cited today.  That case, which earlier had been handled by another component of the Department of Justice, was assigned to Marvin Sonosky following remand by the Supreme Court.  Causby, the owner of a chicken farm, alleged that the noise caused by the frequent overflight of military aircraft rendered his property valueless.  The Court of Claims held in favor of Causby, and the Supreme Court agreed, but remanded the case for purposes of determining the nature and scope of the easement taken.  On remand, the Court of Claims found that the taking was temporary, for a period between 1942 and 1946, and awarded $1,060 for the taking of the property and $375 for the death of the chickens, plus interest.  Although airplane overflight takings cases today can involve thousands of properties and seek millions of dollars, the principles established in Causby remain good law.

    Today, the Environment and Natural Resources Division is one of three litigating divisions that appears before the United States Court of Federal Claims, the others being the Civil Division and the Tax Division.  Active Fifth Amendment takings and Indian claims now number in the hundreds, and show no sign of abating.

    AAG Shiro KashiwaOne final comment on the relationship between the Court of Federal Claims and the Environment and Natural Resources Division deserves note.  Perhaps no greater indication of the relation of the Division's work to the Court of Federal Claims exists than the fact that several individuals have held prominent positions within both bodies.

    While serving as Assistant Attorney General for the Land and Natural Resources Division in 1971, President Nixon appointed Shiro Kashiwa to the bench of the Court of Claims, where he served until being appointed to the Court of Appeals for the Federal Circuit.16

    Today, the Court of Federal Claims includes two judges who formerly served in the Environment and Natural Resources Division: Nancy B. Firestone, who was a Deputy Assistant Attorney General, and Margaret M. Sweeney, who was a trial attorney in the Natural Resources Section.

    In addition, attorneys from the Natural Resources Section have played a prominent role in the Court's Bar Association, including James E. Brookshire, who was a co-founder of that organization and its second president, and past presidents Edward J. Passarelli, Margaret M. Sweeney, Lewis S. Wiener, and Marc A. Smith.


    1 Act of Feb. 24, 1855, Ch. 122, 10 Stat. 612 (1855) (repealed 1863); Glidden Co. v. Zdanok, 370 U.S. 530, 552 (1962).  In 1982, the trial-level component of the Court of Claims became the United States Claims Court, and the appellate component joined with the Court of Customs and Patent Appeals to become the United States Court of Appeals for the Federal Circuit.  Pub. L. No. 97-164, ch. 7 § 105(a), 96 Stat. 27, 28 (codified at 28 U.S.C. §171).  In 1992, the trial court's name was changed to the Court of Federal Claims.  Federal Courts Improvement Act of 1992, Pub. L. No. 102-572, 106 Stat. 4506 (1992). 

    2Glidden Co., 370 U.S. at 552 (citing §7, 10 Stat. 613; see Cong. Globe, 33d Cong., 2d Sess. 70-72 (1854) (remarks of Senators Brodhead and Hunter)).

    3 Id. (citing Act of March 3, 1863, ch. 92, § 5, 12 Stat. 765, 766).  The first appeal from the Court of Claims to the Supreme Court was a breach of contract case, De Groot v. United States, 72 U.S. 419 (1866).

    4 Were it to originate in state court, Merriam would be far less noteworthy, as numerous similar takings claims had been upheld under state constitutions for decades.  See Pumpelly v. Green Bay & Mississippi Canal Co.,80 U.S. 166 (1871) (discussing state precedents).

    5 Register of the Department of Justice, 15 (G.P.O., 19th ed., 1910).

    6 Id. at 13.

    7 See Register of the Office of the Attorney General, 5 (G.P.O., No. 2 of 1911, Dec. 18, 1911).

    8 Register of the Department of Justice, 20 (G.P.O. 20th ed., 1912).

    9 Id. at 27.

    10 Id. at 19.  The Public Lands Division was housed at the Department of Justice headquarters at K Street, N.W., between Vermont Avenue and Fifteenth Streets.  Id. at 13.

    11 Frank E. Elder, who was identified as an attorney temporarily assigned to the Division in 1912, represented the United States in Miller v. United States, 45 Ct. Cl. 509 (1910), a case involving the improper termination of a Government Printing Office employee.

    12 Several early Assistant Attorneys General had considerable work before the Court of Claims later in their careers, including Frank K. Nebeker, who was the Division's third Assistant Attorney General, serving from 1919-20; Mr. Nebeker brought several suits in the Court of Claims and in the Supreme Court on behalf of Indian tribes.

    13 Another five years would pass before a Division Assistant Attorney General was identified in a Court of Claims case.  That case, Means v. United States, 69 Ct. Cl. 539 (1930), which identified the Division's seventh Assistant Attorney General, Bert M. Parmenter, as counsel, addressed the constitutionality of the gift tax.

    14 Well over one hundred opinions involving suits by Indian tribes were published by the Court of Claims between 1909 and 1932.  However, those cases appear to have been defended by attorneys from other components of the Department of Justice.

    15 At the Supreme Court the case was argued by Lands Division attorney Marvin J. Sonosky, who later gained notoriety in private practice as a champion of Indian causes.

    16 The United States Court of Appeals for the Federal Circuit: A History (1990-2002), 137-38.  Judge Kashiwa also served as Hawaii's first Attorney General in 1959.


Updated May 12, 2015

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