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ENRD Resource Manual

2. 9-Point Program For Settlement Or Dismissal Within One Year

The following specific suggestions for a procedural program are designed to aid in securing the settlement or trial of a condemnation action within one year of its institution:

  1. Inspect the property as soon as possible. There is no substitute for thorough knowledge of the property for either settlement negotiations or trial purposes.
  2. Promptly request continuation of title evidence (see JM 5-15.533 and this Manual at 7) to the date of recordation of declaration of taking, judgment on declaration of taking or lis pendens, and, if you have difficulty in obtaining such evidence, request assistance from the Department.
  3. Review agency appraisals within 10 days. Satisfy yourself both as to the adequacy of the appraisal report and of the ability of the appraiser to be an effective witness. Appraisal reports must, of course, be updated to reflect valuations as of the date of taking. This will supply trial counsel with current information concerning the case, will enable him/her to determine whether an additional appraisal is necessary, and will put him/her in a position to conduct meaningful settlement negotiations or be ready for trial. When further appraisal services are deemed necessary, promptly submit a Form OBD-47. If a proposed fee of $2,500 or more for appraisal services is submitted by an appraiser, proposals from two other qualified appraisers must be obtained whenever possible. When and if approved, a copy of this agreement will be forwarded to the U.S. Attorney and to the appraiser, at which time the work may proceed. The last copy of this package agreement is to be retained by the a ppraiser for his/her records. See JM 5-9.100 et seq., for information as to the preparation and review of appraisals by personnel of the offices of the U.S. Attorneys, the Environment and Natural Resources Division, and the acquiring agencies.
  4. Commence serving parties or publishing against them within 30 days of the receipt of the continuation title evidence. Personal service should, of course, be effected whenever possible. Service or publication should be completed within 60 days. (See JM 5-15.525 and ENRD Resource Manual at 8.)
  5. Advise the Department of important legal issues within 30 days or as soon as they develop after that time. The Department has, indexed and readily available, many briefs and memoranda of law covering legal issues which have developed in condemnation cases, and the Department is willing to undertake research on other issues; but it must first be informed of the problems which you have encountered before it can be of maximum help to you.
  6. Service or publication should be completed within 60 days.
  7. There should be a thorough exploration of settlement possibilities within 90 days. Use your settlement authority to the fullest extent possible. Outside of direct purchase, which the acquiring agencies have been urged to accomplish whenever possible, amicable settlement represents the quickest and most satisfactory way for a government to acquire privately owned property. (See JM 5-15.630 and ENRD Resource Manual at 8).
  8. Wherever local practice and the condition of court calendars will permit, a pre-trial should be held within six months. In addition to resolving preliminary matters, such as discovery, objections to the taking, motions, methods or trial, etc., a pre-trial setting necessitates an examination of positions and frequently acts as a spur to serious settlement negotiations. A later pre-trial, or even pre-trials, may prove to be necessary if the case is to be tried on its merits.
  9. Trial should be set within a year. If circumstances beyond your control preclude this, then the earliest possible trial setting should be sought.

[cited in JM 5-15.514]