Description: http://www.fws.gov/policy/fws_col.gif342 FW 6, Condemnation


FWM#:     225 (new)
Date:        October 27, 1995
Series:      Real Property
Part 342:  Realty Operations
Originating Office: Division of Realty


6.1 Background. The power of eminent domain is an inherent power of the sovereign to appropriate private property for public use in any of its constitutional activities. An attribute of sovereignty stemming from political necessity, the power is inseparable from sovereignty, unless denied to it by its fundamental law. The United States constitution never explicitly refers to the existence of a Federal eminent domain power, but the Fifth Amendment assumes its existence and limits its exercise by providing that private property shall not be taken for public use without just compensation.

6.2 Authorities.

A. Act of August 1, 1888, (25 Stat. 357, as amended 40 U.S.C. 257). (Condemnation of realty for sites and other uses)

B. Declaration of Taking Act of February 26, 1931, (46 Stat. 1421; 40 U.S.C. 258a). (Lands, easements, or rights-of-way for public use; taking of possession and title in advance of final judgement; procedure)

C. Rule 71A of the Rules of Civil Procedure 28 U.S.C. appendix. (Condemnation of property)

6.3 Policy

A. It is the policy of the Service to acquire areas under general authorities such as the Migratory Bird Conservation Act, Migratory Bird Hunting and Conservation Stamp Act, the Endangered Species Act, the Fish and Wildlife Act of 1956, or the Refuge Recreation Act on a willing seller basis. The policy is to acquire land only when other means of achieving program goals and objectives (i.e. zoning or regulation) are not appropriate, available, or effective. The idea is to retain the minimum interest necessary to reach management objectives. If fee title is required, full consideration must be given to extended use reservations, exchanges, or other alternatives that will lessen the impact on the owner and the community.

B. However, the Service may acquire land through condemnation in order to determine the legal owner (clear title - friendly condemnation); settle a difference of opinion of value when the owner is agreeable to court action to do so (adverse condemnation); prevent uses which would cause irreparable damage to the resources the unit was established to protect; or consolidate Federal ownership in order to effectively manage and develop the unit.

6.4 Authorization.

A. A request for condemnation must include a citation of the authority for the project such as the Migratory Bird Conservation Act of February 18, 1929, as amended and supplemented, (45 Stat. 1222, 16 U.S.C. 715), and a citation of the General Appropriation Act making funds available for the acquisition - such as the General Appropriations Act of 1951 (64 Stat. 595, 693). In addition, a Declaration of Taking must include a citation of the authority to condemn, such as the Act of August 1, 1888, (25 Stat. 357, as amended; 40 U.S.C. 257) and/or the Declaration of Taking Act of February 26, 1931 (46 Stat. 1421; 40 U.S.C. 258a).

B. Before requesting a condemnation, the Service must comply with prerequisites required by law. For example, the Migratory Bird Conservation Act requires MBCC approval, and State enabling legislation. The acquisition of land with funds from the Migratory Bird Conservation Fund requires approval of the Governor or the appropriate State agency. The requirements of the National Environmental Policy Act, the Intergovernmental Cooperation Act, the Uniform Relocation Assistance and Real Property Acquisition Policies Act, and the National Historic Preservation Act must also be complied with in a timely manner.

6.5 Condemnation Procedure. The procedure for condemnation of real property is set out in Rule 71A of the Rules of Civil Procedure, 28 U.S.C. Appendix. The basic steps in a condemnation action are set out in the following paragraphs.

A. A condemnation action is initiated in the court with the filing of a complaint by the United States (Plaintiff) through the U.S. Attorney. A complaint may be defined as the initial pleading in a civil action wherein the plaintiff makes certain demands against the defendant and states his right to the relief sought. Its purpose is to advise the court and the defendant of all material facts on which the plaintiff relies to support his demands.

B. The complaint is usually prepared by the U.S. Attorney and shall contain a short and plain statement of the authority for the taking, the use for which the property is to be taken, a description of the property sufficient for its identification, the interests to be acquired, and a designation of the defendants who have been joined as owners of some or all interests in each separate piece of property. In some courts, the United States may join in the same action one or more separate pieces of property whether in the same or different ownership. In other courts, each property ownership is the subject of a separate civil action. If property is to be taken (title acquired) as of the date of the filing of the complaint, the complaint shall be accompanied by a Declaration of Taking and the deposit of the estimated amount of just compensation.

C. Upon the commencement of the action, the United States need join as defendants only, the persons having or claiming an interest in the property, whose names can be ascertained by a reasonably diligent search of the records. Prior to any hearing involving the compensation to be paid for a property, the United States shall add as defendants all persons having or claiming an interest in that property whose names have otherwise been learned.

D. Subsequent to the filing of a complaint, the Clerk of the Court shall cause a Notice of Action to be served upon each of the parties defendant. Each notice shall state the court, the title of the action, the name of the defendant to whom it is directed, the nature of the action (condemnation), a description of the property sufficient for its identification (the notice shall include only the property of the individual to which it is directed and not the property of others that may be included in the same action), the interest to be taken, the authority for the taking, the Leases for which the property is taken, and the fact that the defendant has 20 days after the service of notice in which to serve upon the United States Attorney an answer and that failure to serve an answer constitutes a consent to the taking and to the authority of the court to proceed to hear the action and to fix compensation. The notice shall also include the name and address of the United States Attorney. Notices are to be served by personal service, or if this is not possible, by publication in a newspaper having distribution in the area for three consecutive weeks. Prior to the last publication, a copy of the notice shall also be mailed to a defendant who cannot be personally served under the rule but whose place of residence is then known. The U.S. Attorney will cause a notice of lis pendens to be filed in the county or counties in which property is located. A lis pendens is legal notice that a suit is pending regarding the property. When a Declaration of Taking is filed and caused to be recorded in the County Deed Records, a notice of lis pendens may not be necessary.

E. The court may order preliminary hearings before the actual trial to clarify issues and consider motions and such other items as may be pertinent.

F. If not otherwise settled by agreement, the issue of just compensation shall be resolved by a trial at which each of the parties may present evidence of value. Any party may request a trial by jury unless the court in its discretion orders that, because of the character, location, or quantity of the property to be condemned, or for other reasons in the interest of justice, the issue of just compensation shall be determined by a commission of three persons appointed by the court. Upon agreement of the parties, the issue of just compensation may be heard by the court. After the jury or commissioners have reached a decision, the court will enter a judgment fixing just compensation. Title to property passes to the United States when just compensation (or the estimated just compensation in the case of a complaint with a Declaration of Taking) is deposited in the court.

G. A condemnation action may be dismissed under the following circumstances:

(1) As of Right. If no hearing has begun to determine the compensation to be paid and the United States has not acquired the title or a lesser interest in, or taken possession of property, the plaintiff may dismiss the action on that property, without the order of the court, by filing a notice of dismissal setting forth a brief description of the property from which the action is dismissed.

(2) By Stipulation. Before the entry of any judgment vesting the plaintiff with title, a lesser interest in, or possession of property, the action may be dismissed in whole or in part, without an order of the court, for any property if both plaintiff and defendant file a stipulation of dismissal. If the parties so stipulate, the court may vacate any judgment that has been entered.

(3) By Order of the Court.

(a) At any time before compensation for a piece of property has been determined and paid, and after motion and hearing, the court may dismiss the action on that property. However, it shall not dismiss the action on any part of that property of which the United States has taken possession or in which the United States has taken title or a lesser interest. It shall instead award just compensation for the possession, title or lesser interest so taken.

(b) At any time, the court may remove a defendant unnecessarily or improperly joined.

6.6 Methods of Condemnation. There are two principal methods of condemnation by the Government. These are by complaint without a Declaration of Taking and by complaint with a Declaration of Taking. The principal uses, advantages, and disadvantages of these methods are discussed in the following paragraphs.

A. Complaint Without a Declaration of Taking. In this type action title does not vest in the United States until the court renders a judgment as to just compensation and the full amount of the judgment is paid into court. Usually it will take 1 to 3 years after a complaint is filed for a case to come to trial.

(1) Advantages. It may be used when there is doubt whether the award will be within the statutory limitation (specially legislated areas - San Francisco Bay - Tinicum Environmental Center, etc.) for a project. The Service is not committed to pay the court award, if found to be excessive; it may withdraw the condemnation. Also it gives the Service an opportunity to request additional funds of the Congress if the award exceeds statutory limitations. No interest payment is involved as the landowner retains full use of the property until the amount of the award is deposited and title vests. The interest to be taken in the property may be adjusted by agreement at any time before a final judgment.

(2) Disadvantages. Title does not vest in the United States until after a trial and the award is deposited in the court. The owner has full use of the land up to the time of the judgment and deposit of the award. The date of valuation is usually the date of trial. (The judge can order or the parties may stipulate to another date). This may be 1 to 3 years after the filing of a case, and in a rising market, increased values are to be expected. If an award is excessive and the Service withdraws, it is obligated to pay the defendants costs incurred in the condemnation

(3) Principal Uses. This type of action is recommended where there is doubt that the award will be within the statutory limitation for a project, or where there is a very wide divergence in values alleged by the Government and the defendant. Currently this type of action is used most often in the Service's program.

B. Complaint with a Declaration of Taking. In this type of action title vests in the United States as of the filing of the Declaration of Taking and the deposit in the court of the amount of estimated just compensation.

(1) Advantages.

(a) It may be used to vest title in the United States quickly when needed for Service programs.

(b) It fixes the date of valuation as of the date the action is filed although the case may not come to trial for 1 to 3 years or even later.

(c) It may be used to clear title defects where the amount of just compensation is not a major factor.

(2) Disadvantages.

(a) The Service is obligated to pay the amount of the court award and may not withdraw from the condemnation.

(b) Interest must be paid on the amount of deficiency (the difference in the amount of the deposit and the court award) from the date of taking to the time of final payment. This often runs for several years.

(c) Although a stipulated settlement as to just compensation can be reached at any time before trial, the interest in land taken cannot be adjusted except by revestment. (When agreed to by the parties, the court can revest title in the former owners by court order).

(3) Principal Uses. A Declaration of Taking is infrequently used when land is acquired for Service programs by condemnation, particularly when awards are expected to exceed statutory limitations, or there is significant risk of very high court awards.

6.7 Nature of Title. Condemnation actions are filed against land and thus create a new title in the United States by the judgment of the court or the filing of a Declaration of Taking. It is not a conveyance from a former owner. A condemnation need not include the full fee title, any desired interest can be condemned. For example, leaseholds, minerals, easements, etc., can be condemned, or such interests can be excluded from a condemnation.

6.8 Solicitor's Authority. The authority of the Solicitor to sign Declarations of Taking and/or requests to the Department of Justice for condemnation has been delegated to the Regional Solicitors and Associate Solicitors with authority to redelegate to the Assistant Solicitors, Assistant Regional Solicitors, and Field Solicitors. Requests for condemnations to the Solicitor's Office are made by the Regional Directors.

6.9 Prior Approvals. Land acquisition by condemnation must be approved and programmed in the same manner as any other purchase case.

A. Approval of Headquarters must be obtained prior to requesting condemnation. The memorandum requesting approval must include the number of tracts, hectares (acres), and appraised value, reasons for condemnation, and expected public reaction.

B. Approval to file Declarations of Taking when Land and Water Conservation Funds are to be used must be obtained from the Congressional Appropriations Committees. After the Director's approval, Headquarters will forward the Region's submission to the Committees. This can take a few weeks or several months. The Regional submission should contain a narrative statement of the reasons for condemnation (threat to the resources), the need for property, history of negotiations and the most current appraisal.

C. Approval from the Congressional Committees is not required for friendly condemnations (to clear title) or complaints without a Declaration of Taking.

6.10 Condemnation Package. The condemnation package to be forwarded to the Regional Solicitor or Field Solicitor, if authorized, shall include:

A. Memorandum from Regional Director to Regional Solicitor, (Exhibit 1) which shall include:

(1) A statement that there has been compliance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended.

(2) In all requests to institute any new condemnation proceedings involving the acquisition of lands in a single case valued at more than $100,000:

(a) Total area of lands within the project.

(b) Estimated cost of lands for the project.

(c) Acquisition date of the first lands for the project.

(d) Portion of the project acquired to date.

(3) A statement that there has been compliance with the National Environmental Policy Act.

B. Draft of letter from the Regional Solicitor to the Attorney General (see Exhibit 1) which shall include:

(1) Determination of need for condemnation with brief references to the property, its purported ownership, the interests to be acquired, and the authority under which the Solicitor's application is being made.

(2) The particular project to be affected by this action.

(3) Citation of the acquisition authority and availability of appropriations (including citation of the appropriation act).

(4) Name and address of the Regional Director who will furnish the necessary information and assistance to the United States Attorney.

(5) A statement that all correspondence regarding the case be addressed to the representative of the Solicitor's Office assigned to the case, including name, title, and telephone number.

(6) The last paragraph should refer to the enclosed memorandum from the Regional Director requesting the condemnation action.

C. Draft of Declaration of Taking - (see Exhibit 1). Declaration of Taking shall include a caption with the name of the court, names of plaintiff and defendant, Civil Action Number, and brief statement of purpose. The body of the Declaration of Taking shall include the following:

(1) Authority of the Regional or Field Solicitor and a statement of the taking. (Exhibit "A" in Exhibit 1)

(2) A statement of the authorities under which the land is taken. (Exhibit "A" in Exhibit 1)

(3) The public uses for which the lands is taken. (Exhibit "A" in Exhibit 1)

(4) A statement of prerequisite approvals. (Exhibit "B" in Exhibit 1)

(5) The description of the lands taken. (Exhibit "B" in Exhibit 1)

(6) The estate or interests taken. (Exhibit "B" in Exhibit 1)

(7) The estimated amount of just compensation. (Exhibit "B" in Exhibit 1)

(8) A plat or plats showing the lands taken. (Exhibit "C" in Exhibit 1)

(9) The statement of the Regional or Field Solicitor concerning the signing of the taking. (Sol. Reg. 32)

D. Request for an Order of Possession. Upon payment of the judgment or deposit of just compensation, an order of immediate possession should be requested if there is no physical occupancy on a tract. If there is physical occupancy, request possession within 90 days to comply with the Uniform Relocation Assistance and Real Property Acquisition Policies Act (P.L. 91-646, as amended). An order of possession does not preclude continued use and occupancy by an occupant under agreement from the Service.

E. Title File for Each Tract. Prepare a title file for each tract with a history of negotiations; final offer letter; contaminants survey (including appropriate approvals, if available). If a preliminary title insurance policy is used, ask the title company to furnish a list of all parties with an interest who should be named in the complaint and listed in Exhibit A of the Declaration of Taking. Check with the Regional Solicitor for additional requirements.

F. Appraisal Report. At least two copies of the Service's current appraisal report and/or contract appraisal report which have been reviewed and approved by a Service review appraiser. Check with the Solicitor and U.S. Attorney's Office for exact number.

G. NOTE: For a condemnation request without a Declaration of Taking, all of the above material except the Draft of Declaration of Taking and the Request for order of Possession must be furnished to the Regional or Field Solicitor. (Exhibits "A" and "B" must be furnished).

6.11 Obligation of Funds and Deposit for Declaration of Taking.

A. In condemnation cases, funds are obligated as of the date of the Regional or Field Solicitor's letter to the Department of Justice requesting the institution of condemnation proceedings (4 Comp. Gen. 206). However, where land is under option but because of a defective title, satisfactory conveyance is not possible, the original obligation established by the option acceptance may be allowed to stand or it may be abandoned and a new obligation set up with the request for condemnation proceedings. Unless there is price agreement, the amount of obligation is the amount of estimated just compensation as stated in the Regional Director's memorandum and attachments requesting condemnation.

B. If a significant overrun is anticipated, additional funds may be obligated to more nearly equal the anticipated award. At the time the Regional Solicitor or Field Solicitor signs the Declaration of Taking and letter to the Department of Justice, two certified copies of the letter of transmittal and the Declaration of Taking should be furnished to the Regional Director. One is for use in drawing a check for the amount of the estimated just compensation and the other may be retained in the realty records. The check should be made payable to the clerk of the United States District Court for the district in which the land is located and should be furnished to the respective United States Attorney for deposit at such time as the Declaration of Taking is filed.

6.12 Responsibility of the Department of Justice. Once the request for a condemnation has been made to the Department of Justice, all further actions and the responsibility to complete the acquisition is that of the Department of Justice (subpoenas, depositions, etc). However, it is important that the Regional Office Realty staff, through the Regional or Field Solicitor, maintain a close liaison with the U.S. Attorney and offer its assistance. This may take the form of advising landowners of their right, upon application to the court, to withdraw all or part (depending on the nature of the title) of the deposit of estimated just compensation. Also, Service representatives may function effectively as the U.S. Attorney's agent in negotiating settlements. Service representatives should be furnished with a form of stipulation to be executed by the landowner if a negotiated settlement can be agreed upon. (Prior approval of the Regional Director is required before Realty personnel assist Justice).

6.13 Follow Up Responsibility of the Service.

A. After the filing of a Declaration of Taking, the Service appraisals (including contract appraisals) should be promptly updated as of the date of taking. This is important since negotiated settlements (stipulated agreements) cannot be accepted until appraisals as of the date of taking are available.

B. Upon the filing of a Declaration of Taking or a Complaint in Condemnation, it is necessary that title evidence be continued to a point in time subsequent to the date of taking and/or the date of the filing of a lis pendens (notice of condemnation) in the county records. Although the U.S. Attorney may request the title continuations, it is the responsibility of the Service to pay the costs.

C. It is the responsibility of the Service to furnish relocation assistance services to landowners and tenants in the same manner as though the lands were acquired by negotiated purchase. For the purposes of P.L. 91-646, as amended, in the case of a Declaration of Taking, the purchase consideration is deemed to have been paid when the estimated just compensation has been deposited in the court. For condemnation without a Declaration of Taking, the purchase consideration is paid into the court after a judgment has been rendered by the court (usually 1 to 3 years after the filing of the condemnation).

6.14 Negotiated Settlements.

A. The Solicitor of the Department of the Interior has delegated to the Regional Solicitors the authority to approve compromise settlements in condemnation cases up to the gross amount of $500,000. This authority may be redelegated to the Assistant Regional and Field Solicitors. In such cases, the Regional Director may advise the U.S. Attorneys through the Regional or Field Solicitor's Office as to the acceptability of compromise offers, when requested by the United States Attorneys. However, the Department of Justice has not delegated authority to the United States Attorneys to approve settlement offers greater than $100,000.

B. In such cases, the Department of Justice requests approval of proposed settlements exceeding $100,000 from the Solicitor. The Solicitor, in turn, requests the recommendation of the Service. As soon as the Regional Office learns that the United States Attorney is recommending a compromise settlement, the Director should be advised promptly of the terms of the proposed settlement and the Region's recommendations as to the acceptability of the proposed settlement offer. This will enable the Director to make the Service recommendation to the Solicitor without delay. Generally, compromise or settlement offers are inclusive of interest.

6.15 Migratory Bird Conservation Commission Approvals.

A. Normally the amount of estimated just compensation deposited in the court in Declarations of Taking is the amount approved by the Migratory Bird Conservation Commission. By resolution dated December 3, 1937, and amended April 24, 1952, the Commission authorized the Secretary to accept excess awards and compromise settlements up to 30 percent above the predetermined base values of tracts being acquired within a given refuge unit.

B. The Commission resolution is quoted as follows: "Resolved that there is hereby delegated to the Secretary of the Interior authority to accept excess condemnation awards or to compromise condemnation cases in the interest of the United States by expending any funds made available for the acquisition of lands for wildlife refuges under provisions of the Migratory Bird Conservation Act or amendments thereto, including Titles V and VII of the Act of June 15, 1935; provided, however, payments made under such authority shall not be in excess of 30 percent above the predetermined base values of the tracts so being acquired within a given refuge unit."

6.16 Pretrial Hearings and Trials.

A. The Regional Office, through the Regional, Assistant Regional, or Field Solicitor, should cooperate with and assist the U.S. Attorneys in every way possible in preparing for pretrial hearings and trials. For example, such assistance can be arranging for witnesses, preparation of court exhibits, viewing property, etc.

B. It is important that a Senior Realty Officer/Senior Staff Specialist, Realty, attend pretrial hearings and trials so as to be able to advise the U.S. Attorney in the conduct of the trial and, more importantly, to speak authoritatively on behalf of the Service concerning compromise negotiations that may arise during the conduct of a hearing or trial. The court sometimes asks opposing counsel to try to reach a compromise settlement.

6.17 Judgment.

A. At the conclusion of a trial, the court will issue its judgment as to the amount of just compensation for the land taken. Depending on the circumstances of the trial, the finding may be made by the court (judge), by commissioners appointed by the court, or by verdict of a jury.

B. In condemnations without a Declaration of Taking, barring a stipulated settlement, the amount of just compensation for the land is established at the trial. With the deposit of the amount of just compensation in the court by the Service, title to the land will vest in the United States. However, if the United States finds that the amount of just compensation is exorbitant, it may abandon the proceeding and the land will not be acquired under this action. If the proceeding is abandoned, Section 304(a) of P.L. 91-646 requires the Service to reimburse the owner of any right, title, or interest in such property for his/her reasonable costs, disbursements, and expenses, including attorney, appraisal, and engineering fees, actually incurred because of the condemnation proceeding.

C. In condemnations with a Declaration of Taking, the Service is obligated to pay into the court the full amount of the judgment. Since an amount of estimated just compensation was deposited with the filing of the condemnation, any additional payment will be the amount specified by deficiency judgment (just compensation less the deposit). In addition, interest based on a variable rate accrues on the deficiency from the date of payment into the court. The deficiency is considered part of the purchase consideration whereas the interest is not. Payment of interest is the cost of doing business and its amount is not to be included for reporting purposes (see 340 FW 5) when it can be separated from the cost of the real property being acquired.

D. For adverse condemnation, the Equal Access to Justice Act (PL 96-481 section 201), may require the Service to pay a prevailing party (where the award is closer to the asking price than the approved appraised value), fees and other expenses incurred by that party in connection with the proceeding. The U.S. Attorney and Justice should be contacted for advice on the determination of such costs for specific tracts.

E. There may be cases in acquisition under the Migratory Bird Conservation Act where the judgment (not including interest) exceeds Migratory Bird Conservation Commission approval plus 30 percent. In such cases, the deficiency cannot be paid out of the Migratory Bird Conservation Fund until Commission approval is received.

F. When agreement has been reached between the United States and a condemnee (stipulated settlement), the court will issue a judgment, on stipulation in vacation--that is, an actual court hearing is not required. In the case of a judgment on stipulation, a deficiency payment may be required, but generally does not require payment of interest since most settlements are made inclusive of interest.

6.18 Report of Region. No routine report as to the outcome of condemnation cases is required. However, in cases where there is an excessive award and an appeal is considered likely, the facts should be reported to Headquarters as soon as possible to enable it to respond to inquiries from the Department of Justice without delay.

6.19 Payment of Deficiencies. Upon receipt of a judgment requiring the payment of a deficiency in a Declaration of Taking, the Regional Office should pay the deficiency into the court promptly unless an appeal will be filed by the Department of Justice. In Migratory Bird Conservation Commission acquisitions, if the judgment including the deficiency exceeds the 30 percent overrun for the unit authorized by the Commission, the deficiency may not be paid until MBCC approval for the greater amount has been obtained. Cases requiring approval by the MBCC should be anticipated and reapproval requested at the earliest possible time to permit prompt deposit of the deficiency and to prevent interest from accumulating over an extended period.

6.20 Completion of Case. After the final judgment has been satisfied, the Attorney General will issue a final opinion of title and send it together with the final transcript of proceedings (including the title file) to the Fish and Wildlife Service through the Solicitor or Regional or Field Solicitor's Office. The appropriate realty records should then be posted accordingly and the case closed. (It is necessary for Regional Realty to coordinate closely with Justice and the U.S. Attorney to complete the requirements for case closure - title insurance liability requirements, etc).


For additional information about this policy, contact the Division of Realty. For more information regarding this Web page, contact Krista Bibb, in the Division of Policy and Directives Management. 


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