26 owners whom the Supreme Court had held were not entitled to compensation under the Fifth Amendment for loss of power generation capacity in their hydroelectric plant from elevation of water levels in their power plant's tail race caused by the government's construction of navigation works. United States v. Willow River Power Co., 324 U.S. 499 (1945). The Burkhardt claimants had no treaty, fiduciary, or other special relationship with the federal government. Yet they were allowed to recover on the basis of the Court of Claims' application of the Realty Co. principles to its interpretation of “equitable” claims in 28 U.S.C. § 2509, the congressional reference statute. The government's defense in Burkhardt focused exclusively on the meaning of the phrase "legal or equitable" in 28 U.S.C. § 2509. The government argued that the phrase should be construed in "its strict legal sense and not in a broad general sense meaning 'moral claim'" (84 F. Supp. at 558), and urged the Court of Claims to conclude that the claim was not an equitable one. The Court rejected the government's contention and found that the claimants were entitled to damages.8 8 [Claimants were] deprived of the use of their property by the United States in the exercise of its paramount right under the Constitution to improve commerce and navigation. But for this superior right the Government would be required to pay "just compensation" for the taking of plaintiffs' property under the Fifth Amendment to the Constitution. Accordingly, plaintiffs do not have a right either in law or in equity to recover compensation from the Government. However, it does not logically follow that plaintiffs do not have an “equitable" claim against the Government in a broad non-juridical sense... The Supreme Court in its opinion, United States v. Willow River Power Co., indicates as much when, in holding that this type of damage alone does not give the courts power to award compensation where there is not an actual taking of property, it points out that, "Such losses may be compensated by legislative authority, not by force of the Constitution alone." 84 F. Supp. at 558 (emphasis added) (citations omitted). 27 The Burkhardt court interpreted the authorization to hear an “equitable claim" in 28 U.S.C. § 2509 broadly, holding: * the term "equitable claim" as used in 28 U.S.C.A. § 2509, is not used in a strict technical sense meaning a claim involving consideration of principles of right and justice as administered by courts of equity, but the broader moral sense based upon general equitable considerations. In this case, plaintiffs actually have more than a “merely equitable or honorary obligation, (and) which would not be recoverable in a court of law if existing against an individual." Id. at 559 (emphasis added). Following the Court of Claims decision in Burkhardt, the decision was reported to the Congress. In recommending payment, the Senate Judiciary Committee acknowledged that the exercise of the navigational servitude by the government against the Willow River Power Company was a "privileged taking" for which the claimants had no legal right to relief under the Fifth Amendment to the Constitution. S. Rep. No. 696, 81st Cong., 1st Sess. However, the Committee accepted the Court of Claims interpretation of the term “equitable" in 28 U.S.C. § 2509 as authorizing a determination of liability based on "the equities, humanities, and moral obligations." Id. The Committee concluded that "there is a moral duty upon the Government to reimburse those whom it has damaged. [It is not the Government's desire to avoid its moral obligations by hiding behind a constitutional privilege. Payment recommended." Id. at 2 (emphasis added). The bill was enacted as Private Law 378, 64 Stat. A13. Thus, Congress endorsed the Court of Claims interpretation of 28 U.S.C. § 2509. ... 28 V. THE EXPLICIT PROVISIONS FOR RECOVERY IN PUB. L. 97-385 PROVIDE AT LEAST AS BROAD A BASIS FOR RELIEF AS 28 U.S.C. § 2509. In its order on remand, 948 F.2d 635 (App. p. 18a), the Court of Appeals corrected its erroneous interpretation of Burkhardt but remained in conflict with the decision by insisting on a basis for liability in this case that is more restrictive than that in Burkhardt. Burkhardt found liability on the basis of fairness, honor, and morality within the meaning of "equitable" in 28 U.S.C. § 2509. Burkhardt did not even require a finding of a special relationship or wrongdoing by the United States to establish liability; it simply found that the claimants' damages from construction of a dam on the Mississippi River were those which would have been compensable had they been caused by a private party instead of by the government's exercise of the navigational servitude." Congress confirmed that finding of liability and paid the claim. No less a standard than that set forth in S. Rep. 696, supra, in Burkhardt should be used in assessing the claim of the Cherokee Nation under the explicit provision for fair and honorable dealings claims incorporated in Pub. L. 97-385. The standards of fairness, honor and morality that were held to be implicit in 28 U.S.C. § 2509 are expressed in Pub. L. 97-385's incorporation of the Indian Claims Commission Act. In creating the fair and honorable dealings claim, Congress intended that no legal defense to such a claim would be a bar to that cause of action. In Creek Nation v. United States, 168 Ct. Cl. 483 (1964), the Court reviewed the legislative history of the Indian Claims Commission Act, and noted that the Justice Department had advocated that "against a moral claim . . . no legal defense would be good." Unlike the Burkhardt claimants, who did not own the land used and occupied by the government in the exercise of its navigational servitude in that case, the Cherokee Nation does own in fee simple the bed of the Arkansas River occupied by the McClellanKerr Project. 29 Also, the Conference Report on the bill establishing the Indian Claims Commission (H.R. 4497) states: As stated in the Senate report, this amendment does not permit the raising of legal defenses in cases based on standards of "fair and honorable dealings," for the bill expressly authorizes suit on such claims. H.R. Rep. No. 2693, 79th Cong., 2d Sess. at 6. This being true, the sole premise which the Court of Appeals used to affirm the District Court completely fails because the opinion ultimately rests on the legal defense that the Cherokee Nation's ownership of the Arkansas River bed is subject to the navigational servitude. The Court of Appeals cites the Supreme Court's decision on the Cherokee Nation's legal claim in United States v. Cherokee Nation of Oklahoma, 480 U.S. 700 (1987), in support of its analysis. But the premise of the Indian Claims Commission causes of action is that they are not meant to be subject to the legal defense upheld in that case. When it created the fair and honorable dealings cause of action, which is available only to Indian tribes, Congress was exercising its political function. Otoe and Missouria Tribe of Indians v. United States, 131 F. Supp. 265, cert. denied, 350 U.S. 848 (1955). See also United States v. Seminole Nation, 173 F.Supp. 784 (Ct.Cl. 1959). (The Indian Claims Commission Act was "designed to help erase certain evils of longstanding" by creating new causes of action.) Congress acted similarly when it established the "equitable" cause of action in 28 U.S.C. § 2509. See Glosser, Congressional Reference Cases in the United States Court of Claims: A Historical and Current Perspective, 25 Am. U.L. Rev. 595, 618 (1976) note 3. Section 2509, as construed by Burkhardt should inform the analysis of Pub. L. 97-385. When Pub. L. 97385 was enacted, the Burkhardt standard had not only been determined by the Court of Claims, it had been endorsed by the jurisdictional committees and the Con 30 gress in its deliberations on the post-Burkhardt payment legislation. Private Law 378, 64 Stat. A13. Payment was authorized on the basis of the "equities, humanities, and moral obligations" that the Court of Claims found inhered in the meaning of "equitable" in 28 U.S.C. § 2509 because it was not "the Government's desire to avoid its moral obligations by hiding behind a constitutional privlege." S. Rep. No. 696, supra at 2. In view of this background, Congress could not have intended 28 U.S.C. § 2509 to have a more liberal standard for relief than Pub. L. 97-385. In other words, there is no logic to support either the conclusion by the Court of Appeals that the Burkhardt analysis is immaterial to its decision in this case, or its implication that the Cherokee Nation would have been better positioned with its claim had it been referred to the Claims Court by the resolution of a single House of Congress and pleaded under the principles of equity in 28 U.S.C. § 2509 instead of using the authority of Pub. L. 97-385. Accordingly, the conflict created by the Court of Appeals with the principles established by this Court in United States v. Realty Co. and adopted by the Court of Claims in Burkhardt should be reviewed by this Court. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted, JAMES G. WILCOXEN * WILCOXEN, WILCOXEN AND PRIMOMO 112 North Fifth Street P.O. Box 357 Muskogee, Oklahoma 74402-0357 (918) 683-6696 |