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United States v. 5.0 Acres of Land

September 30, 2008

UNITED STATES OF AMERICA PLAINTIFF,
v.
5.0 ACRES OF LAND, MORE OR LESS, SITUATED IN GRUNDY COUNTY, STATE OF ILLINOIS, JUDGE JOAN B. GOTTSCHALL STANDARD BANK & TRUST COMPANY, AS TRUSTEE, UNDER THE PROVISIONS OF A TRUST AGREEMENT DATED THE 28TH DAY OF JANUARY 1992, KNOWN AS TRUST NUMBER 13162, AND UNKNOWN OWNERS, DEFENDANT.



The opinion of the court was delivered by: Joan B. Gottschall United States District Judge

MEMORANDUM OPINION AND ORDER

For the reasons set forth below, the court finds that the Government's taking of the accused 5.0 Acres of Land is neither arbitrary nor capricious and is within the Government's enforceable power of eminent domain under the Constitution. The Government is ordered to pay the sum of $199,375 in compensation and severance damages.

I. BACKGROUND

In 1992, George Eck, Sr. ("Eck Sr.") purchased a 195-acre plot of land on the northern bank of the Illinois River in Grundy County, Illinois for use as a recreational, conservation, and hunting preserve for his family. Most of the northern portion of the property is wooded, with the exception of an easement extending from east to west across the property for towers supporting high tension electrical wires. Approximately 60 acres of the land is farmed by a tenant farmer. A railroad embankment belonging to the Elgin, Joliet & Eastern Railroad extends north and south along the eastern boundary of the property. And an approximately 25-acre site in the southwestern corner of the property was developed as a wetlands site for migratory waterfowl, which the Ecks developed for conservation and used for hunting during the annual duck and goose seasons.

The wetlands site consists of a series of ponds at various elevations which can be flooded or drained as needed. Water from a storm sewer can be pumped into the pond situated at the highest elevation, which can then be drained to fill the lower ponds. An aeration system in the ponds can be turned on to prevent the ponds from freezing over during the colder months of the hunting season. In a typical year, the ponds are flooded in the early fall, just prior to the hunting season, which corresponds to the annual southerly migration of waterfowl.*fn1 The ponds are drained in January, after conclusion of the hunting season, and crops are planted on the site in the spring or summer to support the transient waterfowl population on its southerly winter migration.

Also incorporated into the wetlands site are a series of duck blinds, some of them permanent structures based on concrete foundations and some of them moveable blinds. The Eck family, which owns a construction business, designed and built the site themselves with the aid of friends. George Eck, Jr. ("Eck Jr.") invested considerable time in designing the site, traveling to visit other wetlands conservation/hunting sites as far afield as the Delta Waterfowl Research Center in Manitoba, Canada. The result is a site that experts at the trial praised as a model for a privately-owned and developed wetlands site for conservation and hunting purposes.

The Ecks' property is also in the vicinity of the Dresden Island Lock and Dam at mile 272 on the Illinois River. Silting of the river in this vicinity requires periodic dredging in order to keep the river navigable along its length to support commercial traffic traveling between Lake Michigan and the Mississippi. Dredging of the River is performed by the U.S. Army Corps of Engineers (the "Corps of Engineers") in accordance with the relevant portion of its 2000 Dredged Material Management Plan (the "DMMP") for Dredged Material Placement.*fn2

An enduring problem of dredging operations is where to place the dredged material once it has been excavated from the river bed. The DMMP identified and selected six sites as feasible for deposition of dredged materials, identified as Sites 1, 2, 5, 6, 10, and 15. Site 15 comprises a 5-acre strip in the southeastern corner of the Ecks' property (the defendant "5.0 Acres") approximately 260 feet wide and 755 feet deep, paralleling and abutting the railway embankment and oriented with its long axis perpendicular to the river bank and parallel to the embankment. The DMMP noted that dredged material could be moved from barges directly onto the property and moved inland by bulldozers; partial berms would be constructed to contain the dredged materials on the site. Consequently, the Attorney General of the United States, at the request of and in the name of the Corps of Engineers (the "Government"), filed suit to take the 5.0 Acres under the power of eminent domain and to ascertain and award just compensation to the Ecks.

After the publication of the DMPP and prior to the time the Corps of Engineers began these condemnation proceedings, the parties engaged in extensive negotiations.

George Sporer ("Sporer"), the realty specialist employed by the Corps of Engineers who led the negotiations on behalf of the Government until he was deployed to Afghanistan in 2002, testified that when he first looked at the property, in 1997 or 1998, it was all planted in corn, but based on conversations with the Ecks in 2002, he learned that they had acquired the land in order to hunt.*fn3 When Sporer met with the Ecks in Maquoketa in April 2002, he agreed that the Corps of Engineers would try to accommodate some of the Ecks' requests such as possibly erecting fencing (expert testimony at trial established that waterfowl are particularly sensitive to what they can see and require visual isolation from disturbance. Tr. 201. Moreover, while the Corps of Engineers could not agree to a nodredging period, they could agree to dredge in hunting season only when necessary. Indeed, Sporer testified, Illinois law requires precisely that. Sporer Dep. 74. He testified:

Q: Now, when they say that you couldn't agree to when the dredging was, does that refer to Paragraph 2 where they requested a no-dredging period?

A: I didn't say that. I didn't say that we couldn't agree on that. He wanted to do it for ducks and water fowl and what have you. Again, we're required by state law to attempt to do that, but if the Illinois waterway is shut down because it's too shallow the Corps is going to go in there and dredge it out.

Q: So it could have been done--an agreement could be reached where you would dredge under circumstances like that?

A: Well, we normally do, sure.

Q: Right.

A: We try to accommodate it, but you can't say thou shall never, ever do this during duck and fowl season. If you can accommodate it, fine.

Q: Was an alternative proposal for this ever given to the Ecks?

A: Yes. I talked to them about it and they asked me the same question you just asked me. Can we work around the duck and fowl season? And I said, well, of course, we can, but we have no guarantees that we can do that. For a practical matter most of this work--most of their hunting season is in the winter and we don't dredge in the winter, so it's kind of a moot point, but there's no reason that we couldn't have worked (sic) about it, but for them to dictate to us when we could use our own land, unacceptable.

Q:. Could you have come up with an agreement even if you had purchased the land in fee simple that you would try to avoid the duck hunting season--A: Sure.

Id. 93-94.

In this case, unfortunately, no such agreement could be reached between the parties. The Ecks continued to object strenuously to the taking, claiming that the taking was invalid because the Government had acted arbitrarily and capriciously in selecting the site and in its dealings with the Ecks. Moreover, the Ecks claim that the Government's proposed compensation of $80,000 for the property grossly undervalues the 5.0 Acres and the severance damages to the remainder of their property. After a ...


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