B-224653, DEC 18, 1986, 66 COMP.GEN. 157

B-224653, DEC 18, 1986, 66 COMP.GEN. 157

APPROPRIATIONS/FINANCIAL MANAGEMENT - JUDGMENT PAYMENTS - PERMANENT/INDEFINITE APPROPRIATION - PURPOSE AVAILABILITY - REAL PROPERTY - CONDEMNATION USE OF PERMANENT JUDGMENT APPROPRIATION, PROVIDED BY 31 U.S.C. 1304(A), IS INAPPROPRIATE TO PAY JUDGMENT IN FAVOR OF CONGAREE LIMITED PARTNERSHIP IN UNITED STATES V. 14,770.65 ACRES OF LAND, 616 F.SUPP. 1235 (1985) THAT RESULTED FROM CONDEMNATION OF LAND FOR CONGAREE SWAMP NATIONAL MONUMENT BECAUSE LAND ACQUISITION APPROPRIATIONS OF THE ACQUIRING AGENCY HAVE ALWAYS, AS A MATTER OF LAW, BEEN AVAILABLE TO PAY LAND ACQUISITION JUDGMENTS, AND JUDGMENT APPROPRIATION IS AVAILABLE ONLY WHEN PAYMENT IS "NOT OTHERWISE PROVIDED FOR." APPROPRIATIONS/FINANCIAL MANAGEMENT - JUDGMENT PAYMENTS - PERMANENT/ INDEFINITE APPROPRIATION - PURPOSE AVAILABILITY - REAL PROPERTY - CONDEMNATION REQUIRING CONDEMNATION TO BE FUNDED THROUGH ACQUIRING AGENCY'S BUDGET ENABLES CONGRESS TO MAKE INFORMED DECISION WITH RESPECT TO BOTH AGENCY SPENDING LEVELS AND PACE OF LAND ACQUISITION AND RECOGNIZES A CONDEMNATION IS NOT RESULT OF AGENCY WRONGDOING BUT IT A NORMAL PROGRAM ACTIVITY. APPROPRIATIONS/FINANCIAL MANAGEMENT - JUDGMENT PAYMENTS - PERMANENT/INDEFINITE APPROPRIATION - PURPOSE AVAILABILITY - REAL PROPERTY - CONDEMNATION REDWOOD NATIONAL PARK LITIGATION (B-212681(1), SEPT. 27, 1983) IS NOT APPLICABLE BECAUSE REDWOOD LEGISLATION EXPRESSLY PROVIDES FOR USE OF JUDGMENT FUND FOR AMOUNTS IN EXCESS OF AMOUNT DEPOSITED WITH COURT. KLAMATH INDIAN CASE (B-198352, APRIL 18, 1980) IS ALSO DISTINGUISHABLE BECAUSE KLAMATH LEGISLATION DIRECTED LAND BE ACQUIRED BY CONDEMNATION, AND CONGRESS PROVIDED LINE-ITEM APPROPRIATION SPECIFICALLY AND SOLELY FOR KLAMATH CONDEMNATION. LEGISLATIVE HISTORY SHOWED CONGRESS RECOGNIZED APPROPRIATION AS INSUFFICIENT. APPROPRIATIONS/FINANCIAL MANAGEMENT - JUDGMENT PAYMENTS - PERMANENT/ INDEFINITE APPROPRIATION - PURPOSE AVAILABILITY - REAL PROPERTY - CONDEMNATION CONGAREE ACQUISITION IS FUNDED FROM LAND AND WATER CONSERVATION FUND WITH ANNUAL LUMP-SUM APPROPRIATIONS MADE, ALLOCATED AMONG VARIOUS PROJECTS IN COMMITTEE REPORTS, AND THESE ALLOCATIONS DO NOT CREATE LEGALLY BINDING RESTRICTIONS. THEREFORE, "EXHAUSTION OF APPROPRIATION" CITED BY PARK SERVICE HERE REFERS TO ALLOCATION WHICH CAN BE REPROGRAMMED ALTHOUGH PROCESS MAY BE INCONVENIENT. APPROPRIATIONS/FINANCIAL MANAGEMENT - JUDGMENT PAYMENTS - PERMANENT/ INDEFINITE APPROPRIATION - PURPOSE AVAILABILITY - REAL PROPERTY - CONDEMNATION FILING OF DECLARATION OF TAKING BY GOVERNMENT, WHICH VESTS IMMEDIATE TITLE IN UNITED STATES AND IRREVOCABLY COMMITS GOVERNMENT TO PAY RESULTING JUDGMENT, DOES NOT RENDER APPROPRIATION PROCESS UNNECESSARY AND WOULD NOT CREATE ANOTHER LIMITED EXCEPTION TO TRADITIONAL TREATMENT OF LAND ACQUISITION JUDGMENTS. IT IS A DECISION TAKEN BY ACQUIRING AGENCY AND DOES NOT PERMIT ACCESS TO JUDGMENT APPROPRIATION.

THE HONORABLE STROM THURMOND, UNITED STATES SENATE:

THIS IS IN RESPONSE TO YOUR LETTER OF AUGUST 29, 1986, CONCERNING THE AVAILABILITY OF THE PERMANENT JUDGEMENT APPROPRIATION (31 U.S.C. 1304) TO PAY THE JUDGEMENT IN FAVOR OF CONGAREE LIMITED PARTNERSHIP IN THE CASE OF UNITED STATES V. 14770.65 ACRES OF LAND IN THE COUNTY OF RICHLAND, SOUTH CAROLINA, 616 F.SUPP. 1235 (1985). WE HAVE CAREFULLY REVIEWED THE VARIOUS DOCUMENTS SUBMITTED WITH YOUR LETTER AS WELL AS MATERIALS SUBMITTED BY OTHER INTERESTED PARTIES. AS WE WILL EXPLAIN BELOW, IT IS OUR OPINION THAT USE OF THE JUDGEMENT APPROPRIATION WOULD BE INAPPROPRIATE IN THIS CASE.

IN BRIEF, THE JUDGEMENT RESULTED FROM THE CONDEMNATION OF LAND FOR THE CONGAREE SWAMP NATIONAL MONUMENT AS AUTHORIZED BY PUB.L. NO. 94-545 (OCT. 18, 1976), 90 STAT. 2517. THE HISTORY OF THE CONDEMNATION IS SOMEWHAT COMPLICATED AND IS SET FORTH IN DETAIL IN THE DECISION OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA, REPORTED AT 616 F.SUPP. 1235 (1985). THE "JUST COMPENSATION" TO WHICH CONGAREE IS ENTITLED IS THE FAIR MARKET VALUE OF THE LAND IN QUESTION, DETERMINED TO BE $46 MILLION, PLUS INTEREST FROM THE DATE OF TAKING, WHICH THE COURT FOUND TO BE FEBRUARY 23, 1978. APPROXIMATELY $59 MILLION HAS ALREADY BEEN PAID OVER TO CONGAREE FROM APPROPRIATIONS AVAILABLE TO THE NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR. THE "DEFICIENCY," THE SUBJECT OF THE JUDGEMENT IN QUESTION HERE, IS $10,758,283.12 WITH INTEREST FROM FEBRUARY 13, 1986.

THE DISCUSSION PAPER ENCLOSED WITH YOUR LETTER RECOGNIZES THAT "THE NORMAL PROCESS OF LAND ACQUISITION CONTEMPLATES PAYMENT OF JUDGMENTS FROM APPROPRIATED LAND ACQUISITION FUNDS OF THE ACQUIRING AGENCY." SEVERAL POSSIBLE GROUNDS HAVE BEEN SUGGESTED TO SUPPORT DIFFERENT TREATMENT OF THE CONGAREE JUDGEMENT. SPECIFICALLY, IT HAS BEEN SUGGESTED THAT:

1) SIMILAR JUDGMENTS HAVE BEEN PAID FROM THE PERMANENT JUDGEMENT APPROPRIATION IN THE PAST.

2) THE APPROPRIATION PROCESS SHOULD BE UNNECESSARY WHEN THE UNITED STATES HAS BECOME IRREVOCABLY COMMITTED TO AN ACQUISITION THROUGH THE USE OF A DECLARATION OF TAKING.

3) IN VIEW OF THE UNUSUAL FACTS OF THIS CASE, THE DEFICIENCY CAN BE VIEWED AS MORE IN THE NATURE OF AN INVERSE CONDEMNATION AWARD.

WE WILL ADDRESS EACH OF THESE POINTS IN TURN. TO PLACE OUR DISCUSSION IN A MORE USEFUL CONTEXT, HOWEVER, IT MAY BE HELPFUL TO FIRST LAY A MORE GENERAL FOUNDATION.

BACKGROUND

TO UNDERSTAND THE TREATMENT OF THE LAND ACQUISITION JUDGMENTS, IT IS IMPORTANT TO RECOGNIZE THAT THE PERMANENT JUDGEMENT APPROPRIATION WAS NEVER INTENDED TO EXTEND TO ALL JUDGMENTS AGAINST THE UNITED STATES. PRIOR TO 1956, THE MAJORITY OF JUDGMENTS AGAINST THE UNITED STATES COULD BE PAID ONLY UNDER SPECIFIC APPROPRIATIONS. THUS, FOR EXAMPLE, IF SOMEONE OBTAINED A JUDGEMENT AGAINST THE UNITED STATES IN A TORT ACTION UNDER THE FEDERAL TORT CLAIMS ACT OR THE SUITS IN ADMIRALTY ACT, THE JUDGMENT HAD TO BE SUBMITTED TO CONGRESS FOR AN APPROPRIATION. IT COULD NOT BE PAID FROM FUNDS OF THE RESPONDENT AGENCY, REGARDLESS OF HOW MUCH MONEY THE AGENCY MAY HAVE HAD AVAILABLE TO IT. THIS SITUATION WAS SEEN AS UNDESIRABLE AND UNDULY CUMBERSOME AND, IN 1956, CONGRESS ENACTED THE PERMANENT JUDGMENT APPROPRIATION, BASED UPON A GENERAL ACCOUNTING OFFICE RECOMMENDATION. THE JUDGMENT APPROPRIATION ORIGINALLY APPLIED ONLY TO JUDGMENTS NOT IN EXCESS OF $100,000, BUT THIS LIMITATION WAS REMOVED IN 1977. SINCE THE JUDGMENT APPROPRIATION IS BOTH PERMANENT AND INDEFINITE, IT IS NOT SUBJECT TO THE ANNUAL AUTHORIZATION AND APPROPRIATION PROCESS. IT IS ESSENTIALLY PERMANENT AUTHORIZATION TO DRAW MONEY FROM THE GENERAL FUND TO THE TREASURY.

HOWEVER, IT WAS NEVER THE INTENT OF THE JUDGMENT APPROPRIATION TO SHIFT THE SOURCE OF FUNDS OF THOSE TYPES OF JUDGMENTS WHICH COULD BE PAID FROM AGENCY FUNDS. TO PRESERVE THE "STATUS QUO" WITH RESPECT TO JUDGMENTS WHICH COULD BE PAID FROM AGENCY FUNDS, THE JUDGMENT APPROPRIATION WAS MADE AVAILABLE ONLY WHERE PAYMENT WAS "NOT OTHERWISE PROVIDED FOR." 31 U.S.C. 1304(A)(1). IF THIS WERE NOT THE CASE, AGENCIES WOULD BE IN A POSITION TO AVOID CERTAIN VALID OBLIGATIONS BY USING THE "BACK DOOR" OF THE JUDGMENT APPROPRIATION, AND TO THIS EXTENT THEIR BUDGET REQUESTS WOULD PRESENT TO THE CONGRESS AN ARTIFICIALLY LOW PICTURE OF THE TRUE COST OF THEIR ACTIVITIES TO THE TAXPAYER.

PAYMENT IS "OTHERWISE PROVIDED FOR" IF SOME APPROPRIATION OR FUND UNDER THE CONTROL OF THE AGENCY INVOLVED IS LEGALLY AVAILABLE TO PAY THE JUDGMENT IN QUESTION. THUS, THE APPLICATION OF THE "OTHERWISE PROVIDED FOR" CONCEPT TERMS ON THE QUESTION OF LEGAL AVAILABILITY OF THE APPROPRIATION RATHER THAN SUFFICIENCY OF FUNDS.

FOR PURPOSES OF THE AVAILABILITY OF THE JUDGMENT APPROPRIATION, LAND ACQUISITION JUDGMENTS HAVE ALWAYS BEEN VIEWED AS "OTHERWISE PROVIDED FOR." THE REASON IS THAT LAND ACQUISITION APPROPRIATIONS HAVE ALWAYS, AS A MATTER OF LAW, BEEN AVAILABLE TO PAY LAND ACQUISITION JUDGMENTS. AGENCY DOES NOT NEED SPECIFIC AUTHORITY TO RESORT TO CONDEMNATION. VIRTUE OF 40 U.S.C. 257, IF AN AGENCY AUTHORITY TO ACQUIRE IT BY CONDEMNATION AS WELL. CONDEMNATION NECESSARILY INVOLVES COURT ACTION. THUS, LAND ACQUISITION APPROPRIATIONS ARE AVAILABLE TO PAY CONDEMNATION JUDGMENTS, UNLESS EXPRESSLY PRECLUDED, REGARDLESS OF WHETHER THE TERM "CONDEMNATION" ACTUALLY APPEARS IN THE APPROPRIATION.

TO REINSTATE, THE JUDGMENT APPROPRIATION WAS NEVER INTENDED TO APPLY TO LAND ACQUISITION JUDGMENTS BECAUSE THESE JUDGMENTS CAN BE PAID FROM APPROPRIATIONS OF THE ACQUIRING AGENCY.

THE TREATMENT OF CONDEMNATION JUDGMENTS IS NOT ONLY A MATTER OF LAW, AS OUTLINED ABOVE, BUT IS ALSO BASED ON POLICY THAT WE CONSIDER TO BE FUNDAMENTALLY SOUND. EMINENT DOMAIN-- THE TAKING OF PRIVATE PROPERTY-- IS ONE OF THE MOST FAR-REACHING OF GOVERNMENTAL POWERS AND AFFECTS ONE OF THE MOST FUNDAMENTAL RIGHTS OF THE AMERICAN CITIZEN. AS SUCH, WE DEEM IT ESSENTIAL THAT EXERCISE OF THE POWER BY A FEDERAL AGENCY BE SUBJECT TO THE STRICT CONTROL OF THE CONGRESS THROUGH THE APPROPRIATION PROCESS. REQUIRING CONDEMNATIONS TO BE FUNDED THROUGH THE BUDGET OF THE ACQUIRING AGENCY ENABLES THE CONGRESS TO MAKE MORE INFORMED DECISIONS WITH RESPECT TO BOTH AGENCY SPENDING LEVELS AND THE PACE OF LAND ACQUISITIONS.

IN ADDITION, AS WE HAVE POINTED OUT IN THE PAST, CONDEMNATION JUDGMENTS ARE MATERIALLY DIFFERENT FROM THE TYPES OF JUDGMENTS ROUTINELY PAID FROM THE JUDGMENT APPROPRIATION. A CONDEMNATION JUDGMENT IS NOT THE RESULT OF AN AGENCY'S HAVING DONE SOMETHING WHICH A COURT FINDS TO BE WRONG. RATHER, CONDEMNATION IS NOTHING MORE THAN THE EXERCISE BY THE ACQUIRING AGENCY OF A NORMAL PROGRAM ACTIVITY, AND AS SUCH SHOULD BE FUNDED LIKE OTHER PROGRAM ACTIVITY, AND AS SUCH SHOULD BE FUNDED LIKE OTHER PROGRAM ACTIVITIES, THAT IS, THROUGH THE APPROPRIATION PROCESS.

PRIOR JUDGMENTS PAID FROM THE JUDGMENT APPROPRIATION

IT IS SUGGESTED THAT THE CONGAREE JUDGMENT CAN BE PAID FROM THE JUDGMENT APPROPRIATION ON THE BASIS OF PRECEDENT ESTABLISHED IN THE REDWOOD NATIONAL PARK LITIGATION (B-212681(1), SEPTEMBER 27, 1983) AND IN THE CONDEMNATION OF CERTAIN KLAMATH INDIAN LANDS (B-198352, APRIL 18, 1980). WE THINK BOTH SITUATIONS ARE READILY DISTINGUISHABLE.

IT IS TRUE THAT OUR 1983 REDWOOD OPINION CONCLUDED THAT THE JUDGMENT APPROPRIATION WAS AVAILABLE FOR FINAL CONDEMNATION JUDGMENTS OVER AND ABOVE AMOUNTS PROVIDED IN LAND ACQUISITION APPROPRIATIONS. THE DIFFERENCE, HOWEVER, IS THAT THE REDWOOD LEGISLATION EXPRESSLY PROVIDES FOR USE OF THE JUDGMENT APPROPRIATION FOR AMOUNTS IN EXCESS OF THE AMOUNT DEPOSITED WITH THE COURT (16 U.S.C. 79G(B)). IF ANYTHING, THE REDWOOD CASE SUPPORTS OUR POSITION IN THIS CASE BY DEMONSTRATING THAT CONGRESS, WHEN IT HAS DEEMED ACCESS TO THE JUDGMENT APPROPRIATION DESIRABLE, HAS MADE EXPRESS PROVISION TO THAT EFFECT IN THE ACQUISITION LEGISLATION.

THE KLAMATH CASE IS ANOTHER CONDEMNATION JUDGMENT WHICH WE CERTIFIED FOR PAYMENT FROM THE JUDGMENT APPROPRIATION, BUT IT WAS ALSO SIGNIFICANTLY DIFFERENT FROM THIS CASE. THE KLAMATH LEGISLATION DID NOT MERELY AUTHORIZE ACQUISITION OF THE LAND; IT DIRECTED THAT THE LAND BE ACQUIRED BY CONDEMNATION. MORE IMPORTANTLY, CONGRESS PROVIDED A LINE-ITEM APPROPRIATION SPECIFICALLY AND SOLELY FOR THE KLAMATH CONDEMNATION. AS WE STATED IN OUR OPINION IN THAT CASE, "THE FUNDS COULD NOT HAVE BEEN EXHAUSTED BY ANYTHING BUT THE CONDEMNATION OF THE KLAMATH FOREST LANDS." THESE FACTS, COUPLED WITH LEGISLATIVE HISTORY INDICATING A RECOGNITION THAT THE AMOUNT APPROPRIATED WOULD NOT BE SUFFICIENT TO COVER THE FINAL JUDGMENT, CAUSED US TO CONCLUDE THAT USE OF THE JUDGMENT APPROPRIATION WOULD NOT OFFEND THE ESTABLISHED STRUCTURE OF FUNDING LAND ACQUISITIONS.

UNLIKE THE KLAMATH SITUATION, THE CONGAREE ACQUISITION IS FUNDED FROM THE LAND AND WATER CONSERVATION FUND. ANNUAL LUMP-SUM APPROPRIATIONS ARE MADE TO THIS FUND, ALLOCATED AMONG VARIOUS PROJECTS IN COMMITTEE REPORTS. IS A FUNDAMENTAL PROPOSITION, LONG RECOGNIZED BY THE CONGRESS, THAT THESE ALLOCATIONS DO NOT CREATE LEGALLY BINDING RESTRICTIONS. SEE, FOR EXAMPLE, 55 COMP.GEN. 307 (1975); 55 COMP.GEN 812 (1976). THUS, THE "EXHAUSTION OF APPROPRIATIONS" CITED BY THE PARK SERVICE REFERS TO THESE ALLOCATIONS, NOT TO LEGALLY AVAILABLE APPROPRIATIONS.

WE UNDERSTAND THAT REPROGRAMMING MAY INVOLVE A MEASURE OF INCONVENIENCE. ITS IMPORTANCE HERE LIES IN THE FACT THAT A REPROGRAMMING, IF MADE, WILL PROVIDE THE REQUIRED FUNDS WITHOUT A NECESSARY INCREASE IN OUTLAYS, WHEREAS IN KLAMATH THERE WAS NO WAY TO AVOID AN INCREASE IN OUTLAYS.

EFFECT OF DECLARATION OF TAKING

SETTING ASIDE FOR THE MOMENT THE QUESTION OF THE SO-CALLED "INVERSE CONDEMNATION," LAND CONDEMNATION CAN PROCEED IN ONE OF TWO WAYS. THE GOVERNMENT CAN, UNDER 40 U.S.C. 258A, FILE A DECLARATION OF TAKING, IN WHICH EVENT TITLE VESTS IMMEDIATELY IN THE UNITED STATES AND THE UNITED STATES BECOMES IRREVOCABLY COMMITTED TO PAY THE RESULTING JUDGMENT. ALTERNATIVELY, THE GOVERNMENT CAN PROCEED WITHOUT FILING A DECLARATION OF TAKING (SOMETIMES CALLED A "COMPLAINT ONLY CONDEMNATION), IN WHICH EVENT THE RESULTING JUDGMENT IS MERELY A DETERMINATION OF JUST COMPENSATION. DOES NOT OBLIGATE THE UNITED STATES AND IS ESSENTIALLY AN OFFER WHICH THE GOVERNMENT CAN ACCEPT (BY TENDERING PAYMENT) OR REJECT (BY ABANDONING THE PROCEEDING).

WE CANNOT AGREE THAT THE USE OF A DECLARATION OF TAKING SHOULD BE VIEWED AS ANOTHER EXCEPTION AND SHOULD SOMEHOW RENDER THE APPROPRIATION PROCESS UNNECESSARY. OUR DISCUSSION THUS FAR HAS PROCEEDED ON THE PREMISE THAT WE ARE TALKING ABOUT JUDGMENTS OF THE TYPE WHICH OBLIGATE THE UNITED STATES-- DECLARATION OF TAKING CASES (AS IN THE KLAMATH CASE) OR JUDGMENTS IN LEGISLATIVE TAKING SITUATIONS (AS IN THE KLAMATH CASE) OR JUDGMENTS IN LEGISLATIVE TAKING SITUATIONS (AS IN THE REDWOOD CASE). WE HAVE NEVER BEEN CONCERNED WITH "COMPLAINT ONLY' JUDGMENTS AS NO ONE HAS YET SUGGESTED THAT THESE COULD BE PAID FROM THE JUDGMENT APPROPRIATION. THE POINT IS THAT USING THE JUDGMENT AS NO ONE HAS YET SUGGESTED THAT THESE COULD BE PAID FROM THE JUDGMENT APPROPRIATION. THE POINT IS THAT USING THE JUDGMENT APPROPRIATION IN DECLARATION OF TAKING CASES WOULD NOT MERELY CREATE ANOTHER LIMITED EXCEPTION TO THE TRADITIONAL TREATMENT OF LAND ACQUISITIONS. IT WOULD DRASTICALLY ALTER THE WAY THOSE JUDGMENTS ARE PAID, WITH BUDGETARY CONSEQUENCES WE THINK ARE HIGHLY UNDESIRABLE.

A DECLARATION OF TAKING IS NOT FORCED ON THE GOVERNMENT BY THE LANDOWNER OR THE COURT. IT IS A DECISION MADE BY THE ACQUIRING AGENCY (WITH COMMITTEE CONSENT IN THE CASE OF THE PARK SERVICE). TO PERMIT ACCESS TO THE GENERAL FUND OF THE TREASURY THROUGH THE JUDGMENT APPROPRIATION IN DECLARATION OF TAKING CASES WOULD RENDER CONGRESSIONAL CEILINGS ON LAND ACQUISITION MEANINGLESS, AND WOULD LARGELY REMOVE LAND ACQUISITION FROM ACCOUNTABILITY TO THE CONGRESS. KNOWING THAT IT HAD UNLIMITED ACCESS TO FUNDS, AN ACQUIRING AGENCY WOULD HAVE NO INCENTIVE TO OBTAIN REALISTIC APPRAISALS, TO PRESENT REALISTIC BUDGET REQUESTS TO THE CONGRESS, OR, IN SITUATIONS AFFORDING DISCRETION, TO RESTRICT ITS USE OF THE EMINENT DOMAIN POWER TO THE LEVELS PRESCRIBED BY CONGRESS THROUGH THE AUTHORIZATION AND APPROPRIATION PROCESS. WHILE CONGRESSIONAL CONTROL THROUGH THE APPROPRIATION PROCESS IS, IN OUR VIEW, ALWAYS A MATTER OF PRIMARY IMPORTANCE, IT IS ALL THE MORE VITAL IN TIMES WHEN BUDGETARY CONSTRAINTS REQUIRE THAT ALL FEDERAL SPENDING BE SUBJECT TO CLOSE SCRUTINY.

INVERSE CONDEMNATION THEORY

THIS ISSUE WAS NOT MENTIONED IN YOUR LETTER, BUT HAS BEEN RAISED BY OTHER PARTIES INTERESTED IN THE CASE. WE ADDRESS IT BRIEFLY HERE FOR THE SAKE OF COMPLETENESS. WHILE THE DECLARATION OF TAKING WAS FILED ON FEBRUARY 22, 1980, THE PARK SERVICE HAD ACTUALLY TAKEN POSSESSION OF THE LAND, WITH COURT APPROVAL, TWO YEARS EARLIER ON FEBRUARY 23, 1978. THE THRUST OF THE DISTRICT COURT'S DECISION AT 616 F.SUPP. 1235 WAS THAT, FOR PURPOSES OF DETERMINING JUST COMPENSATION, THE DATE OF TAKING WAS FEBRUARY 23, 1978, AND INTEREST ON THE FAIR MARKET VALUE SHOULD RUN FROM THAT DATE. IT HAS BEEN SUGGESTED TO US THAT THE "CONDEMNATION" SHOULD BE VIEWED AS ENCOMPASSING ONLY THAT PORTION OF THE PROCEEDINGS STARTING WITH THE DECLARATION OF TAKING, AND THAT THE "DAMAGES" FOR THE PRECEDING TWO YEARS OF POSSESSION CAN BE REGARDED AS MORE IN THE NATURE OF AN INVERSE CONDEMNATION. (INVERSE CONDEMNATION JUDGMENTS ARE GENERALLY PAID FROM THE JUDGMENT APPROPRIATION, EXCEPT WHERE ACTIONS OF AN AGENCY HAVE, EITHER INTENTIONALLY OR UNINTENTIONALLY, "FORCED" THE LANDOWNER TO SUE AND THE RESULT WOULD BE CLEAR AUGMENTATION OF THE AGENCY'S LAND ACQUISITION APPROPRIATIONS. FOR AN EXAMPLE OF SUCH A CASE, SEE ALTHAUS V. UNITED STATES, 7 CL.CT. 688 (1985).)

AS TO THE POSSIBLE APPLICATION OF AN INVERSE CONDEMNATION THEORY TO THE CONGAREE CASE, IT SHOULD SUFFICE TO NOTE THAT THE DISTRICT COURT EXPRESSLY REJECTED THIS APPROACH. THE COURT NOTED THAT "BOTH LITIGANTS WERE CONCERNED THAT THE COURT MIGHT INCORRECTLY ENGAGE IN AN INVERSE CONDEMNATION' ANALYSIS TO DECIDE THE SUBJECT CASE," AND EMPHASIZED THAT "THIS COURT IS EXPRESSLY NOT BASING ITS DECISION ON AN INVERSE TAKING THEORY." 616 F.SUPP. AT 1259, N. 42.

IN CONCLUSION, ALTHOUGH THERE HAVE BEEN EXCEPTIONS BASED ON THE PARTICULAR STATUTES INVOLVED, IT REMAINS OUR POSITION THAT THE PERMANENT JUDGMENT APPROPRIATION SHOULD NOT BE USED TO FUND LAND ACQUISITIONS. THE CONGAREE CASE, WHILE SOMEWHAT MORE COMPLICATED FACTUALLY, IS IN ESSENCE A TYPICAL LAND CONDEMNATION, AND DIFFERS SIGNIFICANTLY FROM THE FEW PRIOR CASES IN WHICH WE HAVE APPROVED PAYMENT FROM THE JUDGMENT APPROPRIATION. IT IS OUR OPINION THEREFORE, FOR THE REASONS SET FORTH, THAT USE OF THE JUDGMENT APPROPRIATION IN THIS CASE WOULD BE INAPPROPRIATE.