United States v. Dorothy Blankinship, United States of America v. Dorothy Blankinship

(concurring and dissenting):

I am in agreement with substantially everything which is said by the majority, except that language which remands to the district court to focus its attention “ . more on that type of marketable public debt security which constitutes a direct obligation of the United States Treasury having a duration approximating the period during which the deficiency was unpaid.”

I am convinced that the district court considered adequate relevant evidence in its determination of what rate of interest was constitutionally required by the just compensation provisions. I cannot say that its finding is clearly erroneous. FRCivP 52(a).

Moreover, I do not agree that the “Seizure of land under the Declaration of Taking Act is an act by the United States by which it substitutes for ownership of land, together with the risks attendant thereto, an obligation of the United States which is free of the risk of default.” [Emphasis supplied.] This analysis is fundamentally unsound: What the United States substitutes for the ownership of land is its obligation to pay the owner just compensation for the property taken. Undue emphasis, as here, upon the monetary returns from…

543 F.2d 1272 UNITED STATES of America, Plaintiff-Appellant, v. Dorothy BLANKINSHIP et al., Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Dorothy BLANKINSHIP et al., Defendants-Appellees. Nos. 75-1704, 75-3722. United States Court of Appeals, Ninth Circuit. Oct. 15, 1976. Carl Strass, Atty. (argued), Dept. of Justice, Washington, D. C., for plaintiff-appellant. Edwin J. Welsh (argued), of Welsh & Winfree, Portland, Or., for defendants-appellees. Before MOORE, * KILKENNY and SNEED, Circuit Judges. SNEED, Circuit Judge: 1 The primary issue presented by these cases is whether the 6 percent interest rate specified by the Declaration of Taking Act, 40 U.S.C. § 258a (1970), is applicable to each taking pursuant thereto without regard to then prevailing interest rates. The United States, the appellant, contends that it is, while the appellees assert otherwise. More particularly, the appellees assert that the rates of 8.5 and 8 percent employed by the trial court in computing the "interest rate required in the period from May 30, 1973 (the date of taking) to date (the date of judgment) to give just compensation" was proper, while the appellant contends…

The primary issue presented by these cases is whether the 6 percent interest rate specified by the Declaration of Taking Act, 40 U.S.C. § 258a (1970), is applicable to each taking pursuant thereto without regard to then prevailing interest rates. The United States, the appellant, contends that it is, while the appellees assert otherwise. More particularly, the appellees assert that the rates of 8.5 and 8 percent employed by the trial court in computing the “interest rate required in the period from May 30, 1973 [the date of taking] to date [the date of judgment] to give just compensation” was proper, while the appellant contends that the trial court should have employed the statutory rate of 6 percent in both cases. These contentions raise the secondary issues of these cases, viz., under what circumstances is a rate greater than 6 percent proper and in what manner are such circumstances established.

As to the primary issue we hold the Fifth Amendment under certain circumstances does require the use of a rate of interest in excess of 6 percent. With respect to the secondary issues, we hold that the determination of whether a proper and reasonable rate in excess of 6 percent is…