United States v. 129.97 Acres of Land

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 14 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Counter- Defendant-Appellee, No. 99-4122 v. (D.C. No. 97-CV-95) (D. Utah) 129.97 ACRES OF LAND, MORE OR LESS, SITUATED IN DAVIS COUNTY, STATE OF UTAH; EDWIN M. HIGLEY; CARL BOWN; B.C. PROPERTIES; MTGLQ INVESTORS,

Defendants-Appellees,

LYNN A. JENKINS,

Defendant-Counter- Claimant-Appellant.

ORDER AND JUDGMENT *

Before KELLY , HENRY , and MURPHY , Circuit Judges.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Plaintiff Lynn A. Jenkins appeals from several orders relating to the United

States’ condemnation of certain land in Davis County, Utah. We had abated the

appeal on jurisdictional grounds because there was an outstanding Fed. R. Civ. P.

59(e) motion, which Jenkins filed after he filed his notice of appeal. The district

court subsequently denied that motion, and we now have jurisdiction pursuant to

28 U.S.C. § 1291.

On August 26, 1997, the United States filed a complaint in condemnation

along with a declaration of taking to acquire the Davis County property. The

action sought to enforce an option agreement negotiated between the purported

property owner, Edward Higley, and The Nature Conservancy under which Higley

agreed to sell the property to the Nature Conservancy for $133,250.50. The

agreement, which became effective on April 3, 1995, was subsequently assigned

to the United States though the Bureau of Reclamation, which exercised the

option on March 25, 1996. Higley was unable or unwilling to provide clear title

by August 5, 1996, and the United States therefore brought this action.

-2- Jenkins asserted a claim of ownership in the property, and was later added

as a defendant. He filed an answer and asserted a counterclaim alleging, inter

alia, that the option agreement was obtained through fraudulent means. He also

sought an independent prosecutor to investigate the alleged fraud involving the

option agreement. The district court denied his motion to transfer the case to the

United States Court of Federal Claims and his request for an independent

prosecutor, and granted the government’s motion to dismiss his counterclaim.

The court subsequently granted the government’s motions for summary judgment

against Jenkins and to enforce the option agreement, concluding that as of the

date of taking (August 26, 1977), Jenkins had no ownership interest in the

property and, therefore, no standing to remain in the case, and that there was no

evidence to support any fraud allegations involving the option agreement.

We review the district court’s grant of summary judgment and its dismissal

of Jenkins’ counterclaim de novo. See Simms v. Oklahoma ex rel. Dep’t of

Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir.), cert.

denied , 120 S. Ct. 53 (1999); Sutton v. Utah State Sch. for the Deaf & Blind ,

173 F.3d 1226, 1236 (10th Cir. 1999). On appeal, Jenkins raises a variety of

arguments focusing primarily on the district court’s determination that he did not

have an ownership interest in the property prior to the government’s declaration

of taking, on his claim that the option was fraudulently obtained, and on alleged

-3- procedural irregularities by the government. We have fully considered all of the

arguments Jenkins raises on appeal and reviewed the record, and we find his

arguments unpersuasive. For substantially the same reasons as stated by the

district court in its May 3, 1999 order granting summary judgment against Jenkins

and its March 31, 1998 order dismissing his counterclaim and denying his motion

to transfer and to appoint an independent prosecutor, we AFFIRM the district

court’s judgment. The mandate shall issue forthwith.

.

Entered for the Court

Michael R. Murphy Circuit Judge

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