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Former Supreme Court Justice O'Connor to mediate 60 year-old Kentucky land dispute.

Tuesday, January 30, 2007 O'Connor may mediate dispute Kentucky land case could mean millions By Jim Adams jadams@courier-journal.com The Courier-Journal Retired U.S. Supreme Court Justice Sandra Day O'Connor has told a federal court that she is willing to mediate a decades-old dispute over the government's taking of nearly 36,000 acres in Western Kentucky for an Army training camp during World War II. More than $30 million appears to be at stake in the highly unusual case, in which about 1,000 former landowners and heirs complain that the federal government wrongly benefited from the sale of oil, gas, coal and other mineral rights under the land of the old Camp Breckinridge. The camp sat astride Union, Webster and Henderson counties. The dispute was aired most recently in a class-action suit before Judge Susan G. Braden of the U.S. Court of Federal Claims in Washington, D.C. To encourage a settlement, Braden proposed in December that Fred J. Fielding, who was counsel to President Ronald Reagan from 1981 to 1986, serve as mediator. But on Jan. 9, President Bush announced that Fielding was returning to the White House as his general counsel. Braden then asked O'Connor to consider mediating the case and, according to an order Braden entered last Friday, the recently retired justice agreed to do so. Multiple legal issues remain unresolved, and Braden's order proposes that O'Connor serve as mediator "for a term of 120 days to ascertain whether a settlement may be achieved." Asked about the 120-day time period, William T. Griggs of Morganfield -- whose family's 250-acre Union County farm was taken by the government and has since been mined for coal -- said: "That sounds like a long time, but I understand that it takes a long time, there's a lot to do there. … When you've waited 60-some years, you get kind of impatient." Griggs was 18 when his family's property was taken for about $70 an acre, or roughly $17,500. Asked what she thinks of O'Connor's role in the case, Ruby Higginson of Evansville, Ind. -- who was a high schooler in the 1940s when her family's 803-acre farm was taken for about $67,000 -- said, "I just know that she is a very outstanding individual and we are happy that we have progressed this far." Attorney Mark Stephen Pitt of Louisville, who represents plaintiffs in the case, said, "Justice O'Connor's willingness to become involved demonstrates the importance of this case and the unusual nature of the case, and the need that it be resolved, if possible, sooner rather than later." The Justice Department would not comment on the judge's proposal that O'Connor serve as mediator. She could not be reached yesterday. Braden has given both sides until Feb. 15 to consent or object to O'Connor's appointment. Pitt said the plaintiffs intend to file their consent soon. Early in World War II, the government decided the farmland immediately east of Morganfield was prime real estate for an Army training site. So between 1942 and 1944, it initiated six condemnation actions in U.S. District Court, taking the property of hundreds of landowners. The government paid them about $3.1 million for 35,849 acres, and Camp Breckinridge eventually held as many as 45,000 soldiers at a time. By the 1950s, if not earlier, the government became aware of substantial oil, gas and coal reserves beneath the property -- and by the 1960s was selling off the mineral rights and the land itself. The former landowners complained that the government sold the land in blocks too large for average individuals to buy. Such an action, they claim, violated verbal understandings at the time of the sales that the former owners would have the option of buying back their farms, should the government ever sell the property. In addition, they argue that it was unfair for the government to profit as it did from more than $30 million in the sale of mineral rights. The first legal action, in the mid-1960s in federal court, was dismissed. In 1968, the former landowners formed the Breckinridge Land Committee, which still meets on the third Friday of each month in the county courthouse annex in Morganfield. It began lobbying for Congress to intervene. In 1993, the Senate referred the case to the Court of Federal Claims. Braden, who took the case over in 2003, held in 2005 that the contracts under which the government acquired the property were based on a mutual mistake -- "that no coal, gas, oil or other mineral deposits existed under the condemned properties" worth extracting. As a result, the government was "unjustly enriched," and the "available remedy" is restitution, she wrote. Braden's report in December set out about $34 million that the government "received from the sale, lease or easement of coal, oil, gas and other mineral rights that were previously the property of the plaintiffs in this case." In addition, she wrote, the government sold surface rights to 31,963 acres between 1956 and 1968 for just under $6 million. "It is a tragedy that the original claimants in this case apparently are now dead, without a final resolution of this matter," she wrote. Reporter Jim Adams can be reached at (502) 582-4199.

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