FOR PUBLICATION


ATTORNEY FOR APPELLANTS:                    ATTORNEYS FOR APPELLEE:

RUDOLPH W. SAVICH                           GREGORY F. ZOELLER
Bloomington, Indiana                        Attorney General of Indiana

                                            KATHY BRADLEY
                                            Deputy Attorney General
                                            Indianapolis, Indiana
                                                                          FILED
                                                                      Oct 11 2012, 8:30 am


                            IN THE                                            CLERK
                                                                            of the supreme court,
                                                                            court of appeals and
                                                                                   tax court

                  COURT OF APPEALS OF INDIANA

WILLIAM A. BOYD and JANICE ANN BOYD,        )
                                            )
     Appellants-Defendants,                 )
                                            )
            vs.                             )       No. 28A01-1203-PL-108
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                   APPEAL FROM THE GREENE SUPERIOR COURT
                        The Honorable Dena A. Martin, Judge
                           Cause No. 28D01-1109-PL-125



                                 October 11, 2012


                           OPINION - FOR PUBLICATION


SHEPARD, Senior Judge
       William and Janice Boyd challenge the State’s acquisition of their property for use

in constructing Interstate 69 through southwest Indiana.

       They contend that various federal environmental statutes applicable to federally-

assisted projects have not been satisfied.        Compliance with these environmental

protections is reviewable during both administrative and judicial proceedings at various

stages of a project.    State and federal agencies and the courts have found I-69 in

compliance at multiple steps along the way.

       Because none of the Boyds’ claims are justiciable in eminent domain proceedings,

we affirm the taking.

                        FACTS AND PROCEDURAL HISTORY

       In September 2011, the Indiana Department of Transportation (“the State”) filed a

complaint to appropriate for construction of I-69 certain portions of real estate in Greene

County owned by the Boyds. The complaint noted that the State had offered the Boyds

$51,700 for the land but that the parties had been unable to agree on a price.

       The Boyds objected to the taking on grounds that: (1) the State violated various

federal laws; (2) the State’s offer to purchase was deficient; and (3) the State sought to

acquire more property than necessary. The State moved to strike the objections, the

Boyds opposed the motion, and the State replied.

       The trial court struck the objections, condemned the property, and appointed

appraisers to determine the amount of just compensation due the Boyds. The Boyds now

appeal.



                                              2
                               DISCUSSION AND DECISION

A. The Environmental Questions.

       The taking of private property for public purposes like roads and schools has

historically been treated, constitutionally speaking, as a matter consigned to legislative

judgment.1

       The courts are not to infringe upon the administrative act of determining the

necessity or reasonableness of a taking. Indianapolis Power & Light Co. v. Barnard, 175

Ind. App. 308, 371 N.E.2d 408 (1978). Instead, judicial review is limited to whether the

condemnation proceedings were legal, whether the condemnor had the authority to

condemn the property, and whether the property was to be taken for a public purpose.

State ex rel. Ind. Dep’t of Conservation v. Barber, 246 Ind. 30, 200 N.E.2d 638 (1964).

       Put another way, courts may inquire into the necessity of a taking only where the

landowner produces evidence of bad faith, fraud, capriciousness, or illegality on the

condemnor’s part, State v. Collom, 720 N.E.2d 737 (Ind. Ct. App. 1999), such as “where

an attempt is made to show that the property taken will not be used for a public purpose,

or the proceeding is a subterfuge to convey the property to a private use,” Cemetery Co.

v. Warren Sch. Twp. of Marion Cnty., 236 Ind. 171, 139 N.E.2d 538, 546 (1957).

       The Boyds contend that their objections fall within this limited judicial arena,

saying the State acted illegally and in bad faith by taking land for a highway project that

does not adequately comply with the National Environmental Policy Act, the Department


1
  Randall T. Shepard, Land Use Regulation in the Rehnquist Court: The Fifth Amendment and Judicial
Intervention, 38 Cath. U. L. Rev. 847, 853-57 (1989).
                                                3
of Transportation Act, the Clean Air Act, and the Endangered Species Act. To specify

but one of their claims, they argue that the State was required to prepare a supplemental

environmental impact statement based on new information about the “appearance of

White Nose Syndrom[e,] which poses a significant threat to the endangered Indiana Bat

in or near the I-69 project.” Appellants’ Br. p. 22. Because the State has not acted in

accord with these federal statutes, the Boyds’ argument goes, the highway project is

illegal and the trial court should not have condemned the property.

       The Boyds’ complaint that I-69 does not comply with federal environmental

statutes, however, is not a question that may be litigated in connection with this

condemnation proceeding, the purpose of which is solely to determine whether the State

may appropriate the Boyds’ property for the project. See J.M. Foster Co. v. N. Ind. Pub.

Serv. Co., 164 Ind. App. 72, 326 N.E.2d 584, 589 (1975) (determining that environmental

impact report requirement of state law was “foreign to proceedings for condemnation”);

see also United States v. 0.95 Acres of Land, 994 F.2d 696, 699 (9th Cir. 1993) (“NEPA

cannot be used as a defense to the condemnation action.”); United States v. 416.81 Acres

of Land, 514 F.2d 627, 631 (7th Cir. 1975) (“The only question for judicial review in a

condemnation proceeding is whether the purpose for which property was taken is for a

Congressionally authorized public use.”).2

       This is hardly to say that such matters are never justiciable. The Congress has

affirmed important environmental considerations in enacting statutes like NEPA and


2
  A different panel of this Court recently held the same with respect to other owners of property
condemned for the I-69 project. See Knott v. State, 973 N.E.2d 1259, 1264-65 (Ind. Ct. App. 2012).
                                                4
Section 4(f) of the DOT Act, which require the Secretary of Transportation to protect the

natural and built environment in the course of carrying out the Department’s mission.

While the Secretary necessarily delegates these duties to other federal officers and state

actors, the Secretary is necessarily responsible for assuring that these obligations have

been faithfully executed for projects involving federal funds or some other major federal

action. Such determinations have long been subject to challenge at the time they are

made, against the appropriate officer, sometimes with very dramatic results. See, e.g.,

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed.

2d 136 (1971).

       Indeed, issues of this very sort regarding I-69 have been contested in federal

litigation. See Hoosier Envtl. Council v. U.S. Army Corps of Eng’rs, No. 1:11-cv-0202-

LJM-DML, 2012 WL 3028014 (S.D. Ind. July 24, 2012); Citizens for Appropriate Rural

Rds., Inc. v. LaHood, No. 1:11-cv-1031-SEB-DML, 2012 WL 442747 (S.D. Ind. Feb. 10,

2012); Hoosier Envtl. Council v. U.S. Dep’t of Transp., No. 1:06-cv-1442-DFH-TAB,

2007 WL 4302642 (S.D. Ind. Dec. 10, 2007).

       The Boyds’ present challenge is really to the legality of the project, rather than to

the legality of the taking. This state condemnation action is not a vehicle through which

such claims may be litigated or relitigated.

B. The Offer to Purchase.

       The Boyds also have a claim relating to the statutory requirement that a public

condemnor must offer to purchase the property before it files a complaint for

appropriation. Acknowledging that there was such an offer, they argue that the State’s

                                               5
offer to purchase was improperly delivered and did not include all of the real estate

interests it later sought to appropriate. We need not address the delivery or scope of the

offer because the threshold question is whether the State was actually required to prove

that it made an offer.

       To be sure, Indiana Code section 32-24-1-5(a) (2006) requires such an offer, but

the Code also says that INDOT need not prove in a condemnation action that an offer was

made. Ind. Code § 32-24-1-13(a) (2002). Examining these two provisions, the Supreme

Court has concluded that they may work harmoniously: while INDOT is required to

make an offer, it is not required to prove that it did so. See Burd Mgmt., LLC v. State,

831 N.E.2d 104, 109 (Ind. 2005).

       The Boyds nonetheless argue that Section 13(a) means only that INDOT’s failure

to perform the condition precedent of making an offer to purchase must be raised by the

landowner as an affirmative defense, rather than something INDOT must prove in every

proceeding. Appellants’ Br. p. 30. They cite no authority on this point, and we think this

proposition cannot be inferred from Section 13(a), which states straightforwardly that

INDOT “is not required to prove that an offer of purchase was made to the property

owner in an action under this article.” We conclude the Supreme Court settled this issue

in Burd Management.

C. The Extent of the Taking.

       Finally, the Boyds contend that the State condemned more property than necessary

for the improvement project. Specifically, they argue that the area to be taken is over 400

feet in width even though the complaint states that “[t]he right of way will be about 200

                                            6
feet wide, except where additional width will be required for construction.” Appellants’

App. pp. 24, 123. They also question the necessity of taking a 0.6 acre triangle of

property that they say is outside the proposed right of way.

       Courts may not substitute their judgment for that of the condemning authority

regarding what is needed to accomplish its purpose. See Collom, 720 N.E.2d at 742

(reversing denial of appropriation where court second-guessed necessity of taking). The

Boyds do not argue that the State fraudulently appropriated the land for a private purpose.

Rather, they claim only that the State does not need the amount of land condemned for

the I-69 project. This is not a proper subject for judicial review. See Wampler v. Trs. of

Ind. Univ., 241 Ind. 449, 172 N.E.2d 67, 70 (1961) (no defense in eminent domain

proceedings that “a quantity of land less than that described in the complaint would

suffice”).

       In support of their assertion that they are entitled to challenge the extent of the

taking, the Boyds cite Country Estates, Inc. v. Northern Indiana Public Service Co., 254

Ind. 108, 258 N.E.2d 54 (1970), in which the Supreme Court determined that fifty feet of

the proposed taking was for a remote and speculative use. That case, however, involved

condemnations by a public utility, which must have either a present immediate need or a

fair and reasonable future need for the real estate it seeks to acquire. See Ellis v. Pub.

Serv. Co. of Ind., Inc., 168 Ind. App. 269, 342 N.E.2d 921 (1976). Country Estates is

inapplicable here.




                                             7
                                    CONCLUSION

       None of the Boyds’ claims are reviewable in eminent domain proceedings. We

therefore affirm the trial court.

MATHIAS, J., and CRONE, J., concur.




                                        8
