Court of Federal Claims | Federal Circuit

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We’re going to wrap up 2010 with a post on our favorite topic, inverse condemnation. While the Ninth Circuit ended the year badly by making hash of both Penn Central and Palazzolo in a rent control case, other federal courts of appeals aren’t so predictably off-key. The Federal Circuit, which hears appeals from the U.S. Court of Federal Claims (the court with jurisdiction to hear most claims against the federal government for just compensation), is one in which a property owner has a decent shot at getting a court that understands the issues. 

The Federal Circuit has a “bright-line rule” that the six year statute of limitations begins to run on a physical takings claim in a rail-to-trail case when a property owner’s state law reversionary interest is blocked. Caldwell v. United States, 391 F.3d 1226 (Fed. Cir. 2005) and Barclay v. United States, 443 F.3d 1368…

Continue Reading Federal Circuit: Physical Taking Is Complete When Statute Of Limitations Begins To Run

In CRV Enterprises, Inc. v. United States, No. 2009-5100 (Nov. 17, 2010), the U.S. Court of Appeals for the Federal Circuit concluded that the EPA’s installation of a “log boom” in the Old Mormon Slough in Stockton, California as part of the remediation of a Superfund site was not a physical taking of CRV’s riparian and littoral access rights:

Here, there has been no physical invasion of the plaintiffs’ land. The log boom is anchored to the bottom of the Slough. Plaintiffs do not contend that they own the bed of the Slough. Nor do the plaintiffs claim that they own the water itself. In fact, plaintiffs admit they do “not assert that [they] owned the [Slough], the waters within it, or the Slough’s bed.” Appellant’s Reply Br. 8. Riparian and littoral rights do not convey ownership to the water but only rights to use the water.

Continue Reading Federal Circuit: No Physical Taking, No Regulatory Taking

Last week, the U.S. Supreme Court heard oral arguments in United States v. Tohono O’odham Nation, No. 09-846 (cert. granted Apr. 19, 2010), the case involving the scope of the Court of Federal Claims’ subject matter jurisdiction. The transcript of the argument  is posted here, and in a new feature, the Court has also released the audio recording (28mb mp3) in case you want to follow along, or just put in on your podcast list and listen to it on the way to work on Monday. 

Disclosure: we filed an amicus brief supporting the Tohono O’odham Nation.

At the heart of the case is 28 U.S.C. § 1500 which provides:

The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United …

Continue Reading SCOTUS Oral Argument Recording And Transcript In CFC Jurisdiction Case

Here are the latest briefs in United States v. Tohono O’odham Nation, No. 09-846, (cert. granted Apr. 19, 2010), the case involving the subject matter jurisdiction of the Court of Federal Claims currently awaiting argument in the U.S. Supreme Court. Disclosure: we filed an amicus brief supporting the Tohono O’odham Nation in the case.

Here are the other briefs in the case:

More on the case here. Oral argument is set for November 1, 2010.

    Continue Reading Latest Briefs In Supreme Court Case On CFC Jurisdiction

    Last week, we filed an amicus brief in United States v. Tohono O’odham Nation, No. 09-846, (cert. granted Apr. 19, 2010). Why is a case involving the Indian Tucker Act and the technicalities of the Court of Federal Claims’ subject matter jurisdiction showing up in the pages of this blog? In addition to being a fascinating case, a claimed limitation on the CFC’s jurisdiction is of interest to anyone who follows regulatory takings actions against the federal goverment, as the brief makes clear.

    For more than a century, the federal government has held substantial funds and 2.9 million acres of land in Arizona in trust for the Tohono O’odham Nation. In United States v. Tohono O’odham Nation, No. 09-846, (cert. granted Apr. 19, 2010), the Supreme Court is considering whether the Court of Federal Claims has jurisdiction over the the Nation’s claim against the federal government for…

    Continue Reading Amicus Brief In Supreme Court Case On Court Of Federal Claims Jurisdiction

    At its upcoming April 30, 2010 conference, the U.S. Supreme Court is considering the cert petition in a case we’ve been following since it was decided by the Court of Federal Claims. In Palmyra Pacific Seafoods, L.L.C. v. United States, No. 09-766 (cert. petition filed Dec. 28, 2009), the Court is presented with the following Questions Presented:

    1.  Are private contracts property protected by the Takings Clause of the Fifth Amendment to the Constitution?

    2.  Assuming that private contracts are property protected by the Takings Clause, is the federal government liable for regulatory as well as appropriative takings of private contracts?

    The CFC and the Federal Circuit both rejected the claim that the Secretary of the Interior’s designation of the waters surrounding Palmyra and Kingman Reef as National Wildlife Refuges and attendant commercial fishing ban was a taking of Palmyra Pacific Seafood’s exclusive licenses to operate commercial fish processing…

    Continue Reading Was Ban On Palmyra Commercial Fishing A Taking Of The Right To Operate Seafood Processing Facilities?

    What we’re reading today:

    • “Setting boundaries for property rights” — an opinion piece in the National Law Journal by our friend Timothy Sandefur about the Florida beachfront takings case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009). Highlight: “There must be some limit on the power of state courts to redefineproperty rights. The Supreme Court long ago limited their power tochange other laws in ways that infringe on constitutional freedoms.Southern judges often used cunning interpretations of state law tosilence civil rights protesters, only to be reversed by the high court.In one case, after a group of activists was convicted of trespass afterholding a sit-in, the justices overruled the conviction on the groundthat the South Carolina Supreme Court had ‘unforeseeably andretroactively expanded [the statute] by judicial construction,’ inviolation of due process.”

    …
    Continue Reading Sunday Round-Up

    In Kaiser Aetna v. United States, 444 U.S. 164 (1979), a case won by my Damon Key partners Charlie Bocken and Diane Hastert, the Court held the navigational servitude does not create a “blanket exception to the Takings Clause whenever Congress exercises its Commerce Clause authority to promote navigation.” The servitude gives the public a right of access to waters that intheir natural condition are actually navigable, and absolves thefederal government from liability for compensation when land subject tothe servitude is taken or damaged, the the theory being that navigablewaters are not part of a riparian or littoral owner’s “bundle ofrights” —  

    The navigational servitude is an expression of the notion that the determination whether a taking has occurred must take into consideration the important public interest in the flow of interstate waters that in their natural condition are in fact capable of supporting public navigation. See…

    Continue Reading Navigational Servitude May Not Be A “Blanket Exception” To The Takings Clause…But It’s Still A Big One

    I don’t know of anyone who looks forward to reading 61-page single-spaced opinions. I know I sure don’t. But that’s the nature of the beast in decisions after a bench trial by trial courts, which are tasked with processing the facts and applying the law after hearing days, weeks, or months of evidence and argument. And when a long opinion is presented straightforwardly and the detail provided is essential to the decision, the pain is considerably lessened.

    Such is the case with the opinion of the Court of Federal Claims in Arkansas Fish and Game Comm’n v. United States, No. 05-381L (July 1, 2009).

    The Arkansas Game & Fish Commission (“Commission”) owns approximately 23,000 acres of land along the Black River in northeastern Arkansas that it manages as the Dave Donaldson Black River Wildlife Management Area (“Management Area”). The Commission in essence claims that during the years 1993-2000 the…

    Continue Reading Court Of Federal Claims: Feds Liable For $5.8M Inverse Condemnation For Flooding

    It looks like the federal government will likely seek U.S. Supreme Court review of Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed. Cir. 2008). As noted here, the SG’s office has sought and received two extensions of time and the cert petition is now due by July 17, 2009.

    In Casitas, the Federal Circuit held that contractual waterrights were taken when the federal government required the landowner toconstruct a fish ladder and divert water in order to protect endangeredsteelhead trout. The court held that the requirement resulted in aphysical diversion of water for public use, and that “Casitas willnever, at the end of any period of time, be able to get the waterback. The character of the government action was a physical diversionfor public use — the protection of an endangered species.” The Federal Circuit’s opinion is posted here, and the court’s denial…

    Continue Reading Feds Likely To Seek Cert In Casitas (Water Rights Taking Case)