Court of Federal Claims | Federal Circuit

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The US Court of Appeals has reversed the Court of Federal Claims’ dismissal of a takings case, holding the right to develop land is property protected by the Takings Clause. In Schooner Harbor Ventures, Inc. v. United States, No. 2008-5084 (June 16, 2009), the property owner claimed a designation of its property (Site 28) by the U.S. Fish and Wildlife Service as a critical habitat for the Mississippi Sandhill Crane — which required it to purchase another parcel as a mitigation measure before it could sell Site 28 to the Navy — was a taking.

The property owner sought just compensation in an inverse condemnation action in the CFC, which entered summary judgment for the government because the owner failed to assert a property right. The CFC characterized the interest claimed as “the right to sell its property to the government, withoutconditions imposed, in this instance to meet regulatory…

Continue Reading Federal Circuit: Plaintiff Alleged Property Right To Develop Land

To those who attended today’s seminar “Integrating Water Law and Land Use Planning,” thank you.  The materials from my session on “Water Rights, Property Rightsand the Law of Settled Expectations” are below. 

  • Kaiser Aetna v. United States, 444 U.S. 164 (1979) – the Hawaii Kai Marina case – physical invasions, regulatory takings, and interference with settled expectations.
  • Maui Tomorrow v. State of Hawaii, 110 Haw. 234, 131 P.3d 517 (2006) – Hawaii water law is not a federal case.  Summary of the decision here.
  • The Hawaii State Planning Act,

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Continue Reading Materials And Links From Today’s Water Law Seminar

Economist Bill Wade offers his thoughts on the recent (and latest) Rose Acre decision by the Federal Circuit, a case we summarized here.
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Of shoes and ships, eggs and farms; Or, Penn Central through the Looking Glass

by William W. Wade, Ph.D.

Fans of arcane takings decisions will not find a more economically confused record and decision than Rose Acre Farms VI.  (Rose Acre Farms, Inc., v. United States, United States Court of Appeals for the Federal Circuit , 2007-5169, March 12, 2009.)  Whether the case was about eggs or farms, gross revenues or net profits, lost income or lost value, marginal costs or average costs apparently eluded the judges, the instant parties and experts.  In 15 years of writing about the economic underpinnings of regulatory takings case decisions, I have to award both the expert testimony and judicial interpretations in this case some sort…

Continue Reading Guest Post: Of Shoes and Ships, Eggs and Farms; Or, Penn Central Through the Looking Glass

Thanks to my fellow Damon Key land user Greg Kugle for letting me know the Federal Circuit has affirmed Palmyra Pacific Seafoods, L.L.C. v. United States, 80  Fed. Cl. 228 (Jan. 22, 2008), a case we summarized here.  The Federal Circuit’s opinion is available here.

The court held that licenses to use Palmyra Atoll as a commercial fishing base were not taken when the federal government declared the waters around the atoll as a wildlife refuge and prohibited commercial fishing. The court held that the licenses were not “property,” and even if the licenses were rendered worthless, the takings clause was not implicated.

In attempting to define the property right that was purportedly taken by the regulation at issue in this case, the plaintiffs have provided little beyond the general assertion that the Interior Department interfered with their “exclusive right to use Palmyra as a commercial fishing…

Continue Reading Federal Circuit: Commercial Fishing Ban Frustrated Contract, But Is Not A Taking

Here are the latest opinions of interest from the Court of Federal Claims, which has nationwide jurisdiction over inverse condemnation and regulatory takings claims against the federal government where the compensation sought exceeds $10,000:

  • James v. United States, No. 01-2911L (Mar. 5, 2009) – subject matter jurisdiction, ownership of parcel in question; “scrivener’s error.”
  • Biery v. United States, Nos. 07-693L, 07-675L (Feb. 27, 2009) – more rails-to-trails takings – certifying questions of abandonment under Kansas law to the Kansas Supreme Court.

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Continue Reading Court Of Federal Claims Round-Up

In 1999, without asking the owner’s permission, the federal government constructed a 35,000 square foot “borrow pit” on a parcel in a remote corner of Texas. The owner did not learn about the government’s activities until 2004, when a migrant worker who had crossed the property to access the Rio Grande told him about it. The owner visited the property in late 2004 and for the first time discovered the borrow pit.

In 2006, the owner filed an inverse condemnation claim against the United States in the Court of Federal Claims.  Over the owner’s objection that he was unaware of the taking until the migrant worker told him about it in 2004, the CFC dismissed the claim because it was filed outside the six-year statute of limitations.

The Federal Circuit affirmed. The claim accrued on the date of the taking — April 1999 — but the owner asserted the accrual…

Continue Reading Federal Circuit: 35k SF Government Borrow Pit On Your Property Not “Inherently Unknowable”

The U.S. Supreme Court today issued an order denying review in AmeriSource Corp. v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008), the case which asked “[w]hether it is a taking compensable under the Fifth Amendment for the Government to seize (and not return) an innocent third party’s propertyfor use as evidence in a criminal prosecution, if the property is notitself contraband, is not the fruits of criminal activity, and has notbeen used in criminal activity.” The briefs and a link to the Federal Circuit’s opinion are available here.Continue Reading Cert Denied In Amerisource (Taking Of Property As Evidence)

According to this story from the BLT (Blog of Legal Times), President Obama has appointed Judge Emily C. Hewitt as the new Chief Judge of the Court of Federal Claims.

This is of interest to readers of this blog, of course, because the CFC hears regulatory takings and inverse condemnation claims by property owners who are seeking just compensation from the federal government.  CJ Hewitt was appointed to the CFC by President Clinton in 1998, and we litigated one of her first takings cases, which involved the federal government’s taking of property in San Francisco Bay.  See Alameda Gateway, Ltd. v. United States, 45 Fed. Cl. 757 (1999).Continue Reading New Chief Judge For The Court Of Federal Claims

Okay, we’ve decided to surrender to temptation and let fly with bad (and obvious) egg puns. But at least they’re out of our system in the beginning. After that, no more yolks. We promise.

In Rose Acre Farms, Inc. v. United States,No. 2007-5169 (Mar. 12, 2009), the U.S. Court of Appeals for theFederal Circuit held that a regulation restricting the sale of eggs was not ataking under Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978), because the economic impact of the regulation “was not severe” and the character of the government action “strongly favored” the government.

Rose Acre Farms owns egg-laying chickens.  A lot of them: “eight layer-hen farms with millions of hens.” The USDA first promulgated temporary, then final regulations that restricted the interstate sale and transportation of eggs determined to be contaminated with salmonella. After illness outbreaks were traced to three…

Continue Reading Federal Circuit: Eggonomic Impact Not Eggregious Enough To Require Feds To Shell Out Compensation

The U.S. Court of Appeals has denied a petition for rehearing and rehearing en banc in Casitas Municipal Water District v. United States,No. 2007-5153 (Sep. 25, 2008), a decision we noted here.  In September 2008, a panel 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.” Slip op. at30.

The per curiam order denying rehearing is available here.  Three Federal Circuit judges dissented, arguing that no physical taking occurred because the federal government did not appropriate water from…

Continue Reading Federal Circuit Denies En Banc Review In Casitas