19th Judicial Conference--U.S. Court of Federal Claims
Nancie G. Marzulla will speak at the U.S. Court of Federal Claims Judicial Conference on October 25, 2006 on litigating Environmental & Natural Resources Cases. The conference will be held at the The Willard interContinental Hotel on 1401 Pennsylvania Ave., NW, Washington, DC 20004. For more information, or to register to attend the conference, visit www.cfcbar.org. Below is a copy of Ms. Marzulla's handout
Nancie G. Marzulla
United States Court of Federal Claims
19th Judicial Conference -- October 25, 2006
Litigating Environmental and Natural Resource Cases
All Takings Decided by the U.S. Court of Appeals for the Federal Circuit Since 1990
I. Regulatory Takings Cases
Independence Park Apartments v. United States, 449 F.3d 1235 (Fed. Cir. 2006)
Prevailing Party: Defendant
Was Liability Tried: Yes
Was There A Trial: Yes
Holding:
Subsequent use agreements between government and owners of low income housing mitigated, but did not terminate, damages that owners previously suffered, and continued to suffer, from temporary regulatory taking; amount by which agreement made owners better off would be subtracted from plaintiffs’ damages; remanded for damages recalculation.
Northwest Louisiana Fish & Game Preserve Comm’n v. United States, 446 F.3d 1285 (Fed. Cir. 2006)
Prevailing Party: Plaintiff
Was Liability Tried: No
Was There A Trial: No
Holding:
Claims not time-barred because accrual date for takings claim was when Army Corps of Engineers issued final refusal to allow Louisiana’s Black Lake to be drawn down sufficiently to alleviate harm caused by uncontrolled overgrowth of vegetation, and growth of vegetation was a slow natural process that had not stabilized to cause the taking claim to accrue until at least 1997.
Anaheim Gardens v. United States, 444 F.3d 1309 (Fed. Cir. 2006)
Prevailing Party: Plaintiff
Was Liability Tried: No
Was There A Trial: No
Holding:
Owners of low-income housing, who had received mortgage insurance from HUD and who alleged regulatory taking after legislation was adopted restricting their prepayment rights, were entitled to remand for further findings of fact on whether they could demonstrate evidence of “administrative futility” that would exempt them from exhausting their administrative remedies.
Barclay v. United States, 443 F.3d 1368 (Fed. Cir. 2006)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Rails-to-trails takings claims were time-barred because statute of limitations began to run upon issuance of original Notices of Interim Trail Use or Abandonment (NITU); accrual is not delayed until a trail use agreement is executed or the trail operator takes physical possession of the right-of-way.
Zoltek Corp. v. United States, 442 F.3d 1345 (Fed. Cir. 2006)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Patent holder could not bring patent infringement claim against the United States under the Tucker Act by alleging that the infringement was a taking under the Fifth Amendment.
Goodrich v. United States, 434 F.3d 1329 (Fed. Cir. 2006)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Owner of “federal lands” cattle ranch, consisting of private land and federal grazing allotments, alleged that the United States took his water rights by authorizing another rancher to use water on his allotment in national forest; cause of action accrued, and six-year limitations period began to run, when Forest Service adopted, in Record of Decision, alternative in draft EIS which permitted the other rancher to use the water, and limitations period was not tolled until government actions became “stabilized.”
Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206 (Fed. Cir. 2005)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Economic injury caused by regulations of Federal Aviation Administration, precluding use of property as heliport as post-9/11 security measure, was derivative economic injury that was not cognizable as a property interest, and heliport operator did not have cognizable private property interest in access to navigable public airspace from particular heliport.
Texas State Bank v. United States, 423 F.3d 1370 (Fed. Cir. 2005)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Bank did not own compensable property interest in earnings generated by Federal Reserve through its investment of bank’s required reserves; thus, no taking had occurred when interest income was paid to Treasury that Federal Reserve had earned on bank’s funds held in reserve accounts.
Members of Peanut Quota Holders Ass’n, Inc. v. United States, 421 F.3d 1323 (Fed. Cir. 2005)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Farmers had a property interest cognizable under the Fifth Amendment in the peanut quota allocated to them under the Federal Agriculture Improvement and Reform Act, but that property interest was not compensable when the quotas were eliminated by the Farm Security and Rural Investment Act of 2002 because the property interest was entirely the product of a government program unilaterally extending benefits to the quota holders, and nothing in the terms of the statute indicated that the benefits could not be altered or extinguished at the government’s election.
Lion Raisins, Inc. v. United States, 416 F.3d 1356 (Fed. Cir. 2005)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Raisin Marketing Order pursuant to Agricultural Marketing Agreement Act (AMAA), limiting quantity of raisins sold in domestic market, and using reserve proceeds paid by plaintiffs and others in prior year to subsidize subsequent raisin export programs, was not cognizable as takings claim but instead must be pursued as administrative claims, since plaintiffs alleged a violation of statute and implementing regulations; exclusive remedy was administrative and judicial review mechanism of AMAA.
Morris v. United States, 392 F.3d 1372 (Fed. Cir. 2004)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Landowners brought action against United States alleging that ESA’s permitting process before harvesting redwood trees constituted a regulatory taking; claim was not ripe because owners never applied for an incidental take permit even though owners alleged cost of applying for permit exceeded value of the trees.
Caldwell v. United States, 391 F.3d 1226 (Fed. Cir. 2004)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Takings claim triggered by conversion of easement to interim trail use pursuant to National Trail Systems Act was barred by statute of limitations because claim accrued when Notice of Interim Trail Use was issued, not later when negotiated agreement was finalized or when right-of-way was actually transferred.
Adams v. United States, 391 F.3d 1212 (Fed. Cir. 2004)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
A statutory right to be paid money in the context of federal employee compensation and benefit entitlement statutes is not a property interest for purposes of the just compensation clause.
La Van v. United States, 382 F.3d 1340 (Fed. Cir. 2004)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Passage of FIRREA converting state-chartered thrift to federally chartered stock thrift was not a taking of shareholders’ investment in the thrift; shareholders had no reasonable expectation beyond contract damages.
Bass Enters. Prod. Co. v. United States, 381 F.3d 1360 (Fed. Cir. 2004)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
BLM’s delay in approving drilling permits for lessees under federal oil and gas leases did not constitute temporary taking.
Appolo Fuels, Inc. v. United States, 381 F.3d 1338 (Fed. Cir. 2004)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Determination pursuant to SMCRA that portions of land subject to coal producer’s two surface mining leases were unsuitable for mining did not deprive producer of all economically viable use of leases; producer’s reasonable investment-backed expectations in surface mining leases were shaped by the regulatory regime as of the date that producer purchased leases; eighteen-month delay in determining that land subject to leases was unsuitable for mining was not extraordinary giving rise to potential temporary regulatory taking.
American Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363 (Fed. Cir. 2004)
Prevailing Party: Defendant
Was Liability Tried: Only on damages
Was There A Trial: Yes
Holding:
Commercial boat owner did not have protected property interest in permits and authorizations to fish for mackerel and herring in United States’ Exclusive Economic Zone, and owner did not have cognizable property interest in right to use vessel to conduct fishing operations.
Rose Acre Farms Inc. v. United States, 373 F.3d 1177 (Fed. Cir. 2004)
Prevailing Party: Defendant
Was Liability Tried: Yes
Was There A Trial: Yes
Holding:
Egg producer’s claim that USDA salmonella control regulations restricting egg sales and imposing other requirements on farms that tested positive for salmonella effected a taking failed because the economic impact of the regulations was not sufficiently severe; the Penn Central factor pertaining to the character of the government’s actions favored the government; the regulations were not a per se taking of producer’s hens where producer’s three farms were determined to have been sources of salmonella.
Hair v. United States, 350 F.3d 1253 (Fed. Cir. 2003)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Plaintiffs’ claim that act of United States, in effectively barring its nationals from suing Japan for wrongs committed against them during World War II, constituted a taking of their private causes of action, was barred by the statute of limitations; signing of peace treaty, not announcement of United States of intent not to compensate victims, triggered statute of limitations.
Maritrans, Inc. v. United States, 342 F.3d 1344 (Fed. Cir. 2003)
Prevailing Party: Plaintiff/Defendant
Was Liability Tried: Yes
Was There A Trial: Yes
Holding:
Owners of barge fleet had property interest in single hull barges; United States did not effect categorical taking of eight single hull barges and double hull requirement was not a taking because value of barges was not destroyed.
Bailey v. United States, 341 F.3d 1342 (Fed. Cir. 2003)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Imposition of regulatory assessments under FIRREA did not constitute regulatory taking; government did not take shareholders’ remedy for breach of contract by enactment of FIRREA because FIRREA did not deprive shareholders of their property interest in contract remedy.
Chancellor Manor v. United States, 331 F.3d 891 (Fed. Cir. 2003)
Prevailing Party: Plaintiff
Was Liability Tried: No
Was There A Trial: No
Holding:
Owners of low-income housing and mortgage prepayment rights possessed property interest in the prepayment rights; passage of Low-Income Housing Preservation and Resident Homeownership Act restricted those rights; case remanded for analysis of whether taking occurred.
Cienega Gardens v. United States, 331 F.3d 1319 (Fed. Cir. 2003)
Prevailing Party: Plaintiff
Was Liability Tried: No
Was There A Trial: No
Holding:
Federal statute preventing owners of low-income apartments preventing owners from prepaying federally subsidized mortgages constituted compensable taking of owners’ vested property interests in their prepayment and repossession rights because government went too far; loss of 96% of possible rate of return on investment was compensable taking; legislation conflicted with property owners’ investment-backed expectations in their 20-year prepayment rights.
Cooley v. United States, 324 F.3d 1297 (Fed. Cir. 2003)
Prevailing Party: Plaintiff (in part)
Was Liability Tried: Yes
Was There A Trial: Yes
Holding:
Final decision on the merits denying a wetlands fill permit under the Clean Water Act renders a Fifth Amendment takings claim ripe; issuance of subsequent provisional permit may render the taking temporary and compensable.
Washoe County, Nev. v. United States, 319 F.3d 1320 (Fed. Cir. 2003)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Government’s denial of right-of-way permit application for water pipeline project did not effect physical or regulatory taking because applicant did not own land on which pipeline would have run, and applicants had no inherent right to build pipeline on federal lands.
Brubaker Amusement Co. v. United States, 304 F.3d 1349 (Fed. Cir. 2002)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Mere enactment of federal regulations imposing restrictions on locations at which sale of tobacco products could be made from vending machines was insufficient to create a takings claim; challenged regulations were never in effect or applied to owners and operators’ vending machines.
Paradissiotis v. United States, 304 F.3d 1271 (Fed. Cir. 2002)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Government’s prohibition, pursuant to Libyan Sanction Regulations, on Cyprus citizen with business ties to Libyan government’s exercise of options did not effect regulatory taking; there could be no reasonable expectation of ability to exercise options once Cypriot took directorship of Libyan government-controlled corporation with sanctions already in effect.
Walcek v. United States, 303 F.3d 1349 (Fed. Cir. 2002)
Prevailing Party: Defendant
Was Liability Tried: Yes
Was There A Trial: Yes
Holding:
Denial of Clean Water Act permit for full development of federal wetlands was not categorical taking of property; relevant portion of property for regulatory takings analysis was entire parcel of land, not just portion of parcel designated as wetlands; and adjustment of base value of property for inflation or deflation was not warranted, for purpose of determining extent of economic impact of regulation.
Leider v. United States, 301 F.3d 1290 (Fed. Cir. 2002)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Government’s failure to pay interest on creditor’s distributive share in bankruptcy case was not a taking; although an unlocated creditor has a property right to his or her distributive share of the funds of a bankruptcy estate, creditor did not have a property right to interest on the distributive share because interest was never earned on the unclaimed funds, and alternatively, the government was not under a fiduciary obligation to invest unlocated creditors’ funds to generate interest so as to create a right to interest on the funds.
United States Shoe Corp. v. United States, 296 F.3d 1378 (Fed. Cir. 2002)
Prevailing Party: Plaintiff (on other grounds)
Was Liability Tried: No
Was There A Trial: No
Holding:
Tax imposed on exporter to defray cost of harbor development and maintenance was violation of export clause, not a taking.
Conti v. United States, 291 F.3d 1334 (Fed. Cir. 2002)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Regulation banning use and possession of gillnets for harvesting swordfish was not a taking of fisherman’s property; swordfishing permit bestowed a revocable license, not a property right, and ban on drift gillnet fishing was not a regulatory taking of swordfisherman’s vessel, gillnets, and related gear.
Casa de Cambio Comdiv S.A., de C.V. v. United States, 291 F.3d 1356 (Fed. Cir. 2002)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Government did not commit regulatory taking of depositor’s stolen treasury check through bank when, upon discovering that Treasury check it paid had been stolen, it debited account of bank which in turn debited depositor’s account; government did not direct bank to take action against depositor, and bank did not act as alter ego or agent of government.
Bay View, Inc. v. United States, 278 F.3d 1259 (Fed. Cir. 2001)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Amendment to Alaska Native Claims Settlement Act (ANCSA), which exempted revenues from sales of net operating losses (NOLs) from general requirement under ANCSA that corporations must share revenues received from natural resources, was not a taking of corporation’s share of revenues because corporation did not have property right to share in proceeds from of other corporations’ sales of NOLs.
Kitt v. United States, 277 F.3d 1330 (Fed. Cir. 2002)
Prevailing Party: Defendant
Was Liability Tried: No
Was There A Trial: No
Holding:
Ten percent retrospectively imposed tax paid on non-qualified withdrawal from rolled-over IRA was not a taking because government did not seize or take any property from taxpayer but merely subjected him to particular tax to which he had not previously been subject.
Gonzales v. United States, 275 F.3d 1340 (Fed. Cir. 2001)
Prevailing Party: Defendant
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