CRV Enterprises, Inc. v. United States
626 F.3d 1241
Fed. Cir.
2010

Background

  • CRV Enterprises and Voorhees own riparian land along Old Mormon Slough; riparian rights include access to water and related uses but do not confer ownership of water or bed.
  • EPA's Superfund remediation plan for the McCormick and Baxter site, including a sand cap and institutional controls such as a log boom, was adopted in the March 1999 Record of Decision (ROD).
  • Dutra, the property owner opposite CRV, objected to the plan; CRV later amended an option agreement with Dutra and eventually acquired the property (2002) and then transferred it to Voorhees (2004).
  • In 2003, CRV filed an inverse condemnation claim in the Court of Federal Claims alleging a taking; the Claims Court dismissed as to physical taking and as to regulatory taking for lack of ownership at the time the taking occurred.
  • EPA installed the log boom in September 2006, which blocked navigation to the portion of Slough behind the boom but did not touch CRV/Voorhees’ land or waterbed ownership; warning signs were posted near the boom.
  • The Federal Circuit affirmed: no physical taking due to lack of ownership of the Slough bed or water and no complete removal of water; regulatory takings claim was barred because plaintiffs did not own the property when the government action occurred.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether the log boom constitutes a physical taking CRV/Voorhees contend it physically took riparian rights to access. United States argues no physical taking because water/bed ownership lies with the state and water remains; restriction is regulatory. No physical taking
Whether the regulatory taking claim was ripe and timely versus ownership standing Palazzolo estoppeled reliance on ripeness; claim accrued when regulation applied to the property. ROD and final action fixed the uses; ownership at time of taking required for standing. Regulatory taking not ripe for CRV/Voorhees because they did not own the property when the taking occurred
Whether ownership at the time of the taking is required to pursue regulatory takings claims Ownership should not be a bar if regulatory action harms reasonable expectations. Only someone with a valid property interest at the time of taking can seek compensation. Plaintiffs lacked standing due to not owning the property during the regulatory taking

Key Cases Cited

  • Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (per se physical taking for permanent occupancy)
  • United States v. Pewee Coal Co., 341 U.S. 114 (1951) (physical taking when government takes control of operations)
  • Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978) (regulatory takings balancing test)
  • United States v. Cent. Eureka Mining Co., 357 U.S. 155 (1958) (no physical taking where regulation temporarily halts operations)
  • Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987) (no physical taking where regulation requires partial extraction to be kept in place)
  • Tahoe-Sierra Pres. Council v. Tahoe Reg'l Planning Agency, 535 U.S. 302 (2002) (regulatory takings considerations under Penn Central)
  • Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (per se takings when entire use is penalized)
  • Dugan v. Rank, 372 U.S. 609 (1963) (seizure of water rights may be a physical taking even without land invasion)
  • Gerlach Live Stock Co. v. United States, 339 U.S. 725 (1950) (diversion of water can be a physical taking when water use is permanently lost)
  • Casitas Municipal Water Dist. v. United States, 543 F.3d 1282 (2008) (physical diversion of water due to a fish ladder constitutes a physical taking)
  • Washoe County v. United States, 319 F.3d 1320 (2003) (restriction on use without removing water is not a physical taking)
  • Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (claim accrues when final regulatory action is taken, not merely when statutes exist)
  • Goodrich v. United States, 434 F.3d 1329 (2006) (ROD issuance can ripen a takings claim even before full implementation)
  • Wyatt v. United States, 271 F.3d 1090 (2001) (standing requires ownership at time of taking)
  • Huntleigh USA Corp. v. United States, 525 F.3d 1370 (2008) (standing/ownership considerations in regulatory takings)
  • Bair v. United States, 515 F.3d 1323 (2008) (ownership requirement for regulatory takings claims)
  • Cienega Gardens v. United States, 331 F.3d 1319 (2003) (ripeness principles for regulatory takings)
  • New Hampshire v. Maine, 532 U.S. 742 (2001) (judicial estoppel doctrine and integrity of judicial process)
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