National Food & Beverage Co. v. United States
2010 U.S. Claims LEXIS 934
Fed. Cl.2010Background
- Hurricane Katrina damage led the Corps to repair levees using relatively impermeable clay from a Plaquemines Parish site.
- Plaquemines Parish commandeered National Food’s land under Louisiana law to access borrow material for federal levee repairs.
- The Shaw Group, acting for the Corps, removed clay from National Food’s land over years; no compensation has been paid to National Food.
- Plaquemines Parish’s commandeering was tied to the Amended Cooperation Agreement; the federal government agreed to identify and pay just compensation.
- National Food filed a Fifth Amendment takings claim and, alternatively, alleged third-party beneficiary rights under the Cooperation Agreement.
- The government also sought stay pending a related condemnation action in the Eastern District of Louisiana, which targets a portion of the same land.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the takings claim is viable against the United States. | National Food held compensable property interests and the Corps’ actions caused a taking. | Plaquemines Parish acted independently; the Corps merely carried out a Parish-approved plan. | The 12(b)(6) dismissal is denied; the takings claim survives as the United States conducted the direct action. |
| Whether the United States can be liable for the taking despite Parish involvement. | The cooperation agreement and coordinated actions show the government and parish undertook the same project. | The Parish’s actions were independent of the Corps and thus not imputable to the United States. | Liability lies with the United States; actions were coordinated and directly tied to federal project. |
| Whether a stay of proceedings is appropriate pending the condemnation action. | A stay would conserve resources and avoid duplicative rulings. | A stay would be prudent to coordinate proceedings. | The government’s motion to stay is denied; proceedings in this court shall continue. |
Key Cases Cited
- American Pelagic Fishing Co. v. United States, 379 F.3d 1363 (Fed. Cir. 2004) (direct/proximate takings standard for government actions)
- May v. United States, 80 Fed.Cl. 442 (Fed. Cir. 2008) (takings viability on direct government action)
- Arkansas Game and Fish Comm’n v. United States, 87 Fed.Cl. 594 (Fed. Cir. 2009) (requires proof of direct/proximate causation for takings)
- Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991) (agency/instrumentality considerations for government liability)
- Dow, United States v., 357 U.S. 17 (Sup. Ct. 1958) (distinction between inverse and direct condemnation)
- Georgia-Pacific Corp. v. United States, 568 F.2d 1316 (Ct. Cl. 1978) (race-to-judgment/condemnation timing in related actions)
- Reunion, Inc. v. United States, 90 Fed.Cl. 576 (Fed. Cir. 2009) (temporary taking considerations in related proceedings)
- Olivier Plantation, LLC v. Parish of St. Bernard, 744 F. Supp. 2d 575 (E.D. La. 2010) (federal involvement in takings and cooperation agreements)