737 F.3d 750
Fed. Cir.2013Background
- Prado Dam (built 1941) created a flowage easement to elevation 556 ft; Corps planned later modifications that would raise the maximum inundation line to 566 ft.
- Local agencies were authorized to acquire additional easements; plaintiffs declined a 1999 purchase offer and negotiations ended; no title or easement was obtained for land between 556 ft and 566 ft.
- Corps published maps showing the 566-ft line, local agencies recorded a survey and (per plaintiffs) placed six small brass markers on the plaintiffs’ property marking the 566-ft line; property has never actually flooded due to Corps activities.
- Plaintiffs sued in the Court of Federal Claims (2011), alleging the government’s conduct amounted to a physical taking of a flowage easement up to 566 ft; the Claims Court dismissed.
- Claims Court allowed amendment limited to recovery for the tiny areas occupied by the survey markers (plaintiffs declined to press that narrow claim) and denied plaintiffs’ broader de facto-taking theory as legally futile. This appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether government actions (maps, survey, markers, authorization, negotiations, zoning pressure) effected a physical taking of a flowage easement without actual flooding | The cumulative government acts amounted to a physical taking of an easement to 566 ft even though no flooding occurred | Apprehension of future flooding, surveys, intent to condemn, or coordination with local zoning do not constitute a physical taking absent actual invasion or direct, substantial interference | No taking; mere possibility or apprehension of future flooding and related acts are not a physical taking absent actual flooding or equivalent physical invasion |
| Whether placement of six brass survey markers constituted a taking of the flowage easement and, if so, whether damages should equal full condemnation value of the easement | Markers demonstrated a physical appropriation and justify damages equal to the value of the full flowage easement | Markers at most physically appropriated minute portions of land; damages are limited to what was actually taken (de minimis), not full easement value | Placement could support recovery only for the tiny area actually occupied by markers; plaintiffs offered no basis for full-easement valuation and declined to pursue marker claim |
| Whether a "de facto" or regulatory-type taking occurred from prolonged delay, threats of condemnation, and local zoning prompted by federal action | Long delay, threat to condemn, recorded surveys, and resultant zoning effectively destroyed use and value, amounting to a de facto taking | De facto takings require direct, substantial interference depriving owner of use or access; here federal actors did not restrict plaintiffs’ use or access and local zoning alone is not federal taking | No de facto taking; plaintiffs’ allegations fall short of the extreme, direct interferences in cases finding de facto takings |
| Whether courts should apply broad equitable/fairness principles to award compensation despite lack of legal taking under precedent | Armstong fairness principle supports compensating plaintiff who alone bears public burden | Armstrong is a policy statement, not an independent cause of action; established takings doctrine controls | Court declined to create a new remedy; settled takings law controls and yields no compensation here |
Key Cases Cited
- Danforth v. United States, 308 U.S. 271 (mere enactment or apprehension of future flooding does not constitute a taking absent actual flooding)
- United States v. Sponenbarger, 308 U.S. 256 (apprehension of future flooding is not a taking when project has not caused actual flooding)
- Hurley v. Kincaid, 285 U.S. 95 (earlier opinion discussed but did not hold taking without flooding)
- Kirby Forest Indus., Inc. v. United States, 467 U.S. 1 (impairment of market value incident to legitimate government action ordinarily not a taking)
- Peabody v. United States, 231 U.S. 530 (apprehension or depreciation from proposed use not a taking absent appropriation or use)
- Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 (continuing acts crossing property may support a taking if shots were actually fired across land)
- Presault v. United States, 100 F.3d 1525 (legislative elimination of reversionary interests can effect a taking in rails-to-trails context)
- Arkansas Game & Fish Comm’n v. United States, 133 S. Ct. 511 (temporary flooding may create a temporary physical taking; does not obviate need for actual flooding to show taking)