107 Fed. Cl. 533
Fed. Cl.2012Background
- plaintiffs own about 18,000 acres in Tangipahoa Parish, Louisiana, including roughly 11,200 acres inside the Hammond Range (FUDS tract) and 7,000 outside the Range.
- Range was a WWII bombing/gunnery site; the Army used it 1942–1945 and removed property rights in 1946, returning land to owners.
- DERP/FUDS program later identified potential unexploded ordnance and munitions of concern; Corps conducts site inspections, risk assessments, and SI/RI/FS planning.
- In 2008–2009 the Corps conducted a Technical Project Planning meeting, SI, and issued a Final SI Report finding potential explosive risk at three sites, but not all acreage was deemed to pose an MEC/UXO risk.
- Trusts amended leases to acknowledge UXO/MEC risk and released themselves from certain liabilities; they continued timbering and hunting club leases after the Final SI Report.
- This action is brought in the Court of Federal Claims under the Tucker Act, alleging a Fifth Amendment regulatory taking based on the Final SI Report and DoD DERP/FUDS actions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1500 bars the suit | Tecon rule controls; first filed in this court, not pending later | Section 1500 bars if pending in another court | § 1500 does not bar; first-filed in this court with later district suit not pending at filing |
| Whether the Trusts stated a tort claim or a takings claim | Allegations align with takings; money-mandating Fifth Amendment | Claims are tort-like (slander of title, etc.) | Court finds takings framework applies; Tucker Act jurisdiction exists |
| Whether a taking occurred (categorical) | All economically viable use destroyed within the parcel | There remain substantial uses; not a total destruction | No categorical taking; parcel-as-a-whole includes 7,000+ acres outside Range; no complete deprivation |
| Whether a taking occurred (noncategorical) | Penn Central factors show interference with investment-backed expectations; economic impact severe | Economic impact not severe; expectations not reasonably established | No noncategorical taking; Penn Central factors weighed in favor of non-taking |
| What is the relevant parcel for takings analysis | Range alone constitutes the parcel | Parcel should include entire tract owned by Trusts | Parcel-as-a-whole includes 18,000+ acres; Range alone is inadequate |
Key Cases Cited
- Penn Central Transp. Co. v. New York, 438 U.S. 104 (U.S. 1978) (establishes the Penn Central three-factor test for regulatory takings)
- Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (U.S. 1992) (categorical taking where all economically beneficial use is lost)
- Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302 (U.S. 2002) (limits on duration and extent of regulatory impact under takings)
- Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (U.S. 2005) (regulatory takings analysis varies by presumptions and opposes per se treatment)
- Keene Corp. v. United States, 508 U.S. 200 (U.S. 1993) (keeps Tecon order-of-filing rule viable under § 1500)
- Tecon Engineers, Inc. v. United States, 343 F.2d 943 (Ct. Cl. 1965) ( Tecon rule: § 1500 bars later suit only if pending earlier filed suit)
- Forest Properties, Inc. v. United States, 177 F.3d 1360 (Fed. Cir. 1999) (parcel-as-a-whole analysis for takings)
- Appolo Fuels, Inc. v. United States, 381 F.3d 1338 (Fed. Cir. 2004) (economic loss and regulatory impact balanced in partial takings)
- Deltona Corp. v. United States, 657 F.2d 1181 (Ct. Cl. 1981) (master plan development as context for parcel-wide analysis)
- Davis v. United States, 35 F.3d 391 (Fed. Cl. 1996) (distinguishes slander of title from takings; contextual comparison)
- Ridge Line, Inc. v. United States, 346 F.3d 1346 (Fed. Cir. 2003) (two-part inquiry for potential regulatory takings; invasion must be direct and expectable)