OPINION AND ORDER
One issue that has over the decades divided this court is the distinction between torts and takings under the Takings Clause of the Fifth Amendment.
If Justice Holmes’ oft-quoted aphorism is correct that the “life of the law has not been logic: it has been experience,”
Despite the Serbonian Bog into which the takings jurisprudence of this court has fallen, the historical origin and application of the basic principles of takings jurisprudence reveal that there is no clear cut distinction between torts and takings. The best that can be said is that not all torts are takings, but that all takings by physical invasion have their origin in tort law and are types of governmental nuisances or, at times, trespasses.
In light of this, it is not fatal to a plaintiffs claim or this court’s jurisdiction if the government alleges that the facts might give rise to a tort. Instead, so long as there is some material evidence in the record that establishes the predicates for a traditional
Indeed, for the judiciary to impose an absolute requirement of a showing of specific intent foreseeability would not only contravene the plain meaning of the Takings Clause — which contains no state of mind requirement — but would also permit government to escape its constitutional duty to compensate its citizens for destruction of their property. See, e.g., Pumpelly v. Green Bay Co.,
The present takings claim was brought by the plaintiff, James A. Hansen, who claims that the government took his property by contaminating the property’s source of water. Much of the underground water in Nemo, South Dakota is contaminated by ethylene dibromide (“EDB”), a chemical used throughout the 1970’s as a pesticide by the United States Department of Agriculture, Forest Service (“Forest Service”). Forest Service employees reportedly buried several cans of EDB in the mid-1970’s at the Nemo Work Center (‘Work Center”), Forest Service property that is adjacent to plaintiffs property. Despite considerable efforts in recent years, the Forest Service has failed to locate buried cans of EDB — or even EDB-eontaminated soil — at the Work Center. However, the Forest Service has provided water to several homes and businesses that rely on wells now contaminated by EDB. Mr. Hansen is not among the property owners in Nemo receiving clean water from the Forest Service.
Mr. Hansen purchased the Nemo Guest Ranch, the property at issue in this ease, in 1998. Although EDB had been detected on the ranch before this sale, it seems that neither the seller nor Mr. Hansen was aware of that fact. In 2000, after Mr. Hansen had learned that two of the wells on his property were contaminated, he sold the ranch to Ron Wick. However, Mr. Hansen retained a significant property interest under South Dakota law in the ranch by virtue of the contract for deed through which the sale to Mr. Wick was executed.
Five wells have been drilled on the ranch; two on the south side (the side closest to the Work Center) and three to the north. The two southern wells are contaminated by EDB, while the three on the north are not. Two of the three northern wells are currently in use and provide enough clean water for the ranch to operate at present. There is no evidence before the court that suggests that any portion of the ranch other than the groundwater drawn by the two southern wells — including any soil, buildings, or air— are currently contaminated by EDB. However, relying on expert testimony, Mr. Hansen contends that all of the ranch’s wells will eventually become contaminated by EDB. It is also averred in the affidavit of one expert that the ranch itself will become contaminated. Based on these facts, Mr. Hansen seeks just compensation for the taking of the entire ranch.
In response, Mr. Hansen disagrees with each of the government’s factual averments and legal contentions. Mr. Hansen has also filed a cross-motion for partial summary judgment, but on the limited issue that his claim accrued when he first discovered that part of the ranch was contaminated by EDB. For this, plaintiff simply asserts that based on both defendant’s responses to its proposed findings of fact and its memorandum regarding its motion, no issues of material fact remain regarding claim accrual.
For the reasons stated more thoroughly below, the court denies that part of the government’s motion asserting that Mr. Hansen’s claim sounds in tort because there are genuine issues of material fact as far as the tort-taking distinction test is concerned. Not only has Mr. Hansen presented evidence tending to prove that the contamination of the southern wells was the direct, natural, or probable result of Forest Service actions, but he has also presented evidence tending to prove that the contamination of the ranch’s groundwater was the foreseeable result of the Forest Service’s actions. In short, Mr. Hansen has demonstrated that the partial EDB contamination of the ranch groundwater was caused by Forest Service activity, in any event, enough to defeat summary judgment.
The government’s motion challenging Mr. Hansen’s standing will also be denied because genuine issues of material fact remain. Mr. Hansen has presented evidence tending to show that the claim he pursues accrued when he was the sole owner of the ranch and not earlier. Furthermore, Mr. Hansen has proffered evidence showing that he has a present property interest under South Dakota law sufficient to confer this type of standing upon him, the subsequent sale to Mr. Wick notwithstanding.
Similarly, the court also denies the government’s motion on ripeness because Mr. Hansen has presented sufficient evidence for the court to conclude that genuine issues of material fact remain regarding this issue. Mr. Hansen’s experts have indicated that a likelihood exists that the EDB contamination will eventually spread to the remainder of the ranch’s groundwater. Ultimately, the issue of whether Mr. Hansen’s experts’ opinions will carry the day is one of fact.
Finally, because undisputed evidence indicates that events have occurred fixing the government’s alleged liability for a taking, the court grants Mr. Hansen’s cross-motion for partial summary judgment. Of course, this ruling regarding claim accrual is not the
I. FACTUAL BACKGROUND
A major character in this case is a dangerous chemical called ethylene dibromide, or EDB. In the 1990’s, Forest Service employees reported that years earlier they buried numerous cans of EDB at the Work Center, which is adjacent to Mr. Hansen’s ranch. Indeed, subsequent tests conducted in response to these reports detected EDB in the groundwater near the reported dump site. The Forest Service tried diligently to find the source of the EDB contamination, but failed. EDB has contaminated some of the water under Mr. Hansen’s property, and Mr. Hansen alleges a Fifth Amendment taking. The parties now dispute whether (or when) a claim arising from this EDB contamination accrued, how far the EDB contamination has already spread across Mr. Hansen’s property, and whether (or how far) it will eventually spread across the rest of the property. Similarly, the parties dispute when the Forest Service became aware of EDB’s harmful nature, which may be significant in the context of a jurisdictional issue in this case (ie., whether the facts here give rise to a tort, rather than a taking claim). The following summary of the facts before the court details the story of EDB in the town of Nemo — and particularly on the plaintiffs property,
A. EDB: A Dangerous Contaminant
Background information on EDB provides a helpful starting point in this case. EDB is a “colorless ____liquid with a mildly sweet chloroform-like odor” that has been used as, among other things, a fuel additive, solvent, and pesticide. Pl.’s App. at 157. The Forest Service used EDB as a pesticide in the 1970’s to kill beetles that infested the Black Hills National Forest. Id. at 78, 232. Forest Service employees mixed EDB with either water or diesel fuel (depending on the weather) and applied this mixture to trees throughout the forest. Id. at 78, 207, 215-16, 232.
The danger to humans posed by EDB is undisputed. According to Environmental Protection Agency (“EPA”) National Primary Drinking Water Regulations issued in 1995, EDB’s potential effects on humans after short-term exposure above the Maximum Contaminant Level (“MCL”)
Besides these dangerous health effects caused by EDB, it is a tenacious environmental contaminant. The parties agree that as little as one quart of EDB, or even less, could cause the contamination of groundwater detected in this ease. See Pl.App. at 11; D.App. at 33.
These EPA statements in its National Primary Drinking Water Regulations are some of the most recent in a string of regulatory actions. In December 1977, EPA issued a Notice of Rebuttable Presumption Against Registration regarding EDB. See 42 Fed. Reg. 63,134 (Dec. 14, 1977). In December 1980, EPA issued a Preliminary Notice of Determination, concluding that because the presumptions regarding EDB’s harmfulness had not been rebutted, it had reached a preliminary decision “to cancel use' of EDB.” 45 Fed.Reg. 81,516, 81,516 (Dec. 10, 1980). In October 1983, EPA issued a notice regarding its intent to cancel EDB’s registration under the Federal Insecticide, Fungicide, and Rodenticide Act. 48 Fed.Reg. 46,234 (Oct. 11, 1983). In this notice, EPA stated: “[EDB] has long been known to present a risk of serious acute toxicity, including death, at even relatively low levels of exposure.” Id. at 46,236. Moreover, EPA concluded: “EDB poses: (1) Increased risk of cancer; (2) increased risk of mutations; (3) increased risk of adverse reproductive effects.” Id. This conclusion was based on the results of several scientific studies, including five dated to 1975 or earlier. Id. After reviewing the risks of EDB in concrete terms, the EPA notice stated: “The use of EDB as a pesticide poses significant risks ... to the general public from contamination of food and groundwater used for drinking.” Id. at 46,-239.
Finally, in September 1983, EPA ordered an immediate emergency suspension of EDB as a soil fumigant of agricultural crops. See Press Release, Environmental Protection Agency, EPA Acts to Ban EDB Pesticide (Sept. 30, 1983) available at http:// www.epa.gov/cgi-bin/epaprintoly.cgi. Also, in March 1987, EPA issued a health advisory regarding EDB’s carcinogenic and other potential harmful effects. D. Ex. 7; Office of Drinking Water, U.S. Environmental Protection Agency, Health Advisory: Ethylene Dibromide (Mar. 31,1987).
Furthermore, EPA is not the only federal agency that has opined on the dangers of EDB. One of plaintiffs expert witnesses, Cathleen J. Webb, Ph.D., an Associate Professor of Chemistry at Western Kentucky University, stated in her affidavit that two federal agencies published warnings about the harmful nature of EDB in the mid-1970’s. Pl.App. at 402. According to Webb, the National Cancer Institute (“NCI”)
B. Contamination in the Town of Nemo
The town of Nemo is located approximately twenty miles northwest of Rapid City, South Dakota in the Black Hills National Forest. D. PFUF at 1. The Forest Service uses the Nemo Work Center, a twenty-acre parcel located in the town, to manage the surrounding national forest. Id. at 2. Water tests conducted regularly since October 1996
The first tests for EDB contamination in Nemo were conducted in response to voluntary oral statements of Roger Showman, a Forest Service employee since 1975, to Forest Service officials that he had helped bury several cans containing EDB at the Work Center in 1975 and 1976. Id. at 79,186. Mr. Showman first spoke with A1 Bradock, a Forest Service employee who was apparently responsible for hazardous materials, after a hazmat session
On October 22, 1996, after the first tests revealed that several Nemo wells were contaminated by EDB, Mr. Showman wrote a short memorandum
while I was working at Nemo workcenter as a seasonal [employee] in 1975 and 1976 we buried a number of cans of EDB mixed with Diesel fuel. These were in 5 gallon Jerry Cans, many of which were very corroded as the compound is quite corrosive, some were leaking. These cans were to have the tops unscrewed and were dumped in an opened pit above the workcenter.
Id. (punctuation as in original). Later in his memorandum, Mr. Showman described the condition of the cans further: “many of the cans were leaking when they were buried and the lids were unscrewed on a number of the ones before they were buried.” Id.
The Forest Service enlisted the services of Jim Emery,
The notes from Mr. Emery’s interview of Leo Hageman, a retired Forest Service employee, indicate that Hageman remembered cleaning out five-gallon cans and sending them to other Forest Service locations, but
The notes from Mr. Emery’s interview of Gary Woodford, a Forest Service employee from 1969-71, indicate that he remembered burying cans full of what he thinks was EDB on the Work Center property. Id. at 213.
The notes from Mr. Emery’s interview of Guy Virkula, another retired Forest Service employee, contains some ambiguity regarding EDB dumping at the Work Center, recording both that Virkula had “little or no knowledge of the actual disposal of [the] barrels,” but that he “was aware of some burial activities on the hill at Nemo & could recall material & equipment on the excavation site.” Id. at 215-16. Still, according to the interview notes, Mr. Virkula remembered mixing EDB with water or diesel fuel in five gallon “Jerry (gas) cans.” Id. at 215. Mr. Virkula also recalled that this mixing occurred on “the dock by the warehouse” and that “some spillage probably occurred daily or at least from time to time.” Id. at 216. Mr. Virkula “thought this area could be contributing to the present EDB problem,” according to the interview notes. Id.
The notes from Mr. Emery’s interview of Paul Mclnerney indicate that Mclnerney “claims to have been there when the cans were being buried and saw liquid squirt [forty feet] in the air when they were crushed.” Id. at 220. Mr. Emery dismissed this recollection by Mr. Mclnerney (correctly or not) as a “second-hand story.” Id. According to the interview notes, Mr. Mclnerney said “the barrels were left at various locations throughout the forest.” Id. Mr. Mclnerney also stated that EDB was a “vicious material that would eat your boots off in a month or two.” Id.
C. The Forest Service Response
In response to Mr. Showman’s oral reports of the early 1990’s that he had helped bury cans of EDB at the Work Center, the Forest Service issued a preliminary assessment of the Work Center site, as required by the Comprehensive Environmental Response, Compensation, and Liability Act (“CERC-LA”),
Unfortunately, the Forest Service did not test the groundwater for EDB in the Nemo area immediately after it issued this report. Id. at 12-13; D.App. at 471. Instead, it inexplicably (since the dangerous nature of EDB was unambiguously established at the time) waited two years before conducting its first tests in October 1996. Pl.App. at 187. The results of the first set of tests, received
Upon receiving these results, the Forest Service responded in several ways. On October 17, 1996, the Forest Service issued a press release acknowledging the EDB contamination; news stories in local newspapers were published in the following days. D.App. at 462-67. The Forest Service also published a legal notice in a local newspaper, disclosed information through a recurring newsletter, and held public meetings regarding the EDB contamination. Id. at 463, 468-70, 473-74, 483-85, 491-97.
In October 1996, the Forest Service contracted with Envirosearch International (“Envirosearch”),
Envirosearch and the Forest Service first attempted to locate the source of the EDB contamination in October 1996. According to the Envirosearch report of October 4, 1998, Envirosearch engaged in “excavation activities” in October 1996 that uncovered “buried metallic debris,” but no “pesticide containers.” PLApp. at 269. Next, Envirosearch engaged in “exploratory excavation activities” that were likewise unsuccessful. Id. at 271. Envirosearch then conducted geophysical surveys and used an “Electromagnetic Systems EM 31 ground conductivity instrument” to attempt to locate the source of the contamination, methods that also failed to locate the EDB source.
According to Don Murray, the Forest Service “representative on the ground” in Nemo, the Forest Service and Envirosearch ultimately dug some 70 or 80 holes or trenches in their efforts to locate the source of the EDB contamination. Id. at 9, 34. However, based on the most recent information before the court, Forest Service and Envirosearch
Since 2001, Forest Service efforts to locate the source of the EDB contamination have apparently been limited. Id. at 8, 42. Even so, Bill Sehleining, who served as the Forest Service on-scene coordinator for the Nemo-area EDB contamination between 1996 and 2001, insisted: “I don’t think we will ever give up.” Id. at 34, 35, 42.
Based on the failure to locate the source of the EDB, Forest Service employees have speculated that the Forest Service may not have caused the contamination. According to Mr. Sehleining, not only has the Forest Service never admitted that it caused the contamination, but there is also no direct physical evidence (no buried cans of EDB or even contaminated soil at the Work Center) proving that the Forest Service was the cause. Id. at 37-39, 43-44. Mr. Sehleining draws a distinction between admitting legal responsibility as the cause of contamination and “accepting responsibility as the lead agency” to address a contamination problem. Id. at 37. Pointing out that EDB was also used as a fuel additive, both Mr. Murray and Mr. Sehleining stated that a gasoline tank on the plaintiff’s own ranch, which apparently leaked and had to be removed, might have been the source of Nemo’s EDB contamination instead of dumping at the Work Center. Id. at 10-11, 37-38. However, there simply is no evidence before the court supporting these bald assertions. Indeed, even given the failure to locate the source of the EDB contamination, Mr. Sehleining clearly acknowledged that he has no reason to disbelieve Mr. Showman’s statements that he dumped EDB at the Work Station. Id. at 36. To be sure, Mr. Sehleining agreed that, even if not conclusive, all of the available evidence points to the Forest Service as the cause of the EDB contamination. Id. at 38-39.
While it has not located the source or cleaned up the EDB contamination, the Forest Service has provided water to some Nemo-area residents. It provided bottled water to impacted residents immediately after receiving the test results in October 1996. Id. at 268. Soon thereafter, the Forest Service installed a 6,000-gallon water tank at the Work Center to pipe water to some Nemo-area residents. Id. at 268-69. It also installed 1,000-gallon water tanks at two private residences. Id. Eventually, the Forest Service began piping water to some Nemo residents from a well approximately 1.5 miles outside of Nemo. Id. at 18, 241-43, 312-17. The Forest Service has not charged recipients for the water it has provided so far, and it appears that the Forest Service intends to continue supplying water indefinitely. Id. at 52. As discussed below, however, the Forest Service has not provided water to Mr. Hansen’s property.
The appropriate background regarding EDB contamination in Nemo now established, the court turns next to Mr. Hansen’s property, itself, which is at the heart of this case.
D. The Nemo Guest Ranch and EDB Contamination
The Nemo Guest Ranch, the subject of Mr. Hansen’s takings claim, is situated on 18 acres of land in Nemo. D. PFUF at 1. The ranch abuts the Work Center property, which lies just south of the ranch property line. Id. at 1-2. The ranch, which has operated since 1946, consists of real estate and some small rustic buildings, including a store, a bar, and cabins for guests. Id. at 1; Compl. at 2. The State of South Dakota has also recognized water rights associated with the ranch: a vested right to 26 gallons per minute with a priority date of January 1, 1946. See PL Supp.App. at 1-2.
James A. Hansen acquired the ranch on October 29, 1998 from a corporation represented by Dale Deverman. See Pl.App. at 363. On February 17, 2000, Mr. Hansen sold the ranch to Ron Wick. See id. at 141-56. Mr. Hansen and Mr. Wick executed a contract for deed, under which Hansen holds legal title to the ranch until Wick completes the required payments. See id. If Mr. Wick defaults, the contract permits Mr. Hansen to cancel the contract and keep all improvements and payments made by Wick as liquidated damages. Id. at 145. Significantly,
Although it has done so for some residences and properties in Nemo, the Forest Service has refused to supply water to Mr. Hansen. Id. at 12-14, 19, 22, 44, 52. Without providing much detail, Forest Service employees have stated a few different reasons for not providing clean water to Mr. Hansen, including: (a) the ranch is not contaminated; (b) the ranch is commercial (as opposed to residential); and (c) the ranch continues to have a viable source of water. Id. at 13,14, 44, 52,138-39.
Mr. Hansen contends that these reasons are riddled with problems. Mr. Hansen points out that the ranch is contaminated to a degree — two of the wells on the property are contaminated. Id. at 29, 358. Mr. Hansen also claims that the Forest Service has provided water to commercial properties other than the ranch — and even to a private residence not contaminated by EDB. Id. at 19, 22, 138-39. In addition, Mr. Wick is concerned about the future viability of the wells currently in use at the ranch. Id. at 133-34; see also id. at 30. While the parties agree that the source of water supplying the ranch’s current wells is neither cost effective nor desirable, they dispute whether or not the two wells currently in use at the ranch will eventually become unusable due to EDB contamination. D. Resp. PFUF at 7,17; see also Pl.App. at 372. Still, based on the most recent information before the court, the wells currently in use on the ranch provide clean water sufficient to sustain the ranch’s operations. Id. at 133.
1. The Water Wells on the Nemo Ranch
To the court’s knowledge, five water wells have been drilled on the ranch property. The “Old 4T Well” (variously referred to as the Old, 4T, 4T Old, or Old 4T well in the parties’ filings) is located on a small piece of property on the opposite side of the road that otherwise serves as the southern border of the ranch property. See id. at 365. Two wells referred to as the “Deverman” wells (“Deverman Well No. 1” and “Deverman Well No. 2”) are located on the northern side of the ranch property. Id. at 364. According to Mr. Hansen, Deverman Well No. 2 was not in operation due to biological contamination when he acquired the ranch. Id. In June of 1999, Mr. Hansen had a well drilled near the southeast comer of the ranch property, referred to as the “New 4T Well.” Id. at 364-65. Finally, Mr. Hansen had an additional well, the ‘Wick Well,” drilled pursuant to the contract with Mr. Wick. Id. at 365. The Wick Well is apparently located near the Deverman wells on the northern side of the ranch property. Id. Boxelder Creek runs through the northern side of the ranch property. Id. at 333. Significantly, the Deverman Wells and the Wick Well are shallow wells under the influence of Boxelder Creek. Id. at 364, 365, 370, 372.
In March 1997, before Mr. Hansen purchased the ranch, the Old 4T Well tested positive for EDB. Id. at 251. Based on the documents before the court, this was the only time the Old 4T Well was tested for EDB.
The time at which Mr. Deverman, his corporation, or Mr. Hansen knew or should have known that the Old 4T Well was contaminated by EDB is important as far as standing is concerned. At the time of the March 1997 test, the Old 4T Well had not been used for several years due to biological contamination. Id. at 52, 59, 71-73. Mr. Deverman, who owned the ranch at the time of the March 1997 test, stated that he did not know that the Old 4T Well had been tested, and that he did not know about the results of any such test. Id. at 65-66. Moreover, Mr. Dever-man stated that EDB contamination was not
To be sure, Mr. Hansen sued Mr. Dever-man in state court for this and other alleged undisclosed deficiencies in the ranch. Id. at Ex. 35 & 36. This litigation was terminated with a settlement: Deverman paid $100,000 in exchange for a release from Hansen. Id. at Ex. 36. In this settlement, Mr. Deverman did not state that he knew or should have disclosed that the ranch was contaminated by EDB when he sold it to Mr. Hansen. Id. Moreover, Envirosearch maps available at the time that Mr. Hansen purchased the ranch did not depict the Old 4T Well as contaminated. Id. at 247, 259, 261, 324; D. Resp. PFUF at 3. Finally, according to Mr. Hansen, he had no knowledge of the Old 4T Well prior to June 1999. Pl.App. at 365.
Significantly, the New 4T Well tested positive for EDB above the MCL, the aforementioned legal limit established by the EPA, in July 1999, October 2000, April 2001, and October 2001. Id. at 349.
Deverman Well No. 1 was tested for EDB in October 1996, May 1997, November 1997, April 1998, July 1998, October 1998, April 1999, September 1999, October 2000, April 2001, and October 2001. Id. Deverman Well No. 2 was tested for EDB in October 1996, May 2997, April 1998, and July 1998. Id. Deverman Well No. 2, which was abandoned due to biological pollution when Mr. Hansen bought the ranch, was not tested again after July 1998. Id. at 349, 364. The Wick Well was tested for EDB in October 2000, April 2001, and October 2001. Id. at 349. While the tests of these three wells detected low levels of EDB (no more than .02 parts per billion), none of them detected EDB above the MCL (.05 ppb). Id. Thus, based on the most recent documents before the court,
2. The Likelihood That Contamination Will Spread on the Nemo Ranch
The parties dispute the extent to which the ranch is or will be contaminated by EDB. D. Resp. PFUF at 12, 16, 17. Arguing that EDB contamination of the ranch remains limited, the government relies on the fact that, as discussed in the preceding paragraph, the ranch continues to have clean water sufficient to maintain current operations. D. Supp. Memo, of November 9, 2004 at 17.
The government also relies on the reports prepared by Envirosearch. The Enviro-search Report of September 3, 1997 concluded: “Based on the water level and water
Envirosearch has also posited that a fault running from East to West — roughly along the course of the road at the ranch’s southern border — naturally shields the ranch from EDB contamination. Id. at 17, 54, 281-82; see also id. at 371. Envirosearch has depicted this inferred fault in several maps as a red or orange line on or near the ranch’s southern border. Id. at 247, 331, 353. This inferred-fault theory appears to be a “best-guess” based on water testing results. It is not depicted with any scientific precision in Envirosearch’s maps.
On the other hand, Mr. Hansen argues that the ranch is or will become completely contaminated by EDB, based on the EDB contamination of the New 4T Well, which is located to the north of the inferred fault Envirosearch has projected in its reports (ie., the contamination is not confined to the land that the alleged fault dictates). PI. Opp. Memo of January 16, 2003 at 35. The gist of this claim is that EDB contamination in the New 4T Well undermines Envirosearch’s inferred-fault theory. Id. Mr. Schleining of the Forest Service implied that contamination of the New 4T Well does not necessarily undermine Envirosearch’s inferred-fault theory. See Pl.App. at 54. Mr. Scleining stated: “the fault line is very small on the map, whereas on the ground, it could be a lot wider than that,” implying that the fact the New 4T Well is on the North side of Envirosearch’s projected fault may be attributable either to the lack of precision in the depiction of the fault in Envirosearch’s maps — or the “best-guess” nature of the inferred-fault theory itself. Id. Mr. Schleining acknowledged that no investigation to determine the width of the fault has been conducted. Id.
It is interesting to note that Enviro-search’s models and maps of the Nemo contamination plume have been altered to incorporate new data. For example, Envi-rosearch initially posited two smaller contamination plumes but later concluded that there was one larger plume. Id. at 247, 331. Likewise, the Envirosearch maps dated after July 1999 show that the contamination plume has entered Mr. Hansen’s property at the point of the New 4T Well. Id. at 331, 333, 340. 344. However, the most recent maps inexplicably do not depict the Old 4T Well as contaminated or the contamination plume to include the Old 4T Well.
EDB concentrations within the heart of the contaminant plume ... have increased significantly, while EDB concentrations in monitoring and domestic wells on the periphery of the plume have remained relatively stable since April 2001. The geometry of the contaminant plume over time has been relatively constant, although some expansion and contraction of the EDB groundwater plume has been documented[.]
Id. at 354. Not surprisingly, the parties seize on different parts of this report that tend to support their own position. Defendant emphasizes the reference to the stability of the plume, while Mr. Hansen emphasizes the language acknowledging the
Mr. Hansen also relies on affidavits from two expert witnesses: Arden D. Davis, Ph. D., a geological engineer and Professor in the Department of Geology and Geological Engineering at the South Dakota School of Mines and Technology, and Cathleen J. Webb, Ph. D., an Associate Professor of Chemistry at Western Kentucky University. Pl.App. at Ex. 32 and 33.
After discussing his education, experience, and the materials he relied on to form his opinion, Dr. Davis set down in detail his opinion that EDB contamination on the ranch will worsen. Id. at 367-69. Specifically, Dr. Davis opined that the EDB plume “will continue to migrate onto” and “continue to move down-gradient or across the Nemo Guest Ranch property” from its source to the South. Id. at 371-72. Dr. Davis opined that there is a high probability that Deverman Well No. 1 and the Wick Well will become contaminated with both “biological agents from the creek and water under its influence” and “the EDB plume.” Id. at 372. Dr. Davis also opined that existing EDB in the ranch’s groundwater “will continue to be a source of contamination for an indefinite period of time, and at least the next 50 years.” Id. at 369. Similarly, Dr. Davis opined that the EDB plume that he expects to further migrate onto the ranch will “continue to affect [the ranch] for decades into the future.” Id. at 371-72. Addressing the conclusions repeated several times in the En-virosearch reports, Dr. Davis specifically disagreed with the opinion that the ranch’s groundwater is upgradient and hydraulically isolated from the EDB-contaminated waters to the South. Id. at 370-71. Likewise, Dr. Davis also stated: “I see no evidence of a barrier that would protect the ground under [the ranch].” Id. at 371.
Addressing whether EDB contamination of the ranch’s groundwater would have been foreseeable to the Forest Service, Dr. Davis stated:
it is my opinion that the EDB contamination under the Nemo Guest Ranch is the natural and probable consequence of the activities of the United States Forest Service. The knowledge of the nature of the geology of the Nemo area prior to 1970 was such that it was foreseeable that EDB storage, use, and disposal at the workstation, which allowed EDB to come in contact with the ground, would result in the contamination of the bedrock aquifer and that the contamination plume would eventually extend under the Nemo Guest Ranch.
Id. at 370. Similarly, Dr. Davis stated: “[t]here was nothing surprising or unusual about the plume having moved down gradient, toward the creek, spreading under the Nemo Guest Ranch.” Id. at 369. Finally, Dr. Davis also opined that a clean-up of the Nemo EDB contamination plume would cost millions of dollars. Id. at 372.
After discussing her education, experience, and the materials she relied on to form her opinion, Dr. Webb stated that she believes that EDB contamination of the ranch would grow worse. Id. at 401-02. Specifically, Dr. Webb opined that “the EDB plume will continue to migrate onto the Nemo Guest Ranch property.” Id. at 403. Dr. Webb also stated that, based on her knowledge of the “effects of human exposure to the poison, EDB” she “would neither purchase nor visit the Nemo Guest Ranch until a thorough cleanup of the poisonous EDB has been accomplished.” Id. at 404. Finally, Dr. Webb opined that the EDB plume located on the ranch “will not remediate without human intervention for approximately 80 to 100 years” and that to cleanup of the EDB would cost “millions of dollars.” Id. at 404-05.
It is uncontroverted in the record that while it may not be possible to predict precisely how long EDB will remain in the ranch’s underground water, unmitigated EDB contamination in groundwater is clearly a long-term problem. Because it is not subject to volatilization, EDB in underground water persists much longer than it would under other circumstances (ie., in the atmosphere or in surface water). Pl.App. at 158, 404. As noted above, both Drs. Davis and Webb concluded that EDB contamination on the ranch will last for decades, and maybe even as long as 100 years. Id. at 369, 404. It should be noted that the government has not
II. PROCEDURAL BACKGROUND
Plaintiff filed this Fifth Amendment takings action, in which he demands just compensation of $1,100,000, on January 8, 2002. Initially assigned to Chief Judge Damieh, this ease was reassigned to the present judge on October 16,2002.
Careful not to forego possible alternative avenues of recovery, the plaintiff has pursued a tort theory elsewhere. On February 5, 2001, plaintiff initiated an administrative claim against the Forest Service under the Federal Tort Claims Act (“FTCA”).
In response to plaintiffs complaint in this court, defendant filed a motion to dismiss for lack of jurisdiction, or in the alternative for summary judgment, on December 2, 2002. On January 16, 2003, plaintiff filed his opposition to defendant’s motion and a cross-motion for partial summary judgment. The court held a hearing regarding these motions on May 27, 2003. In that hearing, the court directed the parties to submit supplemental briefs on: (a) South Dakota law related to the effect of the contract between plaintiff and Mr. Wick on plaintiff’s standing; (b) plaintiffs property interest in the ground water beneath the ranch; (c) the takings law regarding stigmatization; and (d) the applicability of United States v. Dickinson,
On October 9, 2003, the matter was referred to Alternative Dispute Resolution with the parties’ approval. After the parties were unable to reach a settlement, the case was transferred back to this court on July 14, 2004.
The court conducted a status conference on September 21, 2004, in which it gave the parties the opportunity to refresh the case law in their previously filed submissions, paying special attention in their supplemental filings to the following issues: (a) the applicability of Portsmouth Harbor Land & Hotel Co. v. United States,
III. DISCUSSION
A. Standard of Review
Defendant has filed a motion to dismiss under RCFC 12(b)(1)
For his part, plaintiff has filed a cross-motion for partial summary judgment on the issue that his taking claim accrued in June 1999 when he first became aware of EDB contamination on the ranch.
To address a typical motion to dismiss for lack of subject matter jurisdiction, the court considers the allegations in the complaint as true. Reynolds v.Army and Air Force Exch. Serv.,
To address a motion to dismiss under rule 12(b)(6), the court “assumes that all well-pled factual allegations are true and resolves all reasonable inferences in favor of the nonmov-ant.” Brubaker Amusement Co., Inc. v. United States,
The court notes that special care is required in addressing summary judgment motions in a takings case context. While courts should avoid “precipitous grants .of summary judgment” in takings cases due to their “fact-intensive” nature, Yuba Goldfields, Inc. v. United States,
The court, therefore, may grant summary judgment only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
Concerning the facts in the record that the court must scrutinize, it must be emphasized that the party moving for summary judgment is not required to produce evidence showing an absence of genuine material fact. Celotex Corp. v. Catrett, All U.S. 317, 325,
B. Introduction: The Tort-Taking Distinction
The general takings analysis in the Federal Circuit has been organized into a two-part prima facie test, requiring a plaintiff to demonstrate (1) a relevant property interest and (2) a government action that has resulted in a taking. See Adams v. United States,
The government’s argument is in part based on a long-established reading of the Tucker Act that proscribes this court’s jurisdiction over claims sounding in tort. The Tucker Act states:
The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.
28 U.S.C. § 1491(a) (2001). Although it is plausible to read the words “in eases not sounding in tort” as qualifying only the last of four categories of cases within the court’s jurisdiction,
Accordingly, over the course of nearly two centuries of takings jurisprudence, a “line distinguishing potential physical takings from possible torts” has developed. Id. The government predicates its argument that plaintiffs claim here is really a tort on a narrow-reading of that test that has evolved in this Circuit to differentiate torts from taking claims. This so-called tort-taking distinction test reflects the close historical relationship between torts and takings. Indeed, the common law of property relied on tort principles, particularly trespass and nuisance, to help define the concept of property itself and the scope of property interests. The development of takings law was, in effect, an extension of the principles of trespass and nuisance to the actions of the government. As courts struggled for a way to limit takings liability, particularly in cases where the harm caused by a government action was not “direct” (i.e., there was no actual invasion of a plaintiffs property, but rather some consequential harm to the plaintiffs property interest), the courts often turned to analytical concepts inherent in tort law such as eausation-in-faet and proximate or legal causation to define the outer bounds of those actions and consequences that might result in a taking. Ultimately, courts came to rest upon a distinction between “direct” and consequential harm as the key difference between those eases in which a takings claim would lie. Only where the harm resulted directly from government action could a plaintiff bring a takings claim.
Despite a natural reliance on the objective concepts of causation as the standard takings analytical framework, a jurisdictional quirk caused the takings analysis in this court’s predecessor (the Court of Claims) to embrace subjective considerations such as specific intent as a necessary element of a takings claim. This was so even though subjective factors were not a factor in the traditional tort-causation analysis. In short, pri- or to the Tucker Act in' 1887 this court did not have specific jurisdiction over takings claims. Since the court did possess proper jurisdiction over contractual undertakings, however, many plaintiffs cast their “takings” claims in the form of an implied-in-fact contract to bring them within the court’s jurisdiction.
Even after the Tucker Act conferred specific subject matter jurisdiction over claims based on the Constitution, and therefore Fifth Amendment Takings Claims, the Court of Claims curiously retained the implied contract analysis of takings and its attendant subjective intent element, as sort of a vestige of its historical precedent. While subsequent decisions of the court and the Supreme Court in the early Twentieth Century clearly indicated that the implied contract analysis was no longer required in a takings analysis, a tension remained in cases that followed. Courts seemed to struggle with the roles of “intent” versus the objective causation analysis in applying the tort-takings distinction test. Traditionally, the tort-causation analysis implicated “intent” only in the context of the government actor’s intent to commit the challenged act — a sort of general intent that was not related to the ultimate harm or outcome of the action.
Two distinct approaches to the tort-takings distinction eventually emerged. On one hand, if the plaintiff was able to demonstrate the government’s subjective or specific intent to appropriate the owner’s property, the courts were content to conclude that a taking could be established, so long as the harm was substantial. This approach is logical.
On the other hand, in those eases where it was clear that the government had in fact caused the plaintiffs harm and that harm was proximately related to the government’s actions, the courts relied on the objective causation analysis to determine that a taking had occurred. In this analysis, the need for proof of the government’s intent was obviated; indeed, the causation analysis subsumed any showing of subjective intent. In sum, the two different approaches — intent versus causation — emerged as alternative avenues for establishing this court’s jurisdiction over
The Federal Circuit recently took up the issue in Ridge Line, in which the court implicitly resolved any tension between the two approaches by carving out an analytical framework for the tort-taking distinction test that, while not entirely new, incorporated both of the divergent analytical approaches to takings. The Federal Circuit preserved the specific intent approach as one of the prongs of the tort-takings analysis. However, the court recognized that, while sufficient, this outdated approach was not a necessary element of a takings claim. Instead, the Ridge Line court adopted the traditional objective tort-causation approach to takings as an alternative means for establishing a takings claim. This causation approach adopted in Ridge Line is largely based on causation-in-fact and allows a takings claim to lie so long as the harm is proximately related to the causative action.
In Ridge Line, the Federal Circuit neatly summarized the tort-taking distinction test. “First, a property loss compensable as a taking only results when the government intends to invade a protected property interest or the asserted invasion is the ‘direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action.’ ” Ridge Line,
Despite the seemingly clear approach to the tort-takings distinction espoused in Ridge Line, sound application of the concepts of causation and intent that are variously incorporated into the Ridge Line test have remained somewhat elusive in application. For example, in a recent decision by this court, the court seemed to misconstrue and overemphasize the role of foreseeability when applying the traditional tort-standard of causation to a takings claim. See Moden,
Ultimately, it is this misapplication of the Ridge Line test upon which the government relies in this ease to avoid takings liability and remove this case from the court’s jurisdiction. Generally, the government argues that its agents at the Forest Service did not intend to cause harm to plaintiffs ranch. This is so because the agents never contemplated that burying EDB at the Work Center
To illustrate these conclusions and this court’s analysis of the Ridge Line test, a review of the evolution of takings jurisprudence in the Supreme Court and the Federal Circuit (and its predecessors) follows. The goal of the analysis is to flesh out the proper, but independent, roles of causation and intent in the tort-takings analysis and facilitate a proper application of those principles to the facts of this case.
1. Takings Jurisprudence Shares Common Roots with Traditional Tort Concepts
Concepts such as causation-in-fact and proximate causation, which often lie at the heart of takings jurisprudence, are prototypical tort precepts. Although there is a split amongst scholars concerning the original meaning of the Takings Clause,
The definition of property as a series of rights, commonly conceptualized as a bundle of sticks, formed the foundation of early takings jurisprudence in the United States. For example, in Gardner v. Newburgh,
The “bundle of sticks” concept of property rights was also advocated in Woodruff v. Neal,
retains the fee, and all rights of property in the land not incompatible with the public enjoyment of the right of way ... Subject to this right of the public, he may take trees growing upon the land, occupy mines, sink water courses under it, and generally, has a right to every use and profit which can be derived from it consistent with the easement.
Id. at 167-68. Although the state took some of the landowner’s property rights when it obtained the easement for the highway, it did not extinguish the owner’s many other property rights inherent to that ownership. Many sticks, such as the right to graze livestock on the land, remained in the plaintiffs bundle of rights and, if taken, entitled the plaintiff to compensation for a taking. Id. (“[W]e are fully satisfied that the granting or authorizing such a license [to graze livestock upon a public highway that runs across another’s land], no compensation having been in any manner provided for the owner of the land upon which it is to be exercised, is beyond the constitutional power of the legislature. It constitutes [a] taking----”).
The bundle of sticks approach to property and takings remains prominent to this day in eminent domain and inverse condemnation cases.
Courts often turned to tort concepts to define the scope of property rights that comprise the bundle of sticks. In a sense, the law of property and tort are oft intertwined. Courts rely on the tort of trespass to establish one of the “sticks” in an owner’s bundle — the right to exclude. See Loretto,
This “nuisance” conception of takings was important in many early takings cases decided in this country. For example, People v. Platt,
Clearly, nuisance principles continue to define the outer boundaries of takings jurisprudence. This is even true in regulatory takings. The best example is Lucas v. South Carolina Coastal Council,
Where the State seeks to sustain a regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use interests were not part of his title to begin with. This accords, we think, with our ‘takings’ jurisprudence, which has traditionally been guided by understandings of our citizens regarding the content of, and the State’s power over, the “bundle of rights” that they acquire when they obtain title to property.
Id. at 1027,
The fact that the law of takings and the law of property torts share common origins renders problematic any argument that tort and takings claims can never arise from the same common facts. Indeed, because tort “pervades the entire law, and is so interlocked at every point with property, contract and other accepted classifications,” “the student of law soon discovers [that] the categories are quite arbitrary.” W. Page Keeton et al„ Prosser and Keeton on Torts 2 (5th Ed.1984) [hereinafter Prosser and Keeton].
Federal courts have embraced this relationship between tort concepts of property and takings claims. While not all torts are takings, every taking that involves invasion or destruction of property is by definition tortious. In theory, an encroachment on property that constitutes a taking if committed by the government constitutes a tort if committed by a private party. For example, the Supreme Court observed in Richards v. Washington Terminal Co.,
The real key to the distinction between mere torts (other than nuisance
Recent eases support the conclusion that tort and takings claims may arise from the same operative facts, both in practice and in principle. In Clark v. United States,
The conclusion of Clark I and Clark III that takings and torts are not conceptually distinct is supported by other cases. See Beverly v. United States,
In El-Shifa Pharmaceutical Industries Co. v. United States,
2. Traditional Tort Concepts of Causation Applies to Takings Analysis
The significance of the tort origin of takings jurisprudence is not merely of historical interest because takings jurisprudence continues to rely on general tort concepts such as causation to evaluate liability. Generally, tort causation analysis involves two distinct issues: factual and legal causation. Factual causation asks whether a particular harm would have occurred but for a party’s actions (or, in the case of more than one potential cause, whether a party’s actions were a substantial factor in causing a particular harm). See Prosser and Keeton at 263-68. In contrast, legal causation asks whether a particular harm is too remote from a party’s actions — too far down the chain of factual causation — to justify imposing liability. See id. at 272-74. As many courts and commentators have recognized, legal causation is a complex issue that cannot be reduced to a simple universal definition. See id. at 274 (“There is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion” as legal causation); see also National By-Products, Inc. v. United States,
Early takings cases provide examples of how tort causation rules were imported into takings jurisprudence. The earliest cases focused on the distinction between direct and indirect harm caused by the government. While the courts seemed comfortable to place cases in the “takings” pew when the govern
Significantly, Pumpelly v. Green Bay Co. contains one of the Supreme Court’s first important discussions of causation in the takings context.
The premise of the defendant’s argument, that the takings provision at issue only protected against the government’s intentional appropriation of private property and not its invasion or destruction of that property, was roundly rejected:
It would be a very curious and unsatisfactory result, if in construing a provision of constitutional law, always understood to have been adopted for protection and security to the rights of the individual against the government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can in effect subject it to total destruction without making any compensation, because in the narrowest sense of the word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the law or practices of our ancestors.
Id. at 177-78. Besides noting the common-law origin of takings doctrine, this language from Pumpelly makes it clear that destruction and invasion of private property that is even the collateral result of government action can result in a compensable taking.
Pumpelly also expressly rejected the defendant’s narrow legal causation argument. The Court acknowledged the doctrine accepted at the time in many states that “for a consequential injury to the property of the individual arising from the prosecution of improvements of roads, streets, rivers, and other highways, for the public good, there is
In applying causation principles, including the broad causation-in-fact logic employed by the Pumpelly Court, subsequent courts struggled with the problem of where to draw the line between government actions that resulted in compensable takings and those that did not. Once again using tort law as an exemplar, the Supreme Court applied the concept of proximate causation as a means to reign in liability for harm that, while in fact caused by government action, was not proximately related to that action. Specifically, the Court applied the maxim damnum abs-que injuria (“loss or harm for which there is no legal remedy”). Black’s Law Dictionary 398 (7th ed.1999).
In two cases following the Pumpelly decision, the Supreme Court applied the dam-num absque injuria principle and incorporated the tort concept of consequential harm as a limitation on liability otherwise premised on causation-in-fact. See Northern Transp. Co. v. Chicago,
Similarly, in Gibson the Court concluded that government construction of a dike that rendered the plaintiffs landing on the Ohio River useless at certain times of the year did not result in a compensable taking. Applying the rule of Northern, the Gibson Court held that “the damage of which [the plaintiff] complained was not the result of the taking of any part of her property, whether upland or submerged, or a direct invasion thereof, but the incidental consequence of the lawful and proper exercise of a governmental power.” Id. at 275,
United States v. Alexander,
Regarding causation, the Court observed that “[tjhere was no direct evidence as to the effect of the tunnel on the well, but during the process of construction and blasting, about 150 yards from the premises, the well became dry, and it has so remained. It does not appear that there was any other cause affecting the well.” Id. at 187,
In addition to issues of causation, courts also focused on another important concept of what defines a “taking” by addressing the substantiality of the harm. In what would become a staple of takings jurisprudence, courts were concerned with the nature and magnitude of the government action. An important early case that helped established this concept is United States v. Cress,
These cases and the causation analysis upon which they relied are the backdrop for one of the Supreme Courts seminal takings decisions, Portsmouth Harbor Land & Hotel Co. v. United States,
The defendant in Portsmouth filed a demurrer, arguing that the plaintiffs claim still did not rise to the level of a taking. Id. at 328-29,
*106 If the Government had installed its battery ... with the purpose and effect of subordinating the strip of land between the battery and the sea to the right and privilege of the Government to fire projectiles directly across it for the purpose of practice or otherwise, whenever it saw fit, in time of peace, with the result of depriving the owner of its profitable use, the imposition of such a servitude would constitute an appropriation of property for which compensation should be made.
Id. at 329,
The Court opined that if the government “with the admitted intent to fire across the claimants’ land at will should fire a single shot or put a fire control upon the land, it well might be that the taking of a right would be complete.” Id. at 329,
The Court ultimately concluded that if proved at trial, the plaintiffs allegations “would warrant a finding that a servitude has been imposed.” Id. at 330,
Portsmouth represents the culmination of the law in this area. For a taking to be cognizable, causation — that is a direct, as opposed to an indirect or consequential, appropriation or seizure of property — must be shown. Portsmouth’s causation requirement — today often referred to as the “natural, probable consequence test,” see Ridge Line,
3. The Role of Speciñc Intent and Foreseeability in the Court of Claims
In 1887, Congress passed the Tucker Act
All claims founded upon the Constitution of the United States or any law of Con*107 gress, except for pensions, or upon any regulation of an Executive Department, or upon any contract, expressed or implied, with the Government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort.
Tucker Act, ch. 359, 24 Stat. 505 (1887).
Nevertheless, even before the Tucker Act explicitly extended the court’s jurisdiction to cases arising under the Constitution, the Court of Claims recognized takings claims based on a theory of a breach of an implied contract with the government. See, e.g., Shreve v. United States,
In the years that followed, the Court of Claims exercised jurisdiction over several cases based on the theory that implied contracts to compensate owners were created when the government took or destroyed their property. See, e.g., Mason v. United States,
The Supreme Court sanctioned the Court of Claims’ practice of exercising takings jurisdiction based on implied contracts in United States v. Great Falls Manufacturing Co.,
Even though the Tucker Act in 1887 extended the jurisdiction of the Court of Claims to include “claims founded on the Constitution of the United States” (see Tucker Act, ch. 359, 24 Stat. 505 (1887)), the Court of Claims continued to insist after that date that its takings jurisdiction was based on implied contracts. See, e.g., Lanman v. United States,
This approach, however, was inconsistent with the view of takings that the Supreme Court had espoused in its line of cases that addressed and established takings based upon concepts of causation, alone, independent of any specific intent the government may or may not have had to inflict harm. The earlier cases that applied tort concepts of causation to takings claims had not been encumbered with discussions of subjective issues like intent, on which the implied contract line of cases so intensely focused. Although the implied contract basis of jurisdiction over takings in the Court of Claims ultimately declined in favor of the express jurisdictional grant in the Tucker Act, the divorce from the analysis inherent in an implied contract type ease in favor of the traditional tort notions of causation did not come as suddenly.
In United States v. Lynah,
There have been many cases in which a distinction has been drawn between the taking of property for public uses and a consequential injury to such property, by reason of some public work. In the one class the law implies a contract, a promise to pay for the property taken, which, if the taking was by the general government, will uphold an action in the court of claims; while in the other class there is simply a tortious act doing injury, over which the court of claims has no jurisdiction.
Id. at 472,
Justice Brown’s concurring opinion in Ly-nah (joined by Justices Shiras and Peckham) disagreed sharply with the Court’s use of the implied-contract theory of takings as the basis for recovery. Id. at 474-75,
Justice Brown argued that “claims founded upon the Constitution may be prosecuted in the [Cjourt of [Cjlaims, whether sounding in contract or in tort.” Id. This was so, he argued, because the phrase in the Tucker Act limiting jurisdiction to “cases not sounding in tort” related exclusively to the class of eases that the act listed immediately before this phrase: “actions for damages, liquidated or unliquidated.” Id. Thus, Justice Brown argued that the owner of land taken without eminent domain proceedings “may seek relief in the [Cjourt of [Cjlaims ... whether such taking be tortious or by virtue of some contract.”
The Supreme Court continued to rely on the implied contract approach to takings in John Horstmann Co. v. United States,
As a result of the uncertainty regarding the actual causation of plaintiffs harm, the plaintiffs alleged that the destruction of their property was the result of a combination of natural conditions and government design. Id. at 143-44,
At trial, the Court of Claims did not conclusively determine whether or not a causal connection between the government’s work and the plaintiffs harm existed or not. See id. at 144,
The Horstmann Court acknowledged that when the government substantially destroys the value of private property, “[t]he law will imply a promise to make the required compensation.” Id. at 145-46,
We think ... it would border on the extreme to say that the government intended a taking by that which no human knowledge could even predict. Any other conclusion would deter from useful enterprises on account of a dread of incurring unforeseen and immeasurable liability. This comment is of especial pertinence that the result of the government’s work to the properties of plaintiffs could not have been foreseen or foretold is a necessary deduction from the findings of the Court of Claims. The court found that there is obscurity in the movement of percolating waters, and that there was no evidence to remove it in the present case, and necessarily there could not have been foresight of their destination nor purpose to appropriate the properties.
Id. Accordingly, since the Supreme Court premised the Court of Claims’ jurisdiction over the case on an implied promise to pay, the inability to predict or foresee that the government’s actions would harm the plaintiffs’ property rebutted the existence of that implied promise. Id. Even though the Court relied on the government’s inability to objectively foresee the potential harm (rather than analyzing whether the government subjectively foresaw the harm) to rebut the existence of an implied contract, it is clear that this foreseeability problem was only important to the Court in the sense that it cut off the ability for the government to subjectively intend the harm. See id. (“[I]t would border on the extreme to say that the government intended a taking by that which no human knowledge could even predict.”).
The Horstmann decision reveals the continued vitality of the Court of Claims’ implied contract analysis of takings. Even though the Horstmann Court assumed causation and the harm was of the type found to be compensable under the Pumpelly, Northern and Gibson line of cases (which relied solely on causation, rather than implied contract, to determine takings liability), compensation was denied in Horstmann because the Court relied on the implied contract analysis and its attendant requirement of subjective, specific intent. The concepts of knowledge, prediction, and foresight are clearly relevant to the court’s analysis if “intent” is seen as the equivalent to the “meeting of the minds” element in contracts, an area of the law that revolves around voluntary and deliberate ordering of society through mutually beneficial agreements. See Gardiner, Kamya & Associates v. Jackson,
4. The Decline of the Implied Contract Takings Analysis
Ultimately, the Supreme Court abandoned the implied contract theory as a basis, of the Court of Claims’ takings jurisdiction. The decline of that theory was marked by an acknowledgment that the Tucker Act’s extension of the Court of Claims’ jurisdiction included Fifth Amendment takings claims. Predicating takings jurisdiction on the Fifth Amendment rather than implied contracts is significant because there is no subjective element of a Fifth Amendment claim. Instead, it establishes a right to compensation for property taken by the government for public use, unconditioned by a state-of-mind re
Though decided just one year after Horst-mann, the Portsmouth case (discussed above) marked a retreat from the implied contract theory of takings jurisdiction. Portsmouth effectively concluded that the government’s “intent” to make use of a plaintiffs property could be proven through a causation analysis, relying on objective standards instead of the government actors’ subjective intentions or knowledge. See Portsmouth,
Justice Brandeis’s dissent in Portsmouth is instructive due to the approach that it criticized the majority for failing to follow. It makes the majority opinion’s departure from the implied contract theory of takings all the more clear. To Justice Brandéis, the “mere fact of appropriation” was not sufficient to require compensation under the implied contract theory of takings jurisdiction; instead, the plaintiff was also required to plead and eventually prove that “the government intended to pay” just compensation. Id. at 336-37,
Clearly, the Brandéis dissent helps give context to the majority opinion in Portsmouth. The majority decision helped shift takings jurisprudence under the Tucker Act away from its implied contract roots in the Court of Claims. Furthermore, it implicitly de-emphasized the role of specific government intent in the takings context, in favor of a more objective tort-based causation approach.
The decline of implied contracts in takings jurisprudence would not be so quick, however. While the Supreme Court distinguished eminent domain cases from implied contract takings in Seaboard Air Line Ry. Co. v. United States,
To these facts, the Sanguinetti Court applied the causation test developed in PumpeUy, Lynah, and Cress. The Court summarized the causation and substantiality elements: “in order to create an enforceable liability against the government, it is at least necessary that the overflow be the direct result of the structure, and constitute an actual, permanent invasion of the land, amounting to an appropriation of and not merely an injury to the property.” Id. at 149,
Despite reaching a determinative conclusion based on the causation analysis, the Sanguinetti Court also stated its conclusion in terms of foreseeability and intent standards earlier associated with implied contracts analysis. The Court noted that the harm plaintiff suffered was not “within the contemplation of or reasonably to be anticipated by the government.” Id. While the Court did not indicate that the intent discussion was determinative, Sanguinetti’s reference to both causation and foreseeability-related concepts may have contributed to the struggle that later courts would have applying the causation and intent analyses.
In Jacobs v. United States,
5. Confusion in the Application of the Doctrines of Intent and Foreseeability in Takings Analysis
Even after the decline of implied contracts as a. foundation of this court’s takings jurisdiction, courts continued to look for elements of subjective intent or foreseeability in evaluating takings claims. While some courts retained these subjective elements, they did not do so to the exclusion of the causation analysis. Instead, courts commonly concluded that either proof of government intent to invade property or proof that the harm to property was the direct, natural, or probable consequence of government action was sufficient to give rise to a compensable takings claim, so long as the harm was substantial. These issues were addressed to varying degrees in a host of decisions by the Federal Circuit, the Court of Federal Claims, and their respective predecessors.
a. Intent
The Court of Claims first attempted to reconcile Lynah, Horstmann, and Sangui-netti with the decline of the implied-contraet takings in Columbia Basin Orchard v. United States,
In its statement of the relevant law, Columbia Basin simply combined the intent principle of Lynah, Horstmann, and Sangui-netti with the causation principle of Pumpelly, Portsmouth, and Causby to form a simple disjunctive test: “[tjhere must have been an intent on the part of the defendant to take plaintiffs property or an intention to do an act the natural and probable consequence of which was to take its property.”
Strangely, despite the emphasis on causation analysis in Portsmouth, the court in Columbia Basin insisted that the Supreme Court had not rejected a requirement that “there must have been an intent on the part of the Government to appropriate the property.” Id. at 710. However, Columbia Basin acknowledged that “an intent to take” could be implied from the facts of a case, presumably through a causation analysis. Id. at 711. Later courts specifically equated this so-called “implied intent” with proof that harm to property was the direct, natural, or probable result' of government actions. See, e.g., Berenholz v. United States,
Generally speaking, some cases following Columbia Basin clearly summarized all three elements (causation, intent, and substantiality of the harm) of the tort-taking distinction standard that would grow to become the standard in this circuit. See, e.g., Clark,
These cases are consistent with Columbia Basin’s statement that either proof of causation or proof of government intent to invade is sufficient to establish a taking. See Columbia Basin,
b. Foreseeability
Several cases in this area decided by the Federal Circuit, this court, and the predecessors of both between the late 1940’s and the present applied the causation element of the tort-taking distinction test. In doing so, some referred to foreseeability or some related concept. See, e.g., Barnes,
If properly understood and applied, foreseeability is a well-established aspect of causation analysis. When properly applied to causation, “foreseeability” involves an objective evaluation and forces the question “Could this outcome have been foreseen?” However, foreseeability can also be easily misapplied to incorporate a subjective element, as a sort of analogue to specific intent. Such a misapplication of foreseeability in a causation analysis is not entirely surprising, given the proximity of subjective foreseeability and intent in the implied contract analysis that prevailed in the Court of Claims for so long. Courts must therefore be vigilant to properly apply only the objective standard of foreseeability in a causation analysis, lest the causation analysis itself become bogged down by the elements of a subjective evaluation.
Cotton Land is one example of a court using the foreseeability concept in its proper context. In Cotton Land, the plaintiffs property was flooded by the construction of Parker Dam in Arizona. Cotton Land,
However, Cotton Land’s reference to foreseeability should not be read too broadly. The court acknowledged that the concept of legal causation was “necessarily vague.” Id. Furthermore, the court acknowledged that foreseeability is not the exclusive means of establishing legal causation. Id. Indeed, in addition to characterizing the harm to the plaintiffs property as foreseeable, the Cotton Land court also considered plaintiffs harm to be the “natural consequence[ ]” of the defendant’s actions. Id. Those concepts are related: unforeseen circumstances can be equated with intervening causation — a concept that deals with clear interruptions of the proximate causal chain. Id. Thus, Cotton Land did not establish a rigid rule requiring proof of either intent or foreseeability in every physical invasion or destruction takings case.
Interestingly, Cotton Land acknowledged the history behind the causation issue in takings law and observed: ‘We think that the tendency in some cases to find remoteness may have resulted from confusion with regard to the extent to which the Government has by statute, consented to be sued.” Id. at 234. After briefly reviewing the history of implied contract takings in the Court of Claims, Cotton Land acknowledged that it was not necessary “to find that the government’s agents were aware that their acts would result in a taking” for the court to exercise jurisdiction over the case. Id. at 234-35. Thus Cotton Land was well aware of the profound limitation that implied contract takings had imposed on the ability of plaintiffs to establish an entitlement to compensation by proving simple causation.
6. Ridge Line Resolves the Tension of Divergent Takings Analyses
While the tort-taking distinction test was relatively mature by the time that the Federal Circuit took up the issue in Ridge Line, the casualness that some eourts had used in their terminology to distinguish the role of intent versus the role of causation, including the relative role of subjective versus objective foreseeability created some tension or confusion between the scope of the two divergent analyses. To the extent .that the prior iterations of the tort-taking distinction test were confusing or limited to only a single analysis (intent or causation), Ridge Line unambiguously incorporated both analyses and construed them in light of one another. In a sense, Ridge Line represents the culmination of decades of takings jurisprudence.
The plaintiff in Ridge Line owned real estate “on which is located ... the largest shopping center and mixed-use commercial development in West Virginia.”
After a full trial, the Court of Federal Claims concluded that even though the water “invaded” the plaintiffs property from time to time, the plaintiff was not entitled to compensation. Id. at 1352. Focusing exclusively on whether the plaintiff suffered a permanent and exclusive occupation, the court did not consider the plaintiffs claim that the defendant had appropriated a “flowage easement by inverse condemnation.” Id. The plaintiff appealed, and the Federal Circuit ultimately reversed.
The Ridge Line decision held that the trial court should have considered the plaintiffs inverse condemnation claim. Id. at 1354. To reach this conclusion, the Federal Circuit pointed out that a permanent occupation need not be exclusive or continuous. Id. (citing Nollan v. Cal. Coastal Comm’n,
In evaluating whether a taking occurred, the Federal Circuit indicated that the plaintiff would have to “establish that treatment under takings law, as opposed to tort law, is appropriate under the circumstances.” Id. at 1355. As an initial matter, the court indicated that plaintiff must demonstrate whether the “effects [plaintiff] experienced were the predictable result of the government’s actions, and whether the government’s actions were sufficiently substantial to justify a takings remedy.” Id. Provided that the plaintiff could meet that threshhold, the court instructed that a second inquiry would require the plaintiff to demonstrate “that it possessed a protectable property interest in what it alleges the government has taken.” Id. This two-part inquiry is consistent with the analysis espoused by Adams. See Adams,
The Ridge Line court then elaborated on the standard that is invoked when a plaintiff tries to satisfy the tort-taking distinction test:
The line distinguishing potential physical takings from possible torts is drawn by a two-part inquiry. First, a property loss compensable as a taking only results when the government intends to invade a protected property interest or the asserted invasion is the direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action.... Second, the nature and magnitude of the government action must be considered.
Ridge Line,
The plaintiff in Ridge Line did not allege that the government “intentionally appropriated” the property. Id. at 1356. This was not fatal to its claim, however. Instead, the trial court was instructed on remand to “first determine whether Ridge Line proved that the increased storm runoff was the direct, natural, or probable result of the Postal Service development, rather than merely an incidental or consequential injury.” Id. The court was also instructed to “determine whether the increased runoff on the claimants property was the predictable result of the government action.” Id. (citing Sangui-netti,
The standard of “predictability” that the Federal Circuit referred to, as part of the causation analysis to be conducted on remand, was an objective inquiry that did not implicate the subjective intent, knowledge or foresight of the government. The Federal Circuit cited Horstmann for the proposition that if the damage “could not have been foreseen or foretold” than the causal chain would be interrupted. Id. (citing Horst-mann,
If engineers had studied the question in advance they would, we suppose, have predicted what occurred. If they had studied the question in advance and had said, in a report, “If you build Parker Dam to a crest of 450.4 fee, the pool will cover the land described below. The effect of the flow of the river into the pool will be to form a delta which, within approximately- three years will raise the bed and the surface of the river, will cause it to overflow its banks and will thus inundate the lands described below,” would the fact of that formal forewarning be a decisive fact in such a case as this? Should the fact that the engineering study was not so complete as to include a prediction as to lands beyond the bed of the reservoir prevent a court from looking at the actual and natural consequences of the Government’s act?
Id. (quoting Cotton Land,
As to the second prong of the tort-taking analysis, the trial court was instructed to evaluate the nature and the magnitude of the government action. “Even where the effects of the government action are predictable, to constitute a taking, an invasion must appropriate a benefit to the government at the expense of the property owner, or at least preempt the owner[’]s right to enjoy his property for an extended period of time, rather than merely inflict an injury that reduces its value.” Id. This brief discussion of the “substantiality” prong of the tort-takings analysis is consistent with well-established takings jurisprudence.
While the substantiality prong of the Ridge Line test has not been explored in detail above (see the discussion of Cress above), it is important to note that substantiality of harm lies at the core of the distinction between torts and takings. Whether a plaintiff establishes a predicate to a taking by proving either intent or causation, the substantiality of the harm cannot be overlooked.
7. Moden and the Struggle to Applg the Ridge Line Test
Even after Ridge Line, courts continue to grapple with the role of foreseeability in the causation analysis. In part, defendant in this case relies on one recent decision of this court to establish that subjective foreseeability is a relevant issue to any causation analysis. In Moden v. United States,
The parties agreed that the contamination could have resulted from aircraft maintenance performed on the base in 1940’s and 1950’s. Id. During that time, defendant used a mixture of TCE and oil to clean aircraft parts in a hangar on the base. Id. The TCE mixture was removed from the aircraft by pressurized water, and the residue drained into an underground collection and drainage system and ultimately to a water treatment plant. Id. The storage and use practices at the Base met or exceeded the requirements for use and storage of chemicals. Id. There was no evidence that the contamination resulted from deliberate or accidental dumping. Id. Furthermore, the court noted that “TCE and its effects probably were unknown” at the time the chemical was used as a cleaning agent. Id.
Moden invoked Ridge Line’s tort-taking distinction test and noted that plaintiffs had not alleged an intentional appropriation. See id. at 282. Turning to a causation analysis, the court concluded that plaintiff failed to prove causation. This conclusion, however, was the result of a determination by the court that the plaintiffs failed to prove a requisite element of causation because plaintiff could not show that the government’s actions were “predictable” in the sense that its agents knew or should have known that harm would result from their actions. With all due respects to the court, this is a categorical mistake: foreseeability was imper-missibly here equated with specific intent and not causation.
This is clearly demonstrated by the court’s extensive analysis of the role that predictability, or foreseeability, plays in Ridge Line’s causation analysis. Id. at 283-85 (citing Barnes,
But these apply “foreseeability,” not to a determination of the predictability of whether the government’s actions caused the harm in question, but, rather, to whether the government’s agents did or should have known that their actions would result in harm. This is sometimes a fine distinction, and, indeed, facts that could prove the former often can be used to prove the latter. But, causation and specific intent are different concepts— which is why Ridge Line stated the first prong of the torts-taking distinction test in the disjunctive. See Ridge Line,
C. Plaintiff’s Evidence is Sufficient to Satisfy the Torts-Takings Jurisdictional Requirement on Summary Judgment
In light of the foregoing discussion of the causation analysis in takings jurispru
Before the court explains this conclusion, it is helpful here to once again restate the bifurcated Ridge Line test:
First, a property loss compensable as a taking only results when the government intends to invade a protected property interest or the asserted invasion is the direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action. ... Second, the nature and magnitude of the government action must be considered.
Ridge Line,
For simplicity’s sake, the court will consider the second part of the Ridge Line test (the “substantiality” prong) first to determine whether plaintiffs property has suffered a substantial invasion. Of this, there is no real argument. Two of the ranch’s wells, the Old and New 4T Wells, have been contaminated by EDB. The fact that EDB contamination in underground water will persist for an indefinite period, at least several years, is undisputed. Moreover, the parties do not dispute that EDB-contaminated water is not only undrinkable, but also unsafe to use for other purposes (such as bathing or washing a car) as well. Thus, it is abundantly clear that the EDB contamination of the ranch constitutes a substantial and permanent invasion.
Turning to first part of the Ridge Line test, explicitly the “causation” prong of this test, it is undisputed that the Forest Service used and stored EDB at the Work Center in the 1970’s. Mr. Showman’s memo and the notes from the Forest Service interviews with its former employees indicate that Forest Service employees both buried and spilled substantial quantities (easily enough to cause the contamination at issue) of EDB on the Work Center property in the mid-1970’s. Furthermore, the Forest Service has taken substantial efforts to detect, locate, and clean-up the EDB contamination — and to provide water to some Nemo residents. From these actions, the inference may be drawn that the Forest Service itself has acknowledged that it caused the EDB contamination of the Nemo area.
For defendant, Forest Service employees stated that the EDB that Forest Service employees buried and spilled at the Work Center may not have been the source of the EDB on the ranch. Specifically, they asserted that a gas tank at the ranch that apparently leaked and had to be replaced may have been the source of the contamination. However, this bald assertion was unsupported by any other evidence. Similarly, Forest Service employees stated that it is at least possible that the Forest Service did not cause the EDB contamination. However, such statements conflict with the reports prepared by the Forest Service’s own environmental consultants, which place the core of the contamination plume at the Work Center. It is true that the plume and the source are not the same thing; however, a rational inference may be drawn that the location of the plume directly relates to the source of the contamination. It is clear that defendant’s environmental consultants assumed as much. Res ipsa loquitur.
Finally, plaintiffs expert Dr. Davis, based on his expertise and review of the situation, stated:
it is my opinion that the EDB contamination under the Nemo Guest Ranch is the natural and probable consequence of the activities of the United States Forest Service. The knowledge of the nature of the geology of the Nemo area prior to 1970 was such that it was foreseeable that EDB storage, use, and disposal at the workstation, which allowed EDB to come in contact with the ground, would result in the*121 contamination of the bedrock aquifer and that the contamination plume would eventually extend under the Nemo Guest Ranch.
Similarly, Dr. Davis stated: “[t]here was nothing surprising or unusual about the plume having moved down gradient, toward the creek, spreading under the Nemo Guest Ranch.”
As far as Ridge Line’s causation element is concerned, defendant has failed to demonstrate to the court the absence of a genuine issue of fact. Much to the contrary, the evidence seems to indicate that the contamination of the ranch is the direct, natural, and probable result of the government’s use and disposal of EDB at the Work Center. Several pieces of evidence before the court — including the undisputed fact that the Forest Service used and stored EDB at the Work Center, Mr. Showman’s Memo, the notes from the interviews of former Forest Service employees, the manner in which the Forest Service assumed responsibility for the contamination, and the location of the core of the contamination plume at the Work Center— indicate that defendant dumped EDB at the Work Center. Also, it is undisputed that two of plaintiffs wells are now contaminated with EDB. Plaintiff alleges that a natural chain of events establishes a direct causal link between the EDB contamination of his wells and the EDB dumping undertaken by the Forest Service. This natural chain of events involves the seepage of EDB (that was spilled or poured directly into the ground, buried in unsealed, corroded containers, or both) into underground water and the movement of that contaminated water down gradient to plaintiffs property. Indeed, plaintiffs expert, Dr. Davis, states that such a natural chain of events between dumping and contamination can be established in this ease. Given these allegations, each of which is supported by record evidence, plaintiff shall have the opportunity to prove causation at trial.
Furthermore, even under Moden’s narrow foreseeability iteration of the Ridge Line test, the court would be compelled to deny defendant’s motion for summary judgment based on its argument that plaintiffs claim sounds in tort. As discussed, defendant primarily argues that it could not have foreseen the consequences of its actions rest on factual contentions that there was no specific knowledge regarding Nemo-area geology or the harmful nature of EDB in the mid-1970’s. Defendant specifically contends that until the EPA regulation of EDB in the 1980’s, the Forest Service had insufficient knowledge to foresee that its use and disposal of EDB would cause the contamination of the. ranch.
However, plaintiffs experts sharply disagree. Dr. Davis opines that based on the knowledge of Nemo-area geology available before 1970, it was foreseeable that allowing EDB to come in contact with the ground would result in the contamination of the bedrock aquifer below the Work Station, which would eventually spread to the ranch. Likewise, Dr. Webb stated that two federal agencies other than EPA, the National Cancer Institute and National Institute of Occupational Safety and Health, had issued statements regarding the harmful nature of EDB in the mid-1970’s.
The EPA issued a health advisory regarding EDB’s carcinogenic and other potential harmful effects on March 31, 1987. However, this was not the first administrative action EPA took regarding EDB. The EPA ordered an immediate emergency suspension of EDB as a soil fumigant of agricultural crops in September of 1983. Prior to this action, the EPA had considered in detail the dangers posed by EDB. In October 1983, the EPA issued a notice regarding its intent to cancel EDB’s registration under the Federal Insecticide, Fungicide, and Rodenticide Act. Notice of Intent to Cancel, 48 Fed.Reg. 46,-234-01 (Oct. 11, 1983). In this notice, EPA stated: “[EDB] has long been known to present a risk of serious acute toxicity, including death, at even relatively low levels of exposure.” Id. at 46,236. Moreover, the EPA concluded: “EDB poses: (1) Increased risk of cancer; (2) increased risk of mutations; (3) increased risk of adverse reproductive effects.” Id. This conclusion was based on the results of several scientific studies, including five dated to 1975 or earlier. Id. After reviewing the risks of EDB in concrete terms, the EPA notice stated: “The use of
In addition to the fact that scientific studies demonstrating EDB’s harmfulness had been published in the mid-1970’s, the nature of EDB itself poses a further problem for defendant’s narrow foreseeability argument. The Forest Service used EDB, which it often mixed with diesel fuel, as a pesticide. The essential characteristic of pesticide, of course, is its capacity to kill. Even if the Forest Service believed that EDB was perfectly safe for use as a pesticide in the mid-1970’s, it does not follow that the Forest Service could reasonably believe that EDB was safe for human consumption in well water. Much to the contrary, statements recorded in the notes from the interviews of Forest Service employees evidence a keen awareness in the mid-1970’s that EDB was a noxious poison. Indeed, more than one employee observed that EDB had eaten holes through his boots in a short period of time.
Thus, EDB had long been known for its acute toxicity in 1983 according to the EPA. Moreover, scientific studies had demonstrated the harmfulness of EDB by the 1970’s. Notably, federal agencies other than the EPA publicized the risks of EDB demonstrated by these studies in the mid-1970’s. See Pl.App. at 402. And finally, the fact that EDB was an effective pesticide alone may have been sufficient to conclude that defendant could have foreseen that dumping EDB at the Work Center would contaminate the ranch’s groundwater. Under these circumstances, at a minimum, a genuine issue of material fact remains regarding whether defendant was aware of the harmfulness of EDB — and thus should have foreseen the harm caused by the dumping of EDB on property adjacent to the ranch.
To summarize, the evidence indicates that the ranch has sustained a permanent and substantial invasion in the form of EDB contamination. Moreover, the evidence indicates that this invasion was the direct, natural, and probable result of defendant’s actions. The facts above make it clear that, even if the court were to apply the specific intent foreseeability analysis relied on in Moden, plaintiff has presented sufficient facts that create a genuine factual controversy for trial regarding this issue. Clearly, genuine issues of material fact remain regarding both parts of the tort-taking distinction test. Therefore, summary judgment on defendant’s argument that plaintiffs claim sounds in tort is not appropriate at this time.
D. Plaintiff’s Property Interest in the Ranch and the Contaminated Groundwater — Dickinson, Ripeness, and Standing
If the tort-taking inquiry reveals that a takings remedy is “potentially available” the court must thereafter determine if the plaintiff “possessed] a protectable property interest in what it alleges the government has taken.” Ridge Line,
As a general matter, courts have long recognized water rights as a form of property protected by the Fifth Amendment and other laws. As early as 1893, the Supreme Court ruled: “a well of water is property recognized by the law, any injury to which is redressible by law. To pollute or foul the water of a well is an actionable injury.”
This court has concluded that water rights are property protected by the Fifth Amendment in some notable cases. Hage v. United States,
It is well accepted that law other than the Constitution itself, often state law, defines what property is. See Palazzolo,
In 1907, the South Dakota legislature restructured the state’s water law system, establishing that all water in the state was public property, subject to appropriation for
The South Dakota legislature again revised the state’s water law system in 1955. Davidson at 7-8. This legislation recognized water rights vested at the date of its enactment, while requiring that all new water rights had to be established by appropriation for beneficial use following certain procedures. Id. at 8.
The plaintiff in Knight v. Grimes,
Finally, in Parks v. Cooper,
The present statutory scheme mirrors the legal situation described in the preceding review of the key South Dakota water law cases. “[A]U water within the state is the property of the people of the state, but the right to the use of water may be acquired by appropriation as provided by law.” S.D. Codified Laws § 46-1-1. The appropriation of groundwater is permitted, subject to vested rights and prior appropriations, in accordance with the state’s water management rules. Id. at § 46-6-3. A groundwater right is vested if the water was put to beneficial use before February 28, 1955. Id. at § 46-6-1.
Plaintiff has presented to the court an affidavit of Garland Erbele, the Chief Engineer of the Water Rights Program of the South Dakota Department of Environment and Natural Resources. Attached to this affidavit is a document issued by that agency purporting to “validate” the water right associated with the ranch. This document describes this water right in the following terms: (a) it “appropriates 26 gallons per minute,” (b) it is for “supplying water to the guest ranch and may not exceed the amount of water needed for beneficial use for commercial purposes,” and (c) “[t]he priority date of the Vested Water Right is January 1, 1946.” Consistent with the relevant statutory scheme, this document indicates that because they were put to beneficial use before February 28,1955, plaintiffs water rights are a vested property interest under South Dakota law. St. Germain, which prohibited the taking of vested water rights without just compensation, also indicates that these water rights are property interests protected by law.
It is also clear that the interference with plaintiffs use of water certainly could rise to a taking of the entire landed estate. That is, similar to the plaintiff in Clark I, if plaintiff “can prove ... that seepage from the government’s chemical dump renders [the] water supply useless [in Clark I for residential, in this ease for commercial] purposes, this may render the entire property unusable----” Clark I,
Like the claim in Clark I, plaintiffs claim involves some complexity due to the nature of the invasion in this case: a plume of noxious contaminants allegedly spreading across plaintiffs property. Plaintiff correctly relies on United States v. Dickinson,
Dickinson itself was a flooding case in which the government took property through a “continuing process of physical events.” Dickinson,
The Dickinson stabilization doctrine determines when the statute of limitation on continuing physical process takings claims begins to run. The Dickinson Court stated: “when the Government chooses not to condemn land but to bring about a taking by a continuing process of physical events, the owner is not required to resort either to piecemeal or to premature litigation to ascertain the just compensation for what is really ‘taken.’ ” Id. (emphasis added). Moreover, the Dickinson Court acknowledged it did not “decide whether in a situation like this a landowner might be allowed to bring suit as soon as inundation threatens.” Id. The Court acknowledged that such litigation may have its risks (related to the “uncertainty of the damage and the risk of res judicata against recovering later for damage as yet uncertain”), but did not address whether such litigation was permissible. Id. Thus, Dickinson permits plaintiffs to delay filing takings claims under certain circumstances, but does not provide specific guidance regarding cases in which plaintiffs choose not to delay in filing.
Defendant argues that the Dickinson stabilization doctrine does not apply to this case at all. Defendant distinguishes the present case, in which a latent but permanent physical occupation was discovered at a particular point in time, from cases involving known recurring invasions that at some uncertain point in time become permanent physical occupations.
Although plaintiffs claim does not fit precisely within the Dickinson stabilization doctrine because the accrual of plaintiffs filing in this court for statute of limitation’s purposes is not really at issue,
This conclusion is entirely consistent with general ripeness rules. “A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States,
Applying these ripeness standards and the pragmatic Dickinson doctrine to the summary judgment motion at bar, the court clearly must deny defendant’s motion. First, plaintiff has presented evidence indicating that defendant has caused a substantial invasion to the ranch. The evidence before the court indicates that EDB contamination in the Old and New 4T Wells will persist for an indefinite period, at least several years. It is also undisputed that EDB-contaminated water is not only undrinkable, but also unsafe to use for other purposes. Thus, it is undisputed that the EDB contamination of the ranch ground water constitutes a substantial invasion.
Moreover, at the very least, there is a material question of fact for trial regarding whether the extent of the harm caused by this invasion is foreseeable. The parties dispute the extent to which the ranch is or will be contaminated by EDB. Arguing that EDB contamination of the ranch remains limited, defendant relies on the fact that the ranch continues to have clean water sufficient to maintain current operations. Moreover, defendant relies on the reports of its environmental consultant, which state: “Based on the water level and water quality data observed to date, the wells [Deverman Well No. 1 and the Wick Well] supplying the Nemo Guest Ranch appear to be upgradient and hydraulically isolated from the EDB impacted groundwater present further south.” Related to this conclusion, defendant’s consultant has posited that a fault running from East to West — roughly along the course of the road at the ranch’s southern border— naturally shields the ranch from EDB contamination.
Of course, plaintiff contends that EDB will eventually contaminate all of the ranch’s groundwater. Plaintiff argues that the contamination in the New 4T Well, which is
Dr. Davis, one of plaintiffs experts, opined that the EDB plume “will continue to migrate onto” and “continue to move down-gradient or across the Nemo Guest Ranch property” from its source to the South. Moreover, Dr. Davis stated that there is a high probability that Deverman Well No. 1 and the Wick Well will become contaminated with both “biological agents from the creek and water under its influence” and “the EDB plume.” Addressing the conclusions repeated several times in the Enviroseareh reports, Dr. Davis specifically disagreed with the opinion that the ranch’s groundwater is upgradient and hydraulically isolated from the EDB-eontaminated waters to the South. Likewise, Dr. Davis stated: “I see no evidence of a barrier that would protect the ground under [the ranch].” Along the same lines, plaintiffs other expert witness, Dr. Webb, stated that she believes that EDB contamination of the ranch would grow worse, stating that “the EDB plume will continue to migrate onto the Nemo Guest Ranch property.”
At a minimum, this evidence indicates that unresolved fact issues require the court to deny summary judgment on defendant’s so-called ripeness argument. Beyond this, however, it is notable that defendant has failed to produce evidence specifically controverting plaintiffs evidence that all of the ranch’s groundwater will eventually be contaminated. Defendant’s evidence — a clean water supply in the present and consultant reports (which include the inferred-fault theory) assessing conditions long before this case was filed— have nothing to say about whether EDB will contaminate the remainder of the ranch’s groundwater in the future. Defendant also could have obtained expert testimony regarding whether or not EDB contamination on the ranch is spreading. However, for whatever reason, defendant has not done so.
In summary, plaintiffs evidence regarding the spreading of EDB on the ranch may indicate that the easement will cover the entire extent of the ranch’s underground water. Thus, at a minimum, the extent of the easement taken from plaintiff is a fact issue for trial.
2. Standing
In this section, the court considers whether defendant is entitled to summary judgment on its contentions that the claim plaintiff pursues accrued before he obtained his interest in the ranch (thus depriving him of standing). As an adjunct to this issue, the court also considers plaintiffs motion for partial summary judgment on its contention that its claim accrued in June 1999 when it first learned about the EDB contamination of the ranch. Finally, defendant argues that plaintiffs sale of the ranch to Mr. Wick in 2000 somehow undermines plaintiffs standing in this ease.
Federal courts do not resolve abstract or hypothetical disputes. U.S. Const. art. III, § 2; see also Flast v. Cohen,
Standing, an element of the case or controversy doctrine, is a party’s right to seek redress for a legally protected right. See Lujan,
Defendant argues that plaintiff lacks standing because EDB was detected in the Old 4T Well before plaintiff purchased the ranch. Id. at 18-19,
In response to defendant’s challenge to plaintiffs standing, plaintiff argues that the contamination of the Old 4T Well before his purchase of the ranch does not deprive him of standing, because no claim accrued for that contamination until he became aware of the contamination, which was after he purchased the ranch. PI. Opp. Memo, of January 16, 2003 at 33-35, 37-38. More specifically, plaintiff argues that neither he nor Mr. Deverman (whose corporation owned the ranch when EDB was detected in the Old 4T Well) knew or had reason to know of any contamination on the ranch until June 1999, when EDB was detected in the New 4T Well. Id. Plaintiff also argues that his subsequent sale of the ranch does not deprive him of standing due to the property interest he retained under the contract for deed through which that sale was transacted. PI. Supp. Memo, of June 26, 2003 at 1-3.
Furthermore, plaintiff argues that undisputed evidence establishes that his taking claim accrued in June 1999 when EDB was detected in the New 4T Well. PL Opp. Memo, of January 16, 2003 at 35, 37; Pl. Supp. Memo, of June 26, 2003 at 11; Pl. Supp. Memo, of November 4, 2004 at 5-6. This is the issue on which plaintiff claims that he is entitled to partial summary judgment. Pl. Cross-Motion of January 16,2003.
First the court takes up defendant’s argument that plaintiff lacks standing because the ranch was contaminated before plaintiff acquired an interest in it. The timing of claim accrual is significant here because “it is the person who owned the property at the time of the taking that is entitled to the recovery.” Palazzolo,
“[A] cause of action against the government has ‘first accrued’ only when all the events which fix the government’s liability have occurred and the plaintiff was or should have been aware of their existence.” Hopland Band of Pomo Indians v. United States,
With these legal concepts in mind, it becomes clear that defendant’s motion must be dismissed because the facts of this case are simply not consistent with the government’s argument. Plaintiff has presented facts that overwhelmingly indicate that the taking claim did not accrue until after he owned the ranch, and defendant has faded to present evidence that contradicts or calls into question those facts.
While it is undisputed that certain amounts of EDB were detected in the Old 4T Well in March 1997,
Furthermore, the Envirosearch maps available when plaintiff purchased the ranch did not depict the Old 4T Well as contaminated. The fact that USFS had issued press releases, published legal notices in newspapers (that also published news stories), held public meetings, mailed letters, or distributed newsletters was not enough to put either Mr. Deverman or plaintiff on notice of the contamination of the Old 4T Well. The information in these sources was general or related to other property. Neither the general potential for contamination, nor the contamination of a neighbor’s property would have entitled Mr. Deverman to pursue a viable takings claim. Therefore, information regarding such potential or neighboring contamination did not put Mr. Deverman or plaintiff on notice regarding the contamination of the Old 4T Well. In light of these facts, it is clear that defendant’s argument that plaintiff lacked standing because the taking claim accrued before plaintiff owned the land is unsupported by the facts and must be dismissed.
On the other hand, these same facts tend to support the plaintiffs contention that his claim accrued in June 1999, when he first discovered EDB in the ranch groundwater. Plaintiff has filed a cross-motion for summary judgment on this limited issue, and treating that motion under the applicable standards of RCFC 56 it is clear to the court that the cross-motion should be granted.
To establish claim accrual, the following two conditions must be met: “all the events which fix the government’s liability have occurred” and “the plaintiff was or should have been aware of their existence.” Holland,
The above facts demonstrate that neither plaintiff or Mr. Deverman were or should have been aware of the EDB contamination prior to the sale of the ranch to plaintiff. Plaintiff did not become aware of the contamination until June 1999. At that point, his takings claim accrued because the two conditions to claim áecrual were satisfied. Once plaintiff had notice of the contamination, it was clear that a substantial invasion had occurred. Undisputed expert reports indicate that EDB contamination will persist on the ranch for an indefinite period, and that contamination renders the affected groundwater unusable and may eventually spread to the ranch’s entire groundwater supply. In light of the foregoing discussion, the events that could fix the government’s liability had occurred. This decision on claim accrual notwithstanding, plaintiff will of course have to prove the elements of a takings claim; this limited issue of claim accrual does not establish defendant’s liability.
The second argument that defendant makes attacking plaintiff’s standing implicates the sale of the ranch from plaintiff to Mr. Wick in 2000, after plaintiff had learned of the EDB contamination. The crux of defendant’s argument is that this subsequent sale to Mr. Wick deprives plaintiff of standing to pursue his takings claim. This argument, however, is a red herring because it is
Moreover, plaintiffs sale of the ranch does not disrupt his standing in this case, because of the type of transaction by which plaintiff and Mr. Wick executed the sale: a contract for deed. A contract for deed is a common mortgage substitute through which a seller finances the balance of the purchase price in a real estate transaction. Restatement (Third) of Property: Mortgages § 3.4, cmt. a (1997). Under South Dakota law, once parties execute a contract for deed, the seller “holds legal title in trust” for the buyer and is obligated to convey the deed upon final payment of the purchase price. Lewis v. Moorhead,
In addition to the standard contract-for-deed terms, the contract requires plaintiff to drill a new well on the ranch, guarantee that the new well remains free from contamination, and (in the case that contamination “becomes a problem to the water system on the property”) provide water for operation of the ranch. If contamination shuts down the ranch, the contract permits Mr. Wick to withhold payments and requires plaintiff to pay Wick interest on the amounts already paid.
As holder of legal title to the ranch, plaintiff maintains a significant property interest that permits him to pursue his takings claim, the sale to Mr. Wick notwithstanding. The fact that under the contract plaintiff bears much of the risk associated with the EDB contamination of the ranch — including the risk that Mr. Wick will rescind the contract — only lends support to this conclusion. The South Dakota statute regarding the necessary parties in eminent domain proceedings also leads the court to conclude that plaintiff maintains a sufficient property interest to pursue his takings claim. This statute requires that “all persons having interest in or liens upon the property effected by the proceeding” should be named as parties in eminent domain proceedings. S.D.C.L. § 43-26-7.
State Highway Commission v. Miller,
IV. CONCLUSION
For the reasons stated above, defendant’s motion to dismiss, or in the alternative for summary judgment, is DENIED, and plaintiffs cross-motion for partial summary judgment on the limited issue of claim accrual is GRANTED.
IT IS SO ORDERED.
Notes
. "... nor shall private property be taken for public use, without just compensation.” U.S. Const, amend. V.
. "The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded ... upon the Constitution ... in cases not sounding in tort.” 28 U.S.C. § 1491(a) (2001); see also United States v. Testan,
. See Moden v. United States,
. See Clark v. United States,
. Oliver Wendell Holmes, Jr., The Common Law 1 (1881).
. See, e.g., Columbia Basin Orchard v. United States,
. See, e.g., Portsmouth Harbor Land & Hotel Co. v. United States,
. See Moden,
. These facts are derived from the following sources: (1) Appendix to plaintiff’s opposition ("PL App.”); (2) Appendix to defendant's motion for summary judgment ("D. App.”); (3) Appendix to plaintiff’s Supplemental Memorandum of June 26, 2003 ("Pl. Supp. App.”); (4) plaintiff's Response to defendant’s Proposed Findings of Uncontroverted Fact ("PL Resp. PFUF”); (5) defendant’s Response to plaintiff’s Proposed Findings of Uncontroverted Fact ("D. Resp. PFUF”); and (6) the parties' pleadings, motions, and supporting memoranda.
. The EPA provides the following background regarding the MCL as it relates to EDB:
In 1974, Congress passed the Safe Drinking Water Act. This law requires EPA to determine safe levels of chemicals in drinking water which do or may cause health problems. These non-enforceable levels, based solely on possible health risks and exposure, are called Maximum Contaminant Level Goals [(MCLG)].
The MCLG for EDB has been set at zero because EPA believes this level of protection would not cause any of the potential health problems described below.
Based on the MCLG, EPA has set an enforceable standard called a Maximum Contaminant Level (MCL). MCLs are set as close to the MCGLs as possible, considering the ability of public water systems to detect and remove contaminants using suitable treatment technologies.
The MCL has been set at 0.05 parts per billion (ppb) because EPA believes, given present technology and resources, this is the lowest level to which water systems can reasonably be required to remove this contaminant should it occur in drinking water.
The drinking water standards and the regulations for ensuring these standards are met, are called the National Primary Drinking Water Regulations. All public water supplies must abide by these regulations.
Pl.App. at 159; Office of Water, U.S. Environmental Protection Agency, Pub. No. EPA 81 l-F-95-003 p-T, National Primary Drinking Water Regulations: Ethylene Dibromide (1995) available at http://www.epa.gov/safewater/dwh/t-soc/ edb.html.
. A federal agency created by the National Cancer Act of 1937, NCI is one of eight agencies in the Public Health Service in the Department of Health and Human Services.
. A federal agency created by the Occupational Safety and Health Act of 1970, NIOSH is part of the Centers for Disease Control and Prevention ("CDC”) in the Department of Health and Human Services.
. It is unclear from Mr. Showman’s memorandum how soon after the hazmat session (was it the same day or days, weeks, or months later?) he told Mr. Bradock about the EDB dumping.
. The memorandum Mr. Showman wrote on October 22, 1996 is the court’s only source for information regarding Mr. Showman's oral statements to the Forest Service regarding his recollections of burying EDB at the Work Center. Id. at 186. Mr. Showman’s memorandum does not provide precise dates for when he made his oral reports; instead it states that he first raised the issue approximately four years before the date of the memo and then raised it again approximately two and one half years later. Id.
. Mr. Showman’s memorandum is addressed simply "to flies.” Id.
. The record reveals very little about Mr. Emery: he interviewed retired Forest Service employees in an effort to locate the source of Nemo’s EDB contamination, he was retired (from what is unclear), and the Forest Service did not compensate him, but did reimburse his expenses. Id. at 40-41.
. It is unclear from the interview notes whether Mr. Hageman meant fifteen to twenty gallons in each can or fifteen to twenty gallons total.
. See id. at 7 (stating that “the [Preliminary Assessment] was conducted in accordance with 'Guidelines for Performing Preliminary Assessments Under CERCLA' ”).
. Envirosearch International was acquired by Millennium Science and Engineering, Inc. ("MSE") in February 2000. All references to Envirosearch in this opinion include MSE, if applicable.
. It appears that MSE, Envirosearch’s successor may continue to consult the Forest Service on this matter. Id. at 336. Nevertheless, although the parties had ample opportunity to update the record, the last report regarding its activities in the record is dated October 2001.
. The record before the court contains only excerpts (in some cases only a single map) from reports dated September 3, 1997, July 3, 1998, October 4, 1998, June 30, 1999, October 28, 1999, December 3, 1999, and January 30, 2001.
. Envirosearch has acknowledged limitations to its search. For example, it noted that possible source areas may not have been investigated due to extensive tree cover. Id. at 271, 355. Similarly, Envirosearch seems to imply that the methods it had used (at least prior to October 1998) would not have been appropriate to locate contamination that was the result of dumping pesticide from cans (as Mr. Showman’s memo and the notes from some of the interviews with former Forest Service employees indicate may have occurred) as opposed to burying cans together with the pesticide they contained. Id. at 271.
. The Forest Service claims that it sent a letter to Nemo residents, including Mr. Deverman, on September 26, 1996, prior to the water tests that first confirmed the EDB contamination of the Nemo-area. D.App. at Ex. 16. This letter informed Nemo residents of the potential contamination of their property. Id.
. The October 2001 report prepared by MSE, Envirosearch’s successor, states that the Forest Service had contracted with MSE "to maintain the current groundwater monitoring program" and that "the next groundwater monitoring event is scheduled to be conducted in April/May 2002." Id. at 354. If water tests have been conducted since October 2001, the parties did not give the court the benefit of seeing the results. However, defendant’s counsel has recently claimed that the results of monthly testing indicate that the two wells in use at the ranch “remain! ] safe and free of contamination.” D. Supp. Memo, of November 9, 2004 at 17 n. 8. Nevertheless, the court notes that counsel’s statements, undoubtedly made in good faith, do not appear to constitute viable evidence for summary judgment purposes. See RCFC 56(e) ("Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein”).
. It is unclear on what basis Envirosearch concluded (or decided to create the impression in its maps) that the Old 4T Well is not contaminated and that the contamination plume does not in-elude the Old 4T Well. The Old 4T Well was tested in March 1997, when EDB above the MCL was detected.
. Because the Forest Service is obviously not a court, plaintiffs initiation of this FTCA administrative process does not implicate 28 U.S.C. § 1500 (2000), which provides in relevant part: "The United States Court of Federal Claims shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States.”
. Plaintiff s filing of this FTCA claim in district court does not trigger 28 U.S.C. § 1500 (2000), because it was filed after the claim in this court. Even if plaintiff’s takings claim here and tort claim in district court were the same for the purposes of § 1500 (an issue the court need not analyze), the filing of the same claim in another court after jurisdiction is established in the Court of Federal Claims does not deprive this court of jurisdiction. See Hardwick Bros. Co. v. United States,
. "When a complaint is filed alleging a Tucker Act claim based on a Constitutional provision, statute, or regulation ... the trial court at the outset shall determine, either in response to a motion by the Government or sua sponte (the court is always responsible for its own jurisdiction), whether the Constitutional provision, statute, or regulation is one that is money-mandating.” Fisher v. United States,
. This undoubtedly includes unsupported assertions by counsel made in memoranda submitted to the court {see footnote 24 above).
. As shall be seen, this alternative reading of the Tucker Act has received some notable attention before. See the discussion of Justice Brown’s concurring opinion in United States v. Lynah,
. Compare John F. Hart, Land Use Law in the Early Republic and the Original Meaning of the Takings Clause, 94 N.W. U.L. Rev. 1099 (2000); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Colum. L. Rev. 782 (1995), Wm. B. Stoebuck, A General Theory of Eminent Domain, 47 Wash. L. Rev. 553, 601 (1972) (arguing that the Takings Clause should be viewed as only a protection against uncompensated occupied or seizure of land and not against interference with property interests such as the exclusive and quiet use and enjoyment of property) with Eric R. Claeys, Takings and Private Property on the Rehnquist Court, 99 NW. U.L. Rev. 187 (2004), Douglas W. Kmiec, Inserting the Last Remaining Pieces into the Takings Puzzle, 38 Wm. & Mary L. Rev. 995 (1997); and Douglas W. Kmiec, The Original Understanding of the Taking Clause Is Neither Weak Nor Obtuse, 88 Colum. L. Rev. 1630 (1988) (advocating an "original meaning” approach whereby the Fifth Amendment's protection against uncompensated takings encompasses significant interference with "property” as defined as a "bundle of sticks,” a collection of rights and interests, deriving from the English Common law).
. See also Joseph Story, Commentaries on the Constitution of the United States xi and n. 12 (Abridged) (1833) (reprinted by Carolina Academic Press 1987) (citing A. Sutherland, the Law at Harvard: A History of Ideas and Men 1817-1967 at 24 (1967)) ("Sir Edmund Burke noted in 1775 that almost as many copies of Blackstone's Commentaries were sold in the colonies as were sold in England.”).
. The takings analysis in other seminal early cases applied the bundle of sticks approach. See, e.g., Transylvania University v. Lexington,
. However, the Supreme Court has made a distinction in regulatory takings cases where it, in part, has rejected the concept of "conceptual severance,” which is equated with the "bundle of sticks” approach. See Tahoe-Sierra Pres. Council v. Tahoe Reg'l Planning Agency,
. See discussion of early takings cases below; see also generally Eric R. Claeys, Takings and Private Property on the Rehnquist Court, 99 NW. U.L. Rev. 187 (2004), Douglas W. Kmiec, Inserting the Last Remaining Pieces into the Takings Puzzle, 38 Wm. & Mary L. Rev. 995 (1997); Douglas W. Rmiec, The Original Understanding of the Taking Clause Is Neither Weak Nor Obtuse, 88 Colum. L. Rev. 1630 (1988).
. "So use your own as not to injure another's property." Black’s Law Dictionary 1690 (7th ed.1999).
. Of course, the reliance on nuisance principles in Lucas differs from the above-cited early cases in significant ways. See Eric R. Claeys, Takings and Private Property on the Rehnquist Court, 99 NW. U.L. Rev. 187, 208-15 (2004) (analyzing how nuisance principles were applied only in part in Lucas due to the Court’s efforts to define the line between regulations that do and do not result in regulatory takings).
. See Restatement (Second) of Torts § 826 (1979) (harm must be "serious"); Prosser and Keeton at 622-23, 626-29 (an interference with property must be "substantial” to constitute a private nuisance).
. In Pumpelly, the Court based its ruling on the takings provision of the Constitution of Wisconsin, which the court concluded was “almost identical” with the Fifth Amendment’s takings clause. Pumpelly,
. “[I]n cases of damnum absque injuria, an individual owner is left worse off by government action that falls short of a taking." Richard A. Epstein, Takings 198 (1985). Professor Epstein provides the following example: "Suppose the government erects a large office building that blocks the view of a lake from a large luxury apartment complex, sharply cutting market rents.... the government is not obligated to compensate, because the owners of the complex would have no claim for damages ... against a private neighbor.” Id.
. While the Tucker Act did not create the Court of Claims, it did expand its jurisdiction in a significant way. Congress created the Court of Claims in 1855 to help it address a large backlog of claims against the government. See Act of February 24, 1855, ch. 122, 10 Stat. 612 (1855). Upon its creation, the Court of Claims had jurisdiction over "all claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States.” Id. However, lacking power to enter final judgments, the Court of Claims conducted hearings and issued recommendations to Congress regarding the resolution of claims. See id. In 1863, Congress conferred additional power on the Court of Claims by permitting it enter final judgments. See Act of March 3, 1863, ch. 92, 12 stat. 765 (1863). Expanding the court’s jurisdiction to include government counter-claims and setoffs, this 1863 legislation ensured that the Court of Claims would maintain its core jurisdiction established in 1855.
. Legislative materials indicate that the Tucker Act was intended to further alleviate the burden private petitions imposed on Congress. After detailing the history of Court of Claims, a House Report related to the Tucker Act states:
The history of this legislation and its results have been given to show how much benefit had been done in the satisfactory decision of claims against the Government and in relief of the Congress. But it has long been felt that the benefits could be made much greater by extending the jurisdiction of the court. By confining it to claims under a law of the United States, regulations of departments, and to cases concerning contracts express and implied, there is still a large class of cases in equity, in admiralty, and in tortious acts of the Government through its agents, which are left to Congress, for which a court of justice is better fitted to attain the relief between the litigants.
H.R. 1077, 49th Cong. (1st Sess. 1886). It is arguable that because takings derived from torts — and because takings involving physical invasion or destruction of property have always been a form of tort committed by the government — the reference to tortious acts of government agents included takings.
. For completeness, the remainder of the history of this court can be stated very briefly: Congress created the U.S. Court of Appeals for the Federal Circuit and the U.S. Claims Court in 1982. See Act of April 2, 1982, Pub.L. No. 97-164, 96 Stat. 39. The Federal Circuit considers rulings of the Court of Claims binding precedent. See South Corp. v. United States, 690 F.2d 1368 (Fed.Cir.1982) (en banc). In 1992, the Claims Court became the U.S. Court of Federal Claims. See Act of October 29, 1992, Pub.L. 102-572, 106 Stat. 4516.
. It is notable that this statement acknowledges both the tort origin of takings and the continuing overlap between tort and takings law.
. The Federal Circuit's opinions in this area include: Vaizburd v. United States,
The opinions of the Court of Federal Claims in this area include: Drury v. United States,
. Other cases refer to foreseeability in the context of a causation analysis. The court in Eyher-abide observed that while some harm to the plaintiff's property was directly attributable to government actions, other harm may have occurred because government actions rendered it impossible for the plaintiff to maintain a caretaker on its property. See
In Barnes, the defendant argued that a newly formed river delta and not its own actions caused the plaintiff's property to flood. The
. See, e.g., Vaizburd,
. The court asked the parties to address whether it should stay proceedings in this case pending the appeal of Moden in the Federal Circuit. Plaintiff opposes such a stay because it contends that Moden’s approach to the distinction between torts and takings is an incorrect statement of the law. PL Supp. Memo, of November 4, 2004 at 5. Plaintiff also argues that the facts in this case are distinct from those in Moden. Defendant favors a stay of proceedings, arguing that a stay would preserve judicial resources and avoid reaching a decision that could be inconsistent with the Federal Circuit's decision on appeal. D. Supp. Memo, of November 9, 2004 at 13-15.
"The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants,” and is within the discretion of the court. Landis v. North American Co.,
. See Portsmouth,
. Defendant's other arguments (that the subsequent sale of the ranch indicates there was no taking, that the difference in what plaintiff paid for the ranch and what he sold it for is indicative of a tort, that plaintiff actually seeks damages for a lost business opportunity) require no discussion here because they are not relevant to the tort-taking distinction test. These arguments may or may not be relevant to just compensation, which the court does not address here. Furthermore, it is unclear whether defendant’s argument that, if anything, plaintiff has suffered a de minimus taking simply relates to just compensation. — or whether it was meant to be an argument regarding the substantiality of the harm under the tort-taking distinction test. To the extent that this is a substantiality argument, a characterization of the EDB contamination of two of the ranch's wells as de minimus does not change the fact that such contamination is both permanent and substantial in character (see discussion above). To the extent that defendant’s de minimus argument goes to just compensation, the court does not address it here.
. Alexander acknowledged that the plaintiff’s claim could have raised constitutional takings issues, but concluded that "the act of congress under which this public work was done" provided a remedy for plaintiff. Id. at 187-88,
. See Boling v. United States,
. Because it is unknown, the court does not discuss the date that EDB first contaminated the ranch.
. Two South Dakota statutes specifically address contracts for deed and eminent domain. One prevents a purchaser from withholding payments or recovering from the seller payments already made if the subject property is destroyed or taken by eminent domain after either title or possession has transferred. See S.D.C.L. § 43-26-7. The other prohibits a seller from enforcing a contract for deed if the subject property is destroyed or taken by eminent domain before either title or possession has transferred. See S.D.C.L. § 43-26-6. The former protects the seller from harm that occurs after the transfer of title or possession, while the latter protects the purchaser from harm that occurs before the transfer of title or possession. Both statutes are apparently calculated to address disputes that arise from unexpected harm occurring soon before or after the transfer of title or possession. In this case, the EDB contamination of the ranch was well known to Mr. Wick, the contract-for-deed purchaser. Indeed, the contract in this case addressed the contamination of the subject property by: (a) imposing additional obligations on the seller; and (b) providing the subject property to the purchaser at a discounted rate. Thus, it appears that §§ 43-26-6 and 7 do not apply here.