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In an earlier post (“CAFED: Like We Said Before, “Inevitably Recurring” Flooding Is A Taking“), we covered the U.S. Court of Appeals for the Federal Circuit’s recent opinion in Alban v. United States, No. 23-1363 (Dec. 22, 2025), which held that the failure of the Corps of Engineers to properly operate two dams which resulted in upstream flooding when Hurricane Harvey struck was a “permanent” taking.

In this post, we’ll cover the latter part of the opinion, which dealt with the just compensation aspects of the case (each party appealed a portion of the Court of Federal Claims’s damage award).

The first claim was that the CFC’s award of compensation for damage to structures and personal property was not compensable. The Federal Circuit clarified that had the government merely taken a flowage easement, its claim to not be liable for such damage might have had some merit.

Continue Reading CAFED: Where The Government Chooses To Not Condemn But Allows It To Happen, It “Bears The Risk” That The Property Taken Is More Than The Government Wants To Pay For

Here’s the latest in an issue we’ve been following.

In Alban v. United States, No. 23-1363 (Dec. 22, 2025), the U.S. Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims’s judgment concluding that the failure of the Corps of Engineers to properly operate two dams, which resulted in upstream flooding when Hurricane Harvey struck was a “permanent” taking.

The dams were built nearly 100 years ago to reduce downstream flood risks. The reservoirs are usually dry, and fill up when it rains a certain amount. At the time of construction, the Corps considered acquiring property which would be inundated when the reservoirs filled up to a certain level, but ultimately decided to not do so. The Corps made the decision to acquire only the properties predicted to be flooded in smaller storms. The Corps understood that flooding of additional property was predicted in more…

Continue Reading CAFED: Like We Said Before, “Inevitably Recurring” Flooding Is A Taking

The caption of the U.S. Court of Appeals for the Tenth Circuit’s opinion in Purgatory Recreation I, LLC v. United States, No. 24-1241 (Oct. 21, 2025), and the fact that the plaintiff raised a takings claim, should give you some idea where this is heading.

After all, when the defendant in a takings claim is the United States, your Tucker Act/Court of Federal Claims alarm bells should be going off.

That’s certainly accurate where the remedy sought is just compensation, and the amount of compensation sought is substantial. Those claims have been assigned to the CFC, not to district courts and the regional courts of appeals. But what if the plaintiff says it doesn’t want just compensation, but instead asks for a declaratory judgment that “to do X would result in a taking?”

In Purgatory, the plaintiff objected to the federal government’s denial of access across federal land…

Continue Reading CA10: Can’t Use Declaratory Judgment Before Seeking Tucker Act Compensation
Darby

Here’s the latest in a case we’ve been following.

The federal government has asked (and been granted), an extension of time in which to file a cert petition in the Darby case.

That’s the one in which the U.S. Court of Appeals for the Federal Circuit allowed a claim that the federal government is liable for a physical taking for the Center for Disease Control’s residential eviction moratorium. The U.S. Supreme Court eventually invalidated the moratorium, and several property owners who were prevented from removing tenants are seeking just compensation. 

There’s nothing particularly earth-shattering about the government seeking more time. Indeed, it is rather routine. But the request included a somewhat unusual peek behind the Solicitor General curtain. We suppose the SG could have just asked for more time, and it would have been granted. But the request included an indication that there’s a bit of contention within…

Continue Reading Is A Gov’t Cert Petition In Darby (Eviction Moratorium Physical Takings) Forthcoming?

Here’s one from the U.S. Court of Appeals for the Federal Circuit, involving ERISA (yikes!), which is the comprehensive federal regulatory framework for employer-provided pension plans, and takings.

In King v. United States, No. 23-1956 (Aug. 8, 2025), pensioners challenged Congress’s 2014 reduction of benefits as a taking, alleging both physical and regulatory theories. As you might expect, there’s a lot going on in this area, and there’s enough ERISA goodness in this opinion to satisfy the most committed maven. Check out pages 3-8 for a pension primer. (And here you thought takings is a complex area.)

The short story is that in 2014 after it “became concerned about the fiscal health of many of the nation’s multiemployer pension  plans,” slip op. at 9, Congress amended ERISA to deal with the actual or threatened insolvency of multiemployer pension funds. What happens if a pension is obligated to pay, but…

Continue Reading Fed Cir: Reducing ERISA Pension Benefits Was Not A Taking

An interesting and timely decision from the U.S. Court of Appeals for the Fifth Circuit.

In United States v. Bennett, No. 23-40680 (July 24, 2025), way back in the day Hidalgo County, Texas, acquired an easement over her land to construct and maintain a flood-control levee, with the County soon thereafter assigning its rights to the federal government.

Flash forward to 2008, and the feds constructed a portion of the border wall atop the levee, for the dual purposes of flood control (it said) and border protection. Flash forward again to 2020, when the feds instituted an eminent domain proceeding “to construct and maintain fencing, barriers, and related structures to secure the border.” Slip op. at 3.

Bennett then asserted that the original wall built by the feds exceeded the scope of the flood-protection easement which the County had taken, and the feds had therefore been trespassing. This, in…

Continue Reading CA5: The Border Wall Isn’t A “Fixture”

We’re back to bump stocks. Indeed, we have covered cases raising similar issues so we’re not going into too much detail on the U.S. Court of Federal Claims’ recent decision in The Modern Sportsman, LLC v. United States, No. 19-449 (May 8, 2025), and we’ll just assume you, like us, have been following along with this issue.

Suffice it to say that the federal government adopted regulations defining these devices as prohibited machine guns and gave those in possession 90 days to either turn them over to the government, or to destroy them. The plaintiffs destroyed their bump stocks and then sued the federal government for a taking.

The CFC dismissed the complaint under the government’s “police power” authority to prohibit contraband and noxious items. As we noted in this post, the line between uncompensated destruction and compensated takings was not as clear at the CFC saw it (the Armstrong rationale cannot be ignored, even where a taking may be for a very good public reason), and thus the Federal Circuit affirmed, but shifted the rationale from police power to a lack of a private property interest. After the Supreme Court denied cert, “that was that.” Slip op. at 2.

Meanwhile, other bump stock owners challenged the validity of the administrative rule declaring these things machine guns. And there, the owners found more success, with the Supreme Court eventually concluding that the agency lacked the authority to adopt the bump stock rule. The owners here “then asked this Court to revive this lawsuit, which the Court did … [t]he next day, plaintiffs amended their pleadings to add an illegal exaction claim in addition to their takings claim.” Slip op. at 3. 

The government sought dismissal, arguing that the bump stock owners alleged a physical taking but the government hadn’t physically seized anything. It merely required the owners to destroy the bump stocks: as the CFC put it, the government “acknowledges that plaintiffs alleged that ‘the Rule required bump stock owners to destroy or surrender the devices to ATF.’ Reply 2. That does not pass muster for the government, however, because the government ‘did not seize any devices or otherwise physically invade plaintiffs’ property.’ Id. at 3.” Slip op. at 4. In short, we didn’t actually seize anything of yours, plaintiffs; we merely required you to destroy your property. Really. 

The CFC wasn’t having any of that, and rejected this too-clever-by-half argument:

The Court cannot agree. Let us be clear that the government need not literally force private persons to turn over their property for a taking to occur; a legal requirement is sufficient. For example, in Horne, the Supreme Court held that an administrative order requiring raisin croppers to “give a percentage of their crop to the Government, free of charge” effected a compensable appropriation. 576 U.S. at 355. The government did not literally oust the farmers from possession of the raisins, yet a taking occurred because the order made a “formal demand” backed by fines and penalties. Id. at 362, 367–68. It is the same here. The Rule plainly states: “This final rule requires the destruction of existing bump-stock-type devices.” 83 Fed. Reg. at 66,549. It then instructs: “Individuals who have purchased bump-stock-type devices prior to the implementation of this rule must destroy the devices themselves prior to the effective date of the rule or abandon them at their local ATF office.” Id. Finally, it makes clear that “individuals are subject to criminal liability . . . for possessing bump-stock- type devices after the effective date of regulation.” Id. at 66,525. These statements undoubtedly constitute a formal demand to destroy or transfer possession of bump stocks, satisfying the standard under Horne.

Slip op. at 4-5.

If this argument strikes you as nonsense, welcome to our world, where arguments like this are put forth with a straight face on a regular basis. 

And if that wasn’t enough, the government next argued that the regulations didn’t actually require the owners to destroy their bump stocks, “but ‘merely clarified’ the ‘longstanding statutory law’ banning machineguns.” Slip op. at 5. “Put plainly, the government essentially argues that the Rule is an informational document apprising the public of pre-existing legal obligations.” Id. The CFC held “[t]hat too is incorrect.” Id. That seems to be putting it mildly. What do you think would have happened to bump stock owners who didn’t comply with this “informational” rule and held on to their bump stocks?

Short story: the complaint alleged a physical taking.

Next, however, the CFC rejected the exaction claim, based on the remedy sought. As we know, the CFC is limited to awarding monetary damages in these kind of cases. The CFC held that an “exaction” generally “involves money that was ‘improperly paid, exacted, or taken from the claimant.’” Slip op. at 7 (quotations omitted). Here, the CFC held, no money changed hands and there’s no statute otherwise authorizing a claim for money damages:

In sum, plaintiffs cannot be said to have paid money, directly or “in effect,” for a very straightforward reason: They lost personal property, not money. Indeed, plaintiffs have not alleged that they spent any money for any purpose; or paid any money to any In sum, plaintiffs cannot be said to have paid money, directly or “in effect,” for a very straightforward reason: They lost personal property, not money. Indeed, plaintiffs have not alleged that they spent any money for any purpose; or paid any money to any

Slip op. at 8-9.

The CFC wrapped up by — get this — calling out the property owners’ lawyers for failing to expressly clarify that one of the cases they cited and relied on didn’t actually hold that an exaction could be a demand for “money or property,” only money. Slip op. at 9. The court acknowledged that the citation didn’t actually misquote the case, but that the lawyers should have been more candid that they were arguing for an extension of the law, and that the case limited exactions to money.

We’re fine with that (especially in the AI era), and requiring advocates to be candid. 

But where’s the call-out of the government’s horse hockey arguments, noted above? Dead silence, of course. In our view, the borderline frivolous, time-and-expense wasting, divorced-from-reality arguments the government made are equally if not more deserving of censure. 

Call us if that ever happens. We’ll wait.

The Modern Sportsman, LLC v. United States, No. 19-449 (Fed. Cl. May 8, 2025)

Continue Reading CFC: Allegation That Gov’t Ordered Destruction Of Bump Stocks Pleaded Physical Takings Claim

Here’s the U.S. Court of Appeals for the Federal Circuit’s opinion in United Water Conservation District v. United States, No. 23-1602 (Apr. 2, 2025), which gets a bit metaphysical.

The District is responsible for a dam and canal that diverts water from the Santa Clara River in southern California. Under the authority of the Endangered Species Act, the NOAA required the District to leave more water in the river for steelhead trout habitat. Either that, or seek an incidental take permit allowing the District to “take” (i.e., kill) steelhead.

The District asserted this is a physical taking of its water rights, but the government said no, this is a regulatory taking. Why is this important? Because a physical takings claim is ripe right now, without any need to exhaust any avenues for administrative relief from the NOAA, But if this is a regulatory takings claim, it isn’t ready for judicial review until the NOAA has provided a final decision in the form of a yes or no on an incidental take permit. Which it has not done because the District hasn’t applied for an incidental take permit. The Court of Federal Claims agreed with the government, and the District appealed. 

The Federal Circuit saw the difference between physical and regulatory takings thusly:

Regulatory takings differ from physical takings in that, instead of asking “whether the government has physically taken property for itself or someone else—by whatever means,” the question is whether the government “has instead restricted a property owner’s ability to use his own property.” Id. (citing Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 321–23 (2002)). “While there is no ‘set formula’ for evaluating regulatory takings claims, courts typically consider whether the restriction has risen to the level of a compensable taking under the multi-factor balancing test articulated in Penn Central, 438 U.S. at 124.” Casitas I, 543 F.3d at 1289; see Tahoe-Sierra, 535 U.S. at 322 n.17 (“When, however, the owner contends a taking has occurred because a law or regulation imposes restrictions so severe that they are tantamount to a condemnation or appropriation, the predicate of a taking is not self-evident, and the analysis is more complex.”).

Slip op. at 7.

The Federal Circuit concluded that the District has a property right in the use of water it diverts. But it rejected the District’s argument that NOAA’s order to not divert as much water as it had been diverting and instead leave it in the river is the same as the government seizing the water. Not so, held the court. This is merely a restriction on the District’s use.

But what about that earlier case in which the Federal Circuit held that the government requiring another water rights owner to put water into a fish ladder was a physical taking?  See Casitas Municipal Water Dist. v. United States, 543 F.3d 1276 (Fed. Cir. (2008). Nope. The difference is that in Casitas, the water district already had diverted the water from the river into its own system and the government ordered it to redirect the already-appropriated water to the fish ladder. Whereas here, the water district was merely ordered to not divert it and leave it in the river for the fish.

The Federal Circuit also distinguished a a Supreme Court case which held that the government’s stopping the water flow to the plaintiff’s mill was a physical appropriation. By contrast, here, the government had not “completely cut off [the District’s] access to the water or cause it to return any volume of water it had previously diverted to its possession[.]” Slip op. at 10. “In fact, [the District] alleges that [NOAA], at most, required more water to stay in the Santa Clara River.” Id.

The District argued the court shouldn’t view this so hyper-technically: we had the right to X amount of water before, and due to the government’s restrictions has X-minus amount now. We think that makes a lot of sense. 

But let’s put that aside for the moment and get to what we see as the more fundamental issue. Should there be a difference between a physical claim and a regulatory claim such that they should be subject to different ripeness requirements?

The idea that there’s a meaningful (or as the Federal Circuit says, “material”) difference between a physical takings theory and a regulatory takings theory is difficult for us to wrap our mind around. There’s but a single cause of action to describe the situation where an owner claims some action by the government has the same effect on property as would an exercise of eminent domain (aka inverse condemnation, regulatory taking, de facto taking). See Yee v. City of Escondido, 503 U.S. 519, 534-35 (1992) (“Petitioners’ arguments that the ordinance constitutes a taking in two different ways, by physical occupation and by regulation, are not separate claims. They are, rather, separate arguments in support of a single claim—that the ordinance effects an unconstitutional taking.”).

Reminds us of that perhaps-apocryphal story about LBJ getting into the “wrong” helicopter. They’re all de facto takings, son. After all, in eminent domain the taking of a nonpossessory easement is treated exactly the same way as a taking of the fee simple interest.

Nonetheless, the Federal Circuit thinks there’s a big difference. But what’s the difference between having a right to divert water, and a right to water already diverted? We can’t see a whole lot. But here’s the court’s thinking:

The Supreme Court precedent that United relies upon, however, does not acknowledge any distinction between physical and regulatory takings. That is presumably because it was not until 1978, decades after the decisions in International Paper, Gerlach, and Dugan, that the Court, in Penn Central, “clarified [ ] the test for how far was ‘too far’” for a regulation to be recognized as a taking. Horne v. Dep’t of Agric., 576 U.S. 350, 360 (2015). It may also be because the alleged takings in those cases did not arise from a regulation, as it clearly does here under the ESA. Moreover, Gerlach and Dugan involve riparian water rights, not appropriative water rights as here. The difference between the two is meaningful in the context of this case because riparian rights exist by virtue of land ownership and, therefore, their acquisition by the landowner does not depend on any physical acts of diversion and beneficial use of water as is required for appropriative water rights. See Colorado, 459 U.S. at 179, n.4 (“Appropriative rights do not depend on land ownership and are acquired and maintained by actual use. Riparian rights, in contrast, originate from land ownership and remain vested even if unexercised.”). Unlike the riparian-rights holders in Gerlach and Dugan, therefore, the appropriative-rights holder here needed to have physically diverted water for its property right to vest and thus become subject to a physical taking, as in Casitas. For at least those reasons, the Supreme Court precedent and related cases United cites are consistent with our decision here.

Slip op. at 12.

United Water Conservation Dist. v. United States, No. 23-1602 (Fed. Cir. Apr. 2, 2025)

Continue Reading CAFED: Sleeping With The Fishes – Requiring Water To Stay In River Is A Regulatory, Not Physical, Taking

Kudos to whomever added the Wilhelm Scream

In trial court litigation, the “final judgment” is a milestone. That’s when your window to an appeal starts, that’s when it is truly done in a trial court. If you are one of the parties or lawyers in the trial court, that’s when you can respond to the question “did you win?” truly with a “yes” or “no.”

And that little voice in our head keeps reminding us that until final judgment, in the (perhaps apocryphal) words of Yogi Berra, “it ain’t over ’til its over.” Yes, you might win a partial summary judgment. Or that motion gets denied. Or the court decides that yes, the court has jurisdiction. Or whatever. All that stuff is mostly interlocutory and therefore subject to revision, revocation, or reconsideration. Or in the case of subject-matter jurisdiction, something that can come back to bit a plaintiff…

Continue Reading CAFED: It Ain’t Over Til It’s Over – CFC Free To Revisit Seven-Year-Past Denial Of Motion To Dismiss

Hyatt

One from the U.S. Court of Federal Claims that is worth your time at least to skim. And the opinion is worth reading if only for the court’s conclusion which we’ve reproduced above.

Hyatt v. United States, No. 23-399 (Jan. 16, 2025) is, as the court described it, “a typical rails-to-trails action[.]” The issue resolved here was how much the property owners were entitled to recover in attorneys fees and expenses, now that they prevailed on the merits.

Under the Uniform Relocation Act, a property owner who obtains compensation for a regulatory taking may recover reasonable attorneys fees and costs. The opinion noted:

Specifically, in actions brought under the Tucker Act or the Little Tucker Act in which a plaintiff is compensated for the taking of property, the URA provides for the recovery of “such sum as will in the opinion of the court or the Attorney General reimburse…

Continue Reading CFC: Attorneys Fee Shifting “incentivizes the government to negotiate fairly, minimize delays, and avoid frivolous takings”