Court of Federal Claims Takings Roundup

The US Court of Federal Claims (CFC) is the court assigned jurisdiction under the Tucker Act to hear inverse condemnation and regulatory takings claims against the federal government where the remedy sought is money damages.  The CFC is an "article I" court meaning its judges do not have life tenure as do judges of article III courts, but aside from that and its limited jurisdiction, it functions very much like the district courts.  Appeal of the CFC is taken to the Court of Appeals for the Federal Circuit.  Here is a rundown of a few of the court's recent decisions involving takings issues:

Contract is not "property" -- Griffin Broadband Communications, Inc. v. United States, No. 06-898C (Nov. 19, 2007).  The court dismissed a takings claim based on a contract between the plaintiff and the Army to provide TV and communication services at Fort Irwin, California.  After 10 years of operation under the contract, the parties entered into a renewal, but several years later, the Army told the plaintiff to cease operations and remove all of its property from the base.  The court held that the takings challenge failed as a matter of law because the plaintiff did not possess a "property" right.  "The Government's alleged failure to fulfill its contract obligations would constitute a breach of contract, but is not itself a taking of property compensable under the Fifth Amendment."  Slip op. at 4.  "A contract is not considered taken, however, when the Government breaches a contract, but does not deprive a contract holder of the right to seek damages for breach of that contract."  Id. at 4-5.  The court contrasted the situation in the Griffin case with one where the government prohibits a plaintiff from pursuing a breach of contract case; that case would affect a property interest, the right to seek redress for a legal claim.

Assignment of takings claims -- Delmarva Power & Light Co. v. United States, Nos. 04-34C & -36C (Nov. 13, 2007).  This case involves contracts between the US and the operators of nuclear power plants and the disposal of spent nuclear fuel.  The takings issue in the case arose from the claim that the federal government forced the plaintiffs to store the toxic waste on their properties, constituting a violations of the Takings Clause.  The court held that because the claims were assigned by the property owners in violation of the Assignment of Claims and the Anti-Assignment Acts, there was no property to be taken. 

Who is doing the taking? -- Cary v. United States, No. 06-707L (Nov. 1, 2007).  The plaintiffs sued the federal government after a forest fire started by a lost hunter damaged their properties.  Their theory of liability was that the U.S. Forest Service's deliberately poor forest management policies resulted in the damage.  The plaintiffs analogized their case to the situation where government conduct such as building a dam results in flooding.  The fires, like the floods, were the "actual and natural consequence of the Government's act."  Slip op. at 4. The court disagreed because there is a difference between the government causing flooding directly, and a third party starting a fire:

The government did not cause the Cedar Fire. Rather, as the facts demonstrate, a hunter started the fire. And unless one is prepared to say that the hunter was acting as the government’s agent, causation cannot be  attributed to the government. It must follow, then, that since the government  was not an actor, it cannot be a taker.

Slip op. at 4.  The court held that the plaintiff's theory sounded more in tort than in inverse condemnation.

Navigational servitude, standing, -- Northwest Louisiana Fish & Game Preserve Comm'n v. United States, No. 02-1031L (Oct. 31, 2007).  The Red River Navigation project authorized the improvement of navigability along the Red River.  The plaintiff sought $26 million as just compensation for its claim that the construction of a portion of the project increased the growth of aquatic weeds on its lake, and therefore took its right to manage the Northwest Louisiana Game & Fish Preserve.    The court dismissed the claims seeking compensation for "trespass" and nuisance, because they "sounded in tort."  Pages 12-14 of the slip opinion are worth reading, because the court distinguishes between tort (injury claims resulting from a breach of duty) and inverse condemnation claims (claims for compensation resulting from a proper exercise of governmental power). 

The court next held that the Commission had standing to pursue the remaining takings claim, even though it did not own the property at issue, because it had the responsibility under state law to maintain the property as an agent of the title holder (the state).  Finally, the court held that the plaintiff did not own "property," because it its interest in draining its lake into a navigable stream was subject to the federal "navigational servitude."

Therefore, the government is correct that, to the extent the plaintiff bases its takings claim on the ability to drain from Black/Clear Lake into the Red
River, which requires the elevation of the Red River to be below a certain level, the plaintiff’s property interest is subservient to the navigational servitude.

Slip op. at 25.  The court, however, held that the plaintiff stated a claim for any flooding of its land that may have resulted from the government's navigation project, since this property is not subject to the navigational servitude.