In case you were not paying attention on this fine Thursday, here comes the Federal Circuit's opinion in Mildenberger v. United States, No. 2010-5084 (June 30, 2011). It's an interesting opinion because it deals with the mildly metaphysical question of when the six year statute of limitations for inverse condemnation claims against the federal government commences in cases where the taking and damage to the property is gradual, and nearly imperceptible.
In many cases, inverse condemnation claims are not like straight condemnation where the property owner knows when her property is being condemned, because in an inverse claim the owner doesn't get served with a complaint, but instead must institute the suit after her property is taken or damaged, and it is often not clear when property has been taken or damaged to such an extent that a claim must be brought. The general rule is that a property owner has six years to file a takings claim against the federal government, measured from when the "events giving rise to the Government's alleged liability have occurred and the claimant is or should be aware of their existence." Slip op. at 10 (citing Hopland Band of Pomo Indians v. United States, 855 F.2d 1573 (Fed. Cir. 1988)).
In Mildenberger, the plaintiffs are owners of riparian property along the St. Lucie River and the St. Lucie Canal in Florida. In 2006, they filed a complaint in the Court of Federal Claims alleging inverse condemnation for the federal government's "intentional and repeated discharge of pollutants" into the River which took their riparian rights to use a pollution-free river. The pollutant was fresh water, which the Corps of Engineers had for years regularly released from nearby Lake Okeechobee to prevent flooding. Introduction of the fresh water itself and the stuff in the fresh water (agricultural runoff) apparently really screwed up the ecosystems in the adjacent brackish waterways.
The CFC dismissed the complaint because it concluded the plaintiffs' claims accrued more than six years prior under the "stabilization doctrine," which dictates that a takings claim accrues when a "continuous physical process set in motion by the Government has stabilized." Slip op. at 7. The CFC held the plaintiffs should have known of the permanence of the Corps discharges well before six years before they filed suit, and that the environmental damage caused by the discharges began more than fifty years earlier. It also granted summary judgment to the government, concluding that the riparian rights of fishing, swimming, boating, and recreation are not "property" rights because they are held in common with the public. Finally, even if these were rights, they were subject to the federal navigational servitude and thus noncompensable.
The Federal Circuit affirmed. It acknowledged that "[t]he stabilization doctrine recognizes that determining the exact point of claim accrual is difficult when the property is taken by a gradual physical process rather than a discrete action undertaken by the Government such as a condemnation or regulation." Slip op. at 10-11. After walking through the history of the stabilization doctrine, slip op. at 11-13, the court also acknowledged that it was difficult for the plaintiffs to tell exactly when the damage became so "evident" that their ability to start a lawsuit began, but that they could not wait until all of the damage was complete to do so:
Although claimants are not required to sue when it is still uncertain whether the gradual process will result in a permanent taking, the stabilization doctrine also does not permit a claimant to delay bringing suit "until any possibility of further damage has been removed."
Slip op. at 12 (quoting Columbia Basin Orchard v. United States. 88 F. Supp. 738, 739 (Ct. Cl. 1950)).
The court set out the facts which led it to conclude that the plaintiffs should have acted earlier: the discharges started over 80 years ago, and the "effects have been evident since the 1950s," and some of the plaintiffs formed a group in the 1990s to restore the health of the river (meaning they knew about the damage). Slip op. at 13.
The court rejected the plaintiffs' argument that because the government "promised to mitigate the damage," accrual of their takings claims was delayed. Slip op. at 14. In other words, the government's promises and actual efforts to mitigate lulled the plaintiffs into inaction. Not so, held the court, "[t]here is no justifiable uncertainty due to the Corps’ promises before the 1990s because the Corps neither undertook nor committed itself to any mitigation activities. None of the documents or proposals Claimants interpret as committing the Corps to action actually does so." Slip op. at 15.
Finally, the Federal Circuit agreed with the CFC that the riparian rights alleged to have been taken such as the ability to swim, boat, and fish in the river, are not compensable property interests because under Florida law, these riparian rights are shared with the public.
Mildenberger v. United States, No. 2010-5084 (Fed Cir June 30, 2011)
