There have been a lot of takings and takings-related decisions coming out of the Court of Federal Claims lately, and we've held off on posting them individually. So to start off your New Year, here is a pop quiz.
Your task: guess whether the CFC held there was a taking, or no taking (answers below):
Case 1: Sheikh Djibouti
Case 2: Bust a deal, face the wheel?
- Global Freight was a subcontractor providing services to a Navy base in Djibouti. The Navy ordered it to move its vehicles from the Navy base into Djiboutian territory, after which the Djiboutians seized the vehicles. Taking or no taking?
- Taking. Or at least not "no taking." In Global Freight Systems, Co. v. United States, No. 15-378C (Fed. Cl. Dec. 29, 2016), the CFC denied the government's motion to dismiss for failure to state a claim (which argued that it was the Djiboutians and not the U.S. which took the vehicles), concluding that the plaintiff's claims that the Navy ordered the vehicles off base in order to appease the Djjiboutians, and that discovery might show the plaintiff's claims were correct. If the Navy worked with the Djiboutians or did it to protect its relationship with them, then a taking may have occurred.
- The federal government repudiated its obligation to accept prepayment under Fair Housing Act of 1949 loan agreements, pursuant to which the plaintiffs obtained low-interest mortgage loans and in return for which they provided rural low-income housing. Decades later, each of the plaintiffs transferred their interests to third parties. Taking, or no taking?
- No taking. In Saline Assoc. No. 1 v. United States, No. 13-908C (Fed. Cl. Dec. 21, 2016), the CFC concluded that the takings claims were untimely, and missed the 6-year statute of limitations.
Case 3: Foreign Relations
- Libyan terrorists blew up a plane, and plaintiffs, the survivors of one of the victims, sued Libya and obtained a $1.3 billion judgment in U.S. District Court. Subsequently, the U.S. government settled all claims with Libya and vacated the judgment. The settlement with Libya referred claims to a settlement commission, which awarded plaintiffs $10 milion. Plaintiffs sued the U.S. for the difference. Taking or no taking?
- No taking. In Alimanestianu v. United States, No. 14-704C (Fed. Cl. Dec. 29, 2016), the CFC held that there was no Penn Central taking because the plaintiffs had no reasonable expectation for any recovery greater than what they got from the commission. Besides, the character of the government action is that of conducting foreign relations, and we know that in that field, the feds rule.
Case 4: Rails-to-Trails
- Rails-to-trails, Judge Firestone. The question was whether, under Arkansas law, the deeds which the plaintiffs' predecessors conveyed to the railroad a fee simple interest or an easement. The deeds conveyed a "right of way" interest. Taking or no taking?
- Taking. In Carpenter v. United States, No. 15-415L (Fed. Cl. Dec. 12, 2016), the CFC applied the eight factors which the Arkansas Supreme Court established to determine whether a conveyance is for a fee or an easement, and concluded that these documents conveyed easements. The deeds were for "rights of way" (and not "quitclaims"), and were for relatively narrow strips of land.
Case 5: Critical Habitat
- The feds designated land for critical habitat for the Mojave desert tortoise. The government claimed the case either wasn't ripe because the plaintiff had not sought an incidental take permit which might allow them to use the property, or was filed too late because the claim accrued more than six years prior. Taking or no taking?
- No taking. More specifically, the case isn't ripe. In Doyle v. United States, No. 15-572L (Fed. Cl. Nov. 30, 2016), the CFC held that the plaintiff's failure to seek an incidental take permit made its takings claim premature. The court concluded that seeking such a permit was not futile. It might be a long shot, but it wasn't Mission Impossible.
Case 6: More rails-to-trails
- Under Maine law, the property owners' predecessors conveyed an interest in their lands to rail operators for use to build and maintain railroads. Those interests were converted to recreational trails uses after the railroads stopped operating. Taking or no taking?
- Taking. In Harley-White v. United States, No. 14-447L (Fed. Cl. Dec. 9, 2016), the CFC applied the correct Preseault framework to conclude that the designation as a trail effected a taking as a matter of law because the plaintiffs' predecessors granted an easement for railroad purposes. The court rejected the argument that the interest conveyed was for a "public highway" purpose.
Case 7: When is a Raisin Takings Claim Ripe?
- In 2015, after the the U.S. Supreme Court's Horne decisions, the plaintiff sued for a taking of its reserve raisins for the years 2006-07, -08, and -09. The government asserted these claims were not "ripe" (ha, ha) because it was more than six years after the claims accrued. Too late, or timely?
- Timely. In Lion Farms, LLC. v. United States, No. 15-915 (Fed. Cl. Nov. 29, 2016), the CFC held that until Horne, the plaintiff was prevented as a practical matter from bringing suit for compensation, even if it were "technically" allowed under pre-Horne decisions. Slip op. at 4 ("t was not until the decision in Horne that plaintiff’s claims were legally defensible. It would be unreasonable to expect the plaintiff to file a takings claim that it reasonably believed was barred by Evans precedent.").
Case 8: Tort or Taking?
- The plaintiff alleged the feds constructed a water diversion project on Nevada land so poorly that it (1) impacted delivery of water to the plaintiff's land, and (2) resulted in flooding. The government filed a motion to dismiss because this is a tort claim and not a takings claim. Taking or no taking?
- Taking. In Ministerio Roca Solida v. United States, No. 16-826L (Fed. Cl. Nov. 29, 2016), the CFC held that the the government's water diversion project was an authorized act, and therefore were takings claims. The government may not have intended to impact the water delivered to the plaintiff, nor flood its land, but those impacts were the "direct, natural, or probable result" of intentional government conduct.
Extra Credit: Regulatory or Physical Taking?
- Plaintiffs own the right to use water in the Klamath River Basin. The government (allegedly) took their property when pursuant to the Endangered Species Act, it cut back on the amount of water the plaintiffs could use. Regulatory take or a physical take?
- Physical take. In Klamath Irrigation v. United States, No. 1-591L (Fed. Cl. Dec. 21, 2016), the CFC held that it was bound by the Federal Circuit's ruling in Casitas Mun. Water Dist. v. United States, 543 F.3d 1276 (Fed. Cir. 2008), which concluded that these types of claims are to be analyzed as physical takings. The court rejected the government's attempt to distinguish that case by asserting that there was no physical diversion of water here, only a promulgation of regulations restricting the removal of water.
