Here's the latest in a case we've been following. It's not exactly a "new" cert petition, but one which we missed when it was filed back in February.
This one comes up via the Court of Federal Claims and the Federal Circuit, with the latter vacating the CFC's award of partial compensation, concluding that the petitioner did not have a compensable property interest in the entire property it alleged was taken.
The petitioner bought some of a steel mill's assets in bankruptcy. Those assets included piles of some of what is known as slag, scrap, and kish. EPA later determined that the piles were leaching contaminants. And you know what that means: remediation. EPA reduced the size of some of the piles and left others in place. The owner sued for a taking of the kish, slag, and scrap the EPA recovered from the site.
After trial, the Court of Federal Claims concluded that EPA's remediation resulted in a taking, but only of the slag, and not the kish or scrap. The owner appealed the failure to award comp for the kish and scrap, and the US appealed the takings judgment.
The Federal Circuit concluded that the owner should have received nothing for the slag taking, and vacated the award of compensation. The owner did not have a compensable property interest in the entire pile of slag. In its contract to buy the steel mill's assets, the owner purchased 420,000 cubic yards of slag. And even after the EPA took some of it, it left more than 420k cubic yards in the pile. And there was no impediment to the owner using whatever slag remains. In short, the owner bargained for 420k cy of slag, and it still has 420k cy of slag. The Federal Circuit also rejected the owner's argument that after having determined the EPA took the kish and scrap, the CFC "was duty-bound to fashion an appropriate damage award." No, the court concluded, a trial court "is not obligated to fashion its own award when a plaintiff has not provided evidence sufficient to determine just compensation with reasonable certainty."
Here are the Questions Presented:
I. Whether this Court should fill a statutory and jurisprudential void in Tucker Act inverse condemnation "takings" law to resolve the obvious constitutional dilemma that confronted the Court of Federal Claims below, where the court found that the Environmental Protection Agency took Petitioner's property and sold some of it for $13.5 million, made no offer of compensation whatsoever, forced Petitioner to incur a decade of expense litigating against the government's ferocious effort to avoid payment, and at trial the court found a compensable per se taking, but the court simply set aside the constitutional requirement of just compensation under the Fifth Amendment's Takings Clause and awarded nothing, on the basis that Petitioner's evidence failed to prove a precise value of the property with "reasonable certainty".II. Whether the Federal Circuit committed clear constitutional error where it ignored the conduct constituting the taking of Petitioner's slag, impermissibly set aside the trial court's fact findings underlying its conclusion that a taking of slag had occurred, and improperly substituted its own de novo findings of fact that themselves were contrary to the record, all in order to disturb the Court of Federal Claims' determination that the government did commit a compensable taking of Petitioner's slag and violated the Takings Clause by failing to pay for it?
Here are the briefs:
Conference is set for June 17, 2021, so stay tuned.
