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United States: Eminent Domain And Inverse Condemnation: Court Of Federal Claims Opinions Recognize Limits To Right Of Compensation For Less Than Permanent Takings
The Takings Clause of the Fifth Amendment to the United States
Constitution provides that "private property [shall not] be
taken for public use, without just compensation." The
Constitution does not prohibit the taking of private property by
the government -- so long as the taking is done for a "public
purpose", -- but instead places a condition on the exercise of
that power: namely, the payment of "just compensation".
As the Supreme Court has recognized, "[t]he paradigmatic
taking requiring just compensation is a direct government
appropriation or physical invasion of private property."
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005).
In other words, situations where the government obtains title to or
physically occupies private property present relatively
uncomplicated issues as to whether a taking has occurred. More
nuanced issues arise, however, where governmental actions cause
less than permanent occupations. This principle was on display in a
pair of recent opinions from the United States Court of Federal
Claims, a court established by Congress to adjudicate monetary
claims against the federal government.
In Stueve Bros. Farms, LLC v. United States, Fed. Cl.,
July 02, 2012 (NO. 11-799 L), plaintiffs, the owners of real
property within the Prado Dam Flood Control Basin, alleged that the
government had effected a physical taking by subjecting their
properties to a risk of flooding above the elevation allowed by the
government's existing flowage easements. The federal government
completed the Prado Dam, located in Riverside County, California,
in its original form in 1941. Plaintiffs' property is in an
area that became the Prado Dam Flood Control Basin. Because it was
contemplated that releases of water impounded by the Prado Dam
could inundate a portion of plaintiffs' property, the
government in 1942 and 1945 condemned flowage easements over it to
an elevation of 556 feet above sea level. Years later, the
government began to plan a series of improvements (the Project) to
provide additional flood protection. When completed, the Project
would raise the flood inundation line associated with releases of
water from the Prado Dam by ten feet, to 566 feet above sea level.
This, according to plaintiffs, "ma[de] the vast majority of
[their p]roperty subject to flooding and unfit for development of
any kind, without the payment of just compensation required by the
Fifth Amendment to the United States Constitution".
The Court granted the government's motion to dismiss
plaintiffs' lawsuit. Although the government had acknowledged
that the Project may subject plaintiffs' property to future
flooding and had previously indicated that it may acquire
additional flowage easements, plaintiffs' allegations amounted
to only "an apprehension of future flooding". They did
not, according to the Court "support a finding that the
government ha[d] already taken a flowage easement".
Accordingly, plaintiffs failed to state a claim upon which relief
could be granted.
In Trinco Investment Co. v. United States, Fed. Cl.,
July 16, 2012 (NO. 11-857L), plaintiffs alleged that the government
took their property when the United States Forest Service
intentionally lit fires in California's Shasta-Trinity National
Forest in order to manage a group of wildfires in the summer of
2008. According to plaintiffs, these intentionally-lit fires caused
substantial damage to their properties. Moreover, they alleged, the
wildfires would not have damaged their lands but for the Forest
Service's actions. They sued, alleging that the government
"took" their property by setting the fires and sought
damages of over $6 million.
Central to the Trinco court's rationale is the
concept that an owner's property rights are limited by
"background principles" inherent in property ownership,
which limit rights of property owners. In Lucas v. S.C. Coastal
Council, 505 U.S. 1003 (1992), the Supreme Court discussed
these "background principles in light of a state's police
power and the law of nuisance. According to the Lucas Court,
"the government may, consistent with the Takings Clause,
affect property values by regulation without incurring an
obligation to compensate" when it acts "with respect to
the full scope of the State's police power." Thus,
although for categorical takings, compensation is normally due, it
is not when actions are to taken to abate nuisances that affect the
public generally or for the destruction of property in the case of
actual necessity, including actions taken to prevent the spread of
a fire. Moreover, plaintiffs, according to the Trinco
court, pled no facts from which the court could plausibly conclude
that the intentional lighting of fires was not part of the
government's firefighting efforts. Accordingly, the court
granted the government's motion to dismiss.
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