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Eminent Domain and Inverse Condemnation: Court of Federal Claims Opinions Recognize Limits to Right of Compensation for Less Than Permanent Takings

By Matthew Hinks
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.

Matthew Hinks is a litigator with a wide-ranging practice that focuses primarily on the representation of real estate developers in difficult land use cases. Matt has extensive experience litigating complex mandamus actions and other claims involving signage disputes, governmental takings, CEQA challenges, planning and zoning law, civil rights violations, eminent domain issues, title disputes, lease disputes and community redevelopment and density bonus law. He has extensive experience in both federal and state courts, including trial courts and courts of appeal, as well as in arbitration, mediation and administrative settings. Contact Matt at or 310.201.3558.