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...