Articles Posted in Zoning, Planning & Land Use

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Freeman's company, RNR located eight mining claims on public lands of the Rogue River Siskiyou National Forest. In 2011, RNR filed a plan of operations with the U.S. Forest Service for commercial mining of ore that “contains commercially recoverable amounts of nickel, chromium[,] and iron” from two deposits over the course of 30 years. RNR proposed the construction of nearly eight miles of new roads, excavation of a pit for water storage, construction of two crossings over a creek, and creation of a processing facility on a 20-acre site, to be located on lands managed by the U.S. Department of the Interior’s Bureau of Land Management (BLM). Officials concluded that the BLM office had not received a complete plan of operation and requested a proposal for bulk sampling and construction of a pilot-prototype plant. Officials repeatedly asserted they would not process the pending plan without more specific information and a pilot-prototype. RNR did not respond to those requests, but sued, alleging a regulatory taking. The Federal Circuit affirmed the dismissal, of the suit finding the claim not ripe. The Forest Service has not reached a final decision and it is not clear compliance with its requests would be futile. View "Freeman v. United States" on Justia Law

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In the 1980s, Simonson began exploring for deposits of pumicite, a porous volcanic rock, which he thought had potential commercial applications. Simonson found high quality pumicite in Kern County and located 23 mining claims in his name. For two decades, Simonson commissioned scientific testing. Lab reports and industry analyses confirmed that pumicite could be useful in industrial paint and plastic manufacture; Simonson began taking orders. In 1987, Simonson submitted a Plan of Operations to Bureau of Land Management to mine 100,000 tons per year. BLM conditionally approved the plan, specifying that it had not yet determined whether Simonson had discovered valuable minerals under the General Mining Law, 30 U.S.C. 22. Simonson postponed mining until BLM completed its common/uncommon variety determination, but hired a consultant to generate investor interest. In 1989, the BLM concluded that Reoforce pumicite was an uncommon mineral, locatable under federal law, but did not establish that Simonson had a right to patent his claims. From 1987-1995, Simonson mined only 200 tons of pumicite and sold only five. In 1995, BLM stated that the lands encompassing 10 of the claims would be transferred to become part of Red Rock Canyon State Park. An agreement between BLM and California permitted some mining claimants to continue operating, depending on prior use of the mine, subject to California’s Surface Mining and Reclamation Act. Ultimately, BLM found pumicite not marketable and the claims invalid. The Department of the Interior later granted Simonson a conditional right to mine some claims. Simonson then sought compensation for a temporary taking (1995-2008). The Federal Circuit affirmed rejection of the claims. Although the character of the government's action did not weigh heavily against the taking claim, the economic-impact and reasonable-investment-backed-expectations factors weighed heavily against Simonson. View "Reoforce, Inc. v. United States" on Justia Law

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In the 1970s, the Department of the Interior’s Fish and WildlifeService began entering into cooperative farming agreements with farmers to manage public lands in the National Wildlife Refuge System for the conservation of migratory birds and wildlife, including at the Umatilla and McNary Refuges in the Pacific Northwest. Most CFAs share identical terms; the Service permits a “cooperator” to farm public land with specific crops that benefit wildlife. There is no payment. Cooperators typically retain 75 percent of the crop yield for their efforts. Hymas sought a cooperator contract. The Service selected other cooperators, but did not use formal procurement procedures or solicit full and open competition. It relied upon its system that gave preference to previous cooperators with a successful record of farming designated areas within the refuge. Hymas did not live adjacent to the refuges and had not previously farmed refuge lands. The Claims Court concluded that it had subject matter jurisdiction under the Tucker Act, 28 U.S.C. 1491(b)(1), to resolve his bid protest and held that the Service violated various federal procurement laws and the Administrative Procedure Act. The Federal Circuit vacated with instructions to dismiss, holding that the CFAs are not subject to Tucker Act review. View "Hymas v. United States" on Justia Law

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Abutting landowners claimed that the United States effected a taking of their property without just compensation when it converted a former railroad corridor between Sarasota and Venice, Florida, into a recreational trail pursuant to the National Trails System Act Amendments of 1983, 16 U.S.C. 1247(d), because deeds transferred by their predecessors-in-title to a railroad company granted only easements on their land for railroad purposes and, upon termination of the use of the land as a railroad, left the landowners unencumbered title and possession of their land. The Federal Circuit affirmed partial summary judgment in favor of the government, holding that the owners lacked a property right or interest in the land-at-issue because the railroad company, had obtained fee simple title to the land. The court noted that the state’s highest court has confirmed that, under Florida law, a railroad can acquire either an easement or fee simple title to a railroad right-of-way and that no statute, state policy, or factual considerations prevails over the language of the deeds when the language is clear; the language of the six deeds-at-issue clearly convey fee simple title on their face. View "Rogers v. United States" on Justia Law

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Trona is a sodium carbonate compound that is processed into soda ash or baking soda. Because oil and gas development posed a risk to the extraction of trona and trona worker safety, the Bureau of Land Management (BLM), which manages the leasing of federal public land for mineral development, indefinitely suspended all oil and gas leases in the mechanically mineable trona area (MMTA) of Wyoming. The area includes 26 pre-existing oil and gas leases owned by Barlow. Barlow filed suit, alleging that the BLM’s suspension of oil and gas leases constituted a taking of Barlow’s interests without just compensation and constituted a breach of both the express provisions of the leases and their implied covenants of good faith and fair dealing. The Federal Circuit affirmed the Claims Court’s dismissal of the contract claims on the merits and of the takings claim as unripe. BLM has not repudiated the contracts and Barlow did not establish that seeking a permit to drill would be futile. View "Barlow & Haun, Inc. v. United States" on Justia Law

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Plaintiffs own land adjacent to central Iowa railway corridors. Pursuant to the National Trail System Act Amendments of 1982, the Surface Transportation Board issued Notices of Interim Trail Use (NITUs) for the corridors. NITUs “preserve established railroad rights-of-way for future reactivation of rail service” and permit the railroad operator to cease operation without legally abandoning any “rights-of-way for railroad purposes,” 16 U.S.C. 1247(d). The trial court found that but for issuance of the NITUs, the railway easements would have reverted to plaintiffs upon cessation of railroad operations, held that a taking occurred, and, focusing on parcels for which the highest and best use was farmland, used the “before and after” method to determine the value of the land subject to the easement. The court determined that the “before” state of the land should take into account the value of the land as it existed before the NITU easements, but ignore any physical remnants of the railway’s use, which would have remained if the railway easement had been permitted to lapse. The Federal Circuit vacated, holding that an appraiser must consider the value of a landowner’s property before the easement, which in this case includes the physical remnants of the railroad. View "Rasmuson v. United States" on Justia Law

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Lost Tree entered into an option to purchase 2,750 acres on the mid-Atlantic coast of Florida, including a barrier island, a peninsula bordering the Indian River, and islands in the Indian River. From 1969 to 1974, Lost Tree purchased most of the land, including Plat 57, 4.99 acres on the Island of John’s Island and Gem Island, consisting of submerged lands and wetlands. Lost Tree developed 1,300 acres into a gated community, but had no plans of developing Plat 57 until 2002, when it learned that a developer applied for a wetlands fill permit for land south of Plat 57 and proposed improvements to a mosquito control impoundment on McCuller’s Point. Because Lost Tree owned land on McCuller’s Point, approval required its consent. Lost Tree sought permitting credits in exchange for the proposed improvements. To take advantage of those credits, Lost Tree obtained zoning and other local and state permits to develop Plat 57. The Army Corps of Engineers denied an application under the Clean Water Act, 33 U.S.C. 1344 for a section 404 fill permit, finding that Lost Tree could have pursued less environmentally damaging alternatives and had adequately realized its development purpose. On remand, the trial court found that the denial diminished Plat 57’s value by 99.4% and constituted a per se taking and awarded Lost Tree $4,217,887.93. The Federal Circuit affirmed, finding that a “Lucas” taking occurred because the denial eliminated all value stemming from Plat 57’s possible economic uses. View "Lost Tree Vill. Corp. v. United States" on Justia Law

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RI purchased 320 acres in Washington State for use as a landfill and, in 1989, applied for state permits. Because the proposed landfill involved filling wetland areas, it sought a Clean Water Act (33 U.S.C. 1344) permit from the U.S. Army Corps of Engineers. State permits issued in 1996. In 1994, the Corps required an Environmental Impact Statement; its draft EIS preliminarily concluded that RI had not demonstrated that there were no practicable alternatives to the proposed landfill (40 C.F.R. 230.10(a)). RI terminated the process. The Corps denied the application. In 1996, RI sued, alleging that the process and denial violated the CWA and was arbitrary. The district court upheld the decision, but the Ninth Circuit reversed, citing the Resource Conservation and Recovery Act, 42 U.S.C. 6941, under which regulation of municipal solid waste in landfills constructed on wetlands lies solely with the EPA or states with EPA-approved programs. The landfill became operational in 1999. In 1998, while the Ninth Circuit appeal was pending, RI filed suit in the Court of Federal Claims, alleging unconstitutional taking. The court dismissed, citing 28 U.S.C. 1500: the Claims Court “shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States.” The Federal Circuit affirmed. View "Res. Inv., Inc. v. United States" on Justia Law

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In 2005, the Shinnecock Indian Nation filed suit to vindicate its rights to land in the Town of Southampton, claiming that 1859 New York legislation allowed thousands of acres of the Nation’s land to be wrongfully conveyed to the town. The district court dismissed, holding that laches barred the claims. An appeal to the Second Circuit remains pending. In 2012, the Nation filed suit in the Court of Federal Claims, seeking $1,105,000,000, alleging that the United States, “acting through the federal court system . . . denied any and all judicial means of effective redress for the unlawful taking of lands” in violation of trust obligations arising under the Non-Intercourse Act, 25 U.S.C. 177, and the “federal common law.” The Claims Court dismissed on alternative grounds: that the claims were not ripe because they were predicated upon the district court’s judgment in the prior suit, which was on appeal, or that, even if the claims were ripe, it had no jurisdiction because they did not fall within the Indian Tucker Act’s waiver of sovereign immunity. The court refused to allow amendment to allege a judicial takings claim. The Federal Circuit affirmed that the breach of trust claims are not ripe for review, vacated the jurisdiction ruling, and remanded with instructions to dismiss the breach of trust claims without prejudice. View "Shinnecock Indian Nation v. United States" on Justia Law

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In 2012, the Federal Circuit ruled that the U.S. Border Patrol’s placement of motion sensors on five separate parcels of land owned by Otay Mesa adjacent to the Mexican border in Southern California constituted the taking of permanent easements over the parcels. On remand, the Court of Federal Claims held that Otay was entitled to no damages for the taking of an easement over land that could be developed for industrial use; that it was entitled to damages of $455,520 for the taking of an easement over land that could be used for environmental mitigation purposes; and that interest on the $455,520 damages award should run from August 28, 2008, the date Otay became aware of the taking as a result of the filing of a stipulation of liability by the government. The Federal Circuit then affirmed the denial of damages with respect to the industrial development property and the award of $455,520 with respect to the mitigation property. The court vacated the computation of interest; Otay is entitled to interest computed from when sensors were first placed on its property. View "Otay Mesa Prop., L.P. v. United States" on Justia Law