Applegate v. U.S.

• Decision Date: 10 June 1994
• Docket Number: No. 93-5180,93-5180
• Citation: 25 F.3d 1579
• Parties: 24 Envtl. L. Rep. 21,612 Don APPLEGATE and Gayle Applegate (for themselves and a class of others similarly situated, totalling 271), Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1579

25 F.3d 1579

24 Envtl. L. Rep. 21,612

Don APPLEGATE and Gayle Applegate (for themselves and a class of others similarly situated, totalling 271) Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee.

No. 93-5180.

United States Court of Appeals Federal Circuit.

June 10, 1994.

Gordon H. Harris, Gray, Harris, Robinson, Kirschenbaum & Peeples, of Cocoa Beach, FL, argued for plaintiffs-appellants. With him on the brief were Jack A. Kirschenbaum Stuart M. Benjamin, Attorney-Advisor, Office of Legal Counsel, Dept. of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Lois J. Schiffer, Acting Asst. Atty. Gen., Environment & Nat. Resources Div., Jacques B. Gelin and Edward J. Passarelli, Attys., Environment & Nat. Resources Div. Also on the brief were Russell W. Petit and John Brady, Office of Counsel, U.S. Army Corps of Engineers, of counsel.

and J. Mason Williams, III. Of counsel was G. Robertson Dilg.

Before MICHEL, PLAGER, and RADER, Circuit Judges.

RADER, Circuit Judge.

A class of 271 landowners (landowners), including the Applegates, filed a complaint in the United States Court of Federal Claims alleging a taking. The trial court dismissed the complaint as barred by the statute of limitations. Applegate v. United States, 28 Fed.Cl. 554 (1993). Because the landowners' claim did not accrue more than six years before its filing, this court reverses and remands for further proceedings.

BACKGROUND

During the 1950s, the Army Corps of Engineers (Corps) undertook the Canaveral Harbor project. The River and Harbor Act of 1945, Pub.L. No. 79-14, 59 Stat. 10, 16 (1945) (partially codified at 33 U.S.C. Sec. 603a (1988)), authorized the project. The project provided a deep-water harbor on the east coast of Florida just south of Cape Canaveral.

To construct the deep-water harbor, the Corps dredged a channel through a barrier island and into the Banana River Lagoon. To maintain the channel's entrance, the Corps constructed two jetties, one north and one south of the mouth of the harbor.

Before the Canaveral Harbor project, a natural southerly littoral flow of sand replenished 41 miles of white sandy beaches. The Canaveral Harbor project interrupted this littoral flow. From 1952 to the present, the Canaveral Harbor project has caused the shoreline north of the harbor to accrete and the shoreline to the south to recede. The landowners own property south of the harbor. Due to the interruption of the littoral flow of sand, the landowners have lost shoreline property. The erosion has permanently washed away and inundated portions of each of the landowners' property. In fact, the erosion of the shoreline threatens homesites in this region.

The River and Harbor Act of 1962 authorized over five million dollars for the construction of a sand transfer plant. River and Harbor Act of 1962, Pub.L. No. 87-874, 76 Stat. 1173, 1174 (1962) (partially codified at 33 U.S.C. Sec. 426e-g (1988)). Further, the Senate Public Works Committee and the Florida Department of Natural Resources approved a Corps plan to restore the beaches in 1968. This plan relied on sand transfer technology. A sand transfer plant would restore the littoral flow and begin the process of rebuilding the beaches.

In 1971, however, the Corps announced a delay for further research and development on the plant. In 1975 and 1985, the Corps received inquiries from a United States senator about the sand transfer plant. In response to the 1975 inquiry, the Corps announced the availability of sand removed during construction of a Trident submarine base to replenish the lost beachfronts. On this basis, the Corps further delayed the proposed sand transfer plant. In October 1988, the Corps again proposed plans for a sand transfer plant. To date, the Corps has not yet built the sand transfer plant. Moreover, the Corps periodically dredges the channel, in all but a few occasions dumping the sand miles offshore.

In 1970, a single landowner brought suit under the Fifth Amendment in the United States Court of Claims alleging a taking of beachfront property in this region. This court's predecessor dismissed that claim on summary judgment because the channel is subject to a navigational servitude. Pitman v. United States, 198 Ct.Cl. 82, 457 F.2d 975 (1972).

In 1988, this court overruled a key portion of Pitman. Owen v. United States, 851 F.2d 1404, 1416 (Fed.Cir.1988) (in banc). In On December 4, 1992, the landowners filed a complaint in the Court of Federal Claims asking for damages under the Fifth Amendment and for an injunctive order requiring the Corps to build the sand transfer plant. The United States moved to dismiss. The United States based its motion on the lack of Court of Claims' jurisdiction to provide injunctive relief and on the untimeliness of the filing under the six-year statute of limitations. 28 U.S.C. Sec. 2501 (Supp. IV 1992). The Court of Federal Claims granted the motion. The landowners appeal only the statute of limitations bar.

                Owen, this court acknowledged that navigational servitudes preclude compensation under the Fifth Amendment, but held that these servitudes do not extend above the high water mark.  Owen, 851 F.2d at 1412.   This court expressly noted that the Pitman decision cannot prevent compensation for erosion above the ocean's high water mark.  Id. at 1413.   The landowners in this case allege a taking of property above the high water mark
                

DECISION

This court reviews de novo decisions of the Court of Federal Claims on matters of law and reviews for clear error findings of fact. Yancey v. United States, 915 F.2d 1534, 1537 (Fed.Cir.1990). The Court of Federal Claims determined that the landowners' case warranted dismissal under the statute of limitations. Therefore, this court reviews the trial court's decision de novo.

The Fifth Amendment ensures that the United States does not take private property for public use without just compensation. U.S. Const. amend. V. The Amendment recognizes both the Federal Government's right to take private property for public uses and a property owner's right to just compensation. First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 315, 107 S.Ct. 2378, 2385, 96 L.Ed.2d 250 (1987); Narramore v. United States, 960 F.2d 1048, 1050 (Fed.Cir.1992).

When the United States does not provide compensation through eminent domain procedures, the Tucker Act, 28 U.S.C. Sec. 1491 (1988), operates to enforce landowner's compensatory right. Preseault v. Interstate Commerce Comm'n, 494 U.S. 1, 11-12, 110 S.Ct. 914, 921-22, 108 L.Ed.2d 1 (1990); Narramore, 960 F.2d at 1051. Thus, the landowners' claim properly lies within the jurisdiction of the Court of Federal Claims under the Tucker Act. Actions in the Court of Federal Claims must be filed within six years of the claim's accrual. 28 U.S.C. Sec. 2501 (1988).

Therefore, this court's review of the trial court's action depends upon when this alleged taking accrued. The Supreme Court set forth the standard for accrual in cases alleging takings of a continual nature. United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947). In Dickinson, the United States constructed a dam to improve the navigability of the Kanawha River in West Virginia. The dam, however, intermittently inundated property of riparian owners. The Government argued that the statute of limitations began to run either on October 21, 1936, when the dam began to impound water, or on May 30, 1937, when the property was first partially submerged. On April 1, 1943, these owners filed complaints alleging a taking. The trial court ordered just compensation. The United States challenged that finding, contending that the statute of limitations barred the claims.

Dickinson acquired land subject to flooding after its initial inundation. Id. The Court held a taking effected by a "continuing process of physical events" did not require the owner to resort to piecemeal or premature litigation to avoid the operation of the statute of limitations. Id. at 749, 67 S.Ct. at 1385. The Court reasoned:

If suit must be brought, lest [the property owner] jeopardize his rights, as soon as his land is invaded, other contingencies would be running against him--for instance, the uncertainty of the damage and the risk of res judicata against recovering later for damage as yet uncertain. The source of the entire claim--the overflow due to rises Dickinson, 331 U.S. at 749, 67 S.Ct. at 1385.

in the level of the river--is not a single event; it is continuous.

On this basis, the Supreme Court clarified: "The Government ... left the taking to physical events, thereby putting on the owner the onus of determining the decisive moment in [an ongoing] process of acquisition by the United States when the fact of taking could no longer be in controversy." Id. at 748, 67 S.Ct. at 1384. Under these circumstances, the Supreme Court explained that the claimant can postpone filing a suit "until the [continuing taking] situation becomes stabilized." Id. at 749, 67 S.Ct. at 1385. In other words, the Supreme Court reiterated that the owner may wait until "the consequences of inundation have so manifested themselves that a final account may be struck." Id. Moreover, Dickinson discouraged a strict application of accrual principles in unique cases involving Fifth Amendment takings by continuous physical processes. Dickinson, 331 U.S. at 749, 67 S.Ct. at 1385.

In United States v. Dow, 357 U.S. 17, 78 S.Ct. 1039, 2 L.Ed.2d 1109 (1958), the Court characterized Dickinson as follows:

The expressly limited holding in Dickinson was that the statute of limitations did not bar an action under the Tucker Act for a taking by flooding when it was uncertain at what stage in the flooding operation the land had become appropriated to public use.

Id. at 27, 78 S.Ct. at 1047. This case presents the same situation. The gradual character of the natural erosion...