Banks v. United States

• Decision Date: 22 December 2011
• Docket Number: 05-1353 L,99-4451 L
• Parties: JOHN H. BANKS, ET AL., Plaintiffs, v. THE UNITED STATES, Defendant. EUGENE J. FRETT, Individually and as Trustee of the Victor J. Horvath and Frances B. Horvath Trust, Plaintiff, v. THE UNITED STATES, Defendant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

JOHN H. BANKS, ET AL., Plaintiffs,

v.THE UNITED STATES, Defendant.

EUGENE J. FRETT, Individually and as Trustee of the Victor J. Horvath and Frances B. Horvath Trust, Plaintiff,

v.THE UNITED STATES, Defendant.

99-4451 L

05-1353 L

United States Court of Federal Claims

E-Filed: December 22, 2011

No. 99-4451 L

c/w 99-4452 L, 99-4453 L, 99-4454 L, 99-4455 L, 99-4456 L, 99-4457 L, 99-4458 L,

99-4459 L, 99-44510 L, 99-44511 L, 99-44512 L, 00-365 L, 00-379 L, 00-380 L,

00-381 L, 00-382 L, 00-383 L, 00-384 L, 00-385 L, 00-386 L, 00-387 L, 00-388 L,

00-389 L, 00-390 L, 00-391 L, 00-392 L, 00-393 L, 00-394 L, 00-395 L, 00-396 L,

00-398 L, 00-399 L, 00-400 L, 00-401 L, 05-1353 L, 05-1381 L, 06-72 L

Complaints for Taking of Shoreline by Erosion; Opinion Dismissing Complaints After Trials of Liability and Damages

Mark E. Christensen, Chicago, IL, with whom was John B. Ehret, Olympia Fields, IL, and with whom at trial was Katherine A. Jones, Chicago, IL, for plaintiffs in No. 99-4451 L. Eugene J. Frett, Chicago, IL, pro se in No. 05-1353 L.

Terry M. Petrie, Environment and Natural Resources Division, United States Department of Justice, Denver, CO, with whom was Ignacia S. Moreno, Assistant Attorney General, and with whom at trial was Mark S. Barron, Trial Attorney, Environment and Natural Resources Division, United States Department of Justice, Washington, DC, for defendant. Gary W. Segrest and Don C. Erwin, Office of Counsel, United States Army Corps of Engineers, Detroit, MI, of counsel.

OPINION¹

HEWITT, Chief Judge

This is an action for just compensation filed by owners of property along the eastern shore of Lake Michigan. Plaintiffs' properties are located along an area of the shoreline that erodes naturally, but allege that the government's construction and maintenance of a pair of jetties effected a taking by speeding the erosion of their properties.

This Opinion addresses a jurisdictional issue that arose after the second trial held by the court to address the merits of plaintiffs' claims. The court holds that, because plaintiffs' claims accrued earlier than 1952, plaintiffs filed this action outside of the limitations period. The court therefore dismisses plaintiffs' claims for lack of jurisdiction.

"'Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.'" Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall) 506, 514 (1868)). For purposes of judicial efficiency, if the reviewing court in any appeal should disagree with the court's view of its jurisdiction, and to avoid the possibility of a trial opinion being drafted months or years after the trial, and the possibility of a repetitive trial, the court also presents here its findings from the trial. These findings are presented in the alternative and, in the absence of jurisdiction, do not entitle plaintiffs to just compensation in the amounts determined by the court.

Before the court are Plaintiffs' Post-Trial Brief (Pls.' Br.), Docket Number (Dkt. No.) 495, filed June 21, 2011; United States' Post-Trial Memorandum (Def.'s Br.), Dkt. No. 496, filed June 21, 2011; Plaintiffs' Response to the United States' Post-Trial Brief(Pls.' Resp.), Dkt. No. 497, filed July 12, 2011; and United States' Post-Trial Response Memorandum (Def.'s Resp.), Dkt. No. 498, filed July 12, 2011.

Also before the court is the following briefing on the topic of jurisdiction, filed pursuant to the court's August 9, 2011 Order, Dkt. No. 499: Plaintiffs' Post-Trial Brief on Jurisdiction (Pls.' Jur. Br.), Dkt. No. 501, filed September 7, 2011; United States' Supplemental Post-Trial Memorandum (Def.'s Jur. Br.), Dkt. No. 502, filed September 7, 2011; United States' Supplemental Post-Trial Response Memorandum (Def.'s Jur. Resp.), Dkt. No. 503, filed September 21, 2011; and Plaintiffs' Post-Trial Reply Brief on Jurisdiction (Pls.' Jur. Resp.), Dkt. No. 504, filed September 21, 2011.

Also before the court is the transcript of the trial of damages (Tr.), held from April 18 through April 21, 2011 and from April 25 through April 28, 2011.

I. Procedural Background and the Law of the Case

"Plaintiffs² are the owners of property along approximately four and a half miles of the eastern shore of Lake Michigan south of St. Joseph Harbor." Sept. 28, 2007 Op., Banks v. United States (Liability Op.), Dkt. No. 245, 78 Fed. Cl. 603, 604 (2007). Beginning in the 1830s, the United States government, acting through the United States Army Corps of Engineers (defendant or the Corps) re-constructed the mouth of the St.Joseph River and began constructing harbor jetties that jutted into Lake Michigan in order to accommodate commercial shipping vessels exiting the St. Joseph River into Lake Michigan. Id. Over time, the Corps lengthened the jetties and then encased them in steel. Id. Plaintiffs claim that the Corps' construction and maintenance of the jetties caused erosion of their shoreline property. Id. Specifically, plaintiffs allege that the encasement of the jetties in "sand-tight" steel sheet piling during the period from 1950 to 1989 interrupted the natural littoral³ drift of sand to their properties, resulting in erosion. See Aug. 9, 2011 Order, Banks v. United States (Order to Brief Jursisdiction), Dkt. No. 499, 99 Fed. Cl. 622, 624 (2011).

Several factors obscure the effect of the jetties on plaintiffs' properties. Plaintiffs' properties are located along a shoreline that is eroding naturally, see Tr. 2594:24-25 (Nairn); Tr. 710:22-23 (Mackey), making it necessary to distinguish the baseline of natural erosion from erosion caused by defendant. The comparatively slow process of long-term erosion is also masked by far larger swings in the width of the beaches next to plaintiffs' properties caused by cross-shore sand transport, a cyclical process by which sand is moved offshore during times of high lake levels and returned to the shore during times of low lake levels. See Tr. 2593:3-19, 2594:2-2595:2 (Nairn) ("So, I mean, you've got swings of hundreds of feet related to the cross or reversible process and then you've got a very [s]low retreat, we believe to be around .62 [feet] per year on the south end, going on in the background of all those very large swings back and forth."); cf. Tr. 1624:9-12 (Shabica) (stating that "predicting lake levels is like predicting the weather, but if we look in the past, high lake levels from one high lake level to the next have ranged anywhere between 11 years and 22 years"). Furthermore, the composition of a shoreline, a characteristic that impacts how the shoreline erodes and how it reacts to efforts to mitigate erosion, can be hidden by surface sediments, and may be complex and difficult to characterize into one of the two categories--sandy and cohesive--used by coastal engineers and geologists. See infra Part III.B.

Defendant filed a motion to dismiss on the ground that plaintiffs' claims are time-barred. July 31, 2001 Op. and Order, Banks v. United States (Accrual Op. I), Dkt. No. 3, 49 Fed. Cl. 806, 809 (2001), rev'd, 314 F.3d 1304 (Fed. Cir. 2003) (Accrual Op. II). The court granted defendant's motion to dismiss, finding that plaintiffs' claims accrued no later than 1989, more than six years before plaintiffs filed suit. See id. at 825. For reasons discussed below, see infra Part III.A.1, the United States Court of Appeals for the Federal Circuit (Federal Circuit) reversed and remanded for further proceedings, Accrual Op. II, 314 F.3d at 1310.

On remand, this case has been bifurcated for trial of liability and damages. In 2007 the court held a one-week trial of liability and issued the court's Liability Opinion.⁴ See generally Liability Op., 78 Fed. Cl. 603. The Liability Opinion summarizes the procedural history of the first eight years of this case, makes extensive findings of fact and describes many of the scientific concepts at issue in this case. See id. passim. In order to minimize repetition, this Opinion assumes substantial familiarity with the Liability Opinion.

After the court issued its Liability Opinion, the court directed the parties to "file a joint status report or, if they cannot agree, separate status reports, proposing additional proceedings necessary to resolve the remaining issues in this matter." Dec. 14, 2007 Order, Dkt. No. 250, at 1-2. Defendant filed a status report, stating that the parties had met in person "in an effort to discuss issues and share thoughts on how to calculate damages." Def.'s Status Report, Dkt. No. 252, at 2. Defendant described several factual and legal issues that remained outstanding in regard to the measure of damages owed by defendant. See id. at 2-5. Defendant stated that, while defendant believed that the court had ruled on the issue of shoreline composition, plaintiffs believed that they would be able to introduce additional evidence on the topic. See id. at 4. Defendant noted that the "array of factors" that must be considered by the court in order to calculate damages is complicated by the fact that "plaintiffs present a variety of different circumstances: for example, some plaintiffs claim to have lost all of their property, some plaintiffs have sold their property since the onset of litigation, and some also claim loss and damage to structures and loss of rental income." Id. at 2. Defendant suggested that appraisals of plaintiffs' properties would be necessary to establish the amount of damage caused by the government's actions. See id. at 2-3. Defendant proposed a schedule for briefing on the remaining legal issues, limited additional discovery and a trial of damages. See id. at 4-5.

Plaintiffs submitted a status report that proposed no further proceedings or discovery. Pls.' Status Report, Dkt. No 251, passim. Plaintiffs' status report proposedthat the court order defendant to pay plaintiffs...