John R. Sand & Gravel Co. v. U.S.

• Citation: 457 F.3d 1345
• Decision Date: 09 August 2006
• Docket Number: No. 05-5033.,05-5033.
• Parties: JOHN R. SAND & GRAVEL COMPANY, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

457 F.3d 1345

JOHN R. SAND & GRAVEL COMPANY, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

No. 05-5033.

United States Court of Appeals, Federal Circuit.

August 9, 2006.

Jeffrey K. Haynes, Beier Howlett, P.C., of Bloomfield Hills, Michigan, argued for plaintiff-appellant. With him on the brief was L. Rider Brice, III.

Aaron P. Avila, Attorney, Environment & Natural Resources Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Kelly A. Johnson, Acting Assistant Attorney General; and Susan V. Cook, John S. Most, Steven D. Bryant, and Kathryn E. Kovacs, Attorneys.

Steven C. Nadeau, Honigman Miller Schwartz and Cohn LLP, of Detroit, Michigan, for amici curiae Brunswick Corporation, et al. With him on the brief were Robert M. Jackson; and Robert K. Huffman, Miller & Chevalier Chartered, of Washington, DC.

Before NEWMAN, LOURIE, and SCHALL, Circuit Judges.

Opinion for the court filed by Circuit Judge SCHALL.

Dissenting opinion filed by Circuit Judge NEWMAN.

SCHALL, Circuit Judge.

John R. Sand and Gravel Company ("JRS & G") appeals the final decision of the United States Court of Federal Claims, following a trial, that the United States was not liable to JRS & G under the Fifth Amendment to the Constitution for the alleged taking of JRS & G's leasehold interest in a 158-acre tract of land in Lapeer County, Michigan. John R. Sand & Gravel Co. v. United States, 62 Fed.Cl. 556 (2004) ("Sand & Gravel III"). Because we conclude that JRS & G did not file its complaint within the six-year limitations period of 28 U.S.C. § 2501, we hold that the Court of Federal Claims lacked jurisdiction. We therefore vacate the Court of Federal Claims's decision and remand the case to the court with the instruction that it dismiss JRS & G's complaint.

BACKGROUND

I.

The pertinent facts, which are not in dispute, are set forth in John R. Sand & Gravel Co. v. United States, 57 Fed.Cl. 182 (2003) ("Sand & Gravel I"), and Sand & Gravel III, 62 Fed.Cl. 556.

In 1969, JRS & G leased a 158-acre tract of land in Metamora Township, Lapeer County, Michigan, from Russell and Mildred Parrish ("Parrish property") for a term of fifty years. Sand & Gravel III, 62 Fed.Cl. at 558. Pursuant to the lease, JRS & G is entitled to the exclusive use of the property for the purpose of mining sand and gravel. Id. at 564.¹

The Parrish property consists of a rectangular area. Sand & Gravel I, 57 Fed. Cl. at 183 n. 3. JRS & G's operations are principally located in its plant area in the east-central portion of the property. JRS & G's plant area contains several buildings, a supply pond, and customer access roads. Id. JRS & G's main sand and gravel pit ("main pit") is just southeast of the plant area. Id. A landfill is located to the north of JRS & G's plant area. Id. The landfill is known as the Metamora Landfill. The features just described, as well as others, are shown on the map of the Parrish property that is titled "February 1994 Fence Alignment Metamora Landfill Site." The map is included with this opinion as Appendix A.

The Area of Institutional Controls ("AIC") comprises a 42-acre portion of the property to the north of JRS & G's plant area. It encompasses the entirety of the landfill and some of the property surrounding the landfill wherein the landfill cap system is located.² Id. at 185. The northern and eastern boundaries of the AIC run along the Parrish property lines. To the west, the AIC boundary runs just outside the edge of a gravel road. To the south, the AIC is located to the north of JRS & G's siltation pond. The southern border of the AIC then cuts to the south to encompass the Stormwater Retention Pond.

At the time JRS & G signed the lease in 1969, the landfill was already operating on the northern portion of the Parrish property. Sand & Gravel III, 62 Fed.Cl. at 560. The Parrishes continued to operate the landfill during the first eleven years of JRS & G's leasehold until it closed in 1980. Id. at 559-60. During its years of operation, the landfill illegally accepted solid and liquid industrial waste in 55-gallon drums. Tens of thousands of such drums are currently buried on the site. Id. at 570.

In 1984, the landfill was placed on the National Priorities List pursuant to the Comprehensive Environmental Response Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601-9675 (2000), due to the large number of drums containing hazardous waste that had been buried there. See Sand & Gravel III, 62 Fed.Cl. at 559. Pursuant to CERCLA, the Environmental Protection Agency ("EPA") issued its first Record of Decision ("ROD") in 1986.³ Sand & Gravel I, 57 Fed.Cl. at 183. In the 1986 ROD, the EPA stated that remedial action for the Metamora Landfill would consist of excavating the buried drums of hazardous waste for incineration off-site. The ROD estimated that the excavation would take six to eight months to complete. Pursuant to the 1986 ROD, the EPA not only excavated drums, but also took soil samples, installed groundwater monitoring wells, and constructed a storage pad⁴ east of JRS & G's plant area. Id.

In 1990, the EPA issued a second ROD. Sand & Gravel III, 62 Fed.Cl. at 559. In the 1990 ROD, the EPA stipulated additional remedies selected for the containment of the Metamora Landfill and for treatment of the groundwater at the site. Id. at 559-60. These remedies included installing a landfill cap system to prevent further contamination of aquifers by the wastes dumped in the Metamora Landfill and a fence around the landfill to restrict access to the site. Id. at 560. The 1990 ROD also contemplated the continued incineration of excavated drums off-site under the 1986 ROD. The 1990 ROD did not provide a metes and bounds description of the landfill cap and fence or indicate when construction would begin. Sand & Gravel I, 57 Fed.Cl. at 183.

Pursuant to the 1990 ROD, the EPA erected a chain link fence on JRS & G's leasehold during the winter of 1992-1993. Id. at 184. The fence enclosed approximately 60% of the Parrish property, including the entirety of the present AIC, JRS & G's plant area, and JRS & G's main pit. Id. at 184 & n. 5. The fence was six feet tall and anchored by posts set 48 inches into the ground. Concrete secured the terminal, corner, and gate posts. The fence was topped with three strands of barbed wire and accompanied by EPA warning and no trespassing signs.

The fence prevented JRS & G from accessing its operations, prompting protests from the company. Id. Following these protests, the EPA allowed JRS & G to access its plant area and relocated the fence. Id. The record reveals that the relocated fence still encompassed the AIC.

In February of 1994, the EPA constructed a new internal security fence that cut off JRS & G's access to parts of its plant area. Id. at 184. The area that was fenced off as of February of 1994 is designated on the map at Appendix A as February 1994 Fence Alignment. As can be seen, as of February of 1994, fencing encompassed the overwhelming portion of JRS & G's leasehold interest.⁵ The internal security fence that concerned JRS & G in 1994 is contained within the larger fenced area and cut through JRS & G's plant area in the east-central portion of the property. This fence was relocated later in 1994 to allow JRS & G access to its plant area under the condition that JRS & G not intrude into the area enclosed by the internal security fence. Id. The internal security fence was moved again in 1996 and in May of 1998. The AIC remained fenced off each time the internal security fence was moved. However, JRS & G continued to mine sand and gravel in parts of the AIC as late as 1996. Sand & Gravel I, 57 Fed.Cl. at 189.

During the 1990s, JRS & G and the EPA disagreed on numerous issues. Counsel for JRS & G wrote a series of letters from 1992-1994 asserting JRS & G's property rights and entitlement to just compensation. Id. at 184. In addition to the letters, JRS & G repeatedly physically interfered with the EPA's operations.⁶ As a result of the disputes between JRS & G and the EPA, on December 18, 1996, the EPA issued an Administrative Order requiring JRS & G to cooperate with the EPA. Id. The Administrative Order defined the metes and bounds of the AIC and forbade JRS & G from mining within the AIC. Id. at 185. The order also forbade JRS & G from further interference with the EPA and threatened a fine of $25,000 per day of noncompliance with the order. Id. Disputes arose regarding JRS & G's compliance with the Administrative Order, and on March 23, 1998, the United States District Court for the Eastern District of Michigan entered an order enjoining JRS & G from further interference with the EPA's remedial efforts. Id. Shortly after the issuance of the district court's order, the fence was realigned. This fence realignment was complete in May of 1998. Id.

II.

On May 20, 2002, JRS & G filed suit in the Court of Federal Claims. In its complaint, JRS & G alleged that the EPA's construction of the landfill cap, occupation of the AIC, construction of fences and access roads, and installation of groundwater monitoring wells amounted to a permanent physical taking. Compl. at 4-5, 9-11. JRS & G also alleged that the court orders created an easement appurtenant for access by the EPA and were thus a physical taking by the EPA. Id. at 11-13.

In due course, the government moved for dismissal of the complaint for lack of jurisdiction on the ground that JRS & G's suit was untimely.⁷ The government argued that JRS & G's suit was time-barred because it was filed after the running of the six-year limitations period of 28 U.S.C. § 2501. Sand & Gravel I, 57 Fed.Cl. at 186. According to the government, JRS & G's claim accrued in December of 1992, when the government physically occupied the property, installed monitoring wells, and fenced off parts of the Parrish property. Id. On July 27, 2003, the Court of Federal...