Maritrans Inc. v. U.S.

• Decision Date: 09 September 2003
• Docket Number: No. 02-5083.,02-5083.
• Citation: 342 F.3d 1344
• Parties: MARITRANS INC., Maritrans General Partner Inc., Maritrans Operating Partners L.P., and Maritrans Capital Corporation, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

342 F.3d 1344

MARITRANS INC., Maritrans General Partner Inc., Maritrans Operating Partners L.P., and Maritrans Capital Corporation, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee.

No. 02-5083.

United States Court of Appeals, Federal Circuit.

September 9, 2003.

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Stephen A. Saltzburg, George Washington University National Law Center, of Washington, DC, argued for plaintiffs-appellants. With him on the brief was Laurie Frost Wilson, Attorney at Law, of Lorton, Virginia. Of counsel on the brief was Arthur J. Volkle, Jr., Legal Counsel, Maritrans Inc., of Tampa, Florida.

Scott R. McIntosh, Attorney, Appellate Staff, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Douglas N. Letter, Appellate Staff; and William Olivier and Lauren Moore, Attorneys, Commercial Litigation Branch.

Before SCHALL, BRYSON, and LINN, Circuit Judges.

SCHALL, Circuit Judge.

Maritrans Inc. is a marine petroleum transport company. Maritrans Inc., along with Maritrans General Partner Inc., Maritrans Operating Partners L.P., and Maritrans Capital Corporation (collectively "Maritrans"), filed suit in the United States Court of Federal Claims seeking compensation from the United States ("government") under the Fifth Amendment for the alleged taking of thirty-seven of Maritrans' single hull tank vessels.¹ Maritrans asserted that the vessels were taken by the double hull requirement imposed by section 4115 of the Oil Pollution Act of 1990 ("OPA90"), Pub.L. No. 101-380, § 4115, 104 Stat. 484 (1990) (codified at 46 U.S.C.App. § 3703a).² The Court of Federal Claims concluded that, as far as twenty-nine of the single hull tank vessels were concerned, Maritrans' takings claim was not ripe for adjudication. Maritrans, Inc. v. United States, 43 Fed.Cl. 86, 92 (1999). As far as the remaining eight vessels were concerned, the court concluded that the claim was ripe. Maritrans Inc. v. United States, No. 96-483 C (Fed.Cl. Apr. 30, 1999). Following a trial on the merits, however, it held that OPA90 had not resulted in either a categorical or a regulatory taking of those vessels. Maritrans Inc. v. United States, 51 Fed.Cl. 277, 283 (2001). It therefore dismissed the complaint. Id. Maritrans now appeals. We affirm the decision of the Court of Federal Claims that eight of Maritrans' vessels were not taken by the government as a result of the enactment of OPA90. However, we reverse the decision of the court on the ripeness issue insofar as it relates to the seven remaining vessels covered by Maritrans' claim.³ To that limited extent, the case is remanded for further proceedings.

BACKGROUND

I. OPA90

Maritrans was formed in 1987 to acquire the tugboat and tank barge fleet and related assets of Sonat Marine Inc. Since acquiring its fleet of tank vessels, Maritrans has established itself as a marine petroleum transport company that transports, stores, and distributes oil for petroleum companies and distributors. It operates its fleet of tank barges in the United States coastwise Jones Act trade, transporting over 200 million barrels of crude oil and refined petroleum products annually.⁴

In 1990, Congress passed OPA90, in response to the massive March 1989 Exxon Valdez oil spill in Prince William Sound, Alaska. OPA90 requires that all newly constructed tank vessels engaged in marine transportation of oil and petroleum products in the United States be constructed with double hulls. 46 U.S.C.App. § 3703a(a) ("Except as otherwise provided in this section, a vessel to which this chapter applies shall be equipped with a double hull...."). A double hull design provides a reinforced hull in order to minimize the impact of punctures and hull damage. OPA90 applies to a vessel if the vessel "is constructed or adapted to carry, or carries, oil in bulk as cargo or cargo residue" and when the vessel is "operating on the waters subject to the jurisdiction of the United States, including the Exclusive Economic Zone." Id. § 3703a(a)(1) & (2). OPA90 also requires that all single hull tank vessels, including tank barges, existing at the time of OPA90's enactment be retrofitted with double hulls in order to qualify for operation on the navigable waters of the United States or the waters of the Exclusive Economic Zone of the United States. Id. § 3703a(c). Any single hull tank vessels not retrofitted in that manner must be phased out of service according to a retirement schedule, which began on January 1, 1995. Id. OPA90 specifies that no single hull tank vessel may be operated on the navigable waterways of the United States or the waters of the Exclusive Economic Zone after dates that are established on the basis of a vessel's size and age. Id. § 3703a(a)-(c).

OPA90 encompasses all single hull tank barges in operation in Jones Act trade, such as those owned by Maritrans. Approximately 90% of Maritrans' tank vessels are constructed with single hulls or double-bottom hulls and would be forced out of service if not retrofitted with double hulls by their assigned retirement dates. Since 1990, when OPA90 became effective, Maritrans has retrofitted two of its single hull tank barges with double hulls at a cost of approximately $14 million per barge. Maritrans also has sold five of its single hull tank barges for prices of $2.2 to $3.4 million per vessel. In addition, it has collected insurance proceeds from the casualty loss of one single hull tank barge that was involved in a collision in 1996. As will be seen, it was these eight vessels that were the subject of the Court of Federal Claims' takings analysis.

II. Maritrans' Suit in the Court of Federal Claims

On August 7, 1996, Maritrans filed suit in the Court of Federal Claims under the Tucker Act, 28 U.S.C. § 1491(a)(1). In its complaint, it alleged that it was entitled to compensation under the Fifth Amendment's Takings Clause for the taking of thirty-seven of its single hull tank barges. Maritrans asserted that OPA90's double hull requirement extinguished the useful working lives of the barges and deprived it of 100% of the economic value of the barges after their required retirement dates. Accordingly, Maritrans argued, the statute resulted in a categorical taking of the vessels. Maritrans also argued that the double hull requirement resulted in a regulatory taking of its vessels.⁵

In due course, the government moved to dismiss Maritrans' complaint pursuant to Rule 12(b)(4) of the Rules of the Court of Federal Claims for failure to state a cause of action for which relief could be granted. The government asserted that Maritrans had no Fifth Amendment property interest for which it could assert a takings claim. Specifically, the government argued that Maritrans operated its tank barge fleet in a highly regulated field and therefore could have no property interest in the vessels in the fleet. The government pointed to a 1980 proposal by the United States Coast Guard recommending the adoption of a double hull requirement for all vessels to suggest that the field was highly regulated. The government further argued that personal property, such as a single hull tank barge, does not enjoy the same scope of constitutional protection as real property. The court disagreed, concluding that Maritrans had a property interest in its vessels that was cognizable under the Fifth Amendment and that Maritrans had stated a cause of action for which relief could be granted. Maritrans Inc. v. United States, 40 Fed.Cl. 790, 801 (1998).

On July 15-17, 1997, the Court of Federal Claims held a trial on the issue of whether Maritrans could establish that its property had been the subject of a regulatory taking under the analysis set forth in Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). The Penn Central analysis focuses on three factors, the character of the governmental action at issue, the economic impact of the action on the claimant, and the extent to which the action has interfered with the claimant's distinct, investment-backed expectations. Id. at 124, 98 S.Ct. 2646. The court concluded that OPA90 had interfered with a reasonable, investment-backed expectation on the part of Maritrans, because, when the tank barges were acquired, Maritrans could not have foreseen that double hulls would be required during the estimated working life of the barges. Maritrans, 43 Fed.Cl. at 89. Nevertheless, the court dismissed Maritrans' suit as not ripe for adjudication. Id. at 92. It did so because it concluded that, at that time, a taking had not yet occurred. Id. It reached that conclusion because none of Maritrans' vessels had been retrofitted, scrapped, or sold by reason of OPA90. Id. Maritrans moved for reconsideration of the dismissal, arguing that ten of its tank barges had been retrofitted, scrapped, or sold as a result of the statute. In response, the court agreed to consider Maritrans' takings claim on the merits insofar as it related to eight barges that had either been retrofitted with a double hull, scrapped as a result of a casualty, or sold on account of OPA90. See Maritrans, 51 Fed.Cl. at 279. Those eight vessels were the Ocean 90, the Ocean 96, the Ocean 115, the Ocean 135, and the Ocean 155 (each sold); the Ocean 192 and the Ocean 244 (each retrofitted with a double hull); and the Ocean 255 (a casualty loss). It determined, however, that the ripeness requirement was not met with respect to the remaining twenty-nine barges that were named in Maritrans' complaint. Subsequently, Maritrans withdrew its takings claim with respect to 22 of the smaller barges in its fleet, thereby limiting its claim to the eight barges identified and seven additional barges for which the court had held Maritrans' takings claim was not ripe. Those additional seven barges were the Ocean 193, the Ocean 210, the Ocean 211, the Ocean 215, the Ocean 250, the Ocean Cities, and the...