Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:06-cv-00167-TCW

Document 68

Filed 08/28/2008

Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ) OTAY MESA PROPERTY, L.P., et al., ) ) Plaintiffs, ) ) v. ) ) UNITED STATES, ) ) Defendant. ) ____________________________________)

No. 06-167 L (and consolidated cases) Hon. Thomas C. Wheeler (Electronically Filed August 28, 2008)

MOTION FOR LEAVE TO FILE UNITED STATES' STIPULATION TO LIABILITY FOR THE PLACEMENT OF SENSORS AS TO PARCELS 1, 3, 4, 5 AND 10 Defendant UNITED STATES respectfully moves this Court for leave to file the attached United States' Stipulation to Liability for the Placement of Sensors As To Parcels 1, 3, 4, 5 and 10. This litigation involves three consolidated cases: Otay Mesa Property, L.P. v. United States , No. 06-167 (lead case), International Industrial Park, Inc. v. United States, No. 06-876, and D & D Landholdings v. United States, No. 06-877. Plaintiffs allege there has been a physical taking of their property which consists of 11 parcels of land located adjacent to, or in the vicinity of, the Mexican border near San Diego, CA, due to actions of the Border Patrol, Bureau of Customs and Border Protection (CBP), Department of Homeland Security (DHS). As specifically relevant to this stipulation, Plaintiffs contend that the placement of seismic intrusion sensors on their property without their consent constitutes a physical taking under Hendler v. United States, 952 F.2d 1364 (Fed. Cir. 1991). 1

Case 1:06-cv-00167-TCW

Document 68

Filed 08/28/2008

Page 2 of 2

Seismic intrusion sensors are located on five of the eleven parcels at issue in this litigation: parcels 1, 3, 4, 5 and 10. Parcels 1, 3, 4 and 5 are involved in the case of Otay Mesa Property, L.P. v. United States. Parcel 10 is at issue in the case of D & D Landholdings v. United States. The attached stipulation therefore affects Plaintiffs' allegations in the two specified cases that the presence of sensors constitutes a physical taking. In an effort to narrow the issues before the Court for trial, Defendant hereby moves to file the attached Stipulation to Liability For the Placement of Sensors as to Parcels 1, 3, 4, 5 and 10. Dated: August 28, 2008. Respectfully submitted, RONALD J. TENPAS Assistant Attorney General Environment & Natural Resources Division

s/ Susan V. Cook SUSAN V. COOK, Senior Attorney Natural Resources Section Environment & Natural Resources Division Department of Justice P. O. Box 663 Washington, D.C. 20044-0663 Tel: (202) 305-0470 Fax: (202) 305-0506 Email: [email protected] Attorneys for Defendant

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