Free Motion to Amend Pleadings - Rule 15 - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) No. 06-167 L ) ) Hon. Lawrence M. Baskir ) ) ) ) )

OTAY MESA PROPERTY L.P., et al. Plaintiffs, v. UNITED STATES, Defendant.

AMENDED COMPLAINT FOR JUST COMPENSATION This is a suit by five landowners under the Fifth Amendment of the United States Constitution to recover just compensation for the physical taking of approximately 1300 acres of prime development land located in eastern San Diego County, California, near the border with Mexico. The United States, acting through agents for the Customs and Border Protection, has physically entered onto Plaintiffs' land continuously for several years, has intentionally channeled illegal immigrants onto Plaintiffs' land for roundup and arrest, and has constructed a permanent shelter for Border Patrol officers and other facilities on Plaintiffs' property. In addition, the Border Patrol has demanded access to fenced-off portions of the Plaintiffs' property, has chased the Plaintiffs of their own land, and
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has been using the Plaintiffs' property as a training facility to train staff. Parties 1. Plaintiff Otay Mesa Property L.P. is a limited partnership

organized under the laws of the State of California and the owner in fee of several parcels of unimproved land in the Otay Mesa area of San Diego County, amounting to 154.55 acres. One of its parcels, which is shown in aqua on Exhibit A, is zoned for landfill, international racetrack, and industrial use, and is poised for immediate development. Another of its parcels, which is shown in orange on Exhibit A, is zoned for heavy to light industrial use, and is in various stages of grading development. 2. Plaintiff Rancho Vista Del Mar is a corporation organized

under the laws of the State of California and the owner in fee of several parcels of unimproved land in the Otay Mesa area of San Diego County, amounting to 736.14 acres. One of its parcels, which is shown in blue on Exhibit A, is zoned for landfill, international racetrack, and industrial use, and is poised for immediate development. Another of its parcels, which is shown in red on Exhibit

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A, is zoned for heavy to light industrial use, and is in various stages of grading development. 3. Plaintiff Otay International LLC is a limited liability

corporation organized under the laws of the State of California and the owner in fee of an approximately 160-acre parcel of unimproved land in the Otay Mesa area of San Diego County. This parcel, which is shown in yellow on Exhibit A, is zoned for landfill, international racetrack, and industrial use, and is poised for immediate development. 4. Plaintiff D & D Landholdings is a limited partnership

organized under the laws of the State of California and the owner in fee of several parcels of land in the Otay Mesa area of San Diego County, amounting to 147.84 acres. These parcels, which are shown in pink on Exhibit A, are heavy to light industrial use, and are in various stages of grading development. 5. Plaintiff International Industrial Park, Inc. is a corporation

organized under the laws of the State of California and the owner in fee of a 96.27-acre parcel of land in the Otay Mesa area of San Diego County. This parcel, which is shown in green on Exhibit A, is zoned

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for heavy to light industrial use, and is in various stages of grading development. 6. Defendant, United States of America, is a republic formed

pursuant to the Constitution of the United States, and exercising the powers described therein subject to certain limitations, including the Fifth Amendment to the United States Constitution, which prohibits the taking of private property for public use without payment of just compensation. Jurisdiction 7. This Court has jurisdiction of this case under 28 U.S.C. §

1491 (the Tucker Act) as a "claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department or upon any express or implied contract with the United States . . . ." Operative Facts 8. The parcels owned by these five Plaintiffs are

contiguous, and are designated on the Regional Plan for San Diego County for development either as landfill and international racetrack, or heavy to light industrial use. All five Plaintiffs acquired their property for the purpose of developing it, and have agreed to jointly

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develop their properties as a landfill and an international racetrack, or heavy to light industry, both highly valuable uses. 9. In the early 1990s, the United States began construction

of the San Diego Border Primary Fence that now stretches from the Pacific Ocean 14 miles eastward to Plaintiffs' properties, where it terminates as shown on Exhibit B. The Primary Fence begins at the Pacific Ocean. It is eleven feet high and is made of steel matting and is presently outfitted with infrared surveillance cameras and stadium lighting. According to the U. S. Border Patrol, this barrier has cut the number of illegal immigrants caught from about 530,000 in 1993 to 127,000 in 2004. 10. In 2001, the United States completed construction of nine

miles of the Secondary Fence, which runs parallel to the Primary Fence. The Secondary Fence, which is made of steel mesh, begins three miles from the Pacific Ocean, and travels eastward, parallel to and approximately 130-150 feet north of the Primary Fence; the Secondary Fence currently ends at the western terminus of the 74.55-acre parcel of land owned by Otay Mesa Property. See Exhibit B. The United States is currently constructing one additional half mile of the Secondary Fence, extending it further east, to the eastern

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terminus of the 74.55-acre parcel of land owned by Otay Mesa Property. See Exhibit B. 11. The direct, foreseeable, and intended effect of

Defendant's border control fencing system and the completion of the Secondary Fence, was to channel illegal immigrants crossing the border from Mexico, eastward away from the city of San Diego, and onto the Plaintiffs' properties, where United States Border Patrol agents can detain, arrest, and deport these individuals. 12. The Border Fence has operated as it was designed,

channeling illegal immigrants eastward away from the city onto the Plaintiffs' properties, where they can be rounded up, arrested, and deported. Since the Fence has not yet been completed, however, it now terminates on Plaintiffs' properties and, in consequence, the roundup and arrest of illegal aliens takes place on Plaintiffs' properties almost daily. Border Patrol vehicles speed across Plaintiffs' properties, and vans or buses are brought in to haul away the illegal immigrants. The Border Patrol has also erected various structures used in connection with its activities on Plaintiffs' property, including a wood shelter for its officers, and numerous portable generated floodlights and motion sensors, to further its activities.

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13.

Beginning in 2001, Border Patrol activity on the properties

escalated to such a degree that the Plaintiffs were no longer welcome on their own land. Recently, the Defendant has enlarged its activities to encompass even more of the Plaintiffs' land. Indeed, on August 8, 2006, Darryl Griffin, Chief Patrol Agent for the United States Customs and Border Protection, demanded access to a fenced-off portion of the Plaintiffs' property, and threatened that "if access is required and we do not have the necessary keys, we may have no choice but to cut your chain and place a lock of our own...." See Exhibit C. Border Patrol agents routinely chase the Plaintiffs off of their own property, and some agents have even told the Plaintiffs' representatives that the United States owns the subject property. Finally, on November 6, 2006, the Plaintiffs discovered that the Border Patrol had pitched tents on their property, and was using the land as a training facility for its agents. The Border Patrol activity has become so invasive that tenants are even afraid to lease the Plaintiffs' land. 14. Thus, as a direct, foreseeable and proximate result of the

United States' construction and operation of the Border Fence, Plaintiffs' property has been taken for public use.

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15.

Despite the mandatory requirement of the Fifth

Amendment, Plaintiffs have not been paid just compensation for the property which the United States has taken. 16. At this time Plaintiffs are uncertain of the fair market value

of the property taken. Plaintiffs will seek leave of this Court to amend this Complaint to conform to proof of fair market value at trial. CLAIM FOR RELIEF JUST COMPENSATION FOR PROPERTY TAKEN 17. The Constitution of the United States requires that

Defendant United States pay to Plaintiffs just compensation for all property taken for public use. 18. To date, Defendant United States has paid nothing to

Plaintiffs as compensation for the property it has taken for public use, in violation of the Constitution of the United States. 19. As a direct, foreseeable and proximate result of the acts

of Defendant, Plaintiffs have been damaged in an amount as yet unascertained, equal to the just compensation due them under the Fifth Amendment, including interest thereon at a rate to be established by this Court. Plaintiffs will seek leave of Court to amend this complaint to conform to proof of such damages at trial.

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20.

As a further direct, foreseeable and proximate result of

the taking of their property without just compensation, Plaintiffs have been required to and have retained the services of counsel to prosecute this action. Plaintiffs have incurred, and will incur, attorneys' fees, appraiser and expert witness fees, and costs and expenses of litigation in an amount as yet unascertained. Plaintiffs will seek leave of this Court to amend this complaint to conform to proof of such damages at trial. PRAYER FOR RELIEF WHEREFORE, each Plaintiff prays for relief as follows: 1. A money judgment equal to the just compensation owing

to each Plaintiff for the permanent taking of its property for public use, together with interest thereon at the legal rate from the date of taking; 2. 3. Reasonable attorneys' fees for the bringing of this action; The expenses of appraisers and other experts reasonably

required to prosecute this action, together with other costs of this suit; and

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4.

Such other and further relief as the Court may deem just.

Respectfully submitted,

s/ Roger J. Marzulla Roger J. Marzulla Nancie G. Marzulla MARZULLA & MARZULLA 1350 Connecticut Ave., N.W. Suite 410 Washington, DC 20036 (202) 822-6760 (202) 822-6774 (facsimile) Dated: December 4, 2006 Counsel for Plaintiffs

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Exhibit A

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Exhibit B

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