Free ADR Scheduling Order - District Court of Federal Claims - federal

Case 1:05-cv-00840-MMS

Document 121

Filed 09/09/2008

Page 1 of 1

In the United States Court of Federal Claims
Nos. 05-840C and 05-1044C (Filed: September 9, 2008) * * * * * * * * * * * * * * * * * FISHERMAN'S HARVEST, INC., et al., Plaintiffs, v. THE UNITED STATES, Defendant. * * * * * * * * * * * * * * * * * ADR NOTICE In order to facilitate settlement discussions, the parties should be prepared to discuss the legal standards applicable to the plaintiffs' claims. Accordingly, in their respective presentations during the ADR session currently scheduled for Monday, September 15, 2008, each party should be prepared to discuss its understanding of the measure of damages under 28 U.S.C. § 1497, see, e.g., Petrovich v. United States, 421 F.2d 1364, 1367-68 (Ct. Cl. 1970) ("Most frequently at issue as items of alleged damage are loss of value of oyster bed leases and destruction of oysters on leases due to the Government action sued upon."), and under Texas law, see, e.g., Primrose Operating Co., Inc. v. Senn, 161 S.W.3d 258, 261 (Tex. App. 2005) ("Where the injury is temporary and able to be remedied at reasonable expense, damages are measured by the cost of restoring the land to its condition prior to the injury. If the cost to restore the land is excessive or not economically feasible, . . . the appropriate measure of damages is the diminution in fair market value." (internal citations omitted)). In addition, the parties should be prepared to discuss the legal bases for the plaintiffs' restoration claims. * * * * * * * * * * * *

s/Nancy B. Firestone NANCY B. FIRESTONE ADR Judge