Free Response to Motion - District Court of Federal Claims - federal

Case 1:98-cv-00419-LB

Document 188

Filed 06/25/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS RESOURCE INVESTMENTS, INC., and LAND RECOVERY, INC., ) ) ) Plaintiffs, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________)

No. 98-419 L Hon. Lawrence J. Block

DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION TO ALLOW COMMENCEMENT OF DAMAGES DISCOVERY ____________________________________________________

Plaintiffs have moved for an order modifying Judge Turner's December 4, 1998 bifurcation order to allow the commencement of "damages discovery." Defendant has no objection to the lifting of the bifurcation order and agrees with Plaintiffs that there is currently no need for the case to be bifurcated. This is a case of an alleged temporary regulatory taking. Under the current state of the law, certain valuation issues must be adjudicated as part of both the liability and the just compensation1/ phases of the case. For

Defendant prefers the more precise terminology of "just compensation" to Plaintiffs' "damages" terminology. Under the Constitution, an action for a Fifth Amendment taking is a proceeding to determine whether a taking has occurred, and if so, to determine the just compensation due the property owner. 1

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Case 1:98-cv-00419-LB

Document 188

Filed 06/25/2007

Page 2 of 3

example, an evaluation of the economic impact of the regulatory restriction on the plaintiff is part of the inquiry mandated by Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978). The applicability of this analysis to temporary regulatory takings was recently explicitly confirmed by Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002). Thus, in a regulatory takings case, a court's determination of the economic impact of the regulatory restriction on the plaintiff leads directly to its determination of the proper just compensation to be awarded. Here, additional valuation discovery will be necessary in order for the case to proceed to conclusion in any circumstance. The change in the relevant legal standard for a temporary taking, as well as the death of Defendant's primary valuation expert, both of which occurred after the January 2001 close of liability discovery, requires additional valuation discovery. Both Plaintiffs and the Court were notified in April 2001 (Docket No. 103) of the untimely death of Dr. Phillip Mitchell, Defendant's landfill valuation expert. His death obviously left the United States with the need to hire a replacement expert. In addition, the change in the applicable legal standard for a temporary taking after the Supreme Court's decision in Tahoe-Sierra, again occurring after the close of liability discovery, requires additional expert valuation work be done in order that the Court be presented at trial with legally relevant evidence.

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Case 1:98-cv-00419-LB

Document 188

Filed 06/25/2007

Page 3 of 3

CONCLUSION Since it would appear that both parties agree on the need to conduct valuation discovery, Defendant would respectfully suggest that the Court permit the parties 30 days to confer with their experts concerning their availability and then confer with each other in an effort to establish a mutually-agreeably discovery schedule. Dated: June 25, 2007. Respectfully submitted, RONALD J. TENPAS Acting Assistant Attorney General Environment & Natural Resources Division

s/ Susan V. Cook SUSAN V. COOK, Senior Attorney MARK T. ROMLEY, Trial Attorney Natural Resources Section Environment & Natural Resource Division United States Department of Justice Post Office Box 663 Washington, D.C. 20044-0663 202-305-0470; FAX: 202-305-0506 Email: [email protected] Attorneys for Defendant 399872.1

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