Free Reply to Response to Supplemental Brief - District Court of Federal Claims - federal

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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. PLAINTIFFS' REPLY MEMORANDUM IN RESPONSE TO OCTOBER 4, 2006 ORAL ARGUMENT No. 98-419L Judge Lawrence J. Block

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TABLE OF CONTENTS Page I. II. INTRODUCTION ...............................................................................................................1 ARGUMENT ......................................................................................................................2 A. Defendant Again Misstates the Summary Judgment Standard and Utterly Fails to Raise a Fact Issue Requiring a Trial. ..........................................................2 1. 2. B. 1. Defendant Again Mischaracterizes Celotex and Evans...............................2 Defendant Raises No Genuine Issue of Material Fact.................................3 Character of the Government Action...........................................................4 a. The Ninth Circuit's Holding That the Corps' Assertion of Jurisdiction Was Unreasonable, Duplicative, and Inconsistent with Corps Regulations Is Relevant to the Character Prong and Tips It in Plaintiffs' Favor As a Matter of Law...............................4 i. ii. iii. b. 2. 3. Lingle Did Not Modify, Much Less Emasculate, the Character Prong. ..................................................................5 Tabb Lakes Does Not Support Defendant's Argument. ......8 Defendant Offers No Basis to Avoid the Ninth Circuit Holding. ...............................................................................9

Defendant Raises No Genuine Issue of Material Fact As to Penn Central.............4

No Disputed Fact Issues Exist As to the Character Prong. ...........11

Reasonable Investment-Backed Expectations: Defendant Offers Neither a Legal nor a Factual Basis to Avoid Summary Judgment...........11 Significant Economic Impact ....................................................................13 a. b. c. Defendant Misstates Both the Legal Test and the Evidence Regarding Economic Impact. ........................................................13 Defendant Has Conceded the Critical Factual Underpinnings That Establish That the Corps' Actions Caused Delay. ................15 Defendant's Limited Response Is Based Again on Unsupported Arguments by Counsel and Misstatements of the Evidence. .......................................................................................16 i. ii. Defendant's Attacks on Plaintiffs' Evidence Are Baseless. ............................................................................16 Defendant Again Responds with Unsupported Arguments by Counsel Instead of Admissible Evidence. ...........................................................................18

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iii.

Defendant Does Not Dispute That It Mischaracterized the Evidence and That the Evidence Does Not Support Its Position, but Then Repeats These Errors with Different Evidence.............................................................20

C. D. III.

Plaintiffs Have Established a Taking by Reason of Extraordinary Delay.............23 Plaintiffs Have Established a Taking Under Lucas. ..............................................24

CONCLUSION .................................................................................................................24

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TABLE OF AUTHORITIES Federal Cases Agins v. City of Tiburon, 447 U.S. 255 (1980)...........................................................6, 7, 8, 25 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).............................................................3 Appolo Fuels, Inc. v. United States, 381 F.3d 1338 (Fed. Cir. 2004), cert. denied, 543 U.S. 1188 (2005) ...................................................................................5, 6, 12, 23 Bass Enterprises Prod. Co. v. United States, 381 F.3d 1360 (Fed. Cir. 2004) ..............5, 7, 23 Brace v. United States, 72 Fed. Cl. 337 (2006), appeal filed, (Fed. Cir. 07-5002) (Oct. 4, 2006)..............................................................................................................12 Branch v. United States, 69 F.3d 1571 (Fed. Cir. 1995) ..........................................................6 Celotex Corp. v. Catrett, 477 U.S. 317 (1986).........................................................................2 Cienega Gardens v. United States, 331 F.3d 1319 (Fed. Cir. 2003)......................................12 Cienega Gardens v. United States, 67 Fed. Cl. 434 (2005) ...................................................10 Del-Rio Drilling Programs, Inc. v. United States, 146 F.3d 1358 (Fed. Cir. 1998) ................9 Evans v. Technologies Applications & Serv. Co., 80 F.3d 954 (4th Cir. 1996) .......................2 First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987) .................................................................................................8, 9 Florida Rock Indus. v. United States, 791 F.2d 893 (Fed. Cir. 1986)......................................5 Forest Props., Inc. v. United States, 177 F.3d 1360 (Fed. Cir. 1999)....................................14 Lingle v. Chevron USA, 544 U.S. 528 (2005) ................................................................ passim Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)..............................6, 7 Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) ...........................................2 Maritrans Inc. v. United States, 342 F.3d 1344 (Fed. Cir. 2003).......................................5, 10 Norman v. United States, 429 F.3d 1081 (Fed. Cir. 2005), cert. denied, 126 S. Ct. 2288 (2006) ................................................................................................................12 Palazzolo v. Rhode Island, 533 U.S. 606 (2001)......................................................5, 7, 10, 12 Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978)................................ passim iii

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Resource Investments, Inc. v. U.S. Army Corps of Engineers, 151 F.3d 1162 (9th Cir. 1998)......................................................................................................................9 Seiber v. United States, 364 F.3d 1356 (Fed. Cir. 2004)....................................................1, 23 Tabb Lakes, Ltd. v. United States, 10 F.3d 796 (Fed. Cir. 1993) .....................................5, 8, 9 Tahoe-Sierra Pres. Council v. Tahoe Reg'l Planning Agency, 535 U.S. 302 (2002) ..............1 Yuba Natural Res., Inc. v. United States, 904 F.2d 1577 (Fed. Cir. 1990) ............................14 State Cases Weyerhaeuser v. Pierce County, 873 P.2d 498 (Wash. 1994)................................................11 Federal Statutes 42 U.S.C. § 6905(a) ..................................................................................................................9 42 U.S.C. § 6905(b)................................................................................................................10 Federal Rules RCFC 56(f) ...............................................................................................................................4 Federal Regulations 33 C.F.R. § 320.4(a) ...............................................................................................................11 State Regulations WAC 197-11-768 ...................................................................................................................21

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EXHIBIT IN SUPPORT OF PLAINTIFFS' REPLY MEMORANDUM IN RESPONSE TO OCTOBER 4, 2006 ORAL ARGUMENT Resource Investments, Inc., et al. v. United States of America United States Court of Federal Claims No. 98-419L Exhibit # PE 182 Description List of Declarations and Expert Reports Filed in Support of Plaintiffs' Original Briefing on Summary Judgment in 2000 and 2001 Page Numbers 002374-002378

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KEY TO ABBREVIATIONS USED BY PLAINTIFFS IN THEIR RENEWED BRIEFING ON SUMMARY JUDGMENT Resource Investments, Inc., et al. v. United States of America United States Court of Federal Claims No. 98-419L Pls.' Mem. Def.'s Opp'n Pls.' Reply Def.'s Mem. Pls.' Resp. Def.'s Reply Chronology Pls.' Supp. Plaintiffs' Renewed Motion for Summary Judgment and Memorandum in Support (Docket No. 132) Defendant's Opposition to Plaintiffs' Renewed Motion for Summary Judgment (Docket No. 143) Plaintiffs' Reply Memorandum in Support of Plaintiffs' Renewed Motion for Summary Judgment (Docket No. 150) Memorandum of United States in Support of Its Cross Motion for Summary Judgment (Docket No. 130) Plaintiffs' Memorandum in Response to Defendant's Cross-Motion for Summary Judgment (Docket No. 138) Defendant's Reply Memorandum in Support of Its Renewed Cross Motion for Summary Judgment (Docket No. 148) Joint Supplemental Brief in Response to Court's Order of May 3, 2006 (Chronology of Relevant Permitting Processes) (Docket No. 176) Plaintiff's Supplemental Memorandum in Response to Court's May 3, 2006 Order (Delays in State and Local Permitting Process and Additional Court Decisions Addressing Issue of Corps' Jurisdiction) (Docket No. 179) Defendant's Supplemental Brief Pursuant to This Court's Order of May 3, 2006 (As Modified by Its Order of May 26, 2006) (Docket No. 180) Plaintiffs' Second Supplemental Memorandum in Response to October 4, 2006 Oral Argument (Docket No. 182) Defendant's Response to Plaintiffs' Second Supplemental Memorandum (Docket No. 184)

Def.'s Supp.

Pls.' 2d Supp. Def.'s Resp.

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I.

INTRODUCTION This Court has given Defendant every opportunity to raise a legal or factual basis to

avoid summary judgment, yet Defendant has not done so. Its principal legal argument regarding new case law, that the Supreme Court in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002), somehow eliminated categorical temporary takings sub silencio is untenable, and was rejected as unsound in Seiber v. United States, 364 F.3d 1356 (Fed. Cir. 2004). Its new argument that Lingle v. Chevron USA, 544 U.S. 528 (2005), "implicitly" held that a judicial determination that an agency's conduct was unreasonable and unnecessary is irrelevant to the "character prong" of Penn Central, is similarly unsound and contradicts the clearly expressed contrary views of the opinion's author, Justice O'Connor. As to whether any genuine material fact issues exist, this record is overwhelmingly onesided. Plaintiffs filed 18 declarations and expert reports six years ago in support of their original motion, substantiating every element of their claims. Plaintiffs also showed that Defendant's own experts confirm both significant economic impact and lack of alternative viable economic uses. Defendant obtained no declarations of its own (despite its access to Corps employees), and identified no supporting expert testimony. This is why Defendant persists in its unsound argument that this Court can simply reject Plaintiffs' declarations because of purported "bias," a subject Defendant never sought to explore in discovery during the 11 months that discovery remained open after the declarations were filed. And, significantly, Defendant's citations to the written record neither support its arguments nor the existence of fact issues for trial. In its newest brief, Defendant fails to respond to any of the following key arguments by Plaintiffs: · · A legion of federal cases hold that, on summary judgment, the court may not simply disregard fact declaration testimony as "biased" or "unsupported." Beginning in 1996, when the CUP and solid waste permit issued, the Corps caused a three-year delay in opening the facility because the Corps was the only impediment to Plaintiffs obtaining their remaining ministerial permits, which they quickly obtained when the Ninth Circuit decision became final in February 1999. The Corps' unlawful delay in issuing its public notice delayed the start of the Corps' 1

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process from August 1990 to March 1992. · · · · · · · The Corps "strongly encouraged" reconfiguration, leaving Plaintiffs no choice other than to give up, and the state process had to start over (taking years longer). Defendant's claim that state and local agencies were the cause of the reconfiguration is not supported by the exhibits cited. Plaintiffs need not prove "exact" damages to prove liability in a bifurcated case. As to the identity of issues, the Ninth Circuit's APA review focused on the unreasonableness of the Corps' administrative actions (just like the character prong). Delay from an unreasonable, unnecessary, and duplicative process lasting almost a decade (compared to a denial average of 285 days) is "extraordinary" not "ordinary." There is no evidence in the record that Plaintiffs' property had viable economic uses other than as a landfill, and substantial uncontroverted evidence to the contrary. Arguments of counsel are not "evidence" for summary judgment purposes.

Plaintiffs address below the arguments that Defendant does raise in its newest brief. II. ARGUMENT A. Defendant Again Misstates the Summary Judgment Standard and Utterly Fails to Raise a Fact Issue Requiring a Trial. 1. Defendant Again Mischaracterizes Celotex and Evans.

Neither Celotex Corp. v. Catrett, 477 U.S. 317 (1986), nor Evans v. Technologies Applications & Service Co., 80 F.3d 954 (4th Cir. 1996), support Defendant's argument that this Court can disregard factual declaration testimony from a party-affiliated witness. Pls.' 2d Supp. at 2 & n.3. Defendant now admits that Celotex addressed only "the background standard for summary judgment," Def.'s Resp. at 6, and does not respond to Plaintiffs' showing that Evans held only that self-serving and uncorroborated lay opinion testimony was inadmissible, Pls.' 2d Supp. at 2-3 n.3. No basis exists for Defendant's claim that these cases "yield an inference that this Court can assess the weight it will give to Plaintiffs' self-serving declarations." Def.'s Resp. at 6. Extensive case law holds that rather than attacking the credibility of Plaintiffs' declarations, Defendant, the non-moving party as to all Penn Central issues,1 must present specific evidence Defendant abandoned its Penn Central summary judgment motion, and its arguments on "extraordinary delay" and categorical temporary takings under Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), are independent (but erroneous) legal arguments. 2
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showing a genuine issue exists requiring a trial.2 Further, contrary to its claim that the McNeill declaration lacked "objective support," Defendant now admits that "Plaintiffs accurately note that the declaration . . . is supported by `sixteen attached exhibits.'" Def.'s Resp. at 32. Neither Defendant's factual characterizations nor its legal argument survive scrutiny.3 2. Defendant Raises No Genuine Issue of Material Fact.

The record before this Court is entirely one-sided. In 2000 and 2001, Plaintiffs filed 18 declarations and expert reports substantiating every element of their takings claims. See PE 182. They detailed the Corps' delays, the nature and character of its actions and their economic impact on Plaintiffs, Plaintiffs' investment-backed expectations, and the lack of any alternative viable economic use of the property. These evidentiary materials also document the "extraordinary" character of the Corps' delays and the Corps' discriminatory analysis of Plaintiffs' application compared to similar solid waste projects like the Weyerhaeuser project. Defendant offers no evidentiary response. Indeed, Plaintiffs showed that even Defendant's own experts supported Plaintiffs' motion. Dr. Mitchell's landfill valuation quantified Plaintiffs' 1998 lost landfill income as $1.7 million for each half-year (the source of the $3.4 million annual loss figure referenced throughout the briefing). PE 102 at 1638, 1635.4 Mr. Heischman testified that no viable interim economic use of the property existed. Pls.' Mem. at 49-50. Mr. Barber's calculations demonstrate that timber harvest was not viable on either an Defendant does not respond to Plaintiffs' showing that Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and a host of other cases contradict Defendant's novel argument and hold that neither argument of counsel nor generalized questions about the credibility of Plaintiffs' declarations meets Defendant's obligation to raise a genuine issue of material fact. Pls.' 2d Supp. at 2-3 (citing cases). Defendant now claims that the declaration is "unsupported" as to Plaintiffs' decision not to appeal, id., but it has no controverting evidence and this fact is within Ms. McNeill's personal knowledge. Corroboration is not required. Further, Defendant never sought to depose Ms. McNeill regarding her declaration even though discovery was not closed when it was filed. Defendant falsely claims that Dr. Mitchell's figures were calculated by Plaintiffs. Def.'s Resp. at 26-27. As discussed below, Dr. Mitchell's calculations are set forth in his valuation spreadsheet and explained in his expert report. See PE 102 at 1638, 1635. 3
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interim or long-term basis (because it would result in a net after-tax loss). Id. at 38. Mr. Curtis's testimony that fair market rent would be approximately 10% of fair market value corroborates the $3.4 million annual lost income figure from Dr. Mitchell's analysis. Id. at 62. Plaintiffs' arguments about the extraordinary character of the Corps' actions, the discriminatory application of standards, and the delays the Corps caused are also supported by the testimony of two former high-ranking Corps employees, Mr. Barrows, PE 80,5 and Mr. Goode, PE 175, who describe the Corps' deviation here from normal Corps rules, guidance, binding case law, and typical timelines for decision. Defendant offers no opposing Corps employee or expert testimony. Indeed, Defendant obtained no declarations of its own, except for the two untimely expert declarations this Court struck, despite the fact that Defendant enjoys access to the Corps employees involved. Defendant now complains it was unable to depose Ms. McNeill regarding her declaration, Def.'s Resp. at 32 n.8, but that too is untrue. It was filed on February 28, 2000, 11 months before discovery closed. RCFC 56(f) allows a party to request a continuance to obtain depositions. Defendant elected not to do so. And, as already shown, Defendant's summary judgment response consists of (1) unsubstantiated attorney argument, (2) citation to irrelevant evidence, or (3) misrepresentation of the record. None of these suffice. B. Defendant Raises No Genuine Issue of Material Fact As to Penn Central. 1. Character of the Government Action a. The Ninth Circuit's Holding That the Corps' Assertion of Jurisdiction Was Unreasonable, Duplicative, and Inconsistent with Corps Regulations Is Relevant to the Character Prong and Tips It in Plaintiffs' Favor As a Matter of Law.

No undisputed factual underpinning is more conspicuous here than the Ninth Circuit holding that the Corps' actions were unreasonable, duplicative, unnecessary, and inconsistent with the Corps' own regulations. And none of Defendant's arguments are more discordant with

Defendant attacks Mr. Barrows' credibility because he is a former Corps employee. Def.'s Resp. at 37 n.10. This attack makes no sense, and as demonstrated, attacks on credibility do not meet Defendant's burden to avoid summary judgment. 4

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common sense and "justice and fairness" than its claim that this Court must nonetheless "presume" the Corps' actions were valid. No case law supports such a result in this context, and Plaintiffs showed that the cases Defendant cited (Appolo Fuels, Inc. v. United States, 381 F.3d 1338 (Fed. Cir. 2004), cert. denied, 543 U.S. 1188 (2005), and Florida Rock Industries v. United States, 791 F.2d 893 (Fed. Cir. 1986)) clarify that validity is "presumed" only as to actions not successfully challenged under the APA, not those already invalidated. Defendant does not respond and its new authority--Lingle and Tabb Lakes, Ltd. v. United States, 10 F.3d 796 (Fed. Cir. 1993)--does not support this topsy-turvy outcome, as shown below. Because the Penn Central test is "designed to consider all the relevant facts and circumstances," Def.'s Resp. at 6, it is silly to claim that the character prong must exclude as irrelevant judicial invalidation of the very administrative action at issue, id. at 13. Collateral estoppel dictates the opposite outcome. There is no "intellectual shorthand" in federal takings law, id. at 16, that requires invalidated agency actions to be presumed "valid." i. Lingle Did Not Modify, Much Less Emasculate, the Character Prong.

For the first time, Defendant asserts that Lingle supports its "presumption of validity" argument. This belated assertion conflicts with Lingle's holding, language, and reasoning. As Plaintiffs emphasized, Justice O'Connor, in her concurrence in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), observed that the character prong includes inquiry into the "purpose and effect" of government actions and consideration that "`a use restriction on real property may constitute a `taking' if not reasonably necessary to the effectuation of a substantial public purpose.'" Id. at 634 (emphasis added) (quoting Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 127 (1978)). Justice O'Connor expressly linked this articulation of the "character" test to Penn Central, id., as did the Federal Circuit in Bass Enterprises Production Co. v. United States, 381 F.3d 1360, 1370 (Fed. Cir. 2004).6 Four years later, Justice O'Connor, writing for a unanimous See also Maritrans Inc. v. United States, 342 F.3d 1344, 1357-58 (Fed. Cir. 2003) (discussing reasonableness and necessity of government action within character prong); Branch
(Footnote continued)
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Court in Lingle, overturned Agins v. City of Tiburon, 447 U.S. 255 (1980), but only insofar as it held that "regulation of private property `effects a taking if [it] does not substantially advance legitimate state interests.'" 544 U.S. at 531 (quoting Agins, 447 U.S. at 260). The key to Lingle's holding is the Court's emphasis that what it disapproved was application of Agins as a "stand-alone" test, imposing liability without consideration of either economic impact or the nature of the property interest. The Agins test was "phrased in the disjunctive": "`[t]he application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state's interests or denies an owner economically viable use of his land.'" Lingle, 544 U.S. at 540 (alteration in original, citation omitted, emphasis added) (quoting Agins, 447 U.S. at 260). Thus, it was understood as a per se facial test: "a stand-alone regulatory takings test that is wholly independent of Penn Central or any other test." Id. (emphasis added). Applying Agins, the lower courts had held a statute a taking "based solely upon [a] finding[] that it does not substantially advance a legitimate state interest." Id. In Lingle, therefore, the Court stated that "this is our first opportunity to consider [Agins'] validity as a freestanding takings test." Id. (emphasis added). The Court's disapproval of the Agins "substantially advances" formula as a stand-alone test does not imply that when a federal court has held that the government acted unlawfully and unreasonably, this Court should disregard that holding as irrelevant to the character prong of the Penn Central test (which is a "gestalt" inquiry into all relevant circumstances, Bass Enters., 381 F.3d at 1370). The Lingle Court's analysis supports the same conclusion. Applied as a "stand-alone" test, Agins was a categorical test. But, the Court noted, "[o]ur precedents stake out [only] two categories of regulatory action that will be deemed per se takings," permanent physical invasions under Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), and regulations that deprive an owner of "all economically beneficial us[e] of her property," under Lucas, 505 U.S. at 1019. Lingle, 544 U.S. at 538 (internal quotation marks omitted, alteration in original). v. United States, 69 F.3d 1571, 1578-79 (Fed. Cir. 1995) (same). 6

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Otherwise, "regulatory takings challenges are governed by the standards set forth in Penn Central." Id. The Court noted that "[p]rimary among those factors are `the economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.'" Id. at 538-39 (quoting Penn Central, 438 U.S. at 124). Thus, "each of these tests focuses directly upon the severity of the burden that government imposes upon private property rights": Loretto involved a physical invasion, while under Lucas "`total deprivation of beneficial use is, from the landowner's point of view, the equivalent of a physical invasion.'" Id. at 539-40 (quoting Lucas, 505 U.S. at 1017). The same is true of Penn Central: its "inquiry turns in large part . . . upon the magnitude of a regulation's economic impact and the degree to which it interferes with legitimate property interests." Id. at 540. In contrast, the Lingle Court concluded that the Agins formula as a stand-alone test was incomplete: "the `substantially advances' inquiry reveals nothing about the magnitude or character of the burden a particular regulation imposes upon private property rights. Nor does it provide any information about how any regulatory burden is distributed among property owners." Id. at 542. Clearly, that problem--i.e., the Agins test's failure to evaluate the impact on property rights--does not exist where the Court examines the unlawful and unreasonable character of an already-invalidated government action as part of the Penn Central test. Thus, neither Lingle's holding nor its reasoning supports Defendant's proposed interpretation. Further indications show that Defendant misreads Lingle. First, the Court cites Justice O'Connor's Palazzolo concurrence with approval for its correct articulation of Penn Central, 544 U.S. at 539, and neither the Court (nor Justice O'Connor) intended to disavow it. Second, the Lingle Court "emphasize[d] that [its] holding today--that the `substantially advances' formula is not a valid takings test--d[id] not require [it] to disturb any of [its] prior holdings." Id. at 545 (emphasis added). Third, the Agins "substantially advances" test is different from Justice O'Connor's language Plaintiffs cited from Palazzolo and Bass Enterprises. Rather than dictate a categorical test like Agins, the Penn Central language Plaintiffs quoted is conditional: "a use restriction on real property may constitute a `taking' if not reasonably necessary to the 7

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effectuation of a substantial public purpose" when considered as part of the balance with the two other Penn Central prongs. Pls.' 2d Supp. at 10 (emphasis added).7 Finally, Lingle addressed the standard for a facial challenge to a statute, not an "as applied" taking based on an administrative decision already invalidated by the Ninth Circuit. Plaintiffs bring no facial dueprocess-type challenge here.8 Instead, Plaintiffs suffered what would have been a permanent taking that was "cut short" by the Ninth Circuit, and First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 310 (1987), dictates that when such actions are "invalidated by the courts," they still are compensable.9 The reasons for that invalidation, that the government action was neither reasonable nor necessary, are relevant to the Penn Central inquiry.10 ii. Tabb Lakes Does Not Support Defendant's Argument.

Defendant takes undue liberties in arguing that Tabb Lakes supports its "intellectual shorthand" argument. See id. at 16. Tabb Lakes made no Penn Central claim, only a Lucas claim and an extraordinary delay claim. 10 F.3d at 800, 803. The language Defendant cites regarding the "validity of the government action," Def.'s Resp. at 16, appeared in the context of whether the government action was "authorized" for purposes of Tucker Act jurisdiction, i.e., whether the action was "ultra vires," such that it is not the action of the government. 10 F.3d at 802-03. Later cases have clarified that the fact that government action is unlawful or mistaken does not mean it is ultra vires for Tucker Act purposes. Del-Rio Drilling Programs, Inc. v.

Defendant again misquotes Justice O'Connor's language, omitting both the conditional words "may" and "reasonably," which distinguish it from the Agins test. Def.'s Resp. at 8. Plaintiffs originally asserted an Agins claim, but in their renewed summary judgment motion filed November 29, 2005 acknowledged that Lingle foreclosed it. Pls.' Mem. at 5 n.4.
9 8

7

First English was cited with approval by the Lingle Court. 544 U.S. at 536-37, 543.

Even if it were plausible that the character prong always favors Defendant after Lingle (because of the underlying statute's beneficial purpose), as Defendant argues, Def.'s Resp. at 78, that would not be dispositive because the other two Penn Central prongs decisively tip toward liability. 8

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United States, 146 F.3d 1358, 1362-63 (Fed. Cir. 1998). Moreover, as Plaintiffs described, Tabb Lakes dealt with a "reasonable" "mistake." Pls.' Reply at 25 n.17. That a reasonable mistake in preliminarily asserting jurisdiction11 does not automatically constitute a Lucas categorical taking, as Tabb Lakes held, does not mean it is irrelevant under Penn Central that the decade-long assertion of jurisdiction was overturned on appeal as unreasonable and unnecessary. Finally, Defendant ignores that Tabb Lakes recognized the effect of First English that "once a taking is effected, no subsequent activity of the government extinguishes its obligation to pay for the period of deprivation." 10 F.3d at 800. Because such temporary takings also include "those regulatory takings which are ultimately invalidated by the courts," First English, 482 U.S. at 310, the Federal Circuit hardly endorsed the idea that the invalidation was irrelevant. iii. Defendant Offers No Basis to Avoid the Ninth Circuit Holding.

Defendant's collateral estoppel arguments are equally confounding. It now claims that "Defendant is not contending that it is not bound by [the] Ninth Circuit's holding," Def.'s Resp. at 12, purporting to disavow its directly contradictory six-page argument that "the Corps was reasonable" in asserting jurisdiction and its attack on the Ninth Circuit's holding as "flatly and legally incorrect." Def.'s Supp. at 31-36 (emphasis added). And despite its "concession," Defendant still repeats the same attacks on the Ninth Circuit, again claiming that the court did not understand the MOA, RCRA, or the Clean Water Act ("CWA"), and that "[t]here is no dispute . . . that both EPA and the Corps agreed that the Corps had" jurisdiction over the facility. Def.'s Resp. at 14-15.12 Tabb Lakes withdrew its application for a Corps permit, and brought its administrative challenges as soon as the Corps first asserted jurisdiction. 10 F.3d at 798. Defendant's attacks omit critical information. For example, the purported "extension" of the MOA was not published in the Federal Register, a precondition to its effectiveness. Defendant claims that the Corps' jurisdiction was not unlawful until 1994, Def.'s Resp. at 15, despite the Ninth Circuit's express holding that the Corps' regulations excluded jurisdiction over this landfill from the outset, Resource Investments, Inc. v. U.S. Army Corps of Engineers, 151 F.3d 1162, 1168 (9th Cir. 1998) ("RII v. Corps"). And Defendant has expressed its chagrin that the Ninth Circuit "ignored" 42 U.S.C. § 6905(a), which provides that RCRA applies only if it
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What is dispositive here, however, is that Defendant provides no legal basis to avoid preclusion. It repeats its "different issue" generalization but does not respond to Plaintiffs' showing that: (i) APA review focuses, by statute, on the validity of agency "actions" just like the character prong; (ii) the Ninth Circuit did not focus on statutory construction, as shown by Plaintiffs' nine bulleted points all referring to the Corps' regulatory actions; (iii) the character prong cannot be distinguished from the Ninth Circuit holding as a "fact" rather than "law" issue because the character prong is a "legal issue that turns on factual underpinnings"; and (iv) the nine bulleted rulings decided by the Ninth Circuit are directly relevant to the character issue precisely as decided by the Ninth Circuit, obviating Defendant's "different issue" argument. Pls.' 2d Supp. at 6-9, 12. The Ninth Circuit ruling is binding here. Finally, contrary to Defendant's argument, Def.'s Resp. at 11, Plaintiffs recognize that the ultimate determination whether the character prong supports taking liability is for this Court. Plaintiffs argue instead that the precise rulings of the Ninth Circuit are binding here, are relevant to the character prong, and notwithstanding that the CWA has a beneficial public purpose, the Ninth Circuit holding that the Corps' specific administrative actions were unreasonable tips the balance of the character prong decisively toward liability.13 does not conflict with the CWA. Def.'s Resp. at 15. Defendant omits that RCRA's next subsection, 42 U.S.C. § 6905(b), provides that EPA has responsibility to "integrate all provisions of [RCRA] . . . and [to] avoid duplication, to the maximum extent practicable, with the appropriate provision of the [CWA]. . . . Such integration shall be effected only to the extent that it can be done in a manner consistent with the goals and policies expressed in this chapter and in the [CWA]." Id. (emphasis added). This provision plainly corroborates the Ninth Circuit's analysis, and may provide insight into why the Solicitor General decided not to appeal. Defendant is also incorrect that Cienega Gardens v. United States, 67 Fed. Cl. 434 (2005), supports its claim that "this [C]ourt endorsed" Defendant's analysis that the focus of the character prong is exclusively on the "purpose of the statute." Def.'s Resp. at 8 (emphasis added). Rather, citing both Lingle and Maritrans, the Cienega court concluded that "[a]ssessing the character of the governmental action requires an analysis both of the purpose of the statute and of the actions taken by the government to serve that purpose." 67 Fed. Cl. at 466 (emphasis added). Justice O'Connor, of course, similarly suggested in Palazzolo that both should be considered. 533 U.S. at 634. But where--as in this case--the administrative actions involved are unreasonable and unnecessary such that they do not further the purpose of the statute, the
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b.

No Disputed Fact Issues Exist As to the Character Prong.

Defendant initially argued that it did not single Plaintiffs out for discriminatory treatment. Def.'s Opp'n at 24-25. Plaintiffs demonstrated the falsity of that claim, Pls.' Reply at 29-32, and Defendant now argues that it was justified in treating Plaintiffs more harshly because they had a "public project," Def.'s Resp. at 17-18 (citing Weyerhaeuser v. Pierce County, 873 P.2d 498, 505 (Wash. 1994)). But Weyerhaeuser held only that it was a "public project" for SEPA purposes, and Defendant cites no authority to justify the Corps in holding a "public" project up to a more rigorous "practicable alternatives" test than a private one. Plaintiffs agree that the Corps indeed offered the public versus private rationale for its decision, but this favors takings liability, not the reverse, and raises no fact issues. To make projects that benefit the public more difficult to permit than private ones is obnoxious as public policy and contradicts the Corps' own regulations requiring that public benefit is balanced in favor of a project. See 33 C.F.R. § 320.4(a). Finally, although Plaintiffs' project provided public benefits, it was privately owned and financed, and these private parties bore the economic brunt of the Corps' discriminatory actions. Again, all this proves Plaintiffs' point that they were singled out for different and harsher treatment. Thus, not only has Defendant failed to undermine Plaintiffs' evidentiary showing as to the character prong, but it has no evidence to support its position.14 2. Reasonable Investment-Backed Expectations: Defendant Offers Neither a Legal nor a Factual Basis to Avoid Summary Judgment.

Defendant lacks any legal or factual basis to contest the existence of reasonable investment-backed expectations, which also support liability. It first repeats its untenable argument that enactment of the CWA before Plaintiffs purchased their property bars their claim. Def.'s Resp. at 21-22. This is flat wrong. The Supreme Court expressly rejected any such

statute's purpose does not weigh against liability in analysis of the character prong. Despite Defendant's assertion that the purpose and effect of the Corps' actions was to "protect wetlands," Def.'s Resp. at 10-11, this is unsupported attorney argument, which conflicts with the Ninth Circuit's holdings about unreasonable duplication. 11
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blanket prohibition. Palazzolo, 533 U.S. at 628.15 Instead, the regulatory regime in place merely "helps to shape the reasonableness of those expectations." Appolo, 381 F.3d at 1349 (internal quotation marks omitted). Section 404 of the CWA is a permitting statute, not a regulatory prohibition. Plaintiff reasonably expected to meet all permitting requirements because (1) their property was naturally suitable for landfill use, (2) their design was environmentally safe and compliant, (3) no practicable alternatives existed, and (4) no net loss of wetlands would occur under their mitigation plans. See Pls.' Reply at 32-35. Thus, Plaintiffs had reasonable investment-backed expectations of meeting the CWA's requirements, and that they actually did satisfy them (because the state and local agencies imposed the same requirements, RII v. Corps, 151 F.3d at 1168) corroborates the reasonableness of their expectations. Defendant is likewise incorrect that the reasonable expectations inquiry is limited to expectations at the time of purchase. As this Court recently recognized, "various cases hold that the inquiry focuses on various investment decisions, including those made after the property was initially purchased." Brace v. United States, 72 Fed. Cl. 337, 354 (2006), appeal filed, (Fed. Cir. 07-5002) (Oct. 4, 2006). Plaintiffs' continued investment in their project throughout the permitting process and their persistence until they prevailed, underscores both the existence and reasonableness of those investment expectations.16 Further, Plaintiffs' subjective beliefs are relevant. The court in Cienega Gardens v. United States, 331 F.3d 1319, 1346 & n.42 (Fed. Cir. 2003), held such evidence relevant to prove what the expectations were. Thus, Plaintiffs' evidence that they had investment-backed expectations of being able to meet all permitting requirements cannot legitimately be attacked as Defendant cites Norman v. United States, 429 F.3d 1081 (Fed. Cir. 2005), cert. denied, 126 S. Ct. 2288 (2006), for the same point but Norman acknowledged that a taking claim "`is not barred by the mere fact that title was acquired after the effective date of the [] restriction.'" Id. at 1092 (quoting Palazzolo, 533 U.S. at 630). Because Plaintiffs' investments were made in the reasonable expectation of satisfying all CWA requirements, contrary to Defendant's assertion (Def.'s Resp. at 20), Plaintiffs need not prove that they knew in 1986 precisely how the Ninth Circuit would ultimately rule. 12
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irrelevant. And Plaintiffs presented a scientifically based analysis of why those expectations were objectively reasonable, see, e.g., PE 94, as further objectively corroborated by issuance of all required permits and prompt opening of the facility after the Corps was removed as a barrier. Finally, Defendant controverts none of Plaintiffs' evidence: it offers neither expert testimony nor a factual response to the testimony of Mr. Lakey, Mr. Barrows, Ms. Snyder, Ms. McNeill, and Mr. Goode, which all show that Plaintiffs' $12 million investment was based on subjectively held and objectively reasonable expectations that they would permit their project. The second Penn Central prong favors Plaintiffs as a matter of law. 3. Significant Economic Impact a. Defendant Misstates Both the Legal Test and the Evidence Regarding Economic Impact.

In its latest brief, Defendant simply repeats the economic impact arguments Plaintiffs successfully rebutted a year ago, see Pls.' Reply at 35-45, makes the remarkable assertion that "it is Plaintiffs, not Dr. Mitchell, who calculated the $3.4 million annual income value," and accuses Plaintiffs of obscuring this "fact." It also claims that "Dr. Mitchell never stated (in writing or otherwise) that Plaintiffs lost as [sic] least $3.4 million per year." Def.'s Resp. at 26. These claims are false. Dr. Mitchell's spreadsheet, showing his calculation of Landfill Market Value as of January 1, 1998, PE 102 at 1638, shows a Landfill net operating income of $1.709 million and $1.727 million for the two halves of 1998. As Dr. Mitchell explained: The next column [of PE 102 at 1638] contains the Net Operating Income (NOI) per ton based on the difference between the unit tipping fee [disposal fee] and unit expense rate [costs]. This amount is then extended by the number of tons [of waste disposed] to obtain the actual Net Operating Income for the period. For example, the first entry in this column is 1,709 which indicates a landfill income for the first half of 1998 of $1,709,000. Id. at 1635 (emphasis added). His calculation is what the landfill would have earned had it been open. The income figures of $1.709 and $1.727 exceed $3.4 million for 1998.17 Plaintiffs have already explained that $1.7 million multiplied by two is $3.4 million. Pls.' Reply at 1 n.1. Similarly, Mr. Curtis testified that it was a "common phenomenon" that properties rent for 10% of their fair market value. Pls.' Mem. at 62 (citing PE 108 at 1834
(Footnote continued)
17

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Nor do any of Defendant's legal theories as to significant economic impact hold water. First, Plaintiffs explained that they need not establish exact damages to establish liability in a bifurcated takings case, which would eliminate any reason for bifurcation, Pls.' 2d Supp. at 17, and Defendant does not respond. Second, change in fair market value is a permanent takings test, see Pls.' Reply at 43, and Defendant's cases involve permanent takings. See, e.g., Forest Props., Inc. v. United States, 177 F.3d 1360, 1364 (Fed. Cir. 1999).18 Third, Defendant's valuation argument has devolved into incoherence: Despite repeating its "change in value" argument, Def.'s Resp. at 22, Defendant simultaneously argues that "[i]t is well established that the measure of just compensation for a temporary taking is the fair rental value of the property for the period of the taking," id. at 24 (citing Yuba Natural Res., Inc. v. United States, 904 F.2d 1577, 1581 (Fed. Cir. 1990)). Plaintiffs agree this is an appropriate measure, and they have met this standard for liability purposes. Defendant's own experts-- Dr. Mitchell and Mr. Curtis--establish that, using Mr. Curtis's "10% of fair market value" market rent criterion and Dr. Mitchell's understated landfill valuations, the lost fair market rent for the landfill during the delay would have ranged from at least $2.9 million to $3.5 million per year minimum. Note 16, supra. This is significant economic impact as a matter of law. Finally, Defendant again claims Plaintiffs' receipt of landfill income has only been delayed. Def.'s Resp. at 24. As previously demonstrated, this argument is specious. See Pls.' Reply at 41. Although the landfill's life will be extended by opening years later, no lost revenue

(313:11-19)). Because Dr. Mitchell calculated landfill values of between $29 million and $35 million between 1989 and 2000, this yields an annual fair market rent value as a landfill of between $2.9 million and $3.5 million, corroborating both Dr. Mitchell's lost income figure of $3.4 million for 1998 and Plaintiffs' claim of substantial economic loss. Moreover, Plaintiffs described how Defendant's experts prove that the property did suffer significant change in fair market value. See Pls.' Reply at 44-45. Dr. Mitchell valued the property as a landfill in 1998 at $33,500,000. Id. at 44. Mr. Barber valued the property's timber at $572,000, which could be recouped only once every 45 to 50 years. Id. The difference is approximately a $33 million change in value if landfill use were prohibited, and other uses of the property would have generated a net loss. Id. at 44-45. 14
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will be recouped until the end of the landfill's life. Dr. Mitchell's spreadsheet (PE 102 at 1638) contains a "discount factor" that shows, for example, that a dollar in income delayed until 2030 is worth only $0.013 in 1998. Similarly, Dr. Mitchell's valuation showed that the $3.4 million Plaintiffs would have received in 1998 would, if received in 2030, be worth only $140,000 in 1998. Id. The $3.26 million difference can never be recouped, and is another measure of significant economic impact.19 Again, the exact amount of damages is for the next phase. b. Defendant Has Conceded the Critical Factual Underpinnings That Establish That the Corps' Actions Caused Delay.

Plaintiffs described with great care how and why the Corps' actions delayed their ability to permit, construct, and open their facility, causing significant economic impact. Pls.' Mem. at 7-20; Pls.' Reply at 6-10; Pls.' Supp at 4-26; Pls.' 2d Supp. at 21-27. Despite being given every opportunity, Defendant has either directly conceded or failed to provide evidence to dispute the following critical factual underpinnings necessary to show "but for" causation of significant economic impact as a result of the Corps' delay: · There were critical points of intersection between the Corps' permit process and the state and local permit process at which the Corps' process delayed the state and local process. Defendant's response consists only of its assertion that the Corps did not directly intervene in the state process to cause delay, Def.'s Resp. at 28, which--as Plaintiffs described, Pls.' 2d Supp. at 29--misses the point. The three-year delay caused by the Corps beginning in February 1996 and ending in February 1999 is sufficient to establish significant economic impact. Defendant fails entirely to dispute Plaintiffs' assertion that the Corps caused a three-year delay from February 1996 until February 1999--the subject of an entire section of Plaintiffs' last brief. Pls.' 2d Supp. at 19-21. Instead, Defendant repeated its concession that the Corps caused a "period of regulatory restriction" from September 1996 until October 1998, Def.'s Resp. at 23 n.7, without addressing either Plaintiffs' analysis as to why those dates are wrong or Plaintiffs' argument that even this 26-month span shows significant economic impact under Penn Central, Pls.' 2d Supp. at 19-21 & n.17.

·

Plaintiffs have also already rebutted Defendant's argument (repeated in its last brief, Def.'s Resp. at 26) that its own expert, Dr. Mitchell, did not remove "business profits" not tied to the land. See Pls.' Reply at 40-41. Because solid waste is disposed in the ground on the land, there is no evidence that any such segregable non-land profits even exist. If Defendant introduces such evidence in the next phase, it is free to argue for a reduction in damages, but this argument does not undermine substantial economic impact as a liability element. 15

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·

But for the Corps, Plaintiffs would have been free to obtain the remaining necessary permits and commence construction of the facility beginning in February 1996. Plaintiffs had strong economic incentives to open the landfill as soon as possible. As a result of the Corps' actions, obtaining the remaining ministerial permits was futile until Plaintiffs were able to resolve the issues with the Corps. Had the Corps not prohibited Plaintiffs from proceeding, none of the events subsequent to February 1996 could have delayed the opening of the facility. As a result of the Corps' assertion of jurisdiction, Plaintiffs could not have lawfully disturbed the wetlands on the site until the Ninth Circuit's mandate issued. By November 1990, Plaintiffs had an approved state EIS, the hearing examiner's approval of the environmental analysis of that EIS was never appealed, and in the absence of the Corps, that original environmental analysis would have been binding on all state and local agencies.20 Contrary to Defendant's prior assertion, Plaintiffs need not show that they were "guaranteed" to get their state and local permits, but only that it is more probable than not that they would have gotten those permits. The Corps' nineteen-month delay in finalizing its wetlands delineation was an additional and independent cause of delay. Defendant's argument regarding attributing state action to the federal government is irrelevant because Plaintiffs seek only to hold the Corps responsible for the delay it caused. The reconfiguration of the facility forced the state and local process to start over. The purported "complexity" of landfill permitting is irrelevant because it obviously takes longer when the administrative process has to start over based on a new configuration.

· · · ·

·

· ·

· ·

Based on these concessions and the undisputed facts identified, Plaintiffs have established significant economic impact as a matter of law under Penn Central. c. Defendant's Limited Response Is Based Again on Unsupported Arguments by Counsel and Misstatements of the Evidence. i. Defendant's Attacks on Plaintiffs' Evidence Are Baseless.

Defendant persists in groundless attacks on Plaintiffs' evidence. First, Defendant devotes an entire section of its most recent brief to renewed hearsay arguments regarding Plaintiffs' Defendant does not dispute these points, instead arguing that Plaintiffs misstated the impact of the remand. Def.'s Resp. at 33-34. This is incorrect as already made clear. Pls.' 2d Supp. at 23 n.19, 33 (describing scope of remand). 16
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declarations (although Defendant now admits that Corps statements can qualify as admissions). Def.'s Resp. at 27-31; see also id. at 37. But Defendant failed to respond to Plaintiffs' showing that Ms. Snyder's testimony that local officials "indicated to [her] that since the Corps' process was languishing and could result in substantial changes, they thought it would be better simply to wait until the Corps finished its review before they moved on their own process," PE 78 at 95556 (¶ 25), is admissible for non-hearsay purposes to show the impact on Plaintiffs' decisionmaking. (Moreover, this is not a material issue in light of the impact of reconfiguration.) The same analysis defeats Defendant's second hearsay challenge to Ms. Snyder's statement about what she understood from Mr. Barrows about the project's permittability, PE 78 at 949 (¶ 4), and, in any event, Mr. Barrows independently testified to his conclusion, based on Corps statements, that the landfill could secure its Corps permit. PE 80 at 1106-07 (¶¶ 3-7).21 Second, Defendant repeats its attack on Plaintiffs' declarations as biased, self-serving, and lacking in objective support. See, e.g., Def.'s Resp. at 28, 31-32, 34-35. These attacks are improper and no additional corroboration is required. See supra Section II.A. Tellingly, Defendant provides no contrary evidence even when such evidence, if it existed, would be entirely within Defendant's control. For example, Plaintiffs presented admissible evidence that Mr. Hartley of the Corps told Plaintiffs no federal EIS would be required and the Corps later reversed this position, requiring a federal EIS (which it did not even complete) late in the permitting process, causing additional delay. Pls.' 2d Supp. at 24-25 (citing PE 79 at 1001-02 (¶¶ 7-8); PE 78 at 950, 954 (¶¶ 7, 20)). Even though Ms. McNeill's declaration is sufficient standing alone, Defendant absurdly criticizes Plaintiffs for failing to develop additional testimony from Mr. Hartley. Def.'s Resp. at 34-35. Defendant had over six years to obtain a

Thus, Defendant's simplistic assertion that the Corps was not responsible for reconfiguration because it was Mr. Barrows who told Plaintiffs to reconfigure, Def.'s Resp. at 38, misses the point. Defendant does not dispute Mr. Barrows' testimony that his conclusions were based on Corps officials' statements regarding their concerns with the facility configuration. 17

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contrary declaration from its own employee. Its failure to offer such evidence corroborates Ms. McNeill's testimony. It was also corroborated by Mr. Goode's testimony that Corps policy at the time was that no EIS was required if wetland impacts were mitigated. PE 175 at 2353 (§ 8.1). The testimony of Ms. McNeill, Ms. Snyder, Mr. Barrows, and Mr. Goode is undisputed. ii. Defendant Again Responds with Unsupported Arguments by Counsel Instead of Admissible Evidence.

Defendant persists in relying on unsupported attorney argument. In showing it suffered significant economic impact under Penn Central, Plaintiffs included a detailed evidentiary demonstration that the property lacked any viable economic use other than as a landfill and described Defendant's failure to offer any admissible evidence demonstrating any alternative viable economic use. Pls.' Mem. at 30-38, 44-47; Pls.' Resp. at 32-38, 60-63; Pls.' Reply at 1620. Plaintiffs again highlighted this issue in their last brief. Pls.' 2d Supp. at 18. Defendant has utterly failed to present any evidence on this issue. Instead, it responded with bald assertions that "[c]learly, the use of this property as a landfill was only one of the economically viable uses available to the landowner," Def.'s Resp. at 23, with no citation to any evidence whatsoever.22 Repetition of unsupported argument does not raise a genuine issue of fact. Plaintiffs likewise showed that they appealed the 1993 Superior Court decision only because they were stalled in the Corps' process and that the critical decision factor was whether the appeal would cause additional delay. Pls.' 2d Supp. at 22-23. They also showed that, but for the Corps, Plaintiffs' decision would have been the opposite, and specifically noted that Defendant had provided no evidence to contradict Ms. McNeill's testimony. Id. at 23, 27. Defendant again responded with unsupported attorney argument. It first attacked Ms. McNeill's testimony as "self-serving," Def.'s Resp. at 31, 28, but as described such attacks

See also id. at 22 (stating without authority that "[w]hen, as is true here, economically viable uses of the property continued to exist") (emphasis added); id. at 23 (stating without authority that "here there can be no serious question that . . . Plaintiffs were never denied all economically viable use of their property"). 18

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are insufficient. It then complained that Ms. McNeill's testimony was "not supported by objective record evidence." Id. at 32. But, as discussed, Plaintiffs need not provide additional evidence when Ms. McNeill's testimony addresses a factual matter within her personal knowledge. It next repeated its generalized assertion that Ms. McNeill's testimony is "belied" by Plaintiffs' "litigation strategy," id. at 32, but it tellingly omitted reference to the purported "examples" on which it previously relied. This is not surprising because Plaintiffs described in detail why Defendant's "litigation strategy" argument lacked merit and showed that each example failed to support Defendant's position. Pls.' 2d Supp. at 31. Thus, Defendant's "litigation strategy" argument is just that: argument by counsel unsupported by evidence. Defendant next complains that it is "at a loss" as to how it could be expected to rebut Ms. McNeill's testimony, Def.'s Resp. at 32, but, as discussed above, it never attempted to depose her regarding her declaration (or anyone else regarding this issue) even though discovery was still open. Defendant's conclusion that "[t]he facts are clear and undisputed that the Corps had nothing to do with Plaintiffs' decision to appeal the Superior Court decision," id. at 33, is simply attorney argument contradicted by direct contrary evidence. Plaintiffs likewise demonstrated when the landfill would have opened but for the Corps, including testimony showing that they would have received their Solid Waste Permit in early 1993. Pls.' 2d Supp. at 21-23 & n.20. Defendant does not respond nor does it dispute that Plaintiffs need only prove that their "but for" economic impact is more probably true than not. It merely refers to the date Plaintiffs actually received that permit without addressing the fact that this was delayed by the Corps, and concludes that "[i]t follows that, based on [the Solid Waste Permit] alone, Plaintiffs [sic] assertion that they would have been ready to proceed with their project in January of 1994 but for the intervention of the Corps is not reasonable." Def.'s Resp. at 34. This too is mere attorney argument unsupported by record evidence. Finally, Defendant devotes a section of its brief to the argument that "Plaintiffs are also mistaken in their assertion that their project was delayed by the Auburn racetrack application," id. at 38, attempting to meet Colonel Wynn's admission that he shifted resources from Plaintiffs' 19

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application to the Auburn racetrack. DSJ Ex. 100 at 851. But Defendant cites testimony from two Corps employees who simply do not recall being told to give priority to the Auburn racetrack application. Def.'s Resp. at 38. Thus, Defendant's assertion that Colonel Wynn's testimony "has been met and is therefore disputed" id., is also unsupported attorney argument. iii. Defendant Does Not Dispute That It Mischaracterized the Evidence and That the Evidence Does Not Support Its Position, but Then Repeats These Errors with Different Evidence.

Plaintiffs devoted an entire section of their last brief to demonstrating Defendant's misstatements and mischaracterizations of the evidence. Pls.' 2d Supp. at 30-34.23 Tellingly, Defendant neither responded to Plaintiffs' arguments nor continued to rely on the evidence, a virtual admission that, in fact, that evidence does not support its position. Ironically, Defendant repeats the same pattern in its most recent brief. Plaintiffs previously explained the Corps' responsibility for the project reconfiguration because the Corps made it clear that Plaintiffs only chance of obtaining a permit was to reconfigure to address Corps "concerns." Pls.' 2d Supp. at 22; Pls.' Supp. at 20-23.24 When Defendant attempted to blame reconfiguration on state and local agencies, Def.'s Supp. at 22-23, Plaintiffs showed that

For example, as to the delay issue, Plaintiffs showed that Defendant (1) omitted critical testimony from its citation to Bill Leonard's deposition, which indicated that the time he spent was related to the 401 certification process and that there was a long hiatus in his work due to the Corps' delay on wetland delineation; (2) mischaracterized Maria Peeler's testimony; (3) misrepresented DSJ Exs. 82-85, which in reality provided no support for Defendant's contention that state and local agencies would have required reconfiguration in the absence of the Corps; and (4) attempted to make the state and local process seem more time consuming by referencing events that had no impact on the facility opening. Id. Plaintiffs likewise demonstrated that, contrary to Defendant's assertion, Ms. McNeill's declaration was not inaccurate in her description of the time the Corps delayed Plaintiffs and kept Plaintiffs in "limbo." Id. at 33-34. Defendant tries to avoid this responsibility by arguing that one of the letters on which Plaintiffs rely does not show that the Corps forced reconfiguration, Def.'s Resp. at 36-37, but it does not respond to Plaintiffs' analysis of the previous letters, which show the pressure the Corps put on Plaintiffs to reconfigure ("strongly encourage") and provide the context for the last letter, Pls.' 2d Supp. at 22. 20
24

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none of the exhibits upon which Defendant relied (DSJ Exs. 82-85) supported their position, Pls.' 2d Supp. at 31-32. In its most recent brief, Defendant repeats is assertion that "[t]hese nonfederal agencies strongly encouraged plaintiffs' reconfiguration, and Plaintiffs offer no evidence that without reconfiguration Plaintiffs would have received their necessary non-federal permits," Def.'s Resp. at 36, this time relying on different exhibits, DSJ Exs. 10, 106, [sic 93], 15, and 16. Even if these exhibits supported Defendant, it would be irrelevant to the material issues,25 but this second round of exhibits does not support Defendant's statement that state and local agencies "strongly encouraged" reconfiguration. None of these exhibits even address reconfiguration and all are from years before the reconfiguration. Exhibit 93 is a 1990 Washington State Department of Ecology memorandum that addresses whether certain variance procedures should be used in connection with permitting the facility. DSJ Ex. 93 at 810-11. Exhibits 106 and 10 are comments on the draft state EIS from 1990. DSJ Exs. 106, 10. Defendant states, citing paragraph 6 of Exhibit 106, that Ecology "noted several concerns including what it perceived as inadequate compensatory mitigation ratios; Ecology wanted `alternatives for moving the [landfill] to lower value wetlands,'" Def.'s Resp. at 36, leaving the impression that Ecology was requesting reconfiguration. However, the Exhibit says nothing of the sort. The paragraph reads, in full: The EIS should address additional alternatives or mitigation measures (refer to WAC 197-11-768). Attached is a suggested model wetlands protection ordinance which we have provided to cities and counties. It contains compensatory mitigation ratios and other elements which should be considered. The need for monitoring, contingency plans and site protection should also be recognized. There appear to be several alternatives on the site for moving the footprint to lower value wetlands. Adequate buffer zones should be addressed as well. DSJ Ex. 106 at 934 (¶ 6). Clearly, Ecology was simply discussing the issues to be addressed in the final state EIS. Exhibit 10, a comment from the Washington State Department of Wildlife, As discussed above, Defendant does not dispute that the environmental analysis from the original state EIS was never appealed, and it approved the landfill's original configuration. Thus, as Plaintiffs stated previously, none of the state and local agencies that Defendant references could have required reconfiguration. Pls.' 2d Supp. at 29. 21
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addresses the agency's concerns over the wetland "mitigation" included in the draft EIS (a different issue than reconfiguration, as Plaintiffs have previously explained, Pls.' 2d Supp. at 3233), and stated that "the proposed relocation and rehabilitation of South creek is not a mitigating factor." DSJ Ex. 10 at 326 (emphasis added). (Of course, because these agencies were prov