Banks v. United States ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN H. BANKS, MARY BANKS, ELIZABETH S.
ERRANT TRUST, EUGENE J. FRETT,
INDIVIDUALLY AND AS TRUSTEE OF THE
VICTOR J. HORVATH AND FRANCES B.
HORVATH TRUST DATED NOVEMBER 1995,
CHERIE R. OKONSKI, CRAIG D. OKONSKI,
ANDREW G. BODNAR, CHRISTINE M. ZAHL-
BODNAR, EHRET MICHIGAN TRUST,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Cross-Appellant
______________________
2016-2305, 2016-2326
______________________
Appeals from the United States Court of Federal
Claims in Nos. 1:00-cv-00365-PEC, 1:00-cv-00379-PEC,
1:00-cv-00380-PEC, 1:00-cv-00381-PEC, 1:00-cv-00382-
PEC, 1:00-cv-00383-PEC, 1:00-cv-00384-PEC, 1:00-cv-
00385-PEC, 1:00-cv-00386-PEC, 1:00-cv-00387-PEC, 1:00-
cv-00388-PEC, 1:00-cv-00389-PEC, 1:00-cv-00390-PEC,
1:00-cv-00391-PEC, 1:00-cv-00392-PEC, 1:00-cv-00393-
PEC, 1:00-cv-00394-PEC, 1:00-cv-00395-PEC, 1:00-cv-
00396-PEC, 1:00-cv-00398-PEC, 1:00-cv-00399-PEC, 1:00-
cv-00400-PEC, 1:00-cv-00401-PEC, 1:05-cv-01353-PEC,
1:05-cv-01381-PEC, 1:06-cv-00072-PEC, 1:99-cv-04451-
2 BANKS v. UNITED STATES
PEC, 1:99-cv-04452-PEC, 1:99-cv-04453-PEC, 1:99-cv-
04454-PEC, 1:99-cv-04455-PEC, 1:99-cv-04456-PEC, 1:99-
cv-04457-PEC, 1:99-cv-04458-PEC, 1:99-cv-04459-PEC,
1:99-cv-44510-PEC, 1:99-cv-44511-PEC, 1:99-cv-44512-
PEC, Judge Patricia E. Campbell-Smith.
______________________
Decided: December 29, 2017
______________________
MARK ENGLUND CHRISTENSEN, Christensen and
Ehret, LLP, Chicago, IL, argued for plaintiffs-appellants.
Also represented by JOHN BRODERICK EHRET, Olympia
Fields, IL; EUGENE J. FRETT, Sperling & Slater, P.C.,
Chicago, IL.
JOHN LUTHER SMELTZER, Environment and Natural
Resources Division, United States Department of Justice,
Washington, DC, argued for defendant-cross-appellant.
Also represented by JEFFREY H. WOOD, ELIZABETH ANN
PETERSON; TERRY M. PETRIE, Denver, CO.
______________________
Before REYNA, WALLACH, and STOLL, Circuit Judges.
WALLACH, Circuit Judge.
This case returns to us for the third time. It arises
from the alleged physical taking by the U.S. Army Corps
of Engineers (“Corps”) of certain parts of shoreline on
Lake Michigan owned by thirty-seven property owners
(collectively, “Banks” or “Appellants”). See Banks v.
United States (Liability Op.), 78 Fed. Cl. 603, 604–05
(2007). The parties both appeal the U.S. Court of Federal
Claims’ findings with respect to the Corps’ liability for a
physical taking based on erosion of the shoreline and the
award of damages. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(3) (2012). We vacate and remand.
BANKS v. UNITED STATES 3
BACKGROUND 1
The Corps began constructing jetties on Lake Michi-
gan in the 1830s and completed construction with the
installation of steel sheet piling encasements, which
occurred from 1950 to 1989. Banks v. United States
(Banks IV), 741 F.3d 1268, 1272 (Fed. Cir. 2014). These
jetties interrupt the natural littoral drift by blocking the
flow of sand and sediment to the St. Joseph Harbor from
areas north of the Banks’s properties and thereby cause
erosion. Id. 2
As relevant here, Banks sued the United States (“the
Government”) in the Court of Federal Claims, alleging a
Fifth Amendment taking. J.A. 33; see Liability Op., 78
Fed. Cl. at 604–05. In 2003, we reversed the Court of
Federal Claims’ finding that Appellants lacked jurisdic-
tion. Banks v. United States (Banks II), 314 F.3d 1304,
1310 (Fed. Cir. 2003). In 2011, the Court of Federal
Claims again found that it did not have jurisdiction to
adjudicate the case based on purportedly newly-submitted
evidence but added that, “[f]or purposes of judicial effi-
1 The facts and procedural history of this case are
extensive, involving twenty reported opinions by the
Court of Federal Claims and two prior opinions by this
court. The majority of these preceding decisions are not
relevant to this appeal. A more extensive recitation of the
facts underlying these appeals may be found in Liability
Op., 78 Fed. Cl. at 604–14. We provide only a brief sum-
mary of the relevant, undisputed facts and procedural
history necessary to resolve this appeal. We address the
disputed factual findings below. For ease of reference, we
adopt the naming conventions utilized by the Court of
Federal Claims and the parties.
2 Banks’s properties cover a 4.5 mile stretch of
beach south of the harbor jetties. See Banks IV, 741 F.3d
at 1272.
4 BANKS v. UNITED STATES
ciency, if the reviewing court in any appeal should disa-
gree with the court’s view of its jurisdiction, . . . the court
also presents here its finding from the trial . . . in the
alternative” regarding liability and damages. Banks v.
United States (Banks III), 102 Fed. Cl. 115, 120 (2011).
We reversed the Court of Federal Claims’ finding that it
had no jurisdiction for a second time in Banks IV, stating
that
[t]he Court of Federal Claims’ alternative merits
discussion is not a final and appealable decision
over which this court has jurisdiction. On re-
mand, the Court of Federal Claims may reconsid-
er any merits rulings that were rendered at a time
it mistakenly believed it lacked jurisdiction. In
light of the Court of Federal Claims’ clearly erro-
neous fact finding on claim accrual, it is appropri-
ate that there be no law-of-the-case or comparable
obstacle preventing it from reconsidering its earli-
er, related findings on the merits.
741 F.3d at 1283. On remand, the Court of Federal
Claims determined that our mandate in Banks IV did not
“require revisiting” any of its previously-made findings on
liability and damages and, thus, “enter[ed] the liability
and damages findings that were presented ‘in the alterna-
tive’ by the court in Banks III.” Banks v. United States,
No. 99-4451L, 2015 WL 4939954, at *3 (Fed. Cl. Aug. 18,
2015) (capitalization modified). Those “alternative”
merits findings included findings that: (1) the shoreline
at issue for all properties except one sat on a sandy lake
bed, not a cohesive lake bed, 3 Banks III, 102 Fed. Cl. at
3 As we explained in Banks IV,
The composition of the lakebed is relevant be-
cause the composition affects erosion and mitiga-
tion processes. A sandy lakebed is made up of
BANKS v. UNITED STATES 5
180; (2) Appellants were entitled to damages for the
Corps’ failure to mitigate 30% of the erosion of shoreline
above Lake Michigan’s high-water mark 4 from the time
individual Appellants owned the lakeshore properties (no
materials that are loosely deposited, or easily dis-
persed. Thus, . . . as long as the sand supply
south of the harbor is restored to the pre-harbor
levels, then we can assume directly that the ero-
sion will remain the same as pre-harbor levels, all
other things aside. Conversely, in a cohesive
lakebed, the materials are bound together and are
not freely mobile. Cohesive shores are thus more
complicated because the sand acts to abrade, sort
of like sandpaper, the till. . . . Stated simply, if a
shoreline is sandy, mitigation will be more suc-
cessful than if the shoreline is cohesive.
741 F.3d at 1273 n.2 (internal quotation marks and
citations omitted); see Banks III, 102 Fed. Cl. at 151 (“The
composition of the shoreline is significant in this case
because it indicates how the shoreline will erode, whether
any erosion is permanent[,] and whether it is possible to
mitigate any ongoing erosion.” (citation omitted)).
4 Erosion above the high-water mark at the time of
construction of the Corps’ encumbrance (here, the jetties)
is the relevant scope of erosion for purposes of damages in
physical takings cases. See Owen v. United States, 851
F.2d 1404, 1412 (Fed. Cir. 1988) (holding that the Gov-
ernment’s “navigational servitude does not provide a
blanket exception to the Takings Clause of the Fifth
Amendment where improvements to navigation made by
the [G]overnment result in erosion to land located above
or outside . . . the high-water mark at the time of con-
struction”); Liability Op., 78 Fed. Cl. at 606, 656.
6 BANKS v. UNITED STATES
earlier than 1950) until 1970, 5 id. at 123 (citing Liability
Op., 78 Fed. Cl. at 656); (3) Banks had shown no damages
for the erosion caused up to 1970, id. at 189−208; (4) the
Corps successfully mitigated all of the erosion caused
between 1970 and 2009, id. at 189; and (5) although
Banks would be entitled to 30% of all reasonably foresee-
able future loss due to erosion not mitigated by the Corps,
id. at 212, Banks had failed to carry the burden of proof to
establish entitlement to just compensation for any rea-
sonably foreseeable erosion, id. at 215. In Banks III, the
Court of Federal Claims specifically did not calculate
damages to which Banks would be entitled for shoreline
protection measures implemented between 1950 and 1970
“[b]ecause these references are scattered across several
thousand pages of trial testimony and documentary
evidence.” Id. at 212. Instead, it ordered the parties to
file a joint stipulation as to shoreline protection measures
during this period, see Banks, 2015 WL 4939954, at *3−4,
and, in accordance with the Joint Stipulation, awarded a
total of $1,956.27 in damages (plus pre-judgment interest)
in May 2016, see J.A. 1−6 (orders following submission of
Joint Stipulation), 9067−70 (Joint Stipulation).
Banks appeals the Court of Federal Claims’ entry of
its alternative merits determinations and underlying
5 Some of the erosion was caused by natural forces.
It was undisputed at trial that, for the period prior to
1970, some erosion was attributable to the Corps, and the
amount that was attributable to the Corps went unmiti-
gated. See Liability Op., 78 Fed. Cl. at 656. Although
Banks contested the start date of the Corps’ mitigation
below, see, e.g., id. at 654−55, Banks does not appear to
challenge this date on appeal, see, e.g., Appellants’ Br. 49
(“Indeed, the purported ‘mitigation’ program did not even
begin until 1970 . . . .”). Accordingly, we treat 1970 to be
the start date for the Government’s mitigation efforts.
BANKS v. UNITED STATES 7
reasoning with respect to the same. See Appellants’ Br.
34−70. The Government cross-appeals solely to preserve
the issue of whether jurisdiction was properly found in
Banks IV for a possible petition for rehearing en banc or
for writ of certiorari. See Cross-Appellant’s Br. 2. 6
DISCUSSION
I. Standards of Review
We review the Court of Federal Claims’ legal conclu-
sions de novo and its factual findings for clear error. See
John R. Sand & Gravel Co. v. United States, 457 F.3d
1345, 1353 (Fed. Cir. 2006). We consider de novo the
scope of our mandate and whether it was violated. Car-
diac Pacemakers, Inc. v. St. Jude Med., Inc., 576 F.3d
1348, 1355 (Fed. Cir. 2009). “A finding may be held
clearly erroneous when the appellate court is left with a
definite and firm conviction that a mistake has been
6 We need not address the Government’s cross-
appeal. The Government acknowledges that “[t]his
[c]ourt’s rulings in Banks II . . . and Banks
IV . . . constitute law of the case on the issue of the statute
of limitations and the C[ourt of Federal Claims’] jurisdic-
tion over [Banks]’s [c]laims” but “reserves the right . . . to
raise those defenses in a possible later petition.” Cross-
Appellant’s Br. 34. However, “[i]t is only necessary and
appropriate to file a cross-appeal when a party seeks to
enlarge its own rights under the judgment or to lessen the
rights of its adversary.” Bailey v. Dart Container Corp.,
292 F.3d 1360, 1362 (Fed. Cir. 2002) (citation omitted).
Because the Government concedes its arguments on the
statute of limitations and jurisdiction are foreclosed in the
current appeal, “allowing a cross-appeal to proceed in the
circumstances of the present case is not permitted and
unnecessarily expands the amount of briefing that is
otherwise allowed.” Id.
8 BANKS v. UNITED STATES
committed.” Ind. Mich. Power Co. v. United States, 422
F.3d 1369, 1373 (Fed. Cir. 2005) (internal quotation
marks, ellipses, and citation omitted).
When reviewing damages awards by the Court of
Federal Claims, “[d]ifferent standards of review are
applicable to different aspects of a damages award. This
court has held that the amount of a prevailing party’s
damages is a finding of fact. Thus, where the amount is
fixed by the court, review is in accordance with the clearly
erroneous standard.” Home Savs. of Am., FSB v. United
States, 399 F.3d 1341, 1346 (Fed. Cir. 2005) (internal
quotation marks, ellipsis, and citation omitted). “Howev-
er, certain subsidiary decisions underlying a damage
theory are discretionary with the court. Such decisions
are, of course, reviewed under the abuse of discretion
standard.” Id. (internal quotation marks, ellipsis, and
citation omitted). “[T]he clear error standard gov-
erns . . . findings about the general type of damages to be
awarded . . . , their appropriateness . . . , and rates used to
calculate them. The abuse of discretion standard applies
to decisions about methodology for calculating rates and
amounts.” Id. (citation omitted).
II. Legal Standard
The Takings Clause of the Fifth Amendment grants
individuals the right to “just compensation” for a taking of
private property. U.S. Const. amend. V. Property owners
are entitled to compensation from the Government under
the Fifth Amendment for physical takings when they
show (1) the asserted taking “was the predictable result of
the [G]overnment action” because it was “the direct or
necessary result” of the act or was “within contemplation
of or reasonably to be anticipated by the [G]overnment,”
and (2) “the [G]overnment’s interference with any proper-
ty rights of [the property owner] was substantial and
frequent enough to rise to the level of a taking,” in other
words, that the interference was “inevitably recurring.”
BANKS v. UNITED STATES 9
Vaizburd v. United States, 384 F.3d 1278, 1282−83 (Fed.
Cir. 2004) (internal quotation marks and citations omit-
ted).
It is undisputed that the Government is liable for a
taking of Banks’s properties between 1950 and 1970; the
parties only dispute whether the Government has fully
mitigated whatever amount of damage it caused from the
period of 1970 to the present. See Appellants’ Br. 3 (“A
taking has clearly arisen from the construction of the
jetties. What is at issue is the nature and extent of the
injury.”); Cross-Appellant’s Br. 3 (“The [Corps] . . . has
long acknowledged that the [jetties] interrupt the net
southerly drift of sands that otherwise would fortify
downdrift shorelines. Since 1970, the Corps has conduct-
ed beach nourishment to replace sand transport inter-
rupted by the jetties.” (citations omitted)); see also
Liability Op., 78 Fed. Cl. at 616 (“Erosion of property due
to [G]overnment action is one example of physical injury
that rises to the level of a taking. . . . The parties do not
dispute that St. Joseph Harbor causes erosion and that
erosion has occurred in the area of [Banks’s] zone. The
disputed issue in this case, therefore, is whether the
[G]overnment’s actions effectively offset the effects of St.
Joseph Harbor on [Banks’s] zone such that the erosion in
[Banks’s] zone is not attributable to the [G]overnment.”
(citations omitted)). Thus, the issues on appeal relate to
any amount of compensation to be awarded.
III. Liability and Damages
A. The Court of Federal Claims Violated the Spirit of the
Mandate
Banks first argues that the Court of Federal Claims
erred by entering its alternative merits findings because
our mandate in Banks IV, following our claim accrual
holding, “necessarily addressed the merits of the perma-
nence and mitigation issues,” and thereby foreclosed
further findings by the Court of Federal Claims on those
10 BANKS v. UNITED STATES
issues. Appellants’ Br. 36; see id. at 34−39. “After our
mandate issues, the mandate rule forecloses reconsidera-
tion of issues implicitly or explicitly decided on ap-
peal. . . . [B]oth the letter and the spirit of the court’s
mandate must be considered.” TecSec, Inc. v. Int’l Bus.
Machs. Corp., 731 F.3d 1336, 1341−42 (Fed. Cir. 2013)
(internal quotation marks and citations omitted). While
we disagree with aspects of Banks’s characterization of
the mandate, we agree that the Court of Federal Claims
violated the spirit of the mandate for the reasons ex-
plained below.
In Banks IV, we stated that “[t]he Court of Federal
Claims’ alternative merits discussion is not a final and
appealable decision over which this court has jurisdic-
tion.” 741 F.3d at 1283. In Banks II, we similarly cab-
ined our holding to whether Appellants met “their
jurisdictional burden . . . on the basis of justifiable uncer-
tainty of the permanence of the taking caused by the
actual mitigation efforts of the Corps.” 314 F.3d at 1310;
see id. (citing to McNutt v. Gen. Motors Acceptance Corp.,
298 U.S. 178, 189 (1936) (stating that parties must estab-
lish “jurisdictional facts . . . by a preponderance of the
evidence” (emphasis added))). We found that Appellants’
claims had not accrued until the Corps issued several
reports in 1996, 1997, and 1999 (collectively, “the Re-
ports”) finding that “erosion was permanent[7] and irre-
versible,” 314 F.3d at 1310, which put Appellants
sufficiently on notice that “the permanent nature of the
taking is evident,” id. at 1309 (quoting Boling v. United
7 Recognizing that the Supreme Court has rejected
“the argument that [G]overnment action must be perma-
nent to qualify as a taking,” Ark. Game & Fish Comm’n v.
United States, 568 U.S. 23, 33 (2012), we express no views
on the use of the term “permanent” in claim accrual as
applied to temporary takings claims.
BANKS v. UNITED STATES 11
States, 220 F.3d 1365, 1372 (Fed. Cir. 2000) (internal
quotation marks omitted)); see Banks IV, 741 F.3d at 1282
(“As found by this court in Banks II, Appellants could not
reasonably have known the damage was ‘permanent’ until
the Corps issued [the] Reports showing that its mitigation
efforts could not reverse the damage caused by its jetties.”
(citation omitted)). 8 We reviewed a jurisdictional issue
and expressly invited the Court of Federal Claims to
“reconsider any merits rulings” it had previously made,
8 Under the “stabilization” doctrine, a takings claim
for a gradual physical taking accrues “once it is clear that
the process has resulted in a permanent taking and the
extent of the damage is reasonably foreseeable.” Boling,
220 F.3d at 1371; see Dickinson v. United States, 331 U.S.
745, 749 (1947) (stating that the law may treat gradual
physical takings as claims that have not accrued until
they have “stabilized,” such that “the consequences of [the
taking] have so manifested themselves that a final ac-
count may be struck”). Pursuant to this doctrine, Gov-
ernment actions may defer when the statute begins to run
by casting “justifiabl[e] uncertain[ty]” into plaintiffs’
understanding of the permanency of the alleged taking.
Applegate v. United States, 25 F.3d 1579, 1583 (Fed. Cir.
1994). Thus, it is not the contents of the Reports that
stabilized Banks’s claim; it is the Corps’ changed under-
standing of the erosion and signaling to Banks that no
further mitigation efforts would be attempted. Cf. Ark.
Game & Fish, 568 U.S. at 33 (“Once the [G]overnment’s
actions have worked a taking of property, no subsequent
action by the [G]overnment can relieve it of the duty to
provide compensation for the period during which the
taking was effective.” (internal quotation marks and
citation omitted)); Applegate, 25 F.3d at 1581 (referring to
the stabilization doctrine as a means for freeing litigants
from bringing claims “premature[ly]” or in a “piecemeal”
fashion).
12 BANKS v. UNITED STATES
Banks IV, 741 F.3d at 1283; thus, we acknowledged that
the mandate did not foreclose re-consideration of any
findings related to merits or damages, see McDonnell
Douglas Corp. v. United States, 323 F.3d 1006, 1013−14
(Fed. Cir. 2003) (finding that the Court of Federal Claims
improperly interpreted our mandate as deciding a merits
question where “[o]ur ruling had a limited scope, and we
emphasized that point by refusing to address the mer-
its”). 9
9 Our holding that our mandate did not include a
finding on the amount of the Government’s liability and
damage caused comports with the distinction between
jurisdictional and merits determinations in takings cases.
To determine when a takings claim accrued and the
statute of limitations began to run, we first must deter-
mine “when all the events which fix the [G]overnment’s
alleged liability have occurred and the plaintiff was or
should have been aware of their existence.” Hopland
Band of Pomo Indians v. United States, 855 F.2d 1573,
1577 (Fed. Cir. 1988). Having satisfied ourselves of
jurisdiction, we then remand for an analysis of whether
the elements of a takings claim and damages have been
met, see, e.g., N.W. La. Fish & Game Preserve Comm’n v.
United States, 79 Fed. Cl. 400, 404−12 (2007) (undertak-
ing de novo takings analysis following remand on jurisdic-
tion); see also Fisher v. United States, 402 F.3d 1167, 1173
(Fed. Cir. 2005) (en banc in relevant part) (holding that
the determination that a statute allows for Tucker Act
jurisdiction and “on its merits” provides a money-
mandating remedy must be a single analysis but “wheth-
er the facts of the case support a remedy, of course[,]
remains as a separate question”); United States v. Dickin-
son, 152 F.2d 865, 867–68 (4th Cir. 1946) (evaluating
jurisdiction and merits separately to see whether certain
flooding events, “if found to exist,” constitute takings),
BANKS v. UNITED STATES 13
Although the Court of Federal Claims did not violate
the scope of the mandate in the manner Banks argues, it
violated the mandate’s spirit by ignoring our express
warning that its alternative merits findings would not
withstand appellate scrutiny. See Pacific Gas & Elec. Co.
v. United States, 668 F.3d 1346, 1352 (Fed. Cir. 2012)
(holding the spirit of the mandate must allow a trial court
to reconsider certain findings because “[t]o hold otherwise
would run the risk of not properly allowing for reconsid-
eration of the mitigation damages sought . . . and [appel-
lant] would not be made whole”). We explicitly stated
that, “[i]n light of the Court of Federal Claims’ clearly
erroneous fact finding on claim accrual, it is appropriate
that there be no law-of-the-case or comparable obstacle
preventing it from reconsidering its earlier, related find-
ings on the merits.” Banks IV, 741 F.3d at 1283 (empha-
ses added). Nevertheless, the Court of Federal Claims
ignored this statement and found that it was “bound by
the mandate, and by its own prior findings,” to adopt in
toto these “clearly erroneous” alternative merits findings
from Banks III without further consideration. Banks,
2015 WL 4939954, at *3 (internal quotation marks and
citation omitted); see Banks v. United States, 120 Fed. Cl.
29, 40 (2015) (“[F]urther proceedings by this court on
remand must be narrowly tailored . . . . Counter to [Ap-
pellants]’ arguments, the Federal Circuit did not direct
the court to engage in an unrestricted effort to reconsider
all of the merits findings presented in the alternative in
Banks III . . . .”). The Court of Federal Claims incorrectly
interpreted our holding in Banks IV as “advi[c]e that such
reconsideration is limited to only the factual findings that
were premised on evidence that was considered purely to
aff’d, 331 U.S. 745 (1947). In other words, as we have
stated, “the question of damages is discrete from the
question of claim accrual.” Goodrich v. United States, 434
F.3d 1329, 1336 (Fed. Cir. 2006).
14 BANKS v. UNITED STATES
support the court’s erroneous determination that it lacked
jurisdiction in Banks III.” Id. We said no such thing.
The Court of Federal Claims’ misunderstanding led it to
erroneously deny Appellants’ requests to present new
evidence following remand, inhibiting its ability to carry
out the very task we had explicitly assigned to the court:
a reconsideration of its earlier merits findings. See id. at
40−41. As explained below, certain of the Court of Feder-
al Claims’ alternative merits findings are clearly errone-
ous, and we remand to the Court of Federal Claims for a
third time.
Moreover, contrary to the Court of Federal Claims’ al-
ternative merits findings, see Banks III, 102 Fed. Cl. at
191 n.113, the Reports are highly instructive on the issues
of merits and damages. Here, the Government’s admis-
sions are entitled to great weight in the merits analysis
because: the evidence submitted for purposes of claim
accrual shows Government statements strongly support-
ing findings in favor of permanent, irreversible damage to
Banks’s properties as a result of the taking, see infra
Section III.B.1 (reviewing findings of the Reports); J.A.
5423−521, 5633−41, and we have found such evidence
persuasive in our jurisdictional review because it removes
“uncertainty” that previously existed with respect to the
Government’s position on the success of its mitigation
efforts, Applegate, 25 F.3d at 1583. The date of stabiliza-
tion marks the time from which the “account may be
struck,” Dickinson, 331 U.S. at 749, so we follow the
instruction that expert testimony “in conflict with con-
temporaneous documents” from the time of the alleged
harm, here, 2000, deserves “little weight, particularly
when the crucial issues involve mixed questions of law
and fact.” United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948); see Cucuras v. Sec’y of Dep’t of Health &
Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993)
(citing Gypsum, 333 U.S. at 395). The contemporaneous
documentary evidence here, the Reports, continues a
BANKS v. UNITED STATES 15
decades-long understanding of the Government as to its
liability and the need for mitigation efforts, see infra
Section III.B.1, as the Government conceded, see Banks
III, 102 Fed. Cl. at 189, and that understanding only has
changed upon the start of litigation with the Govern-
ment’s new expert testimony, cf. St. Bernard Parish Gov’t
v. United States, 126 Fed. Cl. 707, 717−18 (2016) (finding
Government’s expert testimony in a takings case unrelia-
ble when it was “in direct conflict with the Government’s
prior admissions and testimony”). Thus, the expert
testimony considered by the Court of Federal Claims
deserves “little weight” in view of the highly instructive
and contemporaneous Reports. See Gypsum, 333 U.S. at
395.
B. The Court of Federal Claims Clearly Erred in Its
Damages Analysis
1. The Finding of a Sandy Shoreline
The Court of Federal Claims determined that all but
one of Banks’s properties were located on an area of sandy
shoreline, see Banks III, 102 Fed. Cl. at 180, and, there-
fore, the Government successfully mitigated the erosion
with sand replenishment efforts beginning in 1970, id. at
189. In reaching this conclusion, the Court of Federal
Claims acknowledged the Reports indicate the lakeshore
is cohesive and that the Government’s testimony at trial
presented a changing stance on the classification. Liabil-
ity Op., 78 Fed. Cl. at 628 (“There is no dispute that, prior
to this litigation, [the Government] consistently held the
position that the shore in the area south of St. Joseph
Harbor was cohesive.” (citations omitted)); see Banks III,
102 Fed. Cl. at 152 (repeating admission). However, the
Court of Federal Claims found the Government’s evi-
dence, in the form of testimony taken after the Reports
issued, more persuasive because it focused specifically on
Banks’s thirty-seven properties, see Banks III, 102 Fed.
Cl. at 152–53, 169–70, and purportedly demonstrated
16 BANKS v. UNITED STATES
greater understanding of an evolving science of lakeshore
classification, see, e.g., id. at 153, 171−73. Therefore, it
classified the Banks’s properties as having a sandy shore-
line. Id. at 180.
Banks contends these findings are clearly erroneous
because the Court of Federal Claims adopted the testimo-
nial findings of the Corps’ expert, Dr. Robert Nairn, even
though his testimony was “not generally accepted” or
“based on appropriate methodology” and was contradicted
by other facts on record. Appellants’ Br. 45; see id. at
13−19, 39−48. In addition, Banks contends that the
Reports and the testimony of Banks’s expert, Dr. Scudder
Mackey, correctly describe the lakeshore as cohesive, such
that erosion damage attributable to the Government
cannot be mitigated and is irreversible. Id. at 48–51. The
Court of Federal Claims’ adoption of Dr. Nairn’s finding of
a sandy shoreline was clearly erroneous.
“[T]he plaintiff must establish economic impact” in
takings cases. CCA Assocs. v. United States, 667 F.3d
1239, 1245 (Fed. Cir. 2011). As referenced above, see
supra Section III.A, the Reports are entitled to great
weight and sufficiently demonstrate a determination of
cohesiveness, leading to irreversible damage in this case.
First, in the Reports, the Government acknowledged that
it caused erosion south of the jetties and that mitigation
efforts were not working. See J.A. 5434 (restating deter-
mination from a May 1973 report that the jetties were
“trap[ping] approximately 84,000 [cubic meters] of sedi-
ment per year” and finding that, from 1992, “fine sand
ha[d] been a less-than-ideal material for nourishment”
because it did “not fulfill the role of the coarser sediment
which forms a large part of the natural beach closer to
shore”), 5638 (“[P]ast [nourishment] efforts have been
marginal at executing and maintaining a consistent
nourishment plan . . . .”). The shift from nourishment
using fine sand to coarse sand confirms the Government’s
unsuccessful attempts at mitigation. See J.A. 5435
BANKS v. UNITED STATES 17
(demonstrating that only fine sand was used until 1986,
at which point fine and coarse sand each were used at
various times). Moreover, even the changed nourishment
plan was found to “indicate[] that the [coarser sand] was
no more effective . . . in protecting the underlying till from
exposure and downcutting[10]” in the particular sector
studied. J.A. 5515. The Reports further confirmed evi-
dence of downcutting that was noticed in “relatively even
distribution” of nearshore lakebed, J.A. 5493, see
J.A. 5638 (describing broad evidence of downcutting
before mitigation efforts began and after installation of
the jetties for the entirety of the St. Joseph Harbor area),
and that the shore of properties south of the jetties was
classified as cohesive, J.A. 5521 (“[T]he nourishment
requirements for cohesive shores downdrift of harbor
structures . . . are more complicated than the require-
ments for similar situations on sandy shores.”), 5636
(determining that “much, or perhaps most, of the coast-
lines of Lake Michigan” may be classified as cohesive).
This is persuasive evidence that the shoreline south of the
jetties, where Banks’s properties are located, exhibits
cohesive properties such that certain erosion to the prop-
erty is irreversible and may not be mitigated.
Second, as Dr. Nairn conceded, identification of shore-
line composite falls along a spectrum. See Banks III, 102
Fed. Cl. at 164 (crediting Dr. Nairn’s testimony regarding
a “spectrum” of shorelines), 169−172 (further defining the
spectrum). In a 2009 sediment budget report, Dr. Nairn
identifies a cohesive shore as one “having less than 10[%]
10 Downcutting is a process of erosion for cohesive
substrates whereby, “[i]f the sand cover to glacial till is
depleted, the energy of the waves and the shifting of the
sand, which acts as ‘sandpaper,’ can cause the lake bot-
tom to erode and thus lower.” Liability Op., 78 Fed. Cl. at
622 (citation omitted).
18 BANKS v. UNITED STATES
to 30% sand content . . . in the eroding bluff and near-
shore sediment.” 11 J.A. 8270. We find persuasive the
Government’s explanation, as accepted by the Court of
Federal Claims, that lakebeds with cohesive properties
contain some amount of sand and that the percentage
difference of sand in the substratum will affect the prop-
erties of the shoreline. See Banks III, 102 Fed. Cl. at 172.
Contrary to the Court of Federal Claims’ findings, see id.
at 180, Dr. Nairn’s explanation of a spectrum of shoreline
composites is consistent with the Reports, which posit
that “the concept of a sandy coastline may be incorrect”
and that initial studies of Lake Michigan “suggest that
much, or perhaps most, of the coastline . . . consist[s] of an
underlayer of consolidated material (usually clay or till)
covered by a layer of non-consolidated material (usually
sand),” J.A. 5636. Although the Government has at-
tempted to change its arguments following the Reports,
its new theory of classification simply confirms that the
shoreline has cohesive properties that therefore exhibit
irreversible damage due to erosion.
Third, additional evidence supports a finding of at
least some permanent glacial till erosion in Banks’s
properties that cannot be mitigated. Both parties agree
that, even if the lakebed were sandy or predominantly
11 Banks criticizes Dr. Nairn for identifying a pur-
portedly “new category of shoreline, known as ‘predomi-
nantly sandy,’” Appellants’ Br. 43 (citing J.A. 4709), but
then failing to “identify any other experts in his field
[who] define a cohesive shoreline through its percentage
sand content,” id. at 44. Banks is incorrect. In Dr.
Nairn’s 2009 Report, he identifies several other experts in
the field who made similar findings indicating that the
amount of sediment in the substratum compared to the
amount of sand, or other material, is determinative of the
sandy/cohesive classification. See J.A. 8260−67.
BANKS v. UNITED STATES 19
sandy, the portion of the shoreline comprised of cohesive
material would still exhibit permanent damage from
erosion caused, in part, by the Corps’ jetties. See Banks
III, 102 Fed. Cl. at 183 (citing Dr. Nairn’s finding that
“the rate of lakebed downcutting in much of [Banks]’ zone
was lower in the time period after mitigation began”
(emphasis added)); J.A. 6030 (detailing, in Dr. Mackey’s
2009 Report, “irreversible lakebed downcutting” affecting
the lakeshore), 8272 (stating, in Dr. Nairn’s 2009 Report,
that “[p]redominantly sandy and fully sandy shores can
also erode irreversibly—certainly this is the case for much
of the [Banks’s] shore as will be shown”), 8273
(“For . . . predominantly sandy and fully sandy shores to
erode irreversibly . . . . [g]lacial sediment deposits [of the
cohesive substrate] . . . . are exposed to erosional forces of
waves and currents.”). The Court of Federal Claims
agreed that “[t]he record indicates that the shoreline in
[Banks’s] zone is neither pure sand nor pure cohesive
material. Certain areas contain layers of both cohesive
and sandy material.” Banks III, 102 Fed. Cl. at 164.
Accordingly, the Court of Federal Claims’ determination
that the Corps has fully mitigated effects of erosion is
clearly erroneous. Given the presence of cohesive shore-
line and evidence of permanent damage found over a
period of decades, Banks has shown that a portion of the
Government-caused erosion is irreversible throughout the
relevant period and Banks must be compensated for this
damage on remand.
2. The Finding That, If Unmitigated, the Corps Was
Responsible for 30% Liability of Erosion
The Court of Federal Claims accepted as “the law of
this case that, if unmitigated, the jetties are responsible
for 30% of the erosion taking place in [Banks’s] zone.” Id.
at 180 (referring to a finding made in Liability Op., 78
Fed. Cl. at 654−57). Specifically, the Court of Federal
Claims found that the Corps acknowledged that its 1973
report claimed 30% liability for erosion caused by the
20 BANKS v. UNITED STATES
jetties based on a determination that 110,000 of 316,000
cubic yards of sand per year were interrupted in the
southerly littoral drift. See Liability Op., 78 Fed. Cl. at
656. 12
Banks contends this finding is clearly erroneous be-
cause the Government “substantially undercounted the
volume of sand being blocked by the jetties, as well as the
jetties[’] percentage contribution to the erosion in
[Banks’s] zone” and “substantially overcounted the vol-
ume of sand block[ed] by the [Chesapeake and Ohio
Railway Company (‘C&O’)] and [Michigan Department of
Transportation (‘MDOT’)] revetments.” 13 Appellants’ Br.
12 The Court of Federal Claims determined that the
amount of sand found interrupted by the jetties was
directly relevant to the apportionment of erosion attribut-
able to the Corps. See Liability Op., 78 Fed. Cl. at 641
(“This blockage [of 110,000 cubic yards] was considered by
the Corps to be causing 30% of the erosion . . . .”); see also
id. at 636 (“[Banks] acknowledge[s] that the Corps viewed
110,000 cubic yards per year as the total amount of sedi-
ment blocked by the piers . . . and that amount was con-
sidered to be 30% of the total annual loss to the littoral
zone.” (internal quotation marks and citation omitted)).
13 The C&O and MDOT revetments protect certain
rail and highway routes from erosion. See Liability Op.,
78 Fed. Cl. at 651. These revetments were in place prior
to the operable year of mitigation in this case, 1970. Id.
The Corps’ 1973 Report first estimating its 30% attribu-
tion, J.A. 5757, 5768, stated that the percentage would
apply “regardless” of the construction of these revetments,
Liability Op., 78 Fed. Cl. at 652 (citing the 1973 Report);
see 5717−74 (portions of the 1973 Report on record).
Because the volume of sand blocked by the MDOT and
C&O revetments was not part of the 30% liability deter-
mination, the Court of Federal Claims could not have
BANKS v. UNITED STATES 21
47; see id. at 45−51. Neither party has presented evi-
dence on how a liability determination would change if
the shoreline were classified as partially cohesive. See
generally Appellants’ Br.; Cross-Appellant’s Br. On
remand, the Court of Federal Claims shall determine
whether the admission of 30% liability based on sand
deposits should be adjusted based on the new shoreline
classification and, if so, evaluate the Government’s partial
mitigation efforts in light of this new finding.
Moreover, in the Liability Op., the Court of Federal
Claims’ percentage liability determination was based on
an accounting that 110,000 cubic yards of sand per year
were interrupted by the Corps in the southerly littoral
drift. See 78 Fed. Cl. at 656. However, in the mitigation
portion of the opinion, the Court of Federal Claims credit-
ed Dr. Nairn’s 2009 Report estimates and “h[e]ld[] that
the preponderance of the credible evidence establishes
that the piers interrupt net southerly sediment transport
in the area of St. Joseph Harbor at the rate of 50,000
cubic yards per year,” without reconciling its separate
finding of more than double the amount of sand inter-
rupted by the Corps for purposes of liability. Id. at 644.
The Court of Federal Claims must base its mitigation
determination on consistent application of sand dredged
and replaced, to the extent the parties agree that sand
deposits and removal is the relevant means of determin-
ing mitigation for a cohesive shoreline.
Further, the Court of Federal Claims shall review ev-
idence of erosion and mitigation up to the present day.
The Court of Federal Claims adopted the mitigation
analysis it made in Banks III, which found successful
mitigation “between 1970 and the publication of Dr.
Nairn’s [2009 Report].” Banks III, 102 Fed. Cl. at 189; see
“overcounted” the volume of sand blocked by these revet-
ments, as Banks alleges. See Appellants’ Br. 47.
22 BANKS v. UNITED STATES
id. at 182−89 (The Effectiveness of Defendant’s Mitigation
Efforts). The Court of Federal Claims, in an earlier
opinion on damages, explicitly directed future proceedings
to consider evidence through the date of trial. See Banks
v. United States, 88 Fed. Cl. 665, 683 n.13 (2009) (“Be-
cause the trial on damages will occur approximately a
decade after the taking, the court will need to ad-
dress . . . just compensation for property lost between the
date of taking and the date of trial.”). On remand, the
Court of Federal Claims is directed to consider evidence
up to the present day to ensure that no material change to
the Corps’ mitigation efforts has occurred.
3. Damages Findings for Unmitigated Erosion
As stated above, on remand the Court of Federal
Claims shall consider new evidence to make a proper
damages determination. There are several inconsisten-
cies in the Court of Federal Claims’ initial mitigation
analysis that warrant reconsideration. First, the Court of
Federal Claims clearly erred in failing to explain why no
damages were awarded, even though it credited the
testimony of the Government’s expert, Mr. David Bur-
goyne, that five of the forty-one parcels appraised dimin-
ished in value. See Banks III, 102 Fed. Cl. at 201–02.
Although “[trial] courts necessarily must have considera-
ble discretion to select the method of valuation that is
most appropriate in light of the facts of the particular
case,” Seravalli v. United States, 845 F.2d 1571, 1575
(Fed. Cir. 1998), they “must apply that test correctly,”
Yankee Atomic Elec. Co. v. United States, 536 F.3d 1268,
1273 (Fed. Cir. 2008). It does not appear that the Court of
Federal Claims properly applied the methods and market
study employed by Mr. Burgoyne here. Mr. Burgoyne
found that the value of properties owned by the Notre
Dame Path Association, Neuser, Chapman, Jackson, and
Renner plaintiffs diminished in value by $65,000,
$305,000, $35,000, $30,000, and $30,000, respectively.
Banks III, 102 Fed. Cl. at 202. Despite an estimated
BANKS v. UNITED STATES 23
$465,000 in lost property value, it appears that the Court
of Federal Claims awarded no damages for these five
properties. See J.A. 1 (awarding $1,956.27 to other prop-
erty owners); Banks III, 102 Fed. Cl. at 208 (finding Mr.
Burgoyne’s testimony of no adverse reaction to home
values “well-supported and reasonable,” without address-
ing the five properties where diminution in value was
found). On remand, the Court of Federal Claims must
fairly and completely consider appraisals with respect to
these five properties.
Second, the Court of Federal Claims credited Mr.
Burgoyne’s conclusion that “there didn’t appear to be any
adverse reaction in the marketplace” to Banks’s proper-
ties following the taking because “the value of the proper-
ty in [Mr. Burgoyne’s] 1950 appraisal was the same as in
his 2000 appraisal.” Banks III, 102 Fed. Cl. at 201 (inter-
nal quotation marks and citation omitted), 202. We agree
with Banks that Mr. Burgoyne “took no account of actual
lost property” in his 2000 appraisal, since he calculated
price based upon property width or lake frontage rather
than value of total acreage of properties. Appellants’ Br.
53. Mr. Burgoyne claimed that depth of beachfront was
insufficient to change market value because the valuation
of lakefront property is “special.” Banks III, 102 Fed. Cl.
at 203; see J.A. 4441−42 (“Q: And in your opinion, that
change in the depth of the beach had absolutely no effect
on the value of the . . . property?” “A: It still has a beach
and that’s related to the water levels.”), 9059−60 (calcu-
lating “Parcel Width (feet)” but not depth).
It cannot be the case that acres of property are lost to
erosion and the value of that total property is not affected.
The purpose of awarding damages in takings cases is to
restore the owner of private property to “as good a posi-
tion pecuniarily as if his property had not been taken.”
Olson v. United States, 292 U.S. 246, 255 (1934). Proper-
ty lost due to Government-caused erosion manifestly has
some monetary value. See Almota Farmers Elevator &
24 BANKS v. UNITED STATES
Warehouse Co. v. United States, 409 U.S. 470, 478 (1973)
(“The constitutional requirement of just compensation
derives as much content from the basic equitable princi-
ples of fairness, as it does from technical concepts of
property law.” (internal quotation marks and citations
omitted)). The Court of Federal Claims abused its discre-
tion by solely relying upon Mr. Burgoyne’s method that
failed to account for lost acreage. See Home Savs. of Am.,
399 F.3d at 1346. On remand, the Court of Federal
Claims must consider all relevant evidence while follow-
ing the general rules of damages calculations to assess the
value of all land rather than only land containing resi-
dences. See Yankton Sioux Tribe v. United States, 623
F.2d 159, 177 (Ct. Cl. 1980) (declining to depart from
normal rule of valuation without good reason). If the
value of lost property in this case cannot be reasonably
determined based on estimates of surrounding land
values, the Court of Federal Claims “may determine
damages based on the price the [G]overnment has paid for
[erosion] in comparable situations.” Ridge Line, Inc. v.
United States, 346 F.3d 1346, 1359 (Fed. Cir. 2003). 14
14 The Court of Federal Claims properly noted that
the damages calculation would include any reasonable
shoreline protection expenses accrued by Banks from
1950 to 2000. Banks IV, 102 Fed. Cl. at 210−12; see
Banks, 2015 WL 4939954, at *3−4. The parties entered
into the Joint Stipulation with respect to this value cover-
ing the period from 1950 to 1970 and, accordingly, dam-
ages were awarded. J.A. 4–6. This award of damages is
not challenged here, see generally Appellants’ Br.; Cross-
Appellant’s Br., and is not affected by our holding today.
Appellants will also be entitled to damages for shore
protection measures from 1970 to the present based on
the Corps’ percent liability determined on remand. This
additional amount shall be determined from the $2.2
BANKS v. UNITED STATES 25
Finally, for the period of 1950 to 2000, Banks present-
ed evidence below of damages lost to erosion valued at
$19,113,621 based on “hedonic regression [methodology]
testimony to determine the loss of diminution of value
reflected in the appraisal numbers.” Appellants’ Br. 52;
see id. at 55. According to Banks, a hedonic regression
model “looks at the price of a good and tries to determine
how much of that price is due to each of the attributes
that enter into the market pricing.” Id. at 20 (citing J.A.
2020−22). The standard method of proving damages in a
takings case is to determine the value of a property before
and after a taking occurs, see United States v. Va. Elec. &
Power Co., 365 U.S. 624, 632 (1961), which, as the Court
of Federal Claims correctly found, does not comport with
hedonic regression analysis, see Banks III, 102 Fed. Cl. at
196−98 (noting that hedonic regression analysis did not
demonstrate a nexus between the alleged lost apprecia-
tion of property and the physical erosion). On remand,
Banks may submit a new damages estimate. 15 We note
that, irrespective of problems with damages calculations
submitted by both parties, “a judge may award damages,
even if he does not fully credit that party’s methodology.”
Precision Pine & Timber, Inc. v. United States, 596 F.3d
817, 833 (Fed. Cir. 2010). A trial court may even “modify
[a party’s] methodology for calculating damages” and
“resolve conflicting evidence by weighing the evidence and
making its own findings.” Id. (citations omitted); see
LaSalle Talman Bank, F.S.B. v. United States, 462 F.3d
1331, 1336−38 (Fed. Cir. 2006) (upholding a modified
million estimate of the cost of relevant shoreline measures
that Banks submitted in Banks III. See 102 Fed. Cl. at
211.
15 To the extent the Court of Federal Claims finds
any mitigation began in 1970, a division of damages
estimates into pre- and post-1970 property values may be
appropriate.
26 BANKS v. UNITED STATES
methodology determination by the trial court). The
operative test is whether evidence on “the quantum of
damages [has been] shown to a reasonable approxima-
tion.” Ark. Game & Fish Comm’n v. United States, 736
F.3d 1364, 1379 (Fed. Cir. 2013) (emphasis added). The
Court of Federal Claims shall reconsider the relevant
damages findings in accordance with these principles.
4. Damages Findings for Future Harms
Banks contends that the Court of Federal Claims
erred in “holding that [Banks] will suffer no future dam-
ages” because “the evidence in the trial record is that
future erosion is a certainty, but any future mitigation is
entirely speculative.” Appellants’ Br. 64 (capitalization
omitted), 65. We agree with Banks.
The Corps has not mitigated all of its jetty-caused
erosion. See supra Section III.B.1. Whatever percentage
liability the Court of Federal Claims determines exists for
the Corps on remand shall be applied to reasonably
foreseeable future losses or shore protection measures.
See Dickinson, 331 U.S. at 751 (“If the resulting erosion
which, as a practical matter, constituted part of the
taking was in fact preventable by prudent measures, the
cost of that prevention is a proper basis for determining
the damage . . . .”); Ridge Line, 346 F.3d at 1359 (stating,
in a gradual physical takings case, that just compensation
includes recovery for “all damages, past, present and
prospective” (internal quotation marks and citation
omitted)). Here, there will be future losses to the proper-
ty. See Banks III, 102 Fed. Cl. at 202 (providing Mr.
Burgoyne’s testimony that erosion would not impact
structures on properties located “hundreds of feet from
any improvements” “for many, many years” (citation
omitted)); Banks, 88 Fed. Cl. at 687 (“The court recognizes
the possibility that the entirety of some [of Banks’s]
properties might be eroded away over time if [Banks]
do[es] not institute shore protection measures.”).
BANKS v. UNITED STATES 27
We further agree with Banks that the Court of Feder-
al Claims erred by assuming that “future erosion will be
mitigated.” Appellants’ Br. 65. The Court of Federal
Claims stated that Banks’s “argument that funding for
the mitigation program ‘is in serious jeopardy’ of lapsing
in the future is speculative and dependent upon future
actions by the [G]overnment.” Banks III, 102 Fed. Cl. at
213. While funding for the mitigation efforts existed in
2011, Banks showed at trial that the office responsible for
carrying out mitigation efforts at St. Joseph Harbor had
“no funding available at all for” fiscal year 2012, J.A.
2317. Moreover, the Reports admitted that “[i]nconsistent
funding [of the nourishment plans for St. Joseph Harbor]
remains a significant issue.” J.A. 5639. On remand, the
Court of Federal Claims shall consider whether funding
for mitigation efforts at St. Joseph Harbor has continued
beyond 2011 and, if funding has ceased or diminished,
shall award appropriate additional future damages.
Banks has only asked for remand on the award of fu-
ture shore protection measures, see Appellants’ Br. 70–71;
however, the Court of Federal Claims determined, and we
agree, that an award of the Corps’ liability percentage for
shore protection measures or the value of property lost for
future foreseeable erosion is appropriate here, see Banks,
88 Fed. Cl. at 688. Neither party submitted evidence of
the reasonable projected value of future property loss in
the initial trial, see Banks III, 102 Fed. Cl. at 214−15, and
the Court of Federal Claims did not allow parties to
submit additional evidence following remand from our
court based on its mistaken understanding of the scope of
our mandate, see Banks, 2015 WL 4939954, at *2−3
(denying Banks’s request for reconsideration and re-
examination). In determining future damages, the par-
ties may submit evidence of the value of future lost prop-
erty on remand to assist the Court of Federal Claims in
determining an appropriate award for future damages.
28 BANKS v. UNITED STATES
The Court of Federal Claims also determined that
Banks’s estimates for future shoreline protection
measures were not “sound economy” as required by Vaiz-
burd, 384 F.3d at 1286, because they were estimated to
cost more than the value of the properties upon which
they are installed, Banks III, 102 Fed. Cl. at 214. Appel-
lants argue they are entitled to some portion of shore
protection measures ranging from $17,794,053 (for quar-
rystone revetments) to $56,853,552 (for step revetments).
Appellants’ Br. 66. The Court of Federal Claims did not
clearly err in finding insufficient evidence to justify the
value of shoreline protection measures claimed by Banks,
but erred in preventing Banks from submitting additional
evidence on future damages. See Banks, 120 Fed. Cl. at
34 & n.3, 40−41. On remand, Appellants may submit
additional evidence on future shoreline protection
measures and argue why their estimates are sound econ-
omy.
5. Damages for Value of Lost Sand
Banks contends that it submitted evidence of the
“value of all of the sand taken,” Appellants’ Br. 68, total-
ing approximately “$1,397,440 in damages per year since
1950,” id. at 69−70, to which it is entitled as part of the
overall damages calculation. Banks offers no legal sup-
port for the proposition that courts may award just com-
pensation on a permanent physical takings claim for the
value of lost resources. Indeed, in a case where plaintiffs
similarly claimed the value of a lost resource in addition
to the value of the land it was located on, our predecessor
court denied the claim. See Georgia-Pacific Corp. v.
United States, 640 F.2d 328, 361 (Ct. Cl. 1980) (“There
exists no basis, in fact or in law, for awarding plaintiff
additional just compensation in the form of severance
damage for the taking of such gravel deposit areas.”).
Instead, as the Court of Federal Claims noted, “[i]n a
permanent taking scenario such as this case, plaintiffs
are entitled to the value of the property permanently lost,
BANKS v. UNITED STATES 29
rather than the restoration of property lost.” Banks, 88
Fed. Cl. at 684. Banks cites to Stop the Beach Renour-
ishment, Inc. v. Florida Department of Environmental
Protection in support of its arguments. See Appellants’
Br. 70 (citing 560 U.S. 702, 708 (2010)). However, Stop
the Beach involves littoral landowners’ rights to accre-
tions (naturally-forming additions of land to property
caused by sand, sediment, and deposit), and relictions
(land once covered by water that becomes dry when water
recedes), which are a separate form of taking from mone-
tary damages for erosion. See 560 U.S. at 708. Banks’s
claims do not allege a taking of either of these types of
rights to their littoral property. 16 Accordingly, the Court
of Federal Claims did not err in denying an award for the
value of lost sand and, on remand, it shall not grant any
such award.
CONCLUSION
We have considered the parties’ remaining arguments
and find them unpersuasive. Accordingly, the Opinions
and Orders of the U.S. Court of Federal Claims are
VACATED AND REMANDED
COSTS
Costs to Banks.
16 Banks also cites to a Michigan Supreme Court
case Peterman v. Department of Natural Resources. See
Appellants’ Br. 70 (citing 446 Mich. 177, 197−98 (1994)).
Not only is Peterman not binding, that case states that
landowners may receive compensation for damage to
beaches below the high-water mark in certain instances,
see 446 Mich. at 180, a claim again not alleged here and
contrary to Owen. See 851 F.2d at 1412 (holding only
erosion above the high water mark is entitled to just
compensation).