Liebman v. United States

United States Court of Federal Claims
No. 14-1165 L
Filed: August 28, 2018
__________________________________
JEANNETTE C. LIEBMAN,
Wife of/and PAUL E. RAMONI, JR.
Fifth Amendment Taking;
Plaintiffs, Inverse Condemnation; Laches;
Permanent and Exclusive
v. Occupation; Easement of Flow
UNITED STATES OF AMERICA,
Defendant.
__________________________________
Galen Scott Brown, Esquire, Sullivan Stolier Knight, LC, New Orleans, L.A., for
plaintiffs.
Peter Kryn Dykema, Esquire, U.S. Department of Justice, Washington, D.C., for
defendant.
TRIAL OPINION
HODGES, Senior Judge.
Plaintiffs Jeannette Liebman and Paul Ramoni, Jr. own a strip of navigable water
along a canal in New Orleans known as the Michoud Fleet. Plaintiffs allege that the
Government, acting through the National Aeronautics and Space Administration, caused a
permanent physical taking of real property in the form of a servitude of drainage, also
known as an easement of flow. This alleged taking results from NASA’s construction and
use of a redundant pump station that carries stormwater from defendant’s property into the
Michoud Canal. The pump station is located entirely on NASA’s property which is known
as the Michoud Assembly Facility.
We conducted trial beginning July 9, 2018 in New Orleans, Louisiana. The central
issue was whether NASA’s redundant pump station created a taking by moving stormwater
from its property, across a levee, and onto an abutting strip of the canal owned by plaintiffs.
Testimony and other evidence presented at trial established that the United States did take
from plaintiffs a flowage easement across parts of their property.
BACKGROUND
Plaintiffs’ property is 5000 feet long and 150 feet wide with no access to land. It lies
parallel to and shares a property line with NASA’s to the west. NASA’s property extends
over a levee and for some distance beyond. The Michoud Fleet, as plaintiffs’ property is
known, begins at approximately twenty-six feet from the shoreline.
The best and only reasonable use of the Michoud Fleet is and always has been
“barge fleeting.” Barge fleeting is a process whereby barges are anchored or tied up to
structures driven into the bottom of the canal. The barges might be in transit, waiting for
an opportunity to move through the locks, or loading and unloading goods.
Plaintiffs’ long, narrow strip of property is on the western side of the Michoud
Canal. The canal is considered to be navigable, but plaintiffs have fee simple title to the
bottom of the canal along the strip and to the water above it to the surface.
Plaintiffs purchased the Michoud Fleet in 1986, pursuant to a larger transaction, for
consideration of $400,000. The previous owners conveyed the property to plaintiffs subject
to a long-term lease paying them approximately $105,000 per year.1 That lease was
renewed pursuant to an option and it eventually terminated by its terms in December of
2004.
Eight months later, in August 2005, Hurricane Katrina devastated the New Orleans
area causing crippling harm to its Maritime industry.
FACTS
1. NASA’s Assembly Facility and the Pump Stations
NASA’s assembly facility and its redundant pump station are located off of the Gulf
Intercostal Waterway near the Mississippi River. This is an area often flooded by rains and
occasionally hurricanes. NASA has taken a number of steps to avoid disastrous flood levels
near its facility, including building a storm water pump station (“original pump station”)
in the 1960’s to draw accumulated rainwater from the area surrounding its buildings and
move it across a levee into the canal. This system has been operational since construction,
and it continues to be the primary means of protecting NASA from periodic floods. The
original pump station is located at the corner of the canal where the canal meets the Gulf
1
Annual payments began at $105,000 and thereafter increased each year according to the
Producer Price Index pursuant to the terms of the lease.
2
Intercostal Waterway. The outflow pipes from the original pump station dispel the outflow
water underneath the surface of the canal.
The Government wanted to avoid the risk of a single point of failure in case of
extreme weather, and so it conducted a study to determine the best location for a redundant
pump station. NASA filed a permit application for work within the Louisiana Coastal Zone
with the United States Army Corps of Engineers in 2009. JX 8. That application included
a list of adjacent property owners, which the Corps uses to notify neighboring owners of
NASA’s plans. JX 8 at 92. NASA’s permit application did not include plaintiffs’ names
and address.
Construction of the redundant pump station began in June 2011 and lasted only a
few months. NASA built the redundant pump station further north on the canal, about
halfway up the length of the property line shared by the parties. The new, redundant facility
has the same pumping capacity as the original, 1960’s pump.
The redundant pump station has four pipes of roughly the same size as those on the
original pump station. The pumps send accumulated water from heavy rains or floods over
the levee through four large pipes similar to those used at the older facility. The primary
difference for the purposes of this case is the design of the pipes; that is, the redundant
pump station’s outflow pipes drop water from several feet above the canal, while the pipes
used by the original station release the water under the surface.
The outflow pipes stand approximately five feet above the water line about twenty-
six feet from plaintiffs’ property line. Water from the redundant pump station pouring into
the canal causes turbulence to varying degrees as it hits the surface.2 The entire structure
abutting the canal, including the outflow pipes and two concrete flanks, covers sixty-five
linear feet on the shoreline. The concrete flanks reach out into the water and end
approximately fourteen to sixteen feet from plaintiffs’ property line.
The structure also features an apron of concrete extending to a point only three-and-
one-half feet from plaintiffs’ property line. The purpose of the concrete apron is to divert
any outflow from the bottom of the canal and the levee. The redundant pump station has
official warning signs on the canal side reading:
2
Testimony during trial was not consistent regarding the distance across the canal that
surface disturbance continued. Moreover, evidence on the effect of surface disturbance on
water down to the bottom of the canal was not available during trial.
3
DANGER: DO NOT MOOR
SUDDEN DISCHARGE WITHOUT WARNING.
The redundant pump station has been operational mostly for testing and
maintenance since its construction in 2011.3 Defendant provided evidence that the
redundant pump station has run an average of .67 hours per month.
1. Plaintiffs’ Knowledge of the Redundant Pump Station
Mr. Ramoni testified that plaintiffs were unaware of the studies by NASA that
anticipated construction and of the actual construction of the redundant pump station until
sometime after the structure was operational. When they did learn of it plaintiffs notified
NASA of their concerns. NASA’s counsel researched the matter and found that NASA had
not known of plaintiffs’ interest in property in the canal, but did find a copy of a 1963
easement agreement between NASA and plaintiffs’ predecessors in interest. The easement
was a servitude of drainage related to the original pump station built in the 1960’s. JX 2.
Plaintiffs commissioned a report from an appraisal firm to establish proof of their
property’s value. Meanwhile, NASA engaged a title attorney, named Peter Title, who
advised defendant that plaintiffs owned a fee simple in the Michoud Fleet. He suggested
that NASA negotiate an agreement with plaintiffs to discharge the water onto their property
for minimal compensation. JX 63.
2. Plaintiffs’ Efforts to Lease Their Property
Plaintiffs bought the Michoud property in 1986 subject to a long-term lease that
expired at the end of 2004. Since then, Mr. Ramoni has advertised the property for lease in
two publications. However, plaintiffs have not leased the property for any purpose since
termination of the original lease in 2004.
Mr. Ramoni testified that he received occasional calls indicating interest in the
property between 2004 and 2012. During that time, AEP River Operations obtained a
$10,000 option from plaintiffs to lease the Michoud Fleet. It applied for and eventually
received a permit to moor barges on the property in 2012. However, AEP ultimately chose
not to exercise the lease option and instead leased a smaller portion of property from
another landowner on the opposite side of the canal. Plaintiff contends that the reason for
AEP’s change of mind was its discovery of the redundant pump station. No direct evidence
or inferences led us to determine that this was necessarily the case. Since 2012 though,
plaintiffs have received no inquiries about the property despite advertising it on a regular
basis.
3
We heard testimony suggesting that the pump station ran in 2014 to help lower the amount
of standing stormwater at NASA, but it was not a consequential factor for trial.
4
3. Effects of the Redundant Pumping Station on Plaintiffs’ Property
The trial focused on the effects of the redundant pumping station on plaintiffs’
intended use of their property; i.e., leasing it for barge fleeting. Testimony from expert
witnesses from both parties established that, when in operation, the water propelled onto
plaintiffs’ property by the redundant pumping station interferes significantly with
plaintiffs’ use of some portion of their property. Water leaving the pipes has a velocity of
approximately thirty-five feet per second, or twenty-six miles per hour, and it hits the canal
very close to or directly onto plaintiffs’ property line. Videos of tests conducted by
defendant’s expert and entered into evidence during trial and expert testimony
demonstrated an area of impact ranging from six-and-a-half feet to zero feet from the
property line.4
Defendant emphasized that the redundant pump facility has not been used regularly
for any lengthy period of time since it became operational in 2011; it is a “redundant” pump
not only in name but also in function. However, NASA constructed the pump with the
intent of using it if necessary, irrespective of possible protests from plaintiffs. Defendant’s
signs near the outflow pipes warning “DO NOT MOOR” and “DANGER” helped establish
that the Government has removed all meaningful use of plaintiffs’ property in the affected
area. Testimony from credible and knowledgeable witnesses showed that the presence of
the pipes and the possibility that the pumps could begin working at any moment, along
with the dire warning on the signs, is enough to ensure that a reasonable person would not
moor a barge in that area and for some distance away from the pipes. NASA has assumed
the right to push water at a high velocity through plaintiffs’ property at any time without
warning or acquiescence.
4
Plaintiffs’ expert witness Kenneth Nelson testified that he completed calculations to
determine the velocity of water exiting the pipes and the point at which the water impacts
the canal. Tr. 151:8-22; 152:22-24. Mr. Nelson testified the water would hit the canal at
approximately twenty feet, or six-and-a-half feet from the property line, but he also testified
that such a calculation is conservative and would only apply to water coming from the
bottom of the pipe, not water coming from the middle of the pipe or anywhere in between.
Tr. 234:19-235:8. Based on this conservative estimate and visual evidence in the form of
videos, JX 49 and JX 50, we find that the water from the outflow pipes hits the canal at
points between the conservative estimate and the property line.
5
DISCUSSION
A. NASA’s Projection of Water onto Plaintiffs’ Property is a Physical Taking.
1. Laches Does Not Bar the Claim.
We first address the defense of laches that was raised in the answer and reiterated at
trial. Laches is an equitable defense and is generally a “flexible concept based on fairness
and applied in the discretion of the court.” Todd v. U.S., 155 Ct. Cl. 87, 94 (1961)
(quotations omitted) (citations omitted). To determine if laches applies to a claim, we
consider “[t]he cause of the delay, the hardship to the defendant, the nature of the relief,
and other factors.” Id.The equitable defense of laches is not an appropriate defense to this taking claim.
Any delay by plaintiffs in bringing this action was caused by a series of actions and
circumstances beyond their control, some of which were the defendant’s doing. For
example:
(1) NASA did not include plaintiffs in a list of adjacent landowners in their permit
application to United States Army Corps of Engineers.
(2) NASA did not conduct reasonable due diligence through a records search to
determine plaintiffs’ ownership of the land.
(3) NASA did not locate -- or even search for -- a file in its system showing that the
land directly in front of the outflow pipes was privately owned.
(4) Plaintiffs were not aware of construction on the redundant pump station during
the four month period it occurred, even though it was an open construction. The plaintiffs’
property is not easily accessible and has no land access.
(5) Plaintiffs had no reason to suspect that construction on NASA’s property would
necessarily interfere with the use and enjoyment of their own property.
(6) Plaintiffs notified NASA of their concerns within approximately one year after
construction was completed and immediately upon finding out about the redundant
pumping station.
Any delay in coming forward does not bar plaintiffs’ claim of taking based on the
equitable principle of laches.
2. Takings Law
The United States has broad powers to take and use private property for its purposes
so long as it pays just compensation to the landowner. Just as it cannot occupy personal
property without just compensation, it cannot take an easement or other interest in land
6
owned by individuals without just compensation. See e.g. Ridge Line, Inc. v. United States,
346 F.3d 1346, 1352 (Fed. Cir. 2003) (citing United States v. Dickinson, 331 U.S. 745, 748
(1947) (“Property is taken in the constitutional sense when inroads are made upon an
owner’s use of it to an extent that, as between private parties, a servitude has been acquired
either by agreement or in course of time.”)); Nollan v. Cal. Coastal Comm’n, 483 U.S. 825,
834 (1987).
Contrary to defendant’s contentions at trial, plaintiffs do not need to show that they
suffered a permanent and exclusive occupation destroying their right to possession. Ridge
Line, 346 F.3d at 1352; United States v. Causby, 328 U.S. 256, 264 (1946) (holding that
“it is obvious that if the landowner is to have full enjoyment of the land, he must have
exclusive control of the immediate reaches of the enveloping atmosphere.”). The Federal
Circuit has recognized that “government actions may not impose upon a private landowner
a flowage easement without just compensation.” Ridge Line, 346 F.3d at 1353 (citing
Dickinson, 331 U.S. at 750-51). “[I]f the government wants an easement . . . it must pay
for it.” Ridge Line, 346 F.3d at 1354 (citing Nollan, 483 U.S. at 842). “[For] purposes of
takings analysis, a permanent physical occupation has occurred where individuals are given
a permanent and continuous right to pass to and fro, so that the real property may
continuously be traversed, even though no particular individual is permitted to station
himself permanently upon the premises.” Ridge Line, 346 F.3d at 1352 (citing Nollan, 483
U.S. at 831-32) (quotations omitted).
In Ridge Line, the plaintiff alleged that the construction of a postal facility caused
storm water drainage to increase on its property, thereby creating an easement of flowage.
The Federal Circuit provided an analytical framework to determine whether an inverse
condemnation occurred: (1) whether takings law is the appropriate set of rules to apply, as
opposed to tort law; and (2) whether a protectable property interest is in the property at
issue. Id. at 1355.
The first element of the Ridge Line framework turns on whether the effects were
predictable results of the Government’s actions and “whether the government’s actions
were substantial enough to justify a takings remedy.” Id. The effects are predictable where
the invasion is the “direct, natural, or probable result of an authorized activity and not the
incidental or consequential injury inflicted by the action.” Id. (citing Columbia Basin
Orchard v. United States, 132 Ct. Cl. 445, 449 (1955).
The court also noted the importance of analyzing the “nature and magnitude” of the
government action. Id. at 1356. To require compensation under takings law, the “invasion
must appropriate a benefit to the government at the expense of the property owner, or at
least preempt the owner’s right to enjoy his property for an extended period of time, rather
than merely inflict an injury that reduces its value.” Id. By way of example, the Ridge Line
opinion concludes that “isolated invasions, such as one or two floodings …, do not make
7
a taking …, but repeated invasions of the same type have often been held to result in an
involuntary servitude.” Id. at 1357 (quoting Eyherabide v. United States, 170 Ct. Cl. 498(1965). Similarly, a compensable taking can also come about when “subjected to
intermittent, but inevitably recurring, inundation due to authorized Government action.”
Barnes v. United States, 2010 Ct. Cl. 467 (1976).
The second element of the Ridge Line framework requires that plaintiffs possess a
legally protectable interest. Ridge Line, 346 F.3d at 1357. In that case, the court used a
principle of West Virginia property law to determine whether plaintiff’s property rights
were infringed. Id. This court considers state property law to determine the property
interests in question.
3. Application to the Facts
We examine here the facts of this case in accordance with the framework set forth
in Ridge Line. The Government took a flowage easement in that case by its construction of
a Post Office facility above plaintiff’s property. This case is somewhat analogous in that
NASA built a redundant pump station next to plaintiffs’ property and assumed the right to
turn on the pumps at any time. Instead of creating erosion problems as in the West Virginia
case, NASA’s redundant facility next to plaintiffs’ property has made parts of it unusable
for barge fleeting. NASA asserted during trial that the pump station is meant only as a
back-up to the original pump station, but it is also true that they can test the pumping station
according to their own schedule or use it for any other purpose as needed. Even though
NASA does not currently pump water onto plaintiffs’ property at all times, it has assumed
that right. NASA has taken a servitude of drainage or a common law flowage easement,
from plaintiffs by its physical occupation.
The Federal Circuit’s two-step test to determine whether this is an inverse
condemnation case is the basis for our analysis. First, we consider if takings law, not tort
law, is the appropriate legal framework to analyze this case considering the effects of and
substantiality of the Government’s actions. The effects on plaintiffs’ property are
predictable. We have no evidence to suggest that NASA intended to project fast-moving
water onto plaintiffs’ property and interfere with their property rights; NASA was unaware
that a portion of the canal was privately owned prior to construction. However, it was
predictable that by building outflow pipes that projected water landing at plaintiffs’
property line would have that effect. It was a direct and natural consequence of building
such a structure.
NASA’s actions were substantial enough to justify a takings remedy. While
defendant argued that the interference was minor because it affects only a small percentage
of the total square footage owned by plaintiffs, the interference with some portion of the
property is extreme. The propelled water creates significant turbulence in the canal on at
8
least some portion of plaintiffs’ property and extends outward as it dissipates. This makes
traversing or mooring on a larger portion of the property unsafe.
Defendant contended at trial that because the pumps are not expected to be in
operation for long periods of time, the invasion is not substantial. However, because NASA
reserves the right to turn on the pumps at any time for any length of time it deems necessary
for whatever purpose, the invasion is substantial and permanent. Permanence is further
evidenced by defendant’s placement of signs warning just that: “DANGER: DO NOT
MOOR. SUDDEN DISCHARGE WITHOUT WARNING.” NASA has taken a right to
invade plaintiffs’ property at any time.
Second, plaintiffs possessed a legally protectable interest in their property. The civil
law of property as it is practiced in Louisiana controls plaintiffs’ right in their property.
The case could not have reached trial in this court absent the fact that an individual can
own rights to navigable waters in Louisiana. State law determines whether plaintiffs
possess that interest.
The Louisiana Civil Code contemplates a natural “servitude of drainage” where
waters naturally flow from the estate above to one below “provided the industry of man
has not been used to create that servitude.” LA. CIV. CODE ANN. Art. 655 (2017). The water
propelled from NASA’s facility onto plaintiffs’ property is not naturally occurring and the
“industry of man” has been used to direct the flow onto plaintiffs’ property. The servitude
of drainage here is not “natural” and therefore is a protectable property interest.
B. The Property Right Taken Consists of a Servitude of Drainage Across 265
Feet by 150 Feet.
Trial elicited extensive testimony and evidence regarding what portions of
plaintiffs’ property are affected by the redundant pump station. Certainly, NASA took that
part of plaintiffs’ property immediately in front of the pipes. Plaintiffs’ and defendant’s
witnesses agreed that at least the property directly in front of the outflow pipes, an area of
sixty-five feet by 150 feet, is no longer reasonably usable for barge mooring. Evidence of
the redundant pump station’s effect outside of that direct path, on the other hand, was
mixed.
Defendant’s expert witness on the matter was Captain Fitzgerald.5 He testified that
while he would not tie up any vessel directly in front of the pipes, he would have no
concerns mooring vessels just outside the sixty-five foot corridor. Thus, defendant argued
that the only affected area was a portion of the property approximately sixty-five feet by
5
Captain Fitzgerald was qualified as an expert in navigation with limitation. While offered
as an expert in this case, Captain Fitzgerald stated that he has never operated a commercial
barge personally and does not possess the required license to do so.
9
150 feet, or less. Captain Fitzgerald supported this theory by conducting a test using “The
Pelican,” a thirty-five foot-long push boat belonging to NASA. He conducted a similar test
for a site visit involving all participants prior to trial. The test was video-taped and entered
into evidence at trial. JX 49; JX 50.
Plaintiffs’ expert witnesses testified that more distance toward the middle of the
canal was needed to ensure safety. Kenneth Nelson, an expert in civil engineering with
particular expertise and experience in designing and building marine structures, testified
that determining the velocity of the water after it hit the canal and dispersed would require
extensive and complex mathematical calculations that he did not address. He stated
however, that water hitting the canal from the pipes of the redundant facility has a velocity
of thirty-nine feet per second. Tr. 157: 16-158:2; 171:8. Based on those calculations and
observations from the videos of testing done by Captain Fitzgerald, Mr. Nelson concluded
that “the radius of effect of the current flowing out from the impact point would be quite
some distance … it’s apparent at this high velocity impact, the water was affecting the body
of water quite some distance out.” Tr. 159:1-6.
Captain Wilson, plaintiffs’ navigational expert, testified that turbulence in the canal
reached out to 300 feet from the pipes, thereby covering the entire width of plaintiffs’
property. Tr. 311:22-312:1. Video evidence confirmed this assertion. JX 49; JX 50. Captain
Wilson concluded that barges should not be moored in front of the sixty-five foot structure,
nor should they be moored within 200 feet on either side of the structure. Tr. 267:2-23.
The size of the easement appropriated by NASA in this case relies on determination
of what portion of the plaintiffs’ property is affected by servitude. That determination in
turn depends on the extent to which water from the outflow pipes disperses. Fluid dynamics
is a highly complex field of mathematics and understandably neither party found it
necessary to invest in experts who could make the needed calculations. Therefore, no
scientific or mathematical data was available to explain the complicated properties of liquid
dispersing into liquid.
Testimony that we found credible showed that some area to the south and north of
the redundant pump station pipes would not be safe to moor barges; turbulence was created
by the pipes sending water into and over plaintiffs’ property at a speed of approximately
twenty-six miles per hour. That area was a buffer zone of varying length on either side of
the pipes. Captain Fitzgerald expressed no concerns about mooring vessels anywhere other
than the sixty-five feet in front of the structure.
Captain Wilson has had extensive experience piloting barges in various conditions.
He was adamant that maneuvering and mooring a barge close to the outflow pipes would
be unsafe due to the turbulence created in the immediate area. Captain Wilson suggested a
10
buffer zone of 200 feet on either side of the pipes. Captain Wilson was an impressive and
credible witness, as was Captain Fitzgerald.
The area directly in front of redundant pumping facility, reaching across the entire
150 feet of plaintiffs’ property at that point, has been subject to an involuntary servitude
by NASA. We find that water pouring into the canal also creates turbulence for some
distance to either side. The evidence at trial showed that the servitude affects plaintiffs’
property rights equally 100 feet to the north and south of the drainage pipes. Consequently,
the servitude of drainage imposed by NASA covers a total area of 265 feet by 150 feet.
C. Just Compensation
The value of land taken by inverse condemnation is a factual issue. Rasmuson v.
United States, 807 F.3d 1343, 1345 (Fed. Cir. 2015). This court has discretion to choose a
means of finding the just compensation due property owners in such a case. See McCann
Holdings, Ltd. v. United States, 111 Fed. Cl. 608, 613 (2013) (“The Court has discretion in
adopting a methodology that awards a takings plaintiff just compensation.”) (citing Otay
Mesa Prop., L.P. v. United States, 670 F.3d 1358, 1369 (Fed. Cir. 2012); see also
Washington Metro. Area Transit Auth. v. United States, 54 Fed. Cl. 20, 36 (2002)).
“A landowner subject to a taking is entitled to be put in as good a position
pecuniarily as if his property had not been taken.” Rasmuson, 807 F.3d at 1345 (quoting
Olson v. United States, 292 U.S. 246, 255 (1934)) (quotations omitted). “The landowner
must be made whole but is not entitled to more.” Id. In the case of an easement, “the
conventional method of valuation is the ‘before-and-after’ method, i.e., the difference
between the value of the property before and after the Government’s easement was
imposed.” Rasmuson, 807 F.3d at 1345 (quotations omitted) (citations omitted). However,
“the focus of the damages analysis must always remain on awarding just compensation for
what has been taken.” Otay, 670 F.3d at 1369 (Fed. Cir. 2012).
1. Value of Plaintiffs’ Property Taken
The parties disagree on the proper method of calculating just compensation. Plaintiff
contends that the more standard “before-and-after” method is the appropriate one to
determine the compensation due in this case for the alleged taking of an area 465 feet by
150 feet directly in front of the pipes. Devaluation in value of the property claimed by
plaintiffs is based on assertions of the loss of use of some portion of the property, the
diminishing desirability of land separated into two pieces rather than one long piece, and
the concerns with access to the northern portion of the property. Mr. Schwertz, plaintiffs’
appraisal expert, testified that the value of the property before the alleged taking of 465
11
feet by 150 feet was $1,286,000, and the value after was $794,400.6 JX 19 at 519. This
leaves a difference of $492,000 in damages. Id. Mr. Schwertz used a discounted cash flow
analysis with a capitalization rate of 8.5% to determine value after the alleged taking. JX
19 at 568.
Defendant promotes a more piecemeal analysis in determining the value of an area
it believes should be no more than 200 feet by 150 feet in front of the pipes. This approach
was based on its assertions that only a small area of plaintiffs’ land is affected, the lack of
change in highest and best use, and the lack of damage defendant’s appraisal expert, Mr.
Truax, perceived to the remaining property. Tr. 806:4-19. Defendant contends that the land
taken, if any, is minor and so any compensation should be determined by the value of the
land taken plus damages. Tr. 806:14-20.
Mr. Truax, defendant’s appraisal expert, determined that the pumps did not inflict
any damage to the remainder of plaintiffs’ property. Tr. 806:25 – 807:20. He reached this
conclusion after a site visit by analyzing the claimed damages of separation of the tract of
land, access to the northern portion, and the effect of such attributes on the rental rate at
similar properties. Mr. Truax determined that splitting the property into two pieces did not
inherently diminish the value of the property as a whole. He further opined that access to
the northern portion would not be impeded by the pipes nor would the pipes diminish the
value to the northern portion of the property. Tr. 807:6 – 808:21.
The disparity in the ultimate appraisal amounts can be attributed to the weight
placed on devaluation, if any, which occurred as a result of the taking and to some degree,
the difference in area of the alleged taking. Plaintiffs’ appraisal expert relied on plaintiffs’
navigation expert in concluding that the value of the northern portion of the property
decreased as a result of the pump station. In other words, the appraiser took for granted that
a potential renter would be less likely to rent the northern portion because it may have
concerns about crossing in front of the pipes to reach that portion.
While, as noted, we generally found Captain Wilson to be a credible and well-
qualified witness, his assertion that barge operators would not find it safe to take a barge
through the middle of the canal past the pipes to moor it north of the facility were
unconvincing. The middle of the canal known as the “fairway,” begins near the eastern
edge of plaintiffs’ property and extends for another 400 feet into the canal. The weight of
the evidence, especially from the videos showing the reach of turbulence and the
6
In his report, Mr. Schwertz concluded that the rental rate for the entire tract prior to the
alleged taking was $19.25 per linear foot. After the alleged taking, he concluded the rate
to be $18.75 for the northern tract and $19.25 for the southern tract. He then used a
discounted cash flow analysis to determine the before and after market-value for the entire
property. JX 19.
12
measurements that accompanied that video provided at trial, demonstrated that the
turbulence did not continued to affect the canal so far into the middle that it would be
unsafe to operate any vessel in the fairway. Therefore, the value of the northern portion of
the property was not diminished by the taking.
Plaintiffs also contended that separating their property into two smaller tracts made
it less desirable for potential renters. We did not find this assertion to be substantiated by
the evidence at trial. Specifically, Mr. Truax testified that smaller tracts of this type of land
were not less desirable for leasing and provided examples of similarly situated properties
to back up that assertion. Therefore, the value of the individual tracts are not diminished
by having been separated.
Other than the property directly affected by turbulence, the 265 by 150 feet area in
front of the pipes, no damages have been inflicted upon the Michoud Fleet. Because no
additional damages occurred, the value of the taking is the value of the land actually taken,
whether determined by the “before and after” methodology or the piecemeal analysis used
by defendants. The value of the easement is the market value of the 265 by 150 foot area
describe above at the time of the taking. The experts agreed that an easement of flow or
drainage in this case would have essentially the same market value as a fee simple in the
same property and valued the property accordingly. Tr. 791:5-24; Tr. 368:15-23.
Plaintiffs’ and defendant’s expert appraisers calculated the value of the entire
property prior to the taking as being around one million dollars.7 They reached these
valuations through the use of income capitalization, albeit with different approaches and
different income rental rates.
Defendant’s expert, Mr. Truax, used direct capitalization to reach his conclusions.
This approach focuses on establishing the income and revenue stream likely to occur as of
the date of valuation on a stabilized basis and determining the return parameters required
for a buyer to invest in the property. Tr. 742:8-18. Those parameters are defined as the
capitalization rate, or the needed return rate on the investment to make it viable. The market
value is then determined by multiplying the amount of income expected per year by the
percentage of return required by an investor/buyer.
7
Defendant’s expert, Mr. Truax, determined that the property was worth approximately
$30 per linear foot in rent each year. JX 68. Therefore, given the entire 5000 feet of the
property, the rent potential would be $150,000 per year. He then capitalized that at 10%
meaning the value of the entire property would approach $1.5 million, given 100%
occupancy, or $750,000 at 50% occupancy. Plaintiffs’ expert, Mr. Schwertz, determined
that the value prior to the taking was $1,286,000. Mr. Schwertz then determined the value
after the taking to be $794,000, coming up with a devaluation of $492,000. JX 19. This
devaluation was based on a taking of 465 feet by 150 feet of the property.
13
Plaintiffs’ expert, Mr. Schwertz, used a cash-flow-type analysis. This analysis
assumes a definite end period to an investment and so discounts the amount of return by
the expected sale price at the end of the definite period. Tr. 745:3-18.
A direct capitalization approach is the more appropriate method to analyze the
property. While we find that the easement covers a slightly larger area than that considered
by Mr. Schwertz, we determined that his estimate of value of the 200 by 150 feet area was
a conservative one. We have adopted his methodology and applied it to the slightly larger
area. The range of value of the easement thus increases, but only marginally.
At a rate of $30 per linear foot for 265 feet, the annual rental revenue potential is
$7,950. Given a capitalized rate of 10%, the maximum value is $79,500, assuming the
property has a vacancy rate of 0%. Testimony at trial and historical data showing that the
property had been vacant for years at the time of the taking make such a vacancy rate
untenable. A vacancy rate of 50% drops the rental value per year to $3,975, capitalized at
a rate of 10% results in a minimum value of $39,750.
The value of the easement taken from plaintiffs is $50,000 as of the date NASA
began construction: June 6, 2011.
2. Interest
Plaintiffs are generally barred from collecting interest from the United States in this
court. However, “just compensation” for property taken from private citizens required
under the Constitution includes interest in an inverse condemnation case. United States v.
Sioux Nation of Indians, 448 U.S. 371, 424 (1980) (“That taking implied an obligation on
the part of the Government to make just compensation to the Sioux Nation, and that
obligation, including an award of interest must now, at least, be paid.”). Plaintiffs are
entitled to “interest [] sufficient to insure that [they are] placed in as good a position
pecuniarily as he would have occupied if the payment had coincided with the
appropriation.” Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 10 (1984) (citations
omitted).
“Determining the proper rate of delay-based interest involves a factual inquiry
largely left to the discretion of the court.” Liberty Ammunition, Inc. v. United States, 119
Fed. Cl. 368, 402 (2014), rev’d on other grounds, 835 F.3d 1388 (Fed. Cir. 2016); see also
Dynamics Corp. of America v. United States, 766 F.2d 518, 520 (Fed. Cir. 1985);
Datascope Corp. v. SMEC, Inc., 879 F.2d 820, 829 (Fed. Cir. 1989). Neither party provided
an argument for the use of any particular interest rate, but this court has regularly employed
the rate set forth in the Declaration of Takings Act, 40 U.S.C. § 3116 (2012), as the interest
rate in takings claims. See Waverley View Investors, LLC v. United States, 136 Fed. Cl.
593 (2018); Textainer Equip. Mgmt. Ltd. v. United States, 99 Fed. Cl. 211, 223 (2011);
Vaizburd v. United States, 67 Fed. Cl. 499, 504 (2005). Just compensation to plaintiffs
14
includes interest at the rate set forth in the Declaration of Takings Act from June 6, 2011
until the date of payment.
CONCLUSION
This was an unusual and well-argued takings case that enabled the court to hear
the evidence and testimony needed to enter a proper judgment. For the most part, witnesses
were forthcoming and credible, their conflicts in testimony resulting from varying
interpretations of facts that nevertheless were reasonable. The attorneys organized a pre-
trial site visit that afforded the court an excellent “scene setting” that became more valuable
as the trial went on.
The trial established that the United States took a portion of plaintiffs’ property
totaling an area of 265 feet by 150 feet directly in front of NASA’s redundant pumping
facility in New Orleans, Louisiana. According to Louisiana law, the property interest taken
from plaintiffs is a servitude of drainage. The value of the property taken is $50,000 as of
June 6, 2011. Plaintiffs are entitled to just compensation of $50,000 plus interest at the
statutory rate.
The Clerk will enter judgment for plaintiffs in the amount of $50,000, plus interest
calculated from June 6, 2011, to the date of payment in accordance with 40 U.S.C. § 3116.
IT IS SO ORDERED.
s/Robert H. Hodges, Jr.
Robert H. Hodges, Jr.
Senior Judge
15