Otay Mesa Property, L.P. v. United States, No. 11-5002 (Fed. Cir. Jan. 25, 2012)

United States Court of Appealsfor the Federal Circuit

__________________________ OTAY MESA PROPERTY, L.P.,RANCHO VISTA DEL MAR,OTAY INTERNATIONAL, LLC,OMC PROPERTY, LLC,D & D LANDHOLDINGS, LP,

AND

INTERNATIONAL INDUSTRIAL PARK, INC.,

Plaintiffs-Cross Appellants,

v.UNITED STATES,

Defendant-Appellant.

__________________________

2011-5002, -5008

__________________________

Appeals from the United States Court of FederalClaims in Case No. 06-CV-167, Judge Thomas C.Wheeler.

_________________________

Decided: January 25, 2012

_________________________

R

OGER

J.

M

ARZULLA

, Marzulla Law, LLC, of Washing-ton, DC, argued for plaintiffs-cross appellants. With himon the brief was N

ANCIE

G.

M

ARZULLA

.J

OHN

E.

A

RBAB

, Attorney, Appellate Section, Envi-ronment & Natural Resources Division, United States

OTAY MESA PROPERTY

v.

US

2

Department of Justice, of Washington, DC, argued fordefendant-appellant. With him on the brief was I

GNACIA

S.

M

ORENO

, Assistant Attorney General.

__________________________

Before N

EWMAN

, S

CHALL

, and M

OORE

,

Circuit Judges

.S

CHALL

,

Circuit Judge

.The United States appeals the final decision of theUnited States Court of Federal Claims in

Otay Mesa Property, L.P. v. United States

, 93 Fed. Cl. 476 (2010)(“

Compensation Decision

”). In that decision, the courtawarded plaintiffs $3,043,051, plus interest, for thetemporary taking of a blanket easement over five parcelsof land in the Otay Mesa area of San Diego County,California. For their part, plaintiffs cross-appeal thedecision of the court which limited the government’sliability to the taking of an easement over those fiveparcels and which limited the period of the taking to Aprilof 1999 to October of 2008.

See

Otay Mesa Prop., L.P. v.United States

, 86 Fed. Cl. 774, 790-91 (2009) (“

Liability Decision

”);

Compensation Decision

at 486-87. As far asthe government’s appeal is concerned, we hold that theCourt of Federal Claims erred when it concluded that thegovernment’s taking of the easement was a temporaryrather than a permanent physical taking. This errorresulted in an erroneous calculation of plaintiffs’ dam-ages. As far as the plaintiffs’ cross-appeal is concerned,we hold that the court did not err in limiting the govern-ment’s liability. We therefore affirm-in-part, vacate-in-part, and remand the case to the Court of Federal Claimsfor further proceedings.

OTAY MESA PROPERTY

v.

US

3

B

ACKGROUND

IPlaintiffs Otay Mesa Property, L.P., Rancho Vista DelMar, Otay International, LLC, OMC Property, LLC, D &D Landholdings, LP, and International Industrial Park,Inc. (collectively, “Otay Mesa”) own eleven contiguousparcels of largely undeveloped land adjacent to the Mexi-can border in the Otay Mesa area of San Diego County.

Liability Decision

at 775. In 1992, Rancho Vista del Margranted the United States Border Patrol a twenty-foot-wide easement along the Mexican border. The easementwas for the purpose of enabling the Border Patrol tomonitor and respond to illegal alien activity.

Id.

Accord-ing to Otay Mesa, the Border Patrol dramatically in-creased its operations on Otay Mesa’s property in theaftermath of the September 11, 2001 terrorist attacks.

Id.

Otay Mesa filed suit in the Court of Federal Claims in2006.

1

The suit alleged that the Border Patrol’s activitiesof patrolling outside the boundaries of the easement,assuming stationary positions on Otay Mesa’s land,creating new roads, constructing a permanent tentedstructure on Otay Mesa’s land, and installing under-ground motion-detecting sensors constituted a “perma-nent and exclusive occupation” entitling the plaintiffs to just compensation under the Fifth Amendment’s TakingsClause.

2

Liability Decision

at 775 (citing

Boise Cascade

1

Ultimately, three separate suits were consoli-dated.

Liability Decision

at 776-77.

2

In relevant part, the Fifth Amendment requiresthat the United States pay “just compensation” wheneverit takes private property for public use. U.S. Const.amend. V (“[N]or shall private property be taken forpublic use, without just compensation.”).