BANKS, et al v. USA

Filing 324

OPINION AND ORDER Treating Plaintiffs' 290 Motion for Declaratory Judgment As Pre-Trial Motion and Granting Pre-Trial Motion To the Extent Set Out in This Opinion and Order and Otherwise Denying Pre-Trial Motion; Clarifying June 23, 2005 Opini on and Order As Requested by Plaintiffs in 290 Motion for Clarification; Setting Forth the Law Which Governs the Types of Damages Plaintiffs May Seek, Based Upon Plaintiffs' Brief filed May 7, 2009 309 and Defendant's Memorandum filed May 7, 2009 310 Signed by Chief Judge Emily C. Hewitt. (ae)

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B A N K S , et al v. USA D o c . 324 In the United States Court of Federal Claims N o . 99-4451 L c /w 99-4453L, 99-4454L, 99-4455L, 99-4456L, 99-4457L, 99-4458L, 99-4459L, 994 4 5 1 0 L , 99-44511L, 99-44512L, 00-365L, 00-379L, 00-380L, 00-381L, 00-382L, 003 8 3 L , 00-384L, 00-385L, 00-386L, 00-387L, 00-388L, 00-389L, 00-390L, 00-391L, 003 9 2 L , 00-393L, 00-394L, 00-395L, 00-396L, 00-398L, 00-399L, 00-400L, 00-401L, 051 3 5 3 L , 05-1381L, 06-72L (E -F ile d : August 11, 2009) _________________________________ ) G o v e rn m e n ta l Taking by Gradual J O H N H. BANKS, ET AL., ) P h ys ic a l Process; Erosion; Date of ) T a k in g ; Determination of Owners to Plaintiffs, ) W h o m Just Compensation is Due; ) E n t itle m e n t to Damages for Loss v. ) P r e c ed in g Date of Acquisition of ) P r o p e rty Interest; Entitlement to THE UNITED STATES, ) D a m a g e s for All Reasonably ) Foreseeable Future Loss Irrespective Defendant. ) o f Subsequent Transfer of Property ) In te re st; Entitlement to a Portion of the ) C o s t of Shore Protection Measures; In ) th e Alternative, Entitlement to a Portion ) o f the Value of All Reasonably ) F o r e s e e a b le Future Loss to Plaintiffs' ) P r o p e rtie s ) _________________________________ ) 9 9 -4 4 5 1 L E U G E N E J. FRETT, Individually and ) a s Trustee of the Victor J. Horvath ) a n d Frances B. Horvath Trust, ) ) Plaintiff, ) 0 5 -1 3 5 3 L v. ) ) T H E UNITED STATES, ) ) D e f e n d a n t. ) _________________________________ ) Dockets.Justia.com J o h n B. Ehret, Stevensville, MI, with whom was Mark E. Christensen, Chicago, IL, for p la in tif f s in No. 99-4451 L. Eugene J. Frett, Chicago, IL, pro se in No. 05-1353 L. T e rry M. Petrie, with whom was John C. Cruden, Acting Assistant Attorney General, E n v iro n m e n t and Natural Resources Division, United States Department of Justice, D e n v e r, CO, for defendant. Gary W. Segrest and Don C. Erwin, Office of Counsel, U n ited States Army Corps of Engineers, Detroit, MI, of counsel. O P IN I O N and ORDER H E W IT T , Chief Judge T h is Opinion and Order addresses a significant subset of numerous motions in lim in e on damages issues in dispute, with the purpose of assisting the parties in c o n c lu d in g discovery and preparing for a trial on damages. B e f o re the court are Plaintiffs' Motion for Declaration of the Court That As the R e su lt of One Government Action, the Building of the Jetties, Which Ripened into a P e rm a n e n t Physical Taking by Erosion in January of 2000, the Landowners Who Held T itle to the Property in January of 2000 Are Entitled to All Damages to that Property and R e a so n a b ly Foreseeable Future Damages and for Clarification of the Court's June 23, 2 0 0 5 Order and Opinion (plaintiffs' Motion or Pls.' Mot.),1 Defendant's Response to 1 The court addresses in this footnote two procedural disputes ancillary to the damages issues discussed in this Opinion and Order. Plaintiffs' Motion for Declaration of the Court That As the Result of One Government Action, the Building of the Jetties, Which Ripened into a Permanent Physical Taking by Erosion in January of 2000, the Landowners Who Held Title to the Property in January of 2000 Are Entitled to All Damages to that Property and Reasonably Foreseeable Future Damages and for Clarification of the Court's June 23, 2005 Order and Opinion (plaintiffs' Motion or Pls.' Mot.) is in the form of a motion for declaratory judgment. See Pls.' Mot. 1; Plaintiffs' Reply in Support of Their Motion for Declaration and for Clarification of the Court's June 23, 2005 Order and Opinion (plaintiffs' Reply or Pls.' Reply) 1. Defendant argues that "the Declaratory Judgment Act does not apply in the proceedings presently before this court." Defendant's Response to Plaintiffs' Motion for Declaratory Judgment and Omnibus Motion for Summary Judgment, and Defendant's Motion for Partial Dismissal or, in the Alternative, for Partial Summary Judgment (defendant's Response or Def.'s Resp.) 7. Plaintiffs argue that "this [c]ourt has authority to issue a declaratory judgment because such an order would be tied and subordinate to a monetary award." Pls.' Reply 5. The court need not address the parties' procedural dispute in order to resolve the questions of law before the court in the parties' briefing. The court agrees with plaintiffs that defendant's contentions are no bar to the court's ability to issue its opinion on the 2 P lain tiff s' Motion for Declaratory Judgment and Omnibus Motion for Summary J u d g m e n t, and Defendant's Motion for Partial Dismissal or, in the Alternative, for Partial S u m m a ry Judgment (defendant's Response or Def.'s Resp.),2 and Plaintiffs' Reply in S u p p o r t of Their Motion for Declaration and for Clarification of the Court's June 23, 2 0 0 5 Order and Opinion (plaintiffs' Reply or Pls.' Reply). F o r the following reasons, plaintiffs' Motion is GRANTED to the extent set out in th is Opinion and Order and otherwise DENIED. A ls o before the court are Plaintiffs' Brief Setting Forth the Legally Correct I n te r p re ta tio n of the Phrase "All Reasonably Foreseeable Future Loss" (plaintiffs' Loss M e m o r a n d u m , or Pls.' Loss Mem.) filed May 7, 2009, Defendant's Memorandum on the L e g a l ly Correct Interpretation of the Phrase "All Reasonably Foreseeable Loss" ( d e f e n d a n t 's Loss Memorandum, or Def.'s Loss Mem.) filed May 7, 2009, Plaintiffs' legal issues briefed by the parties. See Pls.' Reply 6 (requesting a court ruling on the legal issues briefed by the parties even if not in the form of a declaratory judgment). Accordingly, the court treats plaintiffs' Motion as a pre-trial motion, and treats this opinion as a legal ruling intended to narrow the issues for trial and expedite resolution of this case. See Rules of the United States Court of Federal Claims (RCFC) 1 (directing that the court resolve procedural issues in a manner that "secure[s] the just, speedy, and inexpensive determination of every action and proceeding"). Plaintiffs also move for "clarification from this [c]ourt of its June 23, 2005 Opinion and Order on the legal standing issue to request past, present, and prospective damages in the damage phase of the trial." Pls.' Mot. 16. Specifically, plaintiffs' Motion requests clarification of footnote 12 of a prior opinion published by the court in this case, id., in which the court stated that "each plaintiff is entitled to `"just compensation" [that] includes . . . recovery for "all damages, past, present and prospective,"'" Banks v. United States (Banks Stabilization Opinion), 68 Fed. Cl. 524, 531 n.12 (2005) (citations omitted) (alteration and omission in original). As plaintiffs correctly acknowledge, because entitlement to compensation was not directly before the court in its prior Opinion, the court ordered the present briefing submitted by the parties. See Pls.' Reply 7 ("The parties have not previously briefed issues pertaining to the scope of damages and those who are entitled to damages. Consequently, there has not been a ruling on the specific issues raised in [p]laintiffs' motion."); see also Pls.' Mot. 2 (referring to the court's order directing the parties to submit the present set of briefing). The court's legal rulings contained within this Opinion and Order clarify the law that will govern the damages phase of the case. In its March 18, 2009 Order, the court deferred ruling on plaintiff's Omnibus Motion for Summary Judgment and for Leave of Court to Supplement This Motion, filed March 10, 2009, subject to the court's ruling on plaintiffs' Motion. Order of Mar. 18, 2009. Accordingly, the court considers defendant's Response only to the extent that it is responsive to plaintiffs' Motion presently before the court. 3 2 R e sp o n s e to Defendant's Memorandum on the Legally Correct Interpretation of the P h r a s e "All Reasonably Foreseeable Future Loss" (plaintiffs' Loss Response or Pls.' Loss R e sp .) filed June 15, 2009, Defendant's Response to Plaintiffs' Brief Setting Forth the L e g a l ly Correct Interpretation of the Phrase "All Reasonably Foreseeable Future Loss" (d e f e n d a n t's Loss Response or Def.'s Loss Resp.) filed June 15, 2009, Defendant's Reply to Plaintiffs' Response to Defendant's Memorandum on the Legally Correct I n te r p re ta tio n of the Phrase "All Reasonably Foreseeable Future Loss" (defendant's Loss R e p ly or Def.'s Loss Reply) filed June 29, 2009, and Plaintiffs' Reply in Support of Their B rie f Setting Forth the Legally Correct Interpretation of the Phrase "All Reasonably F o r e se e ab le Future Loss" (plaintiffs' Loss Reply or Pls.' Loss Reply) filed June 29, 2009. I. B a c k g ro u n d T h e facts of this case are set forth in detail in the court's September 28, 2007 o p in io n , Banks v. United States (Banks Liability Opinion), 78 Fed. Cl. 603, 604-10 (2 0 0 7 ). The current procedural posture of this case is described briefly here. In June 2007, the court held a trial in this matter for the purpose of determining lia b i lity of the United States for a taking of plaintiffs' properties without just c o m p e n s a tio n and in contravention of the Fifth Amendment to the United States C o n s titu tio n . See Banks Liability Opinion, 78 Fed. Cl. at 609, 614. The court held that d e f en d a n t was liable for the portion of erosion to plaintiffs' properties, located along the e a ste rn shore of Lake Michigan, that was caused by the United States Army Corps of E n g in e e rs ' construction and maintenance of jetties in the harbor at St. Joseph, Michigan. Id. at 656-57. On November 12, 2008, following the court's findings in the liability phase of the c a se , the court directed the parties to brief the parties' theories regarding the nature of c o m p e n s a tio n to which plaintiffs are entitled in preparation for the damages portion of p la in tif f s ' case. See Order of Nov. 12, 2008. For the parties efficiently to conclude discovery in preparation for the damages p h a se of the case, the court must determine which owners are due compensation from the g o v e rn m e n t,3 the scope of the just compensation due to those owners, and the types of 3 Portions of defendant's Response discuss the implications of this court's legal rulings on various individuals' standing to recover damages in this case. See, e.g., Def.'s Resp. 17-24 (discussing standing of particular plaintiffs). This Opinion and Order does not address the standing of any individual plaintiff. After considering this Opinion and Order, if the parties continue to be unable to resolve disputes as to the standing of particular individuals, the parties shall bring those specific issues to the court's attention in the status report(s) filed by the parties 4 d a m a g e s to which plaintiffs are entitled if such damages are proven at trial. II. D is c u ss io n A. A Single Permanent Physical Taking Occurred in January 2000, the Date of S t a b il i z a ti o n T h e parties do not dispute that the taking that occurred in this case stemmed from o n e permanent physical taking of plaintiffs' land by the government. Pls.' Mot. 2-3; See D ef .'s Resp. passim (arguing that only a single permanent taking is at issue in this case).4 following publication of this Opinion and Order. See infra Part III ("The parties shall confer and file a joint status report, or, if the parties cannot agree, separate status reports, on or before 5:00 p.m. EDT Wednesday, August 26, 2009, suggesting a schedule for further proceedings in accordance with this Opinion and Order."). The continuing claim doctrine is inapplicable to the facts of this case. Pls.' Mot. 2-3; See Def.'s Resp. passim (arguing that only a single permanent taking is at issue in this case). This is because a continuing claim is one that is "inherently susceptible to being broken down into a series of independent and distinct events or wrongs, each having its own associated damages." Brown Park Estates-Fairfield Dev. Co. v. United States, 127 F.3d 1449, 1456 (Fed. Cir. 1997). The continuing claim doctrine has been applied, for example, in suits for compensation of overtime pay, in which separate causes of action accrue each time overtime compensation is excluded from an individual's pay. See id. at 1456-58 (discussing the application of the continuing claim doctrine in overtime compensation cases). Here, however, the construction of the jetties at St. Joseph Harbor is the single governmental action which caused the erosion for which plaintiffs are claiming damages. "[A] claim based upon a single distinct event, which may have continued ill effects later on, is not a continuing claim." Id. at 1456; see also Voisin v. United States (Voisin), 80 Fed. Cl. 164, 176-77 (2008) (holding that the continuing claim doctrine is inapplicable to cases "`where a single governmental action causes a series of deleterious effects, even though those effects may extend long after the initial governmental breach'") (quoting Boling v. United States (Boling II), 220 F.3d 1365, 1373 (Fed. Cir. 2000)). In Boling II, the United States Court of Appeals for the Federal Circuit dealt with a taking that, as in this case, was caused "by a gradual physical process[,] erosion." Boling II, 220 F.3d at 1370. Erosion to plaintiffs' properties in Boling II was caused by an artificial waterway constructed by the government. Id. at 1368. In Boling II, the Federal Circuit declined to extend the application of the continuing claim doctrine into environmental takings. Id. at 1373-74. The court clarified that, although erosion is "a process that gradually increases the property damage over time, there [was] only a single governmental act that breache[d] a duty to the plaintiffs" in Boling II. Id. at 1374. The taking in Boling II occurred when the government "allow[ed] the erosion . . . to substantially encroach the plaintiffs' property." Id. Here, as in Boling II, the 5 4 In its opinion reviewing the timeliness of plaintiffs' complaint in this case, the F e d e ra l Circuit applied the stabilization doctrine and found that, for purposes of the a c cru a l of plaintiffs' claims, a permanent taking took place only after defendant issued re p o rts in 1996, 1997, and 1999 that "collectively indicated that erosion [due to the g o v e rn m e n t's construction of jetties at St. Joseph Harbor] was permanent and irre v e rs ib le ." Banks v. United States (Banks Accrual Opinion), 314 F.3d 1304, 1310 (F e d . Cir. 2003). Plaintiffs' claims remained uncertain up until that time because the p e rm a n e n cy of the taking itself was uncertain in light of defendant's ongoing mitigation e f f o rts which had previously "appeared to successfully stave off the damaging effects of th e jetties." Id. Upon remand, and in accordance with the Federal Circuit's decision in th e Banks Accrual Opinion, this court fixed the date of stabilization as January 2000, the d a te upon which plaintiffs' land had been clearly and permanently taken. Banks v. U n i te d States (Banks Stabilization Opinion), 68 Fed. Cl. 524, 528-29 (2005) ("Because th e last of the three reports, the 1999 Report, was issued in January 2000 . . . the effective d ate of claim accrual for plaintiffs' claims in this case is January 2000."). T h e doctrine of stabilization was developed within the statute of limitations ju ris p ru d e n c e addressing takings that occur as a result of gradual physical processes such a s the erosion in this case. In the leading case, involving flooding and erosion caused by a government-constructed dam, the United States Court of Appeals for the Fourth Circuit e x p la in e d that "when a permanent structure erected by government authority results in the in v a sio n of or damage to land, only one right of action arises and this accrues upon the c o m p le tio n of the structure and the happening of the injury." United States v. Dickinson (D ickin so n I), 152 F.2d 865, 867 (4th Cir. 1946). The Supreme Court granted certiorari " b e c a u s e important questions were raised relevant to the determination of just c o m p e n s a tio n for the taking of private property by the [g]overnment." United States v. D ickin so n (Dickinson II), 331 U.S. 745, 747 (1947). In Dickinson II, the Supreme Court e s ta b l is h e d the concept of stabilization to govern the accrual of takings that occur as a re su lt of gradual physical processes, such as the flooding and erosion that were before the F o u rth Circuit in Dickinson I. Id. at 749. Because "the source of . . . [plaintiffs'] claim increasing damage to plaintiffs' property over time is "not the result of new and independent breaches by the government, but [is] merely the natural and foreseeable consequence[] of the government's single breach." Id. In this case, defendant's construction of the jetties at St. Joseph Harbor resulted in the government's single breach on the date of stabilization in January 2000. See generally infra Part II.A. Therefore, here, as in Boling II, the continuing claim doctrine is inapplicable. See Boling II, 220 F.3d at 1373-74; see also United States v. Dickinson (Dickinson I), 152 F.2d 865, 867 (4th Cir. 1946) (stating, in a case involving flooding and erosion caused by a government-constructed dam, that "although the use of the lands by the United States was continuous, only one cause of action accrued"), aff'd United States v. Dickinson (Dickinson II), 331 U.S. 745 (1947). 6 [ in Dickinson I] - the overflow due to rises in the level of the river - [was] not a single e v e n t; [but was instead] continuous," the Court held that owners of the land could p ro p e rly postpone bringing suit "until the situation [became] stabilized." Id. T h e Fourth Circuit in Dickinson I stated that "the extent of the land to be taken [ w a s] not established with certainty until the pool was raised to its permanent level. Until th is occurred . . . the taking [due to the flooding and erosion] was not complete." D ick in so n I, 152 F.2d at 868. In Boling v. United States (Boling II), the Federal Circuit a p p lie d Dickinson II, stating that "stabilization occurs when it becomes clear that the g ra d u a l process set into motion by the government has effected a permanent taking, not w h e n the process has ceased or when the entire extent of the damage is determined." Boling II, 220 F.3d 1365, 1370-71 (Fed. Cir. 2000). The taking in Boling II occurred w h e n the government "allow[ed] the erosion . . . to substantially encroach the plaintiffs' p ro p e rty." Id. at 1374. The Federal Circuit stated, "Once [the substantial encroachment] h a s occurred, the permanence of the taking is manifest, its progressive nature is apparent, a n d its ultimate extent is reasonably foreseeable." Id. W h ile the date of claim accrual for statute of limitations purposes is clearly e sta b lish e d in gradual takings cases by Dickinson II, the issue of whether or not the date o f accrual is also the date of the taking for purposes of determining ownership and rights to compensation is not as clear.5 In Applegate v. United States (Applegate I), as in the The Supreme Court of the United States, in Dickinson II, acknowledged that it did not "decide whether in a situation like this a landowner might be allowed to bring suit as soon as inundation threatens." Dickinson II, 331 U.S. at 749. "[In Dickinson II], [t]he [Supreme Court] acknowledged that such litigation may have its risks . . . but did not address whether such litigation was permissible." Hansen v. United States (Hansen), 65 Fed. Cl. 76, 125 (2005). As this court has observed, "[Dickinson II] permits plaintiffs to delay filing takings claims under certain circumstances, but does not provide specific guidance regarding cases in which plaintiffs choose not to delay filing." Id. (citation omitted). Plaintiffs in this case, as was the case in Dickinson II, are individuals whose ownership on the date of stabilization is uncontested. See Dickinson II, 331 U.S. passim; Pls.' Mot. passim; Def.'s Resp. passim. However, unlike the plaintiffs in Dickinson II, plaintiffs here brought suit in July 1999, before the January 2000 date of stabilization, Banks Stabilization Opinion, 68 Fed. Cl. at 528-29, and therefore present the scenario contemplated by the Supreme Court in Dickinson II, but for which the Supreme Court "[did] not provide specific guidance," Hansen, 65 Fed. Cl. at 125. See Dickinson II, 331 U.S. at 749 ("We are not now called upon to decide whether in a situation like this a landowner might be allowed to bring suit as soon as inundation [or erosion] threatens. . . . All that we are here holding is that when the [g]overnment chooses not to condemn land but to bring about a taking by a continuing process of physical events, the owner is not required to resort either to piecemeal or to premature litigation to ascertain the just compensation for what is really `taken.'"). In the Federal Circuit's opinion reviewing the timeliness of plaintiffs' complaint, there is no suggestion 7 5 B a n k s Accrual Opinion, the Federal Circuit applied the stabilization doctrine in a gradual ta k in g s case and decided that the statute of limitations was no bar to plaintiffs' claim. Applegate I, 25 F.3d 1579, 1583-84 (Fed. Cir. 1994). On remand, the trial court a c k n o w led g e d that the exact dates of the alleged takings may have remained "uncertain d u e to the gradual erosion of the beaches." Applegate v. United States (Applegate II), 35 F e d . Cl. 406, 420 (1996). The parties equate the date of the taking in this case with the date of stabilization, s e e Pls.' Mot. 7-9; Def.'s Resp. 6, agreeing that for purposes of determining the plaintiffs to whom compensation is due, the taking in this case occurred in January 2000, see Pls.' M o t. 9; Def.'s Resp. 6. The court sees no reason to disagree. In a situation such as the o n e presented here, where plaintiffs are individuals who acquired their interests in the a f f e c te d properties during the period of erosion prior to the date of stabilization, and c o n tin u e d to hold their property interests on the date of stabilization, there is no legal or p ra c tic a l difficulty with equating the date of the taking with the date of stabilization.6 B. O w n e rs at the Time of the Taking Are Entitled to Compensation for All D am ag es, Past, Present, and Future A s the case law discussed below requires, the parties do not dispute that the only in d iv id u a ls entitled to compensation due to the government's taking are those individuals w h o were property owners at the time of the taking. Pls.' Mot. 7; Def.'s Resp. 4-5. However, the parties do dispute whether the property owners at the time of the taking are e n title d to compensation for damage to their property that occurred before and after the p e rio d s of each respective property owner's ownership. Def.'s Resp. 13 (arguing that p la in tif f s are entitled only to damages that occurred during their "periods of actual that the filing by plaintiffs slightly before the subsequently determined date of stabilization is in any way impermissible. See Banks v. United States (Banks Accrual Opinion), 314 F.3d 1304, passim (Fed. Cir. 2003). Further, given the uncertainty of gradual erosion cases, the court finds the date of filing proper in the circumstances of this case. This is a practical approach. It is not necessary, for example, to dismiss plaintiffs' action or require plaintiffs to refile their complaints. See Dickinson II, 331 U.S. at 748 ("The Fifth Amendment expresses a principle of fairness and not a technical rule of procedure enshrining old or new niceties regarding `causes of action' when they are born, whether they proliferate, and when they die."). The court can readily envision cases in which marking the date of the taking as the date of stabilization is contested by plaintiffs whose periods of ownership precede the date of stabilization, and who therefore institute an action on the basis that a taking occurred prior to the date of stabilization. Because plaintiffs in this case are individuals whose ownership as of the date of stabilization is uncontested by the parties, that issue is not presently before the court. 8 6 o w n e rs h ip " ); Pls.' Reply 6-15 (arguing that plaintiffs are entitled to all damages to the e ro d in g land, beginning in 1950 and including all reasonably foreseeable future loss). For the following reasons, the court finds that property owners at the time of the taking are en titled to compensation for "all damages, past, present, and prospective." Dickinson I, 1 5 2 F.2d at 867. 1. G e n e ra l Rule: Compensation is Due to the Owner at the Time of the T a k in g In Danforth v. United States (Danforth), the Supreme Court addressed the c o m p e n s a tio n due to a plaintiff-landowner following condemnation proceedings in s titu te d against the landowner by the United States. Danforth, 308 U.S. 271, 276 (1 9 3 9 ). In Danforth, the Supreme Court explained that because "compensation is due at th e time of taking, the owner at that time, not the owner at an earlier or later date, receives th e payment." Id. at 284; see also United States v. Dow (Dow), 357 U.S. 17, 20-21 (1 9 5 8 ) (applying the Danforth rule to a physical possession case and stating that "it is u n d is p u te d that `[because] compensation is due at the time of taking, the owner at that tim e , not the owner at an earlier or later date, receives the payment'" (quoting Danforth, 3 0 8 U.S. at 284)). T h e parties agree that individuals whose periods of ownership of the eroding p ro p e rtie s ended prior to the date of the taking are not entitled to a compensation award. Pls.' Reply 15 ("[P]roperty owners who obtained and conveyed their interest in the p ro p e rty prior to January of 2000 . . . may not claim damages . . . ."); Def.'s Resp. 4 ("[A] p la in tif f who fails to establish that he or she had an ownership interest in the property . . . o n the date of taking has no standing to assert a takings claim . . . and . . . no right to be aw ard ed damages."). T h e accrual date of a claim "fix[es] the government's alleged liability." See H o p la n d Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988) (s ta tin g that a claim accrues "when all the events which fix the government's alleged liab ility have occurred and the plaintiff was or should have been aware of their e x is te n c e" ). In the case of physical takings of a continuous nature, the date of accrual of p la in tif f s' claims is the date of stabilization. See Dickinson II, 331 U.S. at 749; Banks A c c ru a l Opinion, 314 F.3d at 1310; Banks Stabilization Opinion, 68 Fed. Cl. at 528-29. The stabilization date marks the date of the taking in this case for purposes of determining th e individuals entitled to compensation. See supra Part II.A. Under the Supreme C o u rt's rule in Danforth, individuals whose property interest in the eroding land ended p rio r to the date of taking do not receive payment. Danforth, 308 U.S. at 284 ("[T]he o w n e r at [the] time [of the taking] . . . receives the payment."); see also Wyatt v. United S ta te s (Wyatt), 271 F.3d 1090, 1096-97 (Fed. Cir. 2001) (explaining that the government 9 m a y exercise its eminent domain power by either physical invasion or regulation, stating th a t "[i]t is axiomatic that only persons with a valid property interest at the time of the ta k in g are entitled to compensation," and denying a takings claim brought by a plaintiff w h o relinquished its interest in the property prior to the date of the taking). It is well established that owners who acquired their property interests subsequent to the time of the taking are not entitled to compensation from the government. See, e.g., 2 6 Am. Jur. 2d Eminent Domain § 230 (Ownership and Entitlement) (2009) ("[T]he right to compensation in eminent domain belongs solely to the owner of the property at the tim e of taking and does not pass to subsequent owners.") (footnote omitted). Applying th e rule it established in Danforth, the Supreme Court in Dow held that a landowner who a c q u ire d ownership of land two years after the date upon which the United States entered in to physical possession of the land was not entitled to a compensation award as a result o f the government's taking. Dow, 357 U.S. at 18 (stating that plaintiff acquired interest tw o years after government's taking), 27 (holding that plaintiff was not entitled to c o m p e n sa tio n award). The Court stated that it could not "accept the suggestion that in c a se s like the present one[, involving governmental takings by physical possession,] the to ta l compensation should be divided between the first and second owners of the p rop erty, the former taking that portion of the award attributable to the [g]overnment's u s e of the property until the passage of title, and the latter receiving the balance." Id. at 2 6 . The Court explained the rationale behind its decision as follows: "To require the G o v e rn m e n t to deal with more than one party, particularly when division of the c o n d e m n a tio n award would entail a complex apportionment, might severely impede the o rd e rly progress of condemnation proceedings and would conflict with the policies u n d e rlyin g the Anti-Assignment Act." Id. In Bailey v. United States (Bailey), this court explained that: [ T ] h e rationale for finding claims to be personal to those owning property at th e time the property became burdened is that, by physically using or p h ys ic a lly interfering with the use of the property, the entity operating u n d e r the eminent domain power was permanently removing that interest f ro m the private owner, and substituting a full measure of compensation in its stead. Bailey, 78 Fed. Cl. 239, 262 (2007). In Ferrell v. United States (Ferrell), the g o v e rn m e n t's construction of a lock caused water to submerge plaintiff's property and re su lte d in a taking. Ferrell, 49 Ct. Cl. 222, 223 (1914). The plaintiff in Ferrell owned th e land at the time of the taking, but subsequently sold the land to a third party. Id. The c o u rt held that the plaintiff had a claim to compensation from the government for the ta k in g because the deed to the purchaser of the land did not assign plaintiff's cause of 10 a c tio n against the government to the purchaser. Id. at 223-24. In this case, the date of stabilization marks the point at which it became certain that th e damage to plaintiffs' properties was in fact "permanent and irreversible." Banks A c c ru a l Opinion, 314 F.3d at 1310. In January 2000, plaintiffs here, like the plaintiffs in B a iley, experienced a "permanent removal of the property interest, which swapped a suit f o r compensation, or `chose in action' not running with the land, in place of a real p rop erty interest." Bailey, 78 Fed. Cl. at 263 (a regulatory takings case in which the court u n d e rta k e s an in-depth discussion of case law applied to takings by physical possession). Upon this permanent removal of plaintiffs' property interests in this case, "the property in te re st[ s] in question [were] no longer [each] individual's to convey." Id. at 264 (f o o tn o te omitted). Because plaintiffs in this case are individuals who owned the property a t the time of the taking, they, under both applicable precedent and persuasive analysis in d ic ta , are entitled to compensation for the taking. 2. D e te rm in in g the Scope of Just Compensation Due to the Owners at the T im e of the Taking T h e parties dispute the scope of the compensation that is due to the individuals w h o owned the property on the date of stabilization. Defendant argues that plaintiffs, w h o have established that they were the property owners as of January 2000, are entitled o n ly to damages that occurred during their "periods of actual ownership." Def.'s Resp. 1 3 .7 Plaintiffs, on the other hand, argue that they are entitled to all damages to the In its Response, defendant argues that plaintiffs are procedurally barred from arguing that they are entitled to damages that occurred outside of their respective dates of ownership because "the [c]ourt has already addressed this issue." Def.'s Resp. 8 (citing Banks Stabilization Opinion, 68 Fed. Cl. at 530-31); see also Banks Stabilization Opinion, 68 Fed. Cl. at 535 (stating that "[w]ith respect to a particular plaintiff, the proper date for measurement of the high water mark is the date of the particular plaintiff's property acquisition"); Banks v. United States (Banks Liability Opinion), 78 Fed. Cl. 603, 656 (2007) (stating that "[d]efendant is therefore [not] responsible for damages . . . prior to [each plaintiff's] acquisition"). Defendant's argument ­ based on the doctrine of the law of the case ­ is not persuasive to the court. As plaintiff correctly states, the specific issues briefed by the parties here have not previously been squarely before the court. See Pls.' Reply 7 ("The parties have not previously briefed issues pertaining to the scope of damages and those who are entitled to damages. Consequently, there has not been a ruling on the specific issues raised in [p]laintiffs' motion."). "`[T]he law of the case is a judicially created doctrine, the purposes of which are to prevent the relitigation of issues that have been decided and to ensure that trial courts follow the decisions of appellate courts.'" Gould, Inc. v. United States, 67 F.3d 925, 930 (Fed. Cir. 1995) (quoting Jamesbury Corp. v. Litton Indus. Prods., Inc., 839 F.2d 1544, 1550 (Fed.Cir. 1988)) (other 11 7 e ro d in g land, beginning in 1950 and including all reasonably foreseeable future loss. Pls.' Reply 6-15. Determining plaintiffs' rights to compensation for damages before and after their d a te s of ownership requires a determination of the applicability or not of two alternative p rin c ip les : on the one hand, it is axiomatic that the government must pay for the entirety o f a taking, Dickinson II, 331 U.S. at 750 ("[F]or all that the government takes, it must p a y." ); on the other hand, a plaintiff cannot be compensated for damage that it did not s u f f er. See Applegate II, 35 Fed. Cl. at 420 (denying recovery on the theory that "damage to [plaintiffs'] properties logically only can commence when plaintiffs own the properties, n o t before"). a. P la in tif f s Are Entitled to Damages That Precede Each Owner's Respective D a te of Ownership T h e parties' arguments regarding what constitutes the compensation award payable to plaintiffs turns in large part on the meaning given to the principle that plaintiffs are e n title d to payment for "all damages, past, present, and prospective." Dickinson I, 152 F .2 d at 867; Ridge Line, Inc. v. United States (Ridge Line), 346 F.3d 1346, 1359 (Fed. C ir. 2003) ("`[J]ust compensation' includes a recovery for `all damages, past, present and p ro sp e c tiv e .'") (quoting Dickinson I, 152 F.2d at 867). Plaintiffs argue that the Fourth C irc u it's decision in Dickinson I supports their contention that plaintiffs are entitled to c o m p e n s a tio n for damages to the eroding properties which preceded their dates of o w n e r s h ip . Pls.' Mot. 9-11. However, the precise issue confronting the court in this case ­ the time periods of damage which are compensable to plaintiffs who acquired a p ro p e rty interest after the date upon which the damage to the eroding properties c o m m e n c ed ­ was not directly addressed by the Fourth Circuit in Dickinson I. See id. at 8 6 8 -71 .8 The statement upon which plaintiffs rely appears in the course of the court's citations omitted). Because the issue before the court has not been squarely decided, and "[a]s there has been no appellate court ruling on the[] specific matters [here briefed by the parties], the law of the case doctrine does not apply." Pls.' Reply 7. Because there has been no final judgment issued in this case, statements contained in the court's previous opinions in this case do not preclude the court from deciding the specific issues now fully briefed and argued by the parties. Accordingly, the court addresses in this Part II.B.2 the substantive legal arguments put forth by each party regarding the proper time period for which plaintiffs are due compensation. In its decision affirming the decision of the United States Court of Appeals for the Fourth Circuit in Dickinson I, the Supreme Court of the United States did not discuss the time periods for which damages are compensable by plaintiffs in a gradual takings case. See Dickinson II, 331 U.S. passim. 12 8 d is c u ss io n of the application of the statute of limitations in that case and is not further e x p la in e d by the court. See id. at 867.9 N e v e rth e le s s , the facts in Dickinson I are consistent with plaintiffs' argument here. The Dickinson I plaintiffs' properties suffered erosion and flooding due to the g o v e rn m e n t's construction and operation of the Winfield Lock and Dam on the Kanawha R iv e r in South Charleston, West Virginia. Dickinson I, 152 F.2d at 866. One of the p la in tif f s in Dickinson I, Mr. Dickinson, like some of the plaintiffs in this case, acquired h is interest in the affected property after the erosion and flooding damage began, and o w n ed the property on the date of the taking. See id. at 866-67. Specifically, Mr. D ic k in s o n acquired his interest in the property on August 16, 1937, id. at 866, after the c o m m e n c em e n t, on May 30, 1937, of the damage to the property, id. at 867, and owned Because the Dickinson I court did not itself expand on the application of the damages theory it enunciated ­ that "all damages, past, present[,] and prospective are recoverable" ­ the court reviewed the state court cases upon which the Dickinson I court relied for that proposition. Those cases, see Dickinson I at 867, however, do not address whether erosion damages occurring before a plaintiff acquired its property interest are compensable. In Suehr v. Sanitary District of Chicago (Suehr), the Supreme Court of Illinois entertained a suit brought by a plaintiff, an owner of an island, a portion of which was washed away after experiencing increased water flow due to the government's construction of a drainage canal. Suehr, 90 N.E. 197, 197-98 (Ill. 1909). The court in Suehr stated that the plaintiff had "the right . . . to recover all damages, past, present[,] and future, which his real estate had sustained by reason of the construction [of the drainage canal]." Id. at 198. However, because the plaintiff in Suehr purchased the property in 1897, three years prior to the date, January 17, 1900, on which the damage began, the plaintiff in Suehr, unlike plaintiffs here, did not seek damages which preceded his ownership interest in the affected property. See id. In King v. Board of Council of City of Danville (King), the plaintiff brought suit after the government's construction of a dam caused a diversion of the natural flow of water which had previously "flowed to and supplied the power for the operation of [plaintiff's] mill." King, 107 S.W. 1189, 1190 (Ky. 1908). The court in King stated that "only one action for damages [was] allowed. In that action plaintiff must sue for all damages, past and future." Id. at 1191. In deciding whether the King plaintiff's action was time-barred under the applicable fiveyear statute of limitations, the King court held that the plaintiff's action was not time-barred and that the plaintiff could recover for damages during the five years preceding the plaintiff's filing of the action. Id. In King, although the date when plaintiff acquired his property interest is not stated, the issue of compensation to the King plaintiff for any periods prior to his ownership was not before the court. See id. The third case upon which Dickinson I relied upon for the assertion that "all damages, past, present and prospective are recoverable" is Carpenter v. Lancaster (Carpenter), 61 A. 1113 (Pa. 1905). In Carpenter, as in Suehr and King, the court was not presented with a plaintiff seeking to recover damages with respect to erosion from a gradual taking that had commenced before its ownership of the eroding property. See Carpenter, 61 A. at 1113-14. 13 9 the property on the accrual date, September 22, 1938, when portions of his property were p e rm a n e n tly submerged. Id. The Dickinson I decision, on clearly stated facts, intimates n o concern about the application of the legal principle enunciated by the court to loss in a g ra d u a l taking prior to the acquisition of the property by the owner at the time of s ta b i liz a tio n . See id. passim. Plaintiffs here properly invoke the phrase "all damages, p ast, present[,] and prospective" from Dickinson I, id. at 867, to support plaintiffs' theory o f entitlement to damages for erosion that occurred prior to each plaintiff's respective d a te of ownership. P la in tif f s also rely on the Federal Circuit's decision in Cooper v. United States (C o o p e r) for the proposition that plaintiffs are entitled to the full value of erosion damage to the affected property, including damage that predated their dates of ownership. Pls.' M o t. 9-12; Pls.' Reply 15-17. The destruction of the plaintiff's timber due to the flooding o f the plaintiff's property in Cooper, like the erosion to plaintiffs' properties in this case, w a s a governmental taking through a gradual physical process. See Cooper, 827 F.2d 7 6 2 , 763 (Fed. Cir. 1987). The plaintiff in Cooper, like some of the plaintiffs in this case, a c q u ire d his interest in the affected property after the damage began, and held a p rotec table interest in the property on the date of the taking. See id. at 763-64. In C o o p e r, damage to the affected property began in 1979. Id. at 762-63. Specifically, the p lain tiff in Cooper acquired his interest in the property in 1982, "after the physical events c a u sin g the taking began," id. at 763-64, and brought a takings case in 1984, after the e x te n t of the destruction to his property became "ascertainable," and while he still owned h is property interest, id. The three issues presented to the Federal Circuit for resolution in C o o p e r were "what was taken[,] . . . when . . . it [was] taken[,] and from whom . . . [it] w a s . . . taken." Id. at 763. While addressing these issues, the Federal Circuit also d isc u ss e d the damages due to the Cooper plaintiff. Id. at 764. The Federal Circuit, re lyin g upon Dickinson I, concluded that the Cooper plaintiff was entitled to damages. Id. The court stated, "It is clear that [plaintiff] had a property interest in the timber when th e taking of the timber became complete. Consequently, he is entitled to compensation f o r the value of the timber destroyed." Id. Plaintiffs argue that the "value of the timber d e stro ye d ," for which the Cooper plaintiff could recover, should be read to include d a m a g e s to its property between 1979 and 1982, before the Cooper plaintiff acquired le g a l title to the property. See Pls.' Mot. 10-12; Pls.' Reply 15-17. Defendant, on the o th e r hand, urges that the Cooper decision entitling the plaintiff to compensation for the v a lu e of the timber destroyed "was made in the context of when [the plaintiff] acquired h is property interest." Def.'s Resp. 11. The court agrees with plaintiffs that the Cooper decision lends support to p lain tiff s' theory of entitlement to recovery for damages occurring prior to their o w n e rs h ip . The plaintiff in Cooper was compensated for the entire value of the trees lost. See Cooper, 827 F.2d at 764. There is no suggestion in the Cooper decision that the 14 p la in tif f 's recovery was prorated to limit the plaintiff's recovery only to the portion of d a m a g e related to the growth of the trees during the years the Cooper plaintiff owned the a f f e c te d property. See id. passim. Defendant does not point to anything in the Cooper d e c is io n that either requires or persuades the court to adopt defendant's position that the v a lu e that the Cooper plaintiff recovered should be limited by "when [the plaintiff] ac q u ired his property interest." See Def.'s Resp. 11. Moreover, the Cooper court's d e c isio n entitling the plaintiff to damages was based upon Dickinson I, id. at 764, in w h i c h the Fourth Circuit awarded "all damages, past, present and prospective" in a case w h e re at least one of the plaintiffs ­ like the Cooper plaintiff and plaintiffs in this case ­ a c q u ire d an interest in the property after the damage began, Dickinson I, 152 F.2d at 867. Cooper can be fairly interpreted to support the award of damages to plaintiffs for erosion th a t occurred prior to their ownership. Indeed, the record of proceedings on remand make it crystal clear that damages in Cooper were calculated to include the entire period of f lo o d in g , including the years of flooding prior to the Cooper plaintiff's acquisition of the p r o p e r t y. 1 0 The bases for the damages ultimately awarded to the plaintiff in Cooper v. United States (Cooper), 827 F.2d 762 (Fed. Cir. 1987), can be ascertained from the proceedings in the trial court both before and after the United States Court of Appeals for the Federal Circuit's decision in Cooper. Before the publication of the Cooper decision, defendant submitted an assessment ­ undertaken by defendant's expert ­ of the acreage affected by and the tree damage due to the flooding in its Motion for Summary Judgment (Cooper defendant's Motion for Summary Judgment or Cooper Def.'s Mot. for Summ. J.), filed November 1, 1985 in the trial court in case number 84-681 L. See Cooper Def.'s Mot. for Summ. J. Attach. 1 (Aff. of W. Frank Miller) at 4 ("Damage/Mortality Estimates from CIR Imagery, 1979-1985"). The time period assessed by the defendant's expert began in 1979. Id.; see also Cooper Def.'s Mot. for Summ. J. 3 (referring to the five-year period between May 1979 and September 1984 examined by defendant's expert and stating that "[t]his five year period is approximately the period in which the flooding condition causing the tree damage is alleged in plaintiff's complaint to have taken place"). The year 1979 is the year when the flooding began ­ three years before the Cooper plaintiff acquired his property interest. Cooper, 827 F.2d at 763-64 (stating that the flooding began in 1979 and that the plaintiff acquired his interest in 1982). According to the defendant's own evidence on summary judgment, the total acreage affected by the flooding from the time the flooding began in 1979, and when the Cooper plaintiff brought his suit in 1984, was 75 acres. See Aff. of W. Frank Miller at 4. The trial court proceedings regarding damages, which took place after the government's liability was established in Cooper, make clear that the damage award agreed to by the parties in Cooper encompassed damage to the entire 75 acres of affected land, which included damage dating back to 1979, before the Cooper plaintiff acquired his interest in the property in 1982. See Transcript of Apr. 14, 1988 Status Conference (Tr.) 4:17-25 (defendant discussing payment for damage to 75 acres of affected land); defendant's Status Report, filed April 4, 1988, ¶ 1 (same); Stipulation for Dismissal, filed May 10, 1988 (reflecting payment for damage to 75 acres of affected land, plus interest and costs). 15 10 B o th parties also rely on the decision of the Court of Federal Claims in Applegate II, but offer competing interpretations of the decision. Plaintiffs assert that Applegate II is inapplicable to this case, and "contrary to Cooper and Boling [II]," because the court in A p p lega te II "posit[ed] a `continuous' taking to cutoff past damages" to the Applegate II p lain tiff s. Pls.' Reply 12. Defendant argues that the facts in Applegate II are in d is tin g u is h a b le from the facts before the court in this case, and urges the court to follow th e approach taken in Applegate II. Def.'s Resp. 9-10. T h e court agrees with defendant that the facts in Applegate II are similar to the fa cts in this case. However, the court does not follow the approach taken in Applegate II f o r determining plaintiffs' entitlement to damages predating their ownership period for th e following reasons. The plaintiffs in Applegate II were beachfront property owners south of Port C an av era l in Florida. Applegate II, 35 Fed. Cl. 406, 411 (1996). The Applegate II p l a in t if f s filed suit in December 1992 alleging that the Army Corps of Engineers' (C o rp s ') construction of the Canaveral Harbor Project during the 1950s caused erosion of p la in tif f s ' properties and thereby effected an uncompensated taking. See id. at 411-12. The Corps' Canaveral Harbor Project, which was intended "to provide a deep-water h a rb o r . . . immediately south of Cape Canaveral," involved the dredging of a channel in th e Atlantic Ocean and the construction of "two jetties projecting from the shoreline e a stw a rd into the Atlantic Ocean." Id. at 411. The Applegate II plaintiffs, all but one of w h o m acquired their property "at various times after construction began on the federal p ro je c t," complained that the jetties and the periodic dredging of the channel effected a ta k in g by blocking the flow of sand to their beachfront properties. Id. The facts in this case are analogous in relevant respects to the facts in Applegate II. Here, plaintiffs first filed suit in July 1999 alleging that the installation by the Corps o f sheet piling at the jetties in St. Joseph Harbor between 1950 and 1989 caused the e ro s io n of their shoreline properties and thereby effected a taking. Banks Stabilization O p in io n , 68 Fed. Cl. at 529-30. The Federal Circuit determined that stabilization o c c u rre d after defendant issued reports concluding that mitigation efforts could not re v e rse the loss. Banks Accrual Opinion, 314 F.3d at 1310. Plaintiffs acquired their p ro p e rtie s at various times before, during and after the period 1950 to 1989. Banks S ta b iliz a tio n Opinion, 68 Fed. Cl. at 529-30. The taking as to all plaintiffs occurred at the s a m e time in January 2000. See supra Part II.A. T h e Applegate II court addressed the Applegate II plaintiffs' claim that each la n d o w n e r was "entitled to compensation dating back to the initial construction of the [ C a n a v era l Harbor] Project, regardless of the date of [his or her property] purchase, b e c au s e the alleged taking became permanent only after their ownership commenced." 16 Id . at 418-19. The Applegate II plaintiffs, like plaintiffs in this case, specifically relied on D ic k in s o n II and Cooper for the proposition that they could recover "for any taking that a n te c ed e d their ownership because they, not their predecessors, [bore] the risk of p e rm a n e n t loss" from the gradual process of beach erosion caused by the Canaveral H a rb o r Project because "the taking of their property had not stabilized at the time of p u rc h a se ." Id. at 419. On the basis of its conclusion that "[n]either Dickinson [II] nor C o o p e r established that a claimant may recover damages for a taking of property that o c c u rre d prior to his ownership," the court rejected the plaintiffs' position. Id. at 420. T h e court cited the Fifth Amendment and case law directing the payment of just c o m p e n s a tio n for the taking of private property to the owner of the property at the time of th e alleged taking. Id. at 419 (citing, inter alia, U.S. Const. amend. V ("nor shall private p ro p e rty be taken for public use, without just compensation"), Danforth, 308 U.S. at 284 (" F o r the reason that compensation is due at the time of taking, the owner at that time, not th e owner at an earlier or later date, receives the payment."), Dow, 357 U.S. at 20-21 (" `[ b e ca u se ] compensation is due at the time of taking, the owner at that time, not the o w n e r at an earlier or later date, receives the payment.'") (citation omitted), and Lacey v. U n ited States, 219 Ct. Cl. 551, 560, 595 F.2d 614, 619 (1979) ("The person entitled to c o m p e n s a tio n for a taking of property by the [g]overnment is the owner of the property at th e time of the taking.")). The Applegate II court found it "axiomatic that a party must h o ld a compensable property interest to recover compensation for a taking." Id. (citing L u c a s v. S.C. Coastal Council, 505 U.S. 1003, 1027 (1992), and Kaiser Aetna v. United S ta te s, 444 U.S. 164, 179-80 (1979)). The Applegate II court went on to conclude that " [ n ]o claimant may ever claim compensation for an interest which he does not own." Id. a t 420. The Applegate II court found that the plaintiffs' claims for damages that predated in d iv id u a l ownership were "barred, absent a valid assignment of a previous owner's claim u n d er the Assignment of Claims Act," 1 1 id., and further found that the Applegate II p la in tif f s did not hold valid assignments from previous owners, id. at 421. C o n trary to plaintiffs' argument, see Pls.' Reply 12, the Applegate II court's d is c u ss io n of the Assignment of Claims Act does not establish that the court either found o r assumed the applicability of the continuing claim doctrine to the facts of that case. The c o n tin u in g claim doctrine, which the court found inapplicable to the facts of this case, see s u p ra n.4, permits separate causes of action to accrue each time a plaintiff suffers damage The Assignment of Claims Act provides that "[a]n assignment [or transfer of any part of a claim against the United States government or of an interest in the claim] may be made only after a claim is allowed, the amount of the claim is decided, and a warrant for payment of the claim has been issued." 31 U.S.C. § 3727(a)-(b) (2006). Where, as here, the date of taking is established as the date of stabilization, it is difficult to see how a person or entity who was an owner prior to the date of taking could effectuate "a valid assignment of [his or its] . . . claim under the Assignment of Claims Act." See Applegate II, 35 Fed. Cl. 406, 420 (1996). 17 11 w h ic h is the "result of [a] new and independent breach[] by the government," see Boling II, 220 F.3d at 1374. In light of the Federal Circuit's explicit finding ­ contained in its d e c is io n remanding the Applegate case for further proceedings in the Court of Federal C la im s ­ that the continuing claim doctrine did not apply to the facts of that case, A p p le g a te I, 25 F.3d at 1583-84, the court does not read into the Court of Federal Claims A p p lega te II decision, after remand, a finding that is contrary to the Federal Circuit's d e c is io n s in Boling II, Cooper, and Applegate I itself regarding the inapplicability of the c o n tin u in g claim doctrine to a gradual taking. Therefore, while plaintiffs' assertion that A p p leg a te II "cut[]off past damages" to the Applegate II plaintiffs, Pls.' Reply 12, is c o rr e c t, the Applegate II court did not do so on a continuing claim theory. However, the Applegate II court's decision explicitly stated that one of plaintiffs' c o n ten tio n s in that case, as here, was that the Assignment of Claims Act was inapplicable to the facts of the case. Applegate II, 35 Fed. Cl. at 420 ("Plaintiffs [argue] that the [ A s s ig n m e n t of Claims] Act does not apply to this case [because it depends upon the e x is te n c e of an assignable claim] and thus is no bar to their claims]."); Pls.' Mot. 8 (" [ P ]rio r to January 2000 no takings claim had yet accrued because no permanent taking h a d been established."). The Applegate II court found that no valid assignment occurred in that case. Id. at 421. The Applegate II court did not have before it the question of w h e th e r or not owners prior to the Applegate II plaintiffs would have had a valid takings c la im . See id. passim. The court merely found and ruled that the Applegate II plaintiffs th e m s e lv e s did not hold valid assignments from previous owners. See id. at 421. The c o u rt held that, absent a valid assignment of a claim from a prior owner, the law would n o t recognize an Applegate II plaintiff's right to damages for erosion occurring prior to its ownership. Id. at 420. The court respectfully disagrees. Instead, the court finds that the Assignment of C la im s Act cannot operate to preclude plaintiffs' claim of entitlement to past damages b e c au s e the Assignment of Claims Act is inapplicable to the facts of this case. A takings c la im did not accrue until the date of stabilization, which in this case was January 2000. See supra Part II.A. Even though Dickinson II did not address whether litigation would b e permissible if brought by owners prior to the date of stabilization in a gradual takings c a se , see Dickinson II, 331 U.S. at 749, and therefore "does not provide specific guidance re g a rd in g cases in which plaintiffs choose not to delay filing," Hansen v. United States (H a n se n ), 65 Fed. Cl. 76, 125 (2005), the court finds that, given the stabilization doctrine c re a ted in Dickinson II, it is difficult to envision how an individual whose ownership p e rio d ended prior to stabilization could, as a practical matter, bring a takings claim. The c o u rt therefore finds it reasonable to conclude that, prior to the date of stabilization, an a ss ig n a b le claim did not exist in this case. Accordingly, the court does not follow the A p p le g a te II court's application of the Assignment of Claims Act to bar plaintiffs' claims f o r past damages. See Applegate II, 35 Fed. Cl. at 420 (concluding that "plaintiffs' 18 c laim s for damages that antecede individual ownership are barred, absent a valid assig n m en t of a previous owner's claim under the Assignment of Claims Act"). P la in t if f s here argue that they "are entitled to damages beginning in 1950 because w h e n they took title to their respective properties, they did so with the understanding that they were entitled to full restoration of the eroded lands. . . . As long as there were m itig a tio n efforts, there was the reasonable prospect that no taking would occur at all." Pls.' Reply 12. The court respectfully disagrees with the Applegate II court's c h a ra c ter iza tio n of similar arguments made by the Applegate II plaintiffs as "appeals to eq u ity . . . beyond the court's jurisdiction." Applegate II, 35 Fed. Cl. at 420. The court re jec ted the Applegate II plaintiffs' arguments, stating that "plaintiffs are not entitled to c o m p e n s a tio n for a mere expectancy, such as construction of a sand transfer plant." Id. In the court's view, however, a reasonable and diligent plaintiff who purchased an a f f e c te d property on or after 1970 may be assumed to have known of the mitigation ef fo rts underway at the time of acquisition of its interest in the property, and therefore w a s entitled, prior to stabilization, to have viewed those mitigation efforts with the e x p e cta tio n that the efforts would be successful. In fact, the Federal Circuit has stated th a t defendant's ongoing mitigation efforts had previously "appeared to successfully stave o f f the damaging effects of the jetties." Banks Accrual Opinion, 314 F.3d at 1310. It is th e re f o re reasonable to assume that the fair market value of the affected properties, at the tim e plaintiffs purchased their properties prior to stabilization, did not reflect a taking. Plaintiffs' reasonable expectation that defendant's mitigation efforts would be successful, a n d that any damage to the properties was remediable, was not, as Applegate II states, "a m e re expectancy," Applegate II, 35 Fed. Cl. at 420, but instead was a reasonable e x p e cta tio n entitling plaintiffs to value their properties at the time of purchase as p ro p e rties unaffected by a taking. Moreover, because it was the mitigation effort itself th a t made shoreline owners aware of the possible responsibility of the government, the f a ir market value of the properties may be assumed not to have reflected any awareness of a taking that was gradually occurring by erosion from and after the beginning of the in s ta lla tio n of the steel sheet piling around the jetties in 1950 but prior to the c o m m e n c em e n t of mitigation efforts. Each plaintiff is therefore entitled to compensation f o r any damage attributable to the jetties from the time the jetty improvements began in 1 9 5 0 , notwithstanding the fact that 1950 may be prior to the date on which that plaintiff a c q u ire d its respective property interest. The court concludes that the market should be v iew e d as having disregarded a taking that had not occurred and therefore respectfully d is a g re e s with the alternative conclusion that a plaintiff's right to compensation in a g ra d u a l takings case "logically only can commence when [a] plaintiff[] own[s] the p ro p e rtie s , not before." See Applegate II, 35 Fed. Cl. at 418. b. P la in t if f s Are Entitled to All Reasonably Foreseeable Future Loss Irre sp e c tiv e of Subsequent Changes in Ownership 19 T h e parties agree that plaintiffs who owned their properties on the date of sta b iliz a tio n and continue to own their properties are entitled to compensation for all r e a so n a b l y foreseeable future loss to their properties. Def.'s Loss Resp. 13-14; Pls.' Loss R e p ly 8-9 (arguing that all owners as of the date of stabilization are entitled to damages f o r reasonably foreseeable future loss); however, the parties remain apart as to the re c o v ery owed to plaintiffs who owned eroding properties on the date of taking, but later tra n sf e rre d their interests in their eroding properties. Defendant argues that the re a so n a b ly foreseeable future losses of plaintiffs who transferred their properties after Ja n u a ry 2000 should be limited, "end[ing] at that point in time when they conveyed their p ro p e rty interests." Def.'s Loss Resp. 13.1 2 Plaintiffs maintain that plaintiffs who owned th e ir properties on the date of the taking, but who no longer hold title to their respective p ro p e rtie s, are entitled to claim all reasonably foreseeable future damages irrespective of a change in ownership subsequent to the date of the taking. Pls.' Loss Reply 8-10. The c o u rt agrees with plaintiff. " T h e Fifth Amendment expresses a principle of fairness and not a technical rule of p roc ed u re enshrining old or new niceties regarding `causes of action' - when they are b o rn , whether they proliferate, and when they die." Dickinson II, 331 U.S. at 748. The c o u rt in Dickinson II applied this view of the Fifth Amendment to enunciate the doctrine o f stabilization to govern the accrual of gradual takings claims so as to facilitate an e q u ita b le result under the "diverse circumstances" presented by gradual takings cases. See id. at 748-49. Explaining that "[t]he Constitution is intended to preserve practical an d substantial rights, not to maintain theories," id. at 748 (internal quotations omitted), th e Court in Dickinson II cautioned that "procedural rigidities should be avoided" in g ra d u a l takings cases, id. at 749; see also Hansen, 65 Fed. Cl. at 125 (explaining that D ic k in s o n II "warned against applying an excessively rigid rule when the government ta k e s property through a gradual physical process"). The court believes that precluding p lain tiff s who were owners on the date of the taking ­ and therefore the only individuals e n title d under law to receive compensation in this case, see Danforth, 308 U.S. at 284 (e x p la in in g that because "compensation is due at the time of taking, the owner at that tim e , not the owner at an earlier or later date, receives the payment"); supra Part II.B.1 ­ f ro m compensation for all reasonably foreseeable future loss would be not only "e x ce ssive ly rigid," but also would frustrate the spirit in which the Supreme Court In Defendant's Response to Plaintiffs' Brief Setting Forth the Legally Correct Interpretation of the Phrase "All Reasonably Foreseeable Future Loss" (defendant's Loss Response or Def.'s Loss Resp.), defendant states that it previously "incorrectly asserted that . . . plaintiffs [who owned their properties as of January 2000 and subsequently sold their properties] were not entitled to recover `all reasonably foreseeable damages.'" Def.'s Loss Resp. 13. Accordingly, the court treats the portion of defendant's Response requesting that the court dismiss those plaintiffs' claims as MOOT. See Def.'s Resp. 21-22. 20 12 in te n d e d that the law should address the complicated process presented by gradual takings c a s e s . See Dickinson II, 331 U.S. at 749. In Dow, the right to compensation for a governmental taking by physical invasion v e ste d with the property owners on the date of the taking. Dow, 357 U.S. at 22. The S u p r e m e Court saw "no merit in the suggestion that it is inequitable to deny . . . [an in d iv id u a l who acquired an interest in the burdened property subsequent to the date of takin g ] recovery in [that] action." Id. at 27. Rejecting a theory that compensation for a tak in g s claim should be apport

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