Hendler v. United States (175 F.3d 1374, 1999)

PLAGER, Circuit Judge.

In this takings case, we approach the final chapter in a decade-long dispute between the landowners and the Government. The dispute was initiated when the Government entered upon the land of the plaintiffs, without their consent and over their objection, for the purpose of sinking wells for monitoring of ground water migration from adjacent properties. Over time the Government continued to establish additional wells and to service them, all without payment to the landowners for the use of their property. The landowners sued, claiming inverse condemnation.

After several false starts at the trial level, see Hendler v. United States, 11 Cl.Ct. 91 (1986) (“Hendler I”)] Hendler v. United States, 19 Cl.Ct. 27 (1989) (“Hendler II ”), this court determined that plaintiffs had a good cause of action. We held that the Government, however well motivated and however important its cause, must adhere to fundamental Constitutional principles: if private property is taken for public use, just compensation must be paid. See Hendler v. United States, 952 F.2d 1364 (Fed.Cir.1991) (“Hendler III”). The cause was remanded to the trial court for further proceedings.

Subsequently, the Court of Federal Claims undertook to determine, on the facts of the case, what was the just compensation mandated by the Constitution. After trials on liability theories and damages issues, the Court of Federal Claims determined that plaintiffs ultimately were due no compensation. See Hendler v. United States, 36 Fed.Cl. 574 (1996) (“Hendler IV”); Hendler v. United States, 38 Fed.Cl. 611 (1997) (“Hendler V”). Plaintiffs appeal that judgment, and the findings that underlay it.

BACKGROUND

The detailed background of the case is described in the prior opinions, Hendler IV. We provide here a brief overview. The subject property is an approximately 100-acre tract of land in southern California, near the city of Riverside. Plaintiffs first acquired the property for investment purposes in 1960, at which time the area was largely agricultural. They planned to hold the property until economic conditions favored commercial development, at which time they expected to sell the land to a developer. See Hendler IV, 36 Fed.Cl. at 576-77.

The property is located near and ‘downstream’ of a seventeen-acre former rock quarry that, under the auspices of the State of California, was converted in 1952 to a toxic-waste disposal site serving many manufacturing companies associated with the aerospace industry. This site became known, infamously, as the Stringfellow Acid Pits (“Stringfellow”)- See id. at 577. In 1969, Stringfellow became a source of public concern when heavy rains caused the acid pits to overflow, releasing toxic chemicals to lower-lying areas, including plaintiffs’ property. See id. In 1972 waste disposal at Stringfellow was stopped; not long afterward it was discovered that toxic chemicals had seeped into the groundwater aquifer below String-fellow. The site was declared a public nuisance in 1975, but large-scale cleanup efforts did not begin until 1980. See id.

The State of California and the United States, acting through the U.S. Environmental Protection Agency (“Government”), undertook cleanup efforts pursuant to federal authority under CERCLA, commonly known as Superfund. As part of its efforts, the Government decided to locate wells and associated equipment on plaintiffs’ property to monitor the movement of the contaminated groundwater from Stringfellow. When the Government approached plaintiffs with this proposal, plaintiffs resisted. See id. at 577-78. Shortly thereafter, in 1983, the Government issued an order (herein “access order”) mandating that government officials, including both state and federal officials and their agents, were to have access to plaintiffs’ land for purposes of installing wells and related equipment, and conducting tests and other related activities. The access order further ordered that plaintiffs were not to interfere in any manner. See id. at 578-79.

Well-drilling then began on plaintiffs’ property. Over the course of the following three years, twenty wells were installed on the property. During this period and well beyond, Government officials and agents periodically entered the property to monitor the groundwater, using the installed wells.