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Hendler v. United States

Citation: 17 ELR 20678
No. No. 456-84L, 11 Cl. Ct. 91/(Cl. Ct., 10/24/1986)

The court holds that the issuance of an Environmental Protection Agency (EPA) order under the Comprehensive Environmental Response, Compensation, and Liability Act requiring access to private property does not constitute a taking without just compensation in violation of the Fifth Amendment. EPA issued the order so as to be able to monitor the movement of groundwater potentially contaminated from hazardous waste activities conducted at the nearby Stringfellow Acid Pits. The court first rules that mere issuance of an EPA administrative order requiring that plaintiffs grant access to their property to the government does not constitute a taking. Plaintiffs have not been physically dispossessed of their property and may continue to use the property, as long as they do not interfere with EPA's monitoring activities. Although plaintiffs have been deprived of the right to exclude others, the mere issuance of the order does not deny them all economically viable uses of their land. The court next holds that if EPA's activities on plaintiffs' land constitute a permanent presence, a question it cannot answer based on the record before it, then a taking has occurred. A permanent physical occupation has uniformly been deemed a taking, even if the governmental activity in question is in the public interest and the equipment might someday be removed. Even if EPA's activities are temporary in nature, a taking may have occurred, depending on the character and expected duration of the government's activities and the degree of interference with plaintiffs' property. Although the record is not yet fully developed, EPA's actions have at least arguably deprived plaintiffs of some of their property, the duration of the occupancy has been three years and is still continuing, and the general public, rather than plaintiffs themselves, are the beneficiaries of the government's activities.

The court holds that the state is not an agent of EPA and thus EPA is not responsible for California's activities on the property. Although the state did construct wells on the property for monitoring purposes pursuant to a cooperative agreement with EPA, the relationship between the two governmental entities was one of close cooperationrather than of direct federal supervision. The award of federal grant funds does not itself turn a state project into a federal one. The fact that California agreed to submit all final reports to EPA prior to issuance for review does not prove federal control, either, since the state is required to manage the project and the evidence indicates that EPA's role did not rise to one of control. Moreover, although not dispositive in itself, the cooperative agreement states that it shall not be construed to create an agency relationship.

Counsel for Plaintiffs
Jerrold A. Fadem
Fadem, Berger & Norton
Suite 600, 501 Santa Monica Blvd., Santa Monica CA 90406
(213) 451-9951

Counsel for Defendant
David F. Shuey
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5392