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Hendler v. United States

ELR Citation: 29 ELR 21185
Nos. No. 97-5143, 175 F.3d 1374/48 ERC 1545/(Fed. Cir., 05/11/1999) Affirmed

The court holds that landowners are due no compensation from the United States after the federal government entered their property to sink wells and monitor groundwater migration from an adjacent contaminated property. The court first holds that under federal law, special benefits to a landowner's retained land can offset the value of the part actually taken. Although such a setoff is prohibited under the law of most states, federal law permits such an offset. Next, the court holds that the trial court did not err in determining that the landowners' remaining property received an "investigation" special benefit. That others benefitted from the government's activities does not make the benefits to the landowner's property general, and that other landowners may have been the intended beneficiaries of the government's actions is similarly inapposite. The court then concludes that given the record of the case, the trial court did not err in offsetting this special benefit against the value of the easements taken. When, as here, the problem was not created by the government and the government's intrusion was necessary to correct the problem for the benefit of the general public, it is not inequitable to balance against the harm caused the landowner by the government's remedial action any special benefits that happen as a result to accrue to the land.

The court also holds that the trial court did not err in finding that the landowners' retained property suffered no severance damage. The trial court found that the value of the landowners' property was reduced by the contamination from the neighboring property rather than by the actions under the government's access order. These findings are supported by the record and are not clearly erroneous. Last, the court holds that the landowners failed to prove that their use of their land was sufficiently interfered with to constitute a regulatory taking. In light of its previous findings with respect to the question of severance damages, the court cannot say that the trial court erred in determining that the landowners have not suffered a regulatory taking.

[Prior decisions in this litigation are published at 17 ELR 20678, 22 ELR 20646, 27 ELR 20342, and 27 ELR 21448.]

Counsel for Plaintiffs
John D. Hoffman
Ellman, Burke, Hoffman & Johnson
One Ecker Pl., Ste. 200, San Francisco CA 94105
(415) 777-2727

Counsel for Defendant
David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Archer and Clevenger, JJ.