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Hendler v. United States

ELR Citation: 27 ELR 20342
Nos. 456-84L, 36 Fed. Cl. 574/(Fed. Cl., 10/09/1996) on remand

The court holds that landowners near the Stringfellow Acid Pits are entitled to $14,500 in compensation for property that was taken when the U.S. Environmental Protection Agency (EPA) and California installed 20 wells to monitor a contaminated plume. The court determined that the incursion on the landowners' property was similar to that of an easement for electrical cables or sewer lines, which require portions of the property to be available for occasional access, but otherwise do not materially interfere with the property's day-to-day use. Thus, the landowners are entitled to a level of compensation comparable to what would be available under California law for such an easement, based on the fair market value of the property at the time of well installation. The court then holds that activities undertaken by EPA and the state after the issuance of an order requiring the landowners to grant access to the property do not constitute a regulatory taking. The activities fall squarely within the nuisance exception to regulatory takings because the installation of the wells on the landowners' property was necessary to abate the nuisance posed by the Stringfellow Acid Pits. Public injury would likely have resulted from installation of the wells in locations other than on the landowners' property. Further, the landowners failed to show that EPA's activities pursuant to the access order had a sufficient adverse economic impact on the value of their property to constitute a regulatory taking. The evidence shows that the value of the landowners' property was reduced by contamination, rather than by the actions taken pursuant to the access order. And even if EPA's activities had an incremental adverse impact on the property's marketability, the evidence shows that the investigation and remediation of contamination on the landowners' property conferred a benefit that offset any nominal adverse impact from the access order or the monitoring wells. Moreover, the activities taken pursuant to the access order did not interfere with the landowners' reasonable investment-backed expectations. The landowners failed to show any nexus between EPA's action and their failure to sell the property; they failed to explore economically beneficial uses of their property that would not interfere with the investigation and remediation; and they did not seek to have the access order clarified, modified, or narrowed in order to pursue any prospective sale or development of their property.

[Prior decisions in the litigation are published at 17 ELR 20678 and 22 ELR 20646].

Counsel for Plaintiffs
Paul R. Hamilton
Hamilton & Samuels
100 Bayview Cir., Newport Beach CA 92660
(714) 721-7200

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