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Bass Enters. Prod. Co. v. United States

ELR Citation: 28 ELR 20446
Nos. 96-5132, 133 F.3d 893/46 ERC 1093/(Fed. Cir., 01/07/1998)

The court holds that the Bureau of Land Management's (BLM's) denial under the Waste Isolation Pilot Plant (WIPP) Land Withdrawal Act of an application to drill on an oil and gas lease did not constitute a permanent taking of the leaseholder's rights. BLM denied the application until the U.S. Environmental Protection Agency determines whether acquisition of the lease would be necessary to ensure the integrity of WIPP's nuclear waste storage facility. The court first holds that BLM's denial of drilling permits does not constitute a permanent taking. Congress has expressly established a mechanism for condemning the leases at issue if deemed necessary to ensure the integrity of the WIPP facility. Such events are statutorily mandated to occur. Thus, in the interim, the denial of the permits is at best a temporary taking. The court next holds that because the Court of Federal Claims declined to hear evidence on a temporary taking theory, the issue is remanded to the trial court for further proceedings. The court then notes that the Court of Federal Claims erred in declining to consider the temporary taking issue. The Court of Federal Claims ruled that the government's regulation had to be concluded. While cessation of regulation may be sufficient for finding a temporary taking, nothing in the cases relied on by the Court of Federal Claims supports the proposition that the end of the regulation is necessary. The fact that the regulation has not ceased may complicate a determination of just compensation but does not justify a bright-line rule against liability.

Counsel for Plaintiffs
Harold L. Hensley Jr.
Hinkle, Cox, Eaton, Coffield & Hensley
400 Penn Plaza, Ste. 700, Roswell NM 88202
(505) 622-6510

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

Before Newman and Cowen, JJ.