Marzulla Law, LLC is the nation's leading law firm for takings claims against the federal government. ML represents landowners, developers, water districts, Indian tribes, business, and corporate interests in litigation of property rights and contract claims. ML also represents clients in environmental enforcement actions, and litigation involving natural resources and permitting issues, in federal district courts and courts of appeal.

 

We hope that this Newsletter will serve as a resource for you.

 

 

 Follow us on Twitter 

Best regards,  

  

Nancie and Roger Marzulla     

Marzulla Law, LLC  

Tel.: 202.822.6760     

www.marzulla.com     

 



 

 

The U.S. Supreme Court Hears Arguments in Arkansas Game & Fish Commission v. United States

  

 

 

On October 3, 2012, the U.S. Supreme Court heard oral arguments in Arkansas Game & Fish Commission v. United States, No. 11-579. In our May 2012 newsletter, we discussed the case, noting that the Supreme Court granted the petition for certiorari filed by the Arkansas Game & Fish Commission, seeking review of a decision by the U.S. Court of Appeals for the Federal Circuit. In that decision, which denied just compensation to the Arkansas Game & Fish Commission, "the circuit panel reversed a trial court's ruling that the U.S. Army Corps of Engineers' flooding of state--owned property from 1993 to 1999 constituted a temporary taking of a flowage easement over the property. The Federal Circuit held that because the flooding was not permanent, no taking had occurred. In denying rehearing and rehearing en banc, several judges on the Federal Circuit hotly disagreed, stating that the temporary flooding was sufficient to trigger the duty to pay just compensation for a taking."

 

At issue is whether the Army Corps practice of periodic releasing of dammed water that causes episodic, temporary flooding of a state-owned wildlife management area is a Fifth Amendment taking.

 

James F. Goodhart, counsel for the Arkansas Game & Fish Commission, argued that the United States must provide just compensation when its direct physical invasion substantially intrudes upon a landowner's protected property interest, regardless of the particular mode or duration of that invasion. Counsel furthermore argued that the Federal Circuit's decision conflicts with fundamental guarantees that the Just Compensation Clause is intended to preserve, and, therefore, he argued, is manifestly unjust.

 

When asked by Justice Anthony Kennedy what the Arkansas Game & Fish Commission wanted the Supreme Court to say to the Federal Circuit were the case to be remanded, counsel responded: "We want the remand to say: Apply the rule of law here for physical taking and look at it as the Court of Federal Claims did. Was there a direct physical injury? Did it result in substantial intrusion on the commission's property? If so, the [Just Compensation Clause] is self-actuating and there should be just compensation."

 

In an amicus brief filed with the Supreme Court supporting reversal of the Federal Circuit's decision in Arkansas Game & Fish, Wolfsen Land & Cattle Company, represented by Marzulla Law, stated that "the Federal Circuit's flooding takings test is entirely out of sync with modern takings jurisprudence." Citing three prior Supreme Court cases involving flooding----Pumpelly v. Green Bay Co., 80 U.S. 166 (1872), United States v. Cress, 243 U.S. 316 (1917), and United States v. Dickinson, 331 U.S. 745 (1947)----the brief argued that the Federal Circuit's quoting of the high court's decades-old use of such terms as "inevitably recurring" and "permanent" in those cases (and others) continues to be done without engaging in any analysis of the language. The brief further argued that the Federal Circuit's holding in the case contradicts the vast body of constitutional law holding that the government must pay for a temporary taking just as for a permanent taking.

 

Quoting a recent commentary, the Marzulla Law brief further stated: "Whether a taking is characterized as temporary or permanent is of little significance in determining whether a taking has occurred and it is not conclusive on the issue of when a suit must be brought on a taking claim, but such characterization has a bearing on the measure of damages. When governmental action deprives a landowner of the use of his land for a temporary period of time, the Just Compensation Clause of the Fifth Amendment requires that the government pay the landowner for the value of the use of the land during this period. When a taking of property is temporary in nature, an owner is entitled to compensation under the same principle as permanent takings of property, whether the temporary taking is physical or regulatory in nature."

 

The Marzulla Law brief concluded that "the touchstone for the determination of whether a government action gives rise to a claim for just compensation under the Fifth Amendment is thus not whether the taking is temporary or permanent, but whether the government action requires the property owner alone to shoulder the burden of providing a benefit for the public."

 

A decision by the Supreme Court on the Arkansas Game and Fish case is expected by June 2013.

  

Federal Circuit Issues Favorable Ruling on Intervention Petition in Wolfsen Land & Cattle Company v. United States

 

In Wolfsen Land & Cattle Company v. United States, several property owners, represented by Marzulla Law, sued the federal government in the U.S. Court of Federal Claims, alleging that their property rights were unlawfully taken after releases of water from a dam in central California damaged their lands. The federal government is in the process of releasing water in accordance with the San Joaquin River Restoration Settlement Act, which codified a district court consent order. After the Wolfsen lawsuit was filed, two of these groups ---- the Pacific Coast Federation of Fishermen's Association and the Natural Resources Defense Council ---- moved to intervene as of right, arguing that the taking case implicated their interests. Wolfsen opposed intervention, and the Court of Federal Claims agreed and denied the two environmental groups' motion to intervene. The CFC held that the two groups lacked a direct, non-contingent interest in the takings case, the end result of which would be the government paying money damages. The CFC further held that even if the two groups had a protectable interest in the outcome of the takings case, their interests were adequately protected by the government's participation in the case.

 

On appeal to the Court of Appeals for the Federal Circuit, Marzulla Law successfully defended the trial court's decision. Affirming the Court of Federal Claims' holding, the Federal Circuit concluded that even if the attempted interveners had a protected interest related to this case, their interests are adequately protected by the federal government's participation.  The Federal Circuit explained that the Wolfsen case "illustrates why entry into a case is presumptively barred for an intervenor whose specific litigation goal is that of an existing party." A concurring judge added that "it is less clear that PCFFA's interests in either the restoration goal or the water management goal will be directly impaired if the government is exposed only to a money judgment. Given that Congress has required the government to implement the settlement agreement, a conclusion that the prospects of a money judgment would make the government less likely to release water according to the terms of the agreement would be speculation."

 

 In addition to affirming the CFC's denial of the motion to intervene, the Federal Circuit has ordered the two groups to pay Wolfsen's costs associated with defending the appeal.  

 


Marzulla Law Launches "Court of Federal Claims" Blog 

 

Marzulla Law is proud to announce the upcoming launch of our "Court of Federal Claims" blog. The CFC blog will be designed to serve as a forum in which topical issues and recent decisions will be reported, including recent decisions issued by the U.S. Court of Federal Claims and the U.S. Court of Appeals for the Federal Circuit. Look for discussions on a variety of substantial and procedural issues as they relate to the Court's unique jurisdiction; including takings, contract, and Indian breach of trust claims. The CFC blog will be included as part of updated web site, which is set for a November 2012 launch date. You can access the new blog and updated website and www.marzulla.com.

 

  





What People Are Saying About Marzulla Law...

 
"I thoroughly enjoyed working with the Marzulla team and watching them in action."
Robert Hazel

Expert Witness Spotlight:

Robert Hazel 
     





Bob Hazel is a partner with Oliver Wyman, an Aviation, Aerospace & Defense consulting firm based in Reston, Virginia. Bob has a broad background in aviation economics and commercial and regulatory issues, and is recognized as an expert on airports.

Bob earned his BA from Princeton University, his JD from the University of Chicago Law School, and an MBA from George Washington University. Prior to becoming a consultant in 2001, Bob served as Vice President of Properties and Facilities for US Airways where he managed more than $1 billion in airport development projects. While at U.S. Airways, Bob was responsible for airline's leasing, design, construction, and environmental activities at more than 100 airports worldwide.

Bob has testified before local, state, and federal government on airline delays and congestion, privatization issues, airline competition, and airport management and organizational issues. Bob has also served as an airline expert for federal legislation on airport ratemaking issues. Bob is extensively published in his field.

Bob was an expert witness for Marzulla Law in the trial of Love Terminal Partners v. United States in the Court of Federal Claims last month. In that case, Love Terminal Partners (LTP) alleged that the Wright Amendment Reform Act of 2006 resulted in the unconstitutional taking of their valuable lease rights and terminal (26.8 acres) at the Dallas Love Field airport.



Marzulla Law Spotlight

Meet Tess Sadler 


                Tess Sadler is one of our two interns for the 2012 fall season, coming to us from the Washington Center's Law and Criminal Justice internship program. A fourth year student at Texas Christian University in Fort Worth, Texas, Tess is majoring in Pre-Law Philosophy with a minor in Political Science. Tess started her internship with a bang, having joined the firm just as preparation for the back-to-back trials were underway. Tess played key roles in both trials helping to organize trial exhibits, preparing witnesses for examination, and actually participating in the courtroom helping witnesses with exhibit binders while on the stand.


               "Only a month in and already I have been exposed to so much trial experience and I have been privileged to witness such a talented team of litigators," says Tess. "This experience has confirmed my desire to pursue law school and I have no doubt the wisdom and skills I have gleamed from shadowing Roger and Nancie will facilitate my future academic and professional endeavors. I am grateful for the opportunity to be a part of Marzulla Law, a hardworking, enriching environment, where each individual clearly strives for excellence."


               Tess describes herself as a fitness fanatic, and she enjoys running, yoga, and cycling. She also has a passion for rock climbing, and is certified as a professional rock climbing instructor. She also enjoys reading, and lists William Somerset Maugham, Albert Camus, and F. Scott Fitzgerald as being among her favorite authors.
 


About Marzulla Law 

 

               Marzulla Law, LLC is a Washington D.C.-based law firm. Nancie G. Marzulla and Roger J. Marzulla help property owners get paid just compensation when the Government takes their property through inverse condemnation.

 

               ML lawyers practice in the federal courts, especially the U.S. Court of Federal Claims, the Federal Circuit Court of Appeals, and the U.S. District Court for District of Columbia, as well as other federal district courts, appellate courts, and the U.S. Supreme Court. ML also represents clients in administrative agencies, such as the District of Columbia Office of Administrative Hearings or the Interior Board of Indian Appeals.   

 

               Chambers has recognized Marzulla Law as one of the top ten water rights litigation firms in the country. Nancie Marzulla and Roger Marzulla have been selected by their peers to be included on the list of Best Lawyers in America, and their firm has the highest AV-rating from Martindale-Hubble.  Nancie and Roger Marzulla have been recognized by Best Lawyers as a Top Tier law firm by U.S. News & World Report for environmental law, and Marzulla Law is a proud member of the International Network of Boutique Law Firms.