United States Court of Appeals
For the First Circuit
No. 08-2263
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
33.92356 ACRES OF LAND, more or less, situated in Vega Baja,
Commonwealth of Puerto Rico; JOHN DOE 98CV1664;
DEPARTMENT OF THE TREASURY FOR THE COMMONWEALTH OF PUERTO RICO,
Defendants,
JUAN PIZA-BLONDET,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Boudin, Selya, and Dyk,* Circuit Judges.
Paul E. Harrison, with whom Francisco Diez and J. Wayne
Mumphrey were on brief, for appellant.
Aaron P. Avila, Attorney, U.S. Dep’t of Justice, with whom
John C. Cruden, Acting Assistant Attorney General and Jeffrey M.
Tapick, Attorney, U.S. Dep’t of Justice, were on brief, for
appellee.
September 11, 2009
*
Of the Federal Circuit, sitting by designation.
DYK, Circuit Judge. This case involves a taking by the
United States of 33.92356 acres of land. Juan Piza-Blondet (“the
defendant”), the owner of the property, appeals from the final
judgment of the district court awarding compensation in the amount
of $375,300. The defendant claims that the district court
committed a number of errors in the course of the valuation
proceedings. Because we conclude that the district court did not
err, we affirm.
I.
The approximately 34-acre tract at issue is the site of
a radio beacon used by the Federal Aviation Administration for
aircraft navigation. The 34-acre tract was originally part of
approximately 400 contiguous acres of land owned by the defendant.
The 34 acre portion was leased to the government by the defendant
during the period from 1978 to 1996. In late 1996, a dispute arose
between the government and the defendant over the amount due under
the lease, and the government indicated that it would initiate
condemnation proceedings to acquire the land. In anticipation of
a taking by the government, in 1997 the defendant formally
segregated the 34-acre tract from the 400 acres into a separate
parcel, but the ownership of both the parcel and the 400 acres
remained with the defendant, and the use of the land did not
change. In 1998 the United States initiated a condemnation
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proceeding with respect to the 34-acre parcel.1 In answer to the
complaint in condemnation, the defendant conceded the public
purpose of the condemnation and the power of the government to take
the property, disputing only the amount of just compensation.
For environmental reasons, the 34-acre parcel has been,
and continues to be, restrictively zoned “LT-B2” (“B-2”) by the
Puerto Rico Planning Board (“Board”). Because of this zoning, the
uses of the land are restricted primarily to coastal protection,
scientific investigation, passive recreation, fishing and the
construction of fishermen’s piers so long as they do not affect the
surrounding mangroves. These uses are referred to as conservation
and passive recreation. Most other uses of the land are forbidden
without a variance or permit or some such permission from the Board
and other regulatory bodies.
In accordance with 40 U.S.C. § 3114, at the time of the
taking the government deposited $375,300 in the district court’s
registry as estimated just compensation. The government’s estimate
was based on a “highest and best” use of the property of
conservation and passive recreation under the applicable B-2
zoning. The defendant disagreed with the government’s estimate,
and requested a jury trial on the quantum of just compensation
1
The government sought to condemn both a leasehold
interest in the land spanning the period from 1996 to 1998 and a
fee simple interest in the land as of the date of the complaint in
condemnation. Only the valuation of the fee simple estate is at
issue in this appeal.
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pursuant to Rule 71.1(h) of the Federal Rules of Civil Procedure.2
In October 1999, both parties filed motions asking the
court to decide the method by which the value of the parcel should
be calculated. The court held an evidentiary hearing and
ultimately issued an order addressing the question:
The government supports the most commonly used
method, known as the “before and after method”
by which the value of the entire parcel is
determined before the expropriation, and then
the remaining parcel is reevaluated after the
condemned portion is removed. Defendant Juan
Pizá-Blondet, owner of the property, wants the
condemned portion, which is at the center of
the larger parcel, valued independently,
because it was segregated on December 26,
1997. We note that Pizá-Blondet segregated
the portion after his dispute with the
government arose over the amount of rent to be
paid.
In order to use the before-and-after method,
[the government] must demonstrate a unity
between the separate parcels . . . .
United States v. 33.92356 Acres, No. 98-1664, dkt. 82, slip op. at
1 (D.P.R. Nov. 22, 2004). The court noted that there was unity of
ownership and contiguity between the parcels, but that there was a
dispute about the unity of use of the parcels. Id. After both
parties provided additional evidence and briefing, the court
concluded that “there is an issue of fact as to the unity of the
highest and best use of the condemned parcel and the remnant, which
2
Rule 71.1(h) states, in part, “In an action
involving eminent domain under federal law, the court tries all
issues, including compensation, except when compensation must be
determined . . . by a jury when a party demands one within the time
to answer . . . .”
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is for the jury to decide. If the jury finds that there is unity
of use, the ‘before and after’ method of valuation will be used.
If the jury finds that the highest and best uses for the parcels
are not the same, the segregated parcel will be evaluated as an
independent parcel.” United States v. 33.92356 Acres, No. 98-1664,
dkt. 113, slip op. at 1 (D.P.R. May 31, 2005).
The defendant retained an expert, Carlos Gaztambide, to
testify as to the value of the land. The expert filed two reports.
The first report estimated “the Market Value of the Fee Simple
Estate” based on highest and best uses for construction of
residences and sand extraction. Neither use was permissible under
the applicable B-2 zoning, absent permission from the Planning
Board.
The first report opined that the 34-acre tract had two
sections of different value, an upland section of about 19 acres
and a lowland section of about 15 acres. The report opined that
the upland section was suited to residential use and sand
extraction, and was therefore worth about $51,500 per acre ($50,000
per cuerda).3 This value was based on three “comparable land
sales,” two of which had already been approved by the Planning
Board for specific residential development projects. However, none
of the three parcels appeared to involve B-2 zoned land. By
3
A “cuerda” is a traditional Puerto Rican unit of
land measurement equal to approximately 0.97 acre. Webster’s Third
New International Dictionary 551 (2002).
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contrast, the expert concluded that the lowland section had a
highest and best use of “conservation or mitigation,” and was
therefore worth about $9,250 per acre (or $9,000 per cuerda).
Based on these figures, the report claimed a total market value for
the parcel of $1,120,000.
The report also opined that there was a “reasonable
probability that [residential development and sand extraction may
be approved] if adequate protection to or mitigation of the wetland
is provided.” Plaintiff’s Motion in Limine ex. A at 5, United
States v. 33.92356 Acres, No. 98-1664, dkt. 133 (D.P.R. Aug. 14,
2006). For support, the report stated that “B-2 zoning is not an
absolute negation to development” and that “[residential]
subdivisions have been approved . . . in numerous properties that
have this zoning.” Id. The report included aerial photographs,
zoning records, and other documents as support. However, none of
the documentary evidence indicated that the allegedly comparable
property on which residential development or sand removal had been
approved had been zoned B-2. The expert admitted in deposition
that he had not spoken to anyone at the Planning Board about the
34-acre parcel.
The second report was created after the first report as
an “addendum” which estimates the value of the “Fee Simple Estate
of the Sand Deposits in the Subject Property.” This report
estimated the value of the sand deposits by capitalizing the value
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of an estimated income stream from selling the sand, using a 15%
discount rate to determine present value and an estimated cost of
extraction of 20% of the anticipated gross income. By this method,
the expert arrived at a value of the sand of between $3,000,000 and
$6,000,000.
The government filed motions in limine to exclude
Gaztambide’s testimony. The district court referred the motions to
a Magistrate Judge. The Magistrate Judge recommended that the
court grant the motions and exclude the testimony because “many of
[Gaztambide’s] assumptions are either unsupported or contrary to
existing facts.” Report and Recommendation at 10, United States v.
33.92356 Acres, No. 98-1664, dkt. 155 (D.P.R. Apr. 24, 2007). The
Magistrate Judge found that defendant had failed to establish that
the land was improperly zoned B-2 or that a variance would have
been granted: “Gaztambide’s opinion, by itself, fails to establish
a reasonable probability that the Planning Board would either
change the zoning or grant a variance at any time in the near
future.” Id. at 12. Specifically with respect to residential
development, the Magistrate Judge found that “defendant has failed
to document a single instance that supports Mr. Gaztambide’s
assertion that the Puerto Rico Planning Board has ever, or is
likely to, approve residential housing developments on land zoned
B-2.” Id. at 10. Similarly, the Magistrate Judge determined that
Gaztambide’s opinions concerning sand extraction were also
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unsupported and “overly speculative.” Id. at 14. The Magistrate
Judge also noted that the expert was improperly double counting the
value of the sand deposits by first including sand extraction as a
highest and best use increasing the fee simple appraisal of the
land, and second as a separate mineral deposit estate with a value
independent of the rest of the land value. The Magistrate Judge
further criticized the second report for appraising the value of
the sand deposits by lost income, rather than by comparable land
sales. Id. at 20.
Over the defendant’s objection, the court adopted the
Magistrate Judge’s recommendation and excluded Gaztambide’s expert
testimony on the highest and best use of the land, relying on
Federal Rule of Evidence 702. United States v. 33.92356 Acres,
No. 98-1664, dkt. 167, slip op. at 2 (D.P.R. June 13, 2008). The
court concluded that “[t]rial courts thus have a duty to screen
evidence that is based on a speculative use of the property and
exclude it from the jury’s consideration . . . . [T]his court must
decide whether the defendant’s expert testimony satisfies Federal
Rule of Evidence 702’s relevance and reliability standards for its
admissibility.” Id. at 4. The court concluded that those
standards were not satisfied:
[The expert’s] testimony that because part of
the condemned property is incorrectly zoned as
a B-2 district and that therefore residential
development may be allowed there, fails to
establish that there is a reasonable
probability that the zoning regulations would
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change or that the necessary permits would be
granted in the reasonably near
future . . . . [The expert’s] opinion was not
supported by any documentation and [was]
contrary to the existing facts.
Id. at 5–6 (emphasis added). The court scheduled a jury trial for
August 18, 2008. Shortly before the trial was scheduled to occur,
the defendant informed the government that he would introduce
expert opinion testimony from Gaztambide on the value of the land
based on comparable sales, and that the defendant himself would
offer opinion evidence on the value of the land based on “his
business experience.” The court ordered the defendant to show
cause as to why this testimony would be admissible in light of the
prior order.
In response to the show cause order the defendant stated
that Piza-Blondet would testify that the land was worth $143,000
per acre based on highest and best uses of residential development
and sand extraction. This opinion was based on lots that “were
originally zoned B-2 . . . [but] due to a variance which is a
widely used tool/method, in Puerto Rico the zoning was changed from
B-2 to R-1.” Mot. ex. B at 1, United States v. 33.92356 Acres, No.
98-1664, dkt. 177 (D.P.R. Aug. 1, 2008). The defendant did not
clarify what the contents of Gaztambide’s testimony would be. The
government in response pointed out that Piza-Blondet had stipulated
that he “will not offer an opinion of value which differs from that
of his expert witnesses.” Resp. to Mot. at 6, United States v.
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33.92356 Acres, No. 98-1664, dkt. 179 (D.P.R. Aug. 5, 2008). The
government objected to Gaztambide’s testimony because the defendant
had given no “details about [t]his new opinion of value or the
highest and best use upon which this new opinion is based.” Id. at
1.
The court sustained the government’s objection and ruled
that “any opinion of value by any person based on sand extraction
or residential development is EXCLUDED. The only valuation
testimony that may be offered at trial, either by Mr. Piza-Blondet
or his expert, Mr. Carlos E. Gaztambide, is an opinion of value
based on conservation and/or mitigation.” United States v.
33.92356 Acres, No. 98-1664, dkt. 180, slip op. at 1 (D.P.R. Aug.
5, 2008). The court also rejected defendant’s motion to postpone
the trial date, stating that “the non-jury [sic] trial will
commence as previously scheduled on August 18, 2008.” Id. The
defendant made no objections to this order.
The parties then filed a “Stipulation for Consent
Judgment” which stated that, “[b]ecause of the Court’s prior
rulings, including but not limited to [the orders] limiting the
valuation evidence that the Defendant could introduce at trial, the
parties hereby agree that a Final Judgment on compensation [in the
amount of $375,300] should be entered by the Court that preserves
the Defendant’s right of appeal of the Court’s prior rulings.”
United States v. 33.92356 Acres, No. 98–1664, dkt. 191, slip op.
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at 1 (D.P.R. Aug. 19, 2008). The stipulation also stated that
“[i]f the Defendant is successful in its appeal, the parties will
revisit the valuation issue, with both parties reserving all rights
to fully litigate the amount of just compensation owed for the
taking of the interests in these consolidated actions.” Id.
II.
In view of the parties’ stipulation, we must determine
whether any of the court’s rulings that were a predicate to the
judgment were erroneous. It is well established that the landowner
has the burden of proving the just compensation owed for the
condemned property. Nat’l R.R. Passenger Corp. v. Certain Temp.
Easements, 357 F.3d 36, 39 (1st Cir. 2004). The defendant contends
that the court erred in excluding Gaztambide’s valuation evidence
based on the residential and sand extraction uses.
Under Rule 702, the opinion testimony of expert witnesses
having “scientific, technical, or other specialized knowledge” is
only permissible if “the testimony is based upon sufficient facts
or data”; “the testimony is the product of reliable principles and
methods”; and “the witness has applied the principles and methods
reliably to the facts of the case.” Fed. R. Civ. P. 702.
Under the Supreme Court’s decision in Daubert v. Merrell
Dow Pharmaceuticals, Inc., the trial judge is charged with a
gatekeeping responsibility over expert testimony: “the trial judge
must ensure that any and all scientific testimony or evidence
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admitted is not only relevant, but reliable.” 509 U.S. 579, 589
(1993).
In General Electric Co. v. Joiner, the Supreme Court
supplied a further gloss on the standard:
[N]othing in either Daubert or the Federal
Rules of Evidence requires a district court to
admit opinion evidence which is connected to
existing data only by the ipse dixit of the
expert. A court may conclude that there is
simply too great an analytical gap between the
data and the opinion proffered.”
522 U.S. 136, 146 (1997). Thus, as this court has stated, “trial
judges may evaluate the data offered to support an expert’s
bottom-line opinions to determine if that data provides adequate
support to mark the expert's testimony as reliable.” Ruiz-Troche
v. Pepsi Cola of P. R. Bottling Co., 161 F.3d 77, 81 (1st Cir.
1998). The standard of review for the exclusion of expert evidence
under Rule 702 is abuse of discretion. Joiner, 522 U.S. at 139.
The valuation standard in condemnation cases is well
established. Land must be valued according to the highest and best
use. Olson v. United States, 292 U.S. 246, 255 (1934); Nat’l R.R.
Passenger Corp., 357 F.3d at 39. However, as noted in Olson,
evidence of the value of land with a specific highest and best use
is only relevant if the use is likely to be reasonably probable “in
the reasonably near future.” 292 U.S. at 255–56. If a claimed use
is prohibited by zoning, the property owner must show that it is
reasonably probable that the relevant restrictions will be removed
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in the reasonably near future. Wolff v. Puerto Rico, 341 F.2d 945,
946–47 (1st Cir. 1965).
The gatekeeping role of the district court is
particularly pronounced in condemnation proceedings under Rule
71.1. While the jury tries issues of valuation, the trial judge
must screen the proffered best and highest uses and “exclude from
jury consideration those which have not been demonstrated to be
practicable and reasonably probable uses.” United States v. 320.0
Acres of Land, 605 F.2d 762, 815 (5th Cir. 1979); see United States
v. Certain Land Situated in Detroit, 450 F.3d 205, 211 (6th Cir.
2006); United States v. 62.50 Acres of Land, 953 F.2d 886, 891 (5th
Cir. 1992); United States v. 341.45 Acres of Land, 633 F.2d 108,
111–112 (8th Cir. 1980); see also United States v. Reynolds, 397
U.S. 14, 19–21 (1970).
The defendant here concedes that, as zoned, the 34 acres
could not legally be used for residential development or sand
extraction without rezoning or some variance or permit by the
Board. As a result, the defendant must show that there is a
reasonable probability that the property would be rezoned or that
a variance could have been obtained in the near future.
The defendant argues that the property was inadvertently
mis-zoned B-2 by the Board, and that the Board would either change
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the zoning or grant a variance.4 The district court did not abuse
its discretion in concluding that there was no evidentiary basis
for this opinion and excluding the testimony.
Gaztambide had not spoken to anyone at the Board or
otherwise offered any support for his opinion that the Board would
approve a rezoning, variance, or permits for residential
development or sand extraction on this land. Nor was there
evidence that such variances had been permitted with respect to
similarly zoned parcels in the past. As the magistrate judge
noted, the expert “has failed to document a single instance [in
which the Board] has ever, or is likely to, approve residential
housing developments on land zoned B-2.” Report and Recommendation
at 10, United States v. 33.92356 Acres, No. 98-1664, dkt. 155
(D.P.R. Apr. 24, 2007). There was no evidence that any of the
parcels that Gaztambide had relied on to show residential
development were or had been zoned B-2. The expert also relied on
applications to obtain permits for residential development on other
parts of the 400 acres which the defendant had filed in 1999.
However, these applications remained pending in 2007, and to this
day there is no evidence that these permits were granted.
4
The defendant argues in part that the land must have
been mis-zoned because B-2 zoned land is supposed to be covered
with mangroves, while a part of the 34 acres was not covered in
mangroves. However, the zoning regulations state that B-2 zoned
land is “generally covered with mangroves,” not uniformly and
entirely covered with mangroves. App. 107 (certified translation
of P.R. Reg. JP 2498 § 8:01) (emphasis added).
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Similarly, the expert had not reviewed or identified any document
showing that sand extraction was ever permitted in land that is
zoned B-2. In this case the support for the expert’s opinion was
sufficiently sparse that the court did not abuse its discretion in
holding that the expert testimony did not meet the standards of
Rule 702.5
Similarly, the district court did not err in excluding
the defendant’s own testimony as to the residential and sand
extraction uses of the property. Piza-Blondet had previously
stipulated that he would “not offer an opinion of value which
differs from that of his expert witnesses.” The district court was
clearly within its discretion to exclude defendant’s own testimony
when the district court had excluded similar testimony by
defendant’s expert.
III.
The defendant also contends that it was error for the
court to hold that the “before and after” method was appropriate
(if the jury determined that there was unity of use) and to refuse
to exclude the testimony of the government’s expert, Raul Lugo,
utilizing the before and after method.
5
The defendant also argues that it was an abuse of
discretion to exclude the testimony of the defendant’s expert
because the motion in limine made by the government was not timely.
Assuming that the motion was not timely, the objection was waived
because no timeliness objection was made by the defendant in
opposing the motion. In any event, the court was within its
discretion to consider an untimely motion.
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The before and after method is used in cases of a partial
taking; the entire parcel is valued before and after the taking of
the condemned portion. Where the condemnation is a partial taking,
the before and after method is generally viewed as the conventional
method for determining just compensation. For example, in a
partial takings case involving an easement, United States v.
Virginia Electric & Power Co., 365 U.S. 624, 632 (1961), the
Supreme Court stated that the trial court “adopted an acceptable
method of appraisal, indeed the conventional method, in valuing
what was acquired by the Government by taking the difference
between the value of the property before and after the Government's
easement was imposed.” In United States v. Grizzard, 219 U.S. 180,
182 (1911), the Supreme Court affirmed a compensation determination
of $1,500 based on finding that “the whole land was worth $3,000
before said taking, and what was left after the taking was worth
$1,500.” See also United States v. 8.41 Acres of Land, 680 F.2d
388, 392 (5th Cir. 1982)(“Federal courts have long held that an
appropriate measure of damages in a partial-taking case is the
difference between the value of the parent tract before the taking
and its value after the taking.”); United States v. 9.20 Acres of
Land, 638 F.2d 1123, 1126–27 (8th Cir. 1981)(“In partial taking
cases, the proper measure of compensation is the difference between
the fair and reasonable market value of the entire ownership
immediately before the taking and the fair and reasonable market
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value of what is left immediately after the taking.”); 4A Nichols,
The Law of Eminent Domain § 14.02, 14.31 (rev. 3d ed.
1981)(“Virtually all jurisdictions allow the use of the before and
after methodology, and many of them mandate its use or even its
sole use.”). The before and after method is particularly
advantageous where either it is difficult to value fairly the
condemned tract as a separate parcel or one of the parties contends
that the remainder was harmed or benefitted by the condemnation.6
In this case, the landowner provides no persuasive reason
why the before and after method would be unfair in assessing the
value of the condemned parcel (assuming this is a partial taking).
The landowner argues that, because the alleged parent tract is more
than ten times larger than the condemned tract, a kind of bulk
discount applies to the market value of the parent tract such that
comparable large tract sales would be less per acre than comparable
small tract sales making the before and after method unfair. No
evidence was presented which supported this assumption. The
6
See 4A Nichols, The Law of Eminent Domain § 14.02[4]
(rev. 3d ed. 1981)(discussing the effectiveness of the before and
after method in clearly and simply dealing with severance damages
and situations in which no independent market value for the
condemned parcel can be ascertained); see also United States v.
Miller, 317 U.S. 369, 375–76 (1943)(“[A] parcel of land which has
been used and treated as an entity shall be so considered in
assessing compensation for the taking of part or all of it . . . .
If only a portion of a single tract is taken the owner’s
compensation for that taking includes any element of value arising
out of the relation of the part taken to the entire tract . . . On
the other hand, if the taking has in fact benefitted the remainder,
the benefit may be set off against the value of the land taken.”).
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district court did not abuse its discretion in permitting the use
of the before and after method in valuing the property, assuming a
partial taking. This is not to say, of course, that the before and
after method is always the best or the only way of appraising a
parcel’s value, but in the circumstances in this case, it is a
permissible way of appraising value.
The defendant argues primarily that the before and after
method was inappropriate because the 34 acres were separated from
the 400 acre tract, and thus a partial taking did not occur. The
defendant is correct that the before and after method used by the
government’s expert would be inappropriate where the parent tract
is a separate parcel from the condemned tract. However, contrary
to the contention of the defendant, the question of whether the
parent tract is a separate parcel or is part of a single parcel
with the condemned tract does not depend only, or even primarily,
on the formal severance of the tract. The district court correctly
ruled that whether this was a partial taking and the identity of
the parent tract depended largely on whether there was unity of use
between the parcels. As this court held in Baejter v. United
States, 143 F.2d 391, 394–95 (1st Cir. 1944), whether the parcels
are a “single tract” for takings purposes “does not depend upon
artificial things like boundaries between tracts . . . whether the
owner acquired his land in one transaction . . . [or] whether
holdings are physically contiguous.” The key question is whether
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the parcels have an “integrated use.” Id. The district court did
not err in determining that the before and after method was
appropriate if there was unity of use.
Defendant also argues here that the district court erred
in submitting the unity of use to the jury. While unity of use is
an issue for the court to decide, see Fed. R. Civ. P. 71.1(h);
Reynolds, 397 U.S. at 19–21, unless some party objects, there is no
ground for overturning a decision by the trial judge to submit the
question to the jury in an advisory capacity. See Fed. R. Civ. P.
39(c). At the time of the ruling here, neither party objected to
the submission of the issue to the jury. As such, the district
court did not err in submitting unity of use to the jury.
IV.
The defendant raises a number of other issues which can
be addressed briefly. The defendant contends that immediately
before the scheduled trial the court unilaterally converted this
case from a jury trial to a bench trial. Although the defendant
was entitled to a jury trial on the issue of quantum, the court did
nothing to deprive the defendant of a jury trial. The order of the
court that mentioned the “non-jury trial” was responding to motions
to postpone the trial date, and in that context it is clear that
the mention of a “non-jury trial” was merely a mistake. Had the
defendant objected, or had he merely called the error to the
court’s attention, it seems clear from the context that the court
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would have permitted the case to proceed as a jury trial. In
summary, the mention in the order of a “non-jury trial” is not
reversible error.
The defendant also asserts that the court abused its
discretion in failing to grant defendant’s motion to continue the
trial to reformulate his own testimony and that of his expert. The
court is given broad discretion to manage scheduling; the defendant
faces a high burden in establishing an abuse of discretion. See
Macaulay v. Anas, 321 F.3d 45, 49 (1st Cir. 2003). In this case
the court did not abuse its discretion in refusing to reschedule
the trial. The case had already been pending for 10 years. The
defendant had already had ample time to develop evidence of value
for conservation and passive recreation uses. Furthermore, the
fact that a number of different judges have presided over this case
does not excuse defendant’s own lack of timely preparation for
trial.
We have considered the defendant’s other contentions and
find that they are without merit.
Affirmed.
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