United States Court of Appeals
for the Federal Circuit
______________________
STUEVE BROS. FARMS, LLC, AND MILL CREEK
FARMING ASSOCIATES, INC.,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5021
______________________
Appeal from the United States Court of Federal
Claims in No. 11-CV-0799, Chief Judge Emily C. Hewitt.
______________________
Decided: December 11, 2013
______________________
ROBERT H. FREILICH, Freilich & Popowitz LLP, of Los
Angeles, California, argued for plaintiffs-appellants.
With him on the brief was NEIL M. POPOWITZ.
JOSHUA P. WILSON, Attorney, Natural Resources Sec-
tion, Environment and Natural Resources Division,
United States Department of Justice, of Washington, DC,
argued for defendant-appellee. With him on the brief were
IGNACIA S. MORENO, Assistant Attorney General, and
ROBERT H. OAKLEY, Attorney, Appellate Section.
______________________
2 STUEVE BROS. FARMS, LLC v. US
Before PROST, BRYSON, and REYNA, Circuit Judges.
BRYSON, Circuit Judge.
This takings case requires us to decide whether the
government’s actions effected a physical taking of a
flowage easement over the plaintiffs’ property, even
though the government never occupied the property by
flooding. The Court of Federal Claims held that the
government’s conduct did not constitute a taking. We
affirm.
I
In 1941, the United States Army Corps of Engineers
completed construction of the Prado Dam on the Santa
Ana River near Corona, California. Predecessors of
plaintiffs Stueve Bros. Farms, LLC, and Millcreek Farm-
ing Associates, LLC, subsequently purchased property
located in the Prado Dam flood control basin. At the time
of the construction, the Corps of Engineers anticipated
that releases of water impounded by the dam could inun-
date some of the property in the flood control basin,
including portions of the plaintiffs’ property up to a cer-
tain elevation. Accordingly, the government took a flow-
age easement over the property to an elevation of 556 feet
above sea level and paid compensation to the plaintiffs for
the easement.
In the 1970s, the Corps of Engineers developed plans
to modify the Prado Dam to improve flood protection for
the area surrounding the dam. The plans included sever-
al projects, among which were projects to raise the height
of the dam, to increase the size of the dam spillway, and
to enlarge the dam reservoir. It was expected that those
projects would raise the maximum flood inundation line
by ten feet, from 556 feet to 566 feet above sea level.
Pursuant to a 1989 agreement between the Corps of
Engineers and the flood control districts of several Cali-
fornia counties, local governmental agencies undertook to
STUEVE BROS. FARMS, LLC v. US 3
acquire or condemn property and easements as needed for
the project. Between 1993 and 2008, local governmental
agencies acquired a number of parcels in the vicinity of
the plaintiffs’ property. In 1999, the Orange County
Flood Control District offered to purchase the plaintiffs’
property. The plaintiffs declined the District’s offer and
made a counteroffer, which the District did not accept. No
further purchase negotiations took place after that time.
Neither the Corps of Engineers nor the local authorities
have since obtained title or a flowage easement to the
portion of the plaintiffs’ property between the 556-foot
line and the 566-foot line.
Following the Corps of Engineers’ announcement of
its intention to raise the maximum flood inundation line
to 566 feet, the local governmental agencies recorded a
survey that delineated the 566-foot flood inundation line.
In addition, according to the plaintiffs’ allegations, the
local governmental agencies and the Corps of Engineers
arranged for six small brass surveyor’s markers to be
placed on the plaintiffs’ property to mark the 566-foot
line. The plaintiffs contend that they did not discover the
markers until July 2012.
In 2003, the Corps of Engineers issued flood-plain
maps showing the 566-foot flood inundation line. The
City of Chino, California, subsequently rezoned the por-
tion of the plaintiffs’ property below the 566-foot line for
“passive recreation and open space use.”
The construction work that raised the level of the
Prado Dam was completed in 2008; work continued,
however, on other parts of the project, including the work
to increase the size of the Prado Dam spillway. There has
not been any flooding above the prior 556-foot maximum
flooding line either before or after the completion of the
project to raise the level of the dam. In fact the property
has never flooded to any depth as a result of Prado Dam
activities.
4 STUEVE BROS. FARMS, LLC v. US
In 2011, the plaintiffs brought this action in the Court
of Federal Claims, contending that the various actions of
the federal government, viewed in conjunction, constitut-
ed a taking of a flowage easement over the portion of the
plaintiffs’ property between the 556-foot and 566-foot
flood inundation lines. The government moved to dismiss
the complaint for failure to state a claim on which relief
could be granted. The Court of Federal Claims granted
the motion and dismissed the complaint in a thorough
opinion on which we substantially rely. Stueve Bros.
Farms, LLC v. United States, 105 Fed. Cl. 760 (2012).
Based mainly on the Supreme Court’s decisions in
Danforth v. United States, 308 U.S. 271 (1939), and
United States v. Sponenbarger, 308 U.S. 256 (1939), the
Court of Federal Claims held that in the absence of any
actual flooding of their property, the plaintiffs could not
sustain their claim that the government has taken a
flowage easement over the portion of their property
between the 556-foot and 566-foot flood inundation lines.
The court explained that the government’s “acknowl-
edgement that the Project may subject plaintiffs’ property
to future flooding and [its] suggestion that the govern-
ment may acquire additional flowage easements support,
at most, an apprehension of future flooding. They do not
support a finding that the government has already taken
a flowage easement across plaintiffs’ property.” Stueve
Bros. Farms, 105 Fed. Cl. at 767.
Following the dismissal order, the plaintiffs filed a
motion for reconsideration and a motion to amend their
complaint. The plaintiffs argued that they had recently
discovered that in 1991 and 1993 the government had
conducted and recorded surveys that delineated the 566-
foot flood inundation line. They also claimed they had
only recently learned of the placement of small brass
markers at that line. They argued that those new facts
supported their takings claim. In addition, they made
further arguments in support of their contention that the
STUEVE BROS. FARMS, LLC v. US 5
government’s conduct constituted a taking even in the
absence of actual flooding.
The Court of Federal Claims denied the motion to re-
consider on the ground that the additional arguments
raised in the motion could have been raised in the original
proceeding. The court granted the motion to amend the
complaint in part and denied it in part. It denied the
motion to amend with respect to the claim that the gov-
ernment had engaged in a de facto taking, on the ground
that the de facto taking allegations were legally futile.
The court granted the motion to amend with respect to
the plaintiffs’ allegations regarding the placement of the
six small surveyor’s markers on their land. As to those
allegations, the court held that the plaintiffs would be
allowed to seek compensation for the physical taking of
the property actually appropriated by the markers.
Stueve Bros. Farms, LLC v. United States, 107 Fed. Cl.
469, 479 (2012). The plaintiffs declined to press that
claim, however, and took this appeal.
II
The plaintiffs’ principal argument is that the totality
of the actions of the Corps of Engineers constitutes a
physical taking of a flowage easement over their property,
even though the Prado Dam project has never resulted in
flooding of any of the property. Actual flooding is not
necessary to effect a taking in this case, the plaintiffs
argue, because the alleged acts of the federal government,
either alone or in conjunction with local governmental
authorities, cumulatively had the effect of a taking. 1
1 The plaintiffs do not contend that the facts in this
case gave rise to a regulatory taking; they rely entirely on
their claim that the government’s conduct constituted a
physical taking.
6 STUEVE BROS. FARMS, LLC v. US
A
The main problem with the plaintiffs’ position, as the
Court of Federal Claims explained, is that under well-
settled law the apprehension of flooding does not consti-
tute a taking of a flowage easement. The Supreme Court
made that point clear in Danforth v. United States, 308
U.S. 271 (1939), and United States v. Sponenbarger, 308
U.S. 256 (1939).
The Court in Danforth was addressing a question
about the proper calculation of interest on a condemna-
tion award. The award was for a flowage easement over
land that was taken and converted into a floodway as part
of a flood control project. In order to calculate the inter-
est, it was important for the Court to determine when the
taking occurred. The landowner argued that the taking
occurred at the time of the enactment of the statute that
authorized the creation of the floodway. The landowner’s
theory was that the passage of the act immediately dimin-
ished the value of the property that was to be used as a
floodway.
The Supreme Court rejected that argument, holding
that a reduction of the value of property “may occur by
reason of legislation for or the beginning or completion of
a project. Such changes in value are incidents of owner-
ship. They cannot be considered as a ‘taking’ in the
constitutional sense.” 308 U.S. at 285. Therefore, the
Court held, the “mere enactment of legislation which
authorizes condemnation of property cannot be a taking.”
Id. at 286. See also Kirby Forest Indus., Inc. v. United
States, 467 U.S. 1, 15 (1984) (“[I]mpairment of the market
value of real property incident to otherwise legitimate
government action ordinarily does not result in a tak-
ing. . . . At least in the absence of an interference with an
owner’s legal right to dispose of his land, even a substan-
tial reduction of the attractiveness of the property to
STUEVE BROS. FARMS, LLC v. US 7
potential purchasers does not entitle the owner to com-
pensation under the Fifth Amendment.”).
Turning to the question whether there was a taking
when work on the flood control project began or when the
project was completed, the Court explained that the
construction of the project would constitute a taking only
if the construction “would put upon this land a burden,
actually experienced, of caring for floods greater than it
bore prior to the construction.” Danforth, 308 U.S. at 286.
In the absence of actual flooding resulting in such a
burden on the land, the Court held that the government
was not liable for a taking.
In Sponenbarger, decided the same day as Danforth,
the floodway landowner argued that a taking occurred
when the authorizing statute went into effect and work
began on the flood control project that resulted in the
creation of the floodway. Again, the Supreme Court
rejected the landowner’s argument, pointing out that “the
Government has not interfered with [the landowner’s]
possession and as yet has caused no flooding of her land.”
Sponenbarger, 308 U.S. at 267. The Court added that the
landowner’s contention “amounts to no more than the
claim that [her] land was taken when the statutory plan
gave rise to an apprehension of future flooding,” an event
that “might never occur for many reasons.” Id.
The plaintiffs seek to distinguish Danforth as stand-
ing for the proposition that a flood control flowage ease-
ment cannot be taken if the flood control legislation is
repealed or the flood control project is never commenced.
In fact, however, the project at issue in Danforth was
substantially complete, and the question before the Court
was whether the completion of the project effected a
taking of the landowner’s property. In that situation, and
in the absence of a direct appropriation, the Court ruled
that the government would be liable for a taking only if
the project resulted in flooding “actually experienced” that
8 STUEVE BROS. FARMS, LLC v. US
was greater than the flooding experienced before the
project. Danforth, 308 U.S. at 286. The plaintiffs’ distinc-
tion is unpersuasive.
Sponenbarger is inapposite, the plaintiffs argue, be-
cause the flood control project that would have impacted
the land in dispute in that case was abandoned. But the
relevant portion of the opinion in Sponenbarger assumes
that it could be shown that the flood control project would
cause increased flooding in the future. Even in that
setting, the Court concluded, there would be no taking,
but merely an uncompensable “apprehension of future
flooding.” Sponenbarger, 308 U.S. at 267. As relevant to
this case, both Danforth and Sponenbarger stand for the
proposition that the possibility of future flooding does not
effect a physical taking of a flowage easement in the
absence of actual flooding.
The plaintiffs rely heavily on the Supreme Court’s
earlier decision in Hurley v. Kincaid, 285 U.S. 95 (1932).
They assert that in that case the Court found liability for
the taking of a flowage easement as the result of a flood
control system “without the necessity of flooding.” But
that is not what the Court did. Instead, the Court merely
“assume[d]” that the landowner was correct in charging
that Congress’s adoption of a plan of flood control that
could impact the landowner’s property constituted a
taking “as soon as the government begins to carry out the
project authorized.” Id. at 103-04. Even accepting that
assumption, the Court held, the landowner would have a
full remedy at law and therefore was not entitled to
equitable relief to enjoin the project. Id. at 104-05. Thus,
the Court in Hurley did not decide that the facts of that
case gave rise to a taking. If there were any doubt on that
score, it was put to rest in Sponenbarger. There, after
stating that there was no merit to the theory that a
taking occurred in that case absent flooding, the Court
explained that “[w]hether recovery at law could be had
STUEVE BROS. FARMS, LLC v. US 9
upon a similar contention was left open by Hurley v.
Kincaid.” 308 U.S. at 268 n.16. 2
Our predecessor court, the Court of Claims, followed
Danforth and Sponenbarger in a case quite similar to this
one. In Poinsett Lumber & Manufacturing Co. v. United
States, 91 Ct. Cl. 264 (1940), Congress enacted legislation
authorizing the construction of levees in the area of the
Poinsett Company’s property. The Poinsett Company
alleged that various acts by the government constituted a
taking: the authorization and appropriation of funds for
the levees; the construction of a dam and levees upstream
of the Poinsett Company’s property; and the planned
construction of levees that, when completed, could result
in flooding of the Poinsett Company’s land.
The court sustained the government’s demurrer,
pointing out that there had as yet been no flooding of the
Poinsett property and that the construction had not
interfered with Poinsett’s use or occupation of its land. In
order to make out a physical taking, the court explained,
“it must definitely appear that there has been an actual
physical invasion or encroachment upon private property
by the government, or else such a direct physical destruc-
tion or deprivation of use as to permanently dispossess
the owner and oust him of the beneficial use and enjoy-
ment thereof.” Poinsett, 91 Ct. Cl. at 266. The court
added that “the mere adoption of the plan is not the
equivalent of a taking. The acts of the Government must
constitute an actual invasion and dispossession of the use
and occupancy of the property by the owners.” Id. at 267.
2 The plaintiffs also rely on the Supreme Court’s re-
cent decision in Arkansas Game & Fish Comm’n v. United
States, 133 S. Ct. 511 (2012), but that case merely held
that a temporary period of flooding can give rise to a
temporary physical taking. It said nothing about whether
a physical taking by flooding requires actual flooding.
10 STUEVE BROS. FARMS, LLC v. US
B
The plaintiffs contend that, even if the authorization
and initiation of the new construction on the dam did not
effect a taking, the totality of the events relating to the
identification of the 566-foot flood inundation line had
that effect. In particular, the plaintiffs allege that the
government expressed an intention to take a future
flowage easement over the property, authorized the
condemnation of the land below the 566-foot line, recorded
a survey of the portion of the land below that line, pre-
pared maps showing the 566-foot line, placed small brass
markers on the property to identify that line, abandoned
negotiations for the purchase of the plaintiffs’ property
despite approving the purchase of other properties below
the 566-foot line, and delayed the planned acquisition of
the plaintiffs’ property for more than 20 years.
Contrary to the plaintiffs’ contentions, none of those
actions, viewed individually or collectively, constituted a
taking of a flowage easement over the plaintiffs’ property.
The Court of Claims repeatedly held that the expression
of an intention to condemn property, i.e., a “threat of
condemnation,” does not effect a taking. NBH Land Co. v.
United States, 576 F.2d 317, 319 (Ct. Cl. 1978); see also
Lynch v. United States, 221 Ct. Cl. 979, 981-82 (1979);
Grasso v. United States, 218 Ct. Cl. 717, 721-22 (1978);
Hempstead Warehouse Corp. v. United States, 98 F. Supp.
572, 573 (Ct. Cl. 1951) (citing cases). The fact that Con-
gress authorized the acquisition of the property, either by
purchase or condemnation, also does not in itself consti-
tute a taking. See Danforth, 308 U.S. at 284-85. Nor does
the inclusion of a landowner’s property in a survey or map
of properties that are expected to be acquired by the
government constitute a taking. Mesa Ranch P’ship v.
United States, 222 Ct. Cl. 623, 625 (1980); Hilkovsky v.
United States, 504 F.2d 1112, 1113 (Ct. Cl. 1974) (mere
description of the intended National Seashore in a statute
did not effect a taking by itself).
STUEVE BROS. FARMS, LLC v. US 11
C
The plaintiffs attach great significance to the place-
ment on their property of the six small brass markers
that identify the 566-foot flood inundation line. The trial
court recognized that the placement of the markers could
constitute a physical taking of the portion of the property
on which the markers were placed, and the court offered
the plaintiffs an opportunity to plead that takings theory.
They declined, however, no doubt recognizing that the
recovery for the appropriation of a few square inches of
their property would be de minimis. However, they now
make two arguments that are based on the placement of
the markers. First, they contend that the placement of
the markers was a further indication of the settled inten-
tion of the government to take a flowage easement over
their property up to the 566-foot line. Second, they argue
that the placement of the markers established that the
government has effected a physical taking and that in
calculating the damages for that physical taking, the
court must look to the amount of compensation that
would have been paid had the federal government or the
local governmental entities taken a flowage easement
over the property by eminent domain.
Neither theory stands up. The placement of the
markers adds nothing to the evidence that the govern-
ment has identified the 566-foot line as the line of maxi-
mum flooding following the construction raising the
height of the Prado Dam. The 566-foot line had been
announced in advance of the placement of the survey
markers, and it was acknowledged to be the line of maxi-
mum flooding before the plaintiffs raised the issue of the
survey markers for the first time in their motions for
reconsideration and to amend the complaint.
As for the plaintiffs’ argument that the damages for
the physical taking resulting from the placement of the
markers should be the condemnation value of the flowage
12 STUEVE BROS. FARMS, LLC v. US
easement, there is no logical basis for that claim. The
physical taking that the Court of Federal Claims identi-
fied as potentially eligible for recovery was the taking of
the small amount of property occupied by the markers.
The plaintiffs offer no satisfactory explanation of why that
minor intrusion on a few very small segments of the
property should give rise to a judgment equal to the value
of a flowage easement between the 556-foot and 566-foot
flood inundation lines. While the plaintiffs argue that the
markers demonstrate that this case involves a physical
taking and is therefore unlike other cases in which the
courts have declined to award compensation, they ignore
that the award for the taking must be commensurate with
what was taken. In this case, government conduct other
than the placement of the markers did not effect the
taking of a flowage easement, and the small physical
taking resulting from the placement of the markers did
not convert the government’s conduct into the taking of a
flowage easement. The plaintiffs are therefore not enti-
tled to damages commensurate with the damages that
would arise from the taking of a flowage easement.
D
The plaintiffs next assert that in a series of analogous
situations the courts have found physical takings without
a showing of an actual physical invasion. The cases on
which the plaintiffs rely, however, are not analogous to
this case.
The plaintiffs first invoke cases involving the taking
of water from property owners with riparian rights. In
those cases, such as Dugan v. Rank, 372 U.S. 609 (1963);
Casitas Municipal Water District, 543 F.3d 1276 (Fed. Cir.
2008); and Gerlach Livestock Co. v. United States, 76 F.
Supp. 87 (Ct. Cl. 1948), aff’d, 339 U.S. 725 (1950), the
government action in question cut off or diverted water
from the landowners’ property. The landowners sued,
contending that their ownership rights to the water had
STUEVE BROS. FARMS, LLC v. US 13
been taken. That scenario has nothing to do with the one
before this court, as the taking of water to which the
landowners are entitled is clearly a physical invasion that
is effective as soon as the water is taken. The Court of
Claims in Gerlach remarked that the taking of riparian
rights begins “whenever the defendant’s intent to take
has been definitely asserted and it begins to carry out
that intent.” 76 F. Supp. at 97. In this case, unlike in the
riparian rights cases, the government has not flooded the
plaintiffs’ property and thus has not begun to carry out
the physical invasion that constitutes the taking.
The plaintiffs next point to cases involving the “rails-
to-trails” legislation in which Congress legislatively
sought to convert abandoned railroad easements into
public trails, even when, under state law, those aban-
doned easements would revert to adjacent landowners. In
Presault v. United States, 100 F.3d 1525 (Fed. Cir. 1996)
(en banc), this court held that the legislative elimination
of adjacent landowners’ reversionary interests in the
abandoned rail easements led to a compensable taking, as
the legislation authorized the government to deprive the
landowners of their exclusive possessory rights in the
abandoned easements. By contrast, the conduct of the
Corps of Engineers in this case has not interfered with
any of the plaintiffs’ rights as to the use or disposition of
their property.
The same distinction applies to the plaintiffs’ citation
of cases involving the extension of a navigational servi-
tude onto private property, see Kaiser Aetna v. United
States, 444 U.S. 164 (1979), and the required dedication of
easements to the public, see Dolan v. City of Tigard, 512
U.S. 374 (1994). By limiting the landowners’ right to
exclude others, as was done in those cases, the govern-
ment deprived the landowners of a core attribute of
property ownership. In this case, no such right of proper-
ty ownership has been taken.
14 STUEVE BROS. FARMS, LLC v. US
The plaintiffs next assert that the Supreme Court
cases involving the firing of artillery over private property
support finding a taking in this case. The two cited cases,
Peabody v. United States, 231 U.S. 530 (1913), and Ports-
mouth Harbor Land & Hotel Co. v. United States, 260
U.S. 327 (1922), do not aid the plaintiffs. Instead, they
provide support for the government’s position. In Pea-
body, the Supreme Court held that the landowners’ ap-
prehension that the government would fire artillery from
a battery near the landowners’ property, combined with a
loss of value in the property attributed to the proximity of
the battery, did not constitute a taking because the guns
had not been fired for several years. A taking cannot be
found, the Court explained “unless there has been an
actual appropriation of property . . . . Land, or an interest
in land, cannot be deemed to be taken by the Government
merely because it is suitable to be used in connection with
an adjoining tract which the Government has acquired, or
because of a depreciation in its value due to the appre-
hension of such use.” Peabody, 231 U.S. at 539. That
principle supports the holding of the Court of Federal
Claims in this case, that government conduct falling short
of a physical invasion of the plaintiffs’ property cannot be
a physical taking even if the government’s conduct results
in a reduction of the value of that property.
In Portsmouth Harbor, a later case involving the same
property, the Court found that the plaintiffs had made a
sufficient showing to overcome the government’s demur-
rer. Significantly, however, the Court did not find that a
taking could be shown merely because the government
had installed new guns at the battery site. The Court
instead required that shots be fired across the landown-
ers’ property in order for a taking to be found. The Court
explained that “a single act may not be enough, [but] a
continuance of them in sufficient number and for a suffi-
cient time may prove it.” Portsmouth Harbor, 260 U.S. at
329-30.
STUEVE BROS. FARMS, LLC v. US 15
E
The plaintiffs point out that it has been more than 20
years since the Prado Dam enlargement project began,
and they argue that the government’s failure to acquire a
flowage easement during that period by itself gives rise to
a compensable taking. The government’s delay in acquir-
ing property, even when it ultimately intends to acquire
the property, is normally not enough to constitute a
taking. Hilkovsky v. United States, 504 F.2d 1112, 1115
(Ct. Cl. 1974). The plaintiffs rely on cases that have held
that governmental delays in property acquisition accom-
panied by severe restrictions on the property owner’s use
of their property during the period of delay can amount to
a taking or a due process violation. See Benenson v.
United States, 548 F.2d 939 (Ct. Cl. 1977) (acts of gov-
ernment pending acquisition of hotel prevented owners
from selling the property or using it for any income-
producing purpose); Urbanizadora Versalles, Inc. v.
Rivera Rios, 701 F.2d 993 (1st Cir. 1983) (14-year gov-
ernment enforced moratorium on development of a prop-
erty pending condemnation).
In this case, however, neither the Corps of Engineers
nor any other federal entity prohibited the plaintiffs from
using their property as they chose. The only restraints on
their right to use their property were imposed by local
governmental entities, including the City of Chino, which
zoned the portion of the property at issue in this case for
recreational and open space use. The plaintiffs argue that
the City took that step only because property in the city
would otherwise have been ineligible for federal flood
insurance. But that motivation for the City’s promulga-
tion of its zoning restrictions cannot help the plain-
tiffs. The actions of state and local officials in voluntarily
implementing zoning restrictions that affect the landown-
er’s property do not become takings by the federal gov-
ernment just because the local officials act in cooperation
with, or at the urging of, federal officials. Mesa Ranch
16 STUEVE BROS. FARMS, LLC v. US
P’ship, 222 Ct. Cl. at 626 (“[W]e have squarely held that
acts of federal officials in persuading local officials to
obstruct development by placing new burdens upon it, or
refusing to lift old ones, are not takings imputable to the
United States.”); Lynch v. United States, 221 Ct. Cl. 979,
981-82 (1979); Nalder v. United States, 217 Ct. Cl. 686,
687 (1978); De-Tom Enters., Inc. v. United States, 552
F.2d 337, 339 (Ct. Cl. 1977); cf. B&G Enters., Ltd. v.
United States, 220 F.3d 1318, 1325 (Fed. Cir. 2000). 3
F
The plaintiffs make a closely related claim under the
rubric of a “de facto taking,” which is generally defined as
a taking that results either from physical invasion or the
imposition of some restraint that substantially deprives
the property owner of the use and enjoyment of its proper-
ty. See 2A Julius L. Sackman, Nichols on Eminent Do-
main § 6.01[15] (3d ed. 2013); City of Buffalo v. J.W.
Clement Co., 269 N.E.2d 895, 902-03 (N.Y. 1971). They
assert that the government’s conduct, taken as a whole,
interfered with their property rights to such an extent
that it should have led the Court of Federal Claims to
conclude that the government took their property without
compensation, even in the absence of a formal condemna-
tion or physical invasion (other than the placement of the
six brass surveyor’s markers).
The sum and substance of the various governmental
actions of which the plaintiffs complain is that the Corps
3 We have been advised that the plaintiffs have
brought a parallel action in California Superior Court,
alleging a taking of the same property that is at issue in
this case by the Orange County Flood Control District and
other local governmental entities. Stueve Bros. Farms,
LLC v. Orange County Flood Control District, No. CIV RS
1303346 (Cal. Super. Ct.).
STUEVE BROS. FARMS, LLC v. US 17
of Engineers was authorized to acquire a flowage ease-
ment over the plaintiffs’ property. But after negotiations
for the purchase of the property fell through, the Corps of
Engineers and the local governmental agencies failed to
acquire the property by eminent domain, while nonethe-
less continuing to treat the 566-foot line as the maximum
level of flooding that could result from operation of the
Prado Dam. The combination of the threat of flooding and
the city’s zoning regulations, according to the plaintiffs,
largely destroyed the value of their property by depriving
them, or any potential purchaser, of the incentive or
ability to develop the property.
There are indeed cases in which the courts have found
de facto takings when the government has not actually
acquired or invaded the property owners’ property. But in
each of those cases, the government had taken steps that
directly and substantially interfered with the owner’s
property rights to the extent of rendering the property
unusable or valueless to the owner. See Drakes Bay Land
Co. v. United States, 424 F.2d 574 (Ct. Cl. 1970) (govern-
ment action denied access to landowner’s property and
otherwise rendered it valueless); Foster v. United States,
607 F.2d 843 (Ct. Cl. 1979) (government denied owner of
mineral rights permission to extract minerals from prop-
erty); Richmond Elks Hall Ass’n v. Richmond Redevelop-
ment Agency, 561 F.2d 1327, 1330 (9th Cir. 1977) (because
of agency actions, property became unsaleable and “its
use for its intended purposes became severely limited”);
Foster v. City of Detroit, 254 F. Supp. 655 (E.D. Mich.
1966), aff’d, 405 F.2d 138 (6th Cir. 1968) (city abandoned
condemnation proceedings after 10 years, inhibited prop-
erty owner from making improvements, and ultimately
ordered property owner to demolish buildings on the
property).
As the Court of Federal Claims explained, 107 Fed.
Cl. at 487-88, the plaintiffs’ allegations in this case do not
approach matching the facts presented in those extreme
18 STUEVE BROS. FARMS, LLC v. US
cases. There has been no invasion of their property by
flooding or otherwise (setting aside the placement of the
surveyor’s markers). No federal statute, regulation, or
other directive has limited the plaintiffs’ rights with
respect to their use of their property. Nor has any federal
agency taken action that restricts access to or other use of
the property. We therefore do not agree with the plain-
tiffs that the government’s conduct in this case gave rise
to a de facto taking for which the plaintiffs are owed
compensation. 4
The plaintiffs make the separate contention that the
Court of Federal Claims erred by failing to apply princi-
ples of “fairness and justice” in this case. They base that
claim on the Supreme Court’s decision in Armstrong v.
United States, 364 U.S. 40 (1960), where the Court stated
that the Takings Clause is “designed to bar Government
from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the
public as a whole.” Id. at 49. That expression captures
one of the principles underlying the Takings Clause, but
it does not set forth a theory of recovery or define a cause
of action. Because we have concluded that, under well-
4 The plaintiffs argue in passing that the Court of
Federal Claims erred in refusing to accept the reply brief
in support of their motion for reconsideration that they
submitted after the court entered an order setting a date
for the filing of a reply brief. We need not decide whether
the court erred in refusing to consider the reply brief
because that brief would not have changed the court’s
reasoning. The reply brief did not address the question
whether the issues raised on reconsideration could have
been raised earlier, which was the ground upon which the
court denied reconsideration. Moreover, the reply brief
contains nothing that would have changed that court’s (or
our) analysis of the substantive legal issues in this case.
STUEVE BROS. FARMS, LLC v. US 19
settled principles of takings law, the allegations regarding
the federal government’s actions do not give rise to a
physical taking, we are constrained to hold that the
plaintiffs have failed to state a claim upon which relief
can be granted.
For the foregoing reasons, we conclude that the Court
of Federal Claims correctly held that there was no physi-
cal taking of a flowage easement over the plaintiffs’
property.
AFFIRMED