Banks v. United States

62 Fed. Cl. 778, 2004 U.S. Claims LEXIS 290, 2004 WL 2475338
CourtUnited States Court of Federal Claims
DecidedNovember 2, 2004
DocketNo. 99-4451 L
StatusPublished
Cited by5 cases

This text of 62 Fed. Cl. 778 (Banks v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Banks v. United States, 62 Fed. Cl. 778, 2004 U.S. Claims LEXIS 290, 2004 WL 2475338 (uscfc 2004).

Opinion

OPINION AND ORDER

HEWITT, Judge.

Before the court, on remand from the Federal Circuit, is Plaintiffs’ Motion for Summary Judgment on Liability (Pls.’ Mot.).1 On appeal, the Federal Circuit determined that plaintiffs’ physical takings claims were not time-barred and reversed and remanded plaintiffs’ claims for further proceedings. Banks v. United States, 314 F.3d 1304, 1305-06 (Fed.Cir.2003). Further to the Federal Circuit’s guidance and for the following reasons, plaintiffs’ motion is DENIED.

1. Background2

Plaintiffs are thirty-six owners of property in Michigan “along a four and one-half mile stretch of the eastern shoreline of Lake Michigan south of St. Joseph’s Harbor.” Banks v. United States, 314 F.3d 1304, 1306 (Fed.Cir.2003) (Banks II). Plaintiffs allege that the United States Army Corps of Engineers (Corps), by its construction and maintenance of certain jetties at St. Joseph Har[779]*779bor, “ha[s] interfered with the natural littoral flow of sand and river sediment and caused damage to the lakebed” which has effected “ ‘a gradual and continued taking’ ” of plaintiffs’ shoreline property. Id.

The activities of the Corps affecting St. Joseph Harbor and shoreline began in the 1830s. Id. In 1903, the Corps completed construction of the St. Joseph Harbor jetties. Id. “Between 1950 and 1989, the Corps installed sandtight steel sheet piling to the jetties.” Id. The parties agree that the harbor jetties exacerbate the naturally occurring erosion of the shorelines along the Great Lakes. Id. In particular, the jetties in St. Joseph Harbor have “ ‘significantly increased the annual rate of shoreline erosion,’ which, without human intervention, occurs naturally at a rate of approximately one foot per year.” Id. (quoting Banks v. United States, 49 Fed.Cl. 806, 815-16, 818 (2001) (Banks D). Since the mid-1970s, the Corps has “‘acknowledged the longstanding and significant exacerbation of erosion caused by its harbor jetties.’ ” Id. (quoting Banks I, 49 Fed.Cl. at 817).

Pursuant to Section 111 of the River and Harbor Act of 1968, 90 Pub.L. No. 90-483, 82 Stat. 731, 735 (1970),3 the Corps prepared a proposal in 1974 to mitigate the shoreline erosion attributable to the jetties in St. Joseph Harbor. Id. The Corps’ mitigation efforts included: (1) more than fifteen years of providing fine sand for “feeder beaches ‘to nourish the areas suffering shore damage,’ ” Banks II, 314 F.3d at 1306-07, (2) depositing coarser sediments with longer retention time on the St. Joseph shoreline at least five times between 1986 and 1993, see id., and (3) “placing barge-loads of large rocks into the lake in 1995.” Id. at 1307. Three technical reports prepared by the Corps and issued respectively in 1996, 1997 and 1999 addressed the progress of the Corps’ mitigation efforts in St. Joseph and “collectively indicate[d] that the [shoreline] erosion was permanent and irreversible.” Id. at 1307.

On appeal, the Federal Circuit found that “[w]ith the mitigation efforts underway, the accrual of plaintiffs’ claims remained uncertain until the Corps’ 1996 Report, 1997 Report and 1999 Report collectively indicated ... the permanence of the [shoreline erosion].” Id. at 1310. Accordingly, the Court of Appeals concluded that because “[t]he statute of limitations did not begin to run until the Corps issued the 1996, 1997, and 1999 Reports[,] ... plaintiffs!’] ... complaints ... [were] timely.” Id. (reversing the trial court’s decision in Banks I, 49 Fed. Cl. at 825, that the plaintiffs’ claims accrued no later than 1989).

On remand, plaintiffs move the court for summary judgment on the issue of liability on the basis that defendant’s admission to some responsibility for the shoreline erosion is sufficient to establish a taking. See Pis.’ Mot. at 7.

II. Discussion

A. Standard of Review

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rules of the United States Court of Federal Claims (RCFC) 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Coast Fed. Bank v. United States, 323 F.3d 1035, 1037 (Fed.Cir.2003). A fact that might significantly affect the outcome of the litigation is material. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. When an underlying factual question arises in a case involving “complex scientific principles” or requiring expert witness testimony, summary judgment may be improper. Howes v. Med. Components, Inc., 814 F.2d 638, 643 (Fed.Cir.1987). Disputes over facts that are not outcome determinative will not preclude the entry of summary judgment. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A party opposing a summary judgment motion cannot rest on the mere allegations or denials of his pleading, but must [780]*780“ ‘go beyond the pleadings and by her own affidavits, or by the “depositions, answers to interrogatories, and admissions on file” designate “specific facts showing that there is a genuine issue for trial.”’” Omega Eng’g, Inc, v. Raytek Corp., 334 F.3d 1314, 1320 (Fed.Cir.2003) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citation omitted)).

The party moving for summary judgment bears the initial burden of demonstrating the absence of any genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party demonstrates an absence of a genuine issue of material fact, the burden then shifts to the non-moving party to show that a genuine issue exists. See Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1562 (Fed.Cir.1987). To defeat summary judgment, “[t]he party opposing the motion must point to an evidentiary conflict created on the record at least by a counter statement of a fact or facts set forth in detail in an affidavit by a knowledgeable affiant.” Barmag Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831, 836 (Fed.Cir.1984). “Mere denials or conclusory statements are insufficient.” Id. The court must resolve any doubts about factual issues in favor of the party opposing summary judgment, Litton Indus. Prods., Inc. v. Solid State Sys. Corp.,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Richter v. United States
Federal Claims, 2025
Warnement v. United States
Federal Claims, 2025
Banks v. United States
69 Fed. Cl. 206 (Federal Claims, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
62 Fed. Cl. 778, 2004 U.S. Claims LEXIS 290, 2004 WL 2475338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banks-v-united-states-uscfc-2004.