Bass Enterprises Production Co. v. United States

48 Fed. Cl. 621, 149 Oil & Gas Rep. 120, 2001 U.S. Claims LEXIS 21, 2001 WL 196752
CourtUnited States Court of Federal Claims
DecidedFebruary 7, 2001
DocketNo. 95-52 L
StatusPublished
Cited by5 cases

This text of 48 Fed. Cl. 621 (Bass Enterprises Production Co. 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
Bass Enterprises Production Co. v. United States, 48 Fed. Cl. 621, 149 Oil & Gas Rep. 120, 2001 U.S. Claims LEXIS 21, 2001 WL 196752 (uscfc 2001).

Opinion

OPINION AND ORDER

HODGES, Judge.

We have ruled that plaintiffs suffered a temporary taking of their property. Bass Enterprises Production Co. v. United States, 45 Fed.Cl. 120 (1999).2 Shortly after the liability opinion was issued, the parties asked the court to enter an Order establishing the standard to use in valuing the temporary taking. We agreed to rule on the measure of damages to aid the parties’ settlement efforts. Ultimately the parties could not agree and we proceeded to trial on the method of calculating fair rental value. The second damages phase will be limited to testimony on the underlying numbers.

This case involves the right to drill, mine, extract, remove, and dispose of all the oil and gas on the subject property. Plaintiffs’ lease runs until the resources are depleted. The United States did not take oil or gas from the land, but merely delayed plaintiffs’ taking of those resources. Bass, 45 Fed.Cl. at 124. Eventually plaintiffs would get all of it. We ruled therefore that the only measure of damages that would compensate plaintiffs without resulting in a double recovery or a windfall was the interest they would have earned on oil and gas profits during the delay.3 Plaintiffs argue that such a measure would not be equitable because they would have suffered a net loss during the four-year taking period. Specifically, the initial investment costs would result in a negative number. According to plaintiffs, there would be no profits on which to calculate interest.

DISCUSSION

“The usual measure of just compensation for a temporary taking ... is the fair rental value of the property for the period of the taking.” Yuba Natural Resources, Inc. v. United States, 904 F.2d 1577, 1581 (Fed. Cir.1990); see also Kimball Laundry Co. v. United States, 338 U.S. 1, 7, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949). The parties agree that this is the applicable standard, but they disagree on the method that should be applied. The damage model that we suggested focused on compensating plaintiffs for what they actually lost. Plaintiffs were delayed in their development efforts. A hypothetical lessee would have rented this property to develop, just as Bass did. But if the property had been developed, less oil and gas would have been available for plaintiffs if the property were returned. So the question is, what would Bass have charged to delay development for four years. We agreed to hear evidence on other methods of calculating fair rental value at trial.

I.

Plaintiffs contend that the method of damages suggested by this court would yield zero damages. Plaintiffs’ expert, Dr. Kalt, testified that large up-front investment costs would have offset any income during the first [623]*623few years. Moreover, plaintiffs rejected this method because they said it did not approximate fair rental value. They proposed two other methods.

The first method that plaintiffs proposed was referred to as the “no hindsight” approach. This method presumes that a willing buyer and a willing seller were negotiating “a rental agreement under the conditions that the length of the taking is unknown ... [a]nd ... you don’t have the benefit of knowing how history will evolve after August of 1994,” as Dr. Kalt described it. “What I would charge you would be the interest I could earn by, instead of renting it to you, ... selling the asset for its market value and investing the money. I would charge you essentially interest on the profit stream that can be generated.” To arrive at this number, Dr. Kalt used the fair market value in August 1994 of $8.94 million multiplied by an interest factor of 10.07%. He calculated a monthly rental payment of $75,022.4 The rental payment ends when the property is returned, according to Dr. Kalt. Dr. Kalt testified that the interest factor is determined by “a rate of return that the project needs ... in order to be profitable.”

The fair market value that Dr. Kalt used is based on an earlier decision by this court in a permanent taking context. See Bass, 95-52L, slip. op. at 5 (Fed.Cl. June 20, 1996). Fair market value is the proper measure of just compensation where land is taken permanently by the United States. Yuba, 904 F.2d at 1580. As defendant correctly points out, however, temporary takings valuation is not a derivative of permanent taking value. The Supreme Court has held that “fair compensation for a temporary possession of a business enterprise is the reasonable value of the property’s use.” United States v. Pewee Coal Co., 341 U.S. 114, 117, 71 S.Ct. 670, 95 L.Ed. 809 (1951) (citing Kimball Laundry, 338 U.S. at 1, 69 S.Ct. 1434). Interest on the fair market value of the property does not provide a method that accurately reflects the reasonable value of the property’s use. Plaintiff provides no case support for such a method.

The second method that plaintiffs propose to determine fair rental value is the “hindsight” approach. Dr. Kalt testified that under this approach we “know[ ] when the taking ends ... and ... you are allowed to take into account the actual evolution of the information underlying the production process, the prices, the geology, ... [and the] information available as of the date at which the property is returned.” Plaintiffs’ expert contends that the rental calculation must recognize that plaintiff had to “wait for dollars, that is, the production profile doesn’t start until sometime after the taking; and the asset that you get back is worth less than the asset that was taken from you.” Instead of the asset’s being worth $8.94 million in August 1994, hindsight provides the ability to take into account oil prices for the period of dispossession, according to Dr. Kalt. The present value in 1994 is representative of that declining world. Thus, the fair market value in August 1994 under this method is $3.59 million, and when the asset is returned the fair market value is $2.33 million.5 The rental payment “preserves and gives back to Bass and Enron the value of what was taken [which] is the present value of the sum of the rental payments plus the $2.33 million. That’s a monthly rental payment of $44,703.” Dr. Kalt stated that plaintiffs are being “compensate[d] not only for the missed interest but for the depreciation of the value of the asset.”

This method is based in part on the value of the property that is returned at the end of the taking period. Plaintiffs’ expert testified that “[t]o keep the party whole, the value of the property at the time of taking is going to have to equal the value of the property in present value at the time it is returned plus the rental payments ....” We disagree. The trial court in Yuba found that “[j]ust compensation for a temporary taking does not take into account the fan market value of the property either before or after it [624]*624is taken.” Yuba Natural Resources, Inc. v. United States, No. 480-80L, slip op. at 5 (Cl.Ct. March 9, 1989). The appellate court recognized that the property was not permanently taken. The Supreme Court in Kim-ball Laundry stated,

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Bluebook (online)
48 Fed. Cl. 621, 149 Oil & Gas Rep. 120, 2001 U.S. Claims LEXIS 21, 2001 WL 196752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bass-enterprises-production-co-v-united-states-uscfc-2001.