OPINION
SMITH, Chief Judge.
This regulatory taking claim is before the court after a one-week trial, which followed the denial of cross-motions for summary judgment. After considering evidence presented at trial and having examined the site with the aid of counsel and expert witnesses, the court finds that the Army Corps of Engineers’ denial of a permit to fill plaintiff’s property resulted in a taking, and accordingly awards just compensation as mandated by the fifth amendment.
FACTS
The majority of the facts underlying this case previously were set forth in Loveladies Harbor, Inc. v. United States, 15 Cl.Ct. 381 (1988), and are recited briefly below for the reader’s convenience.
Plaintiffs purchased approximately 250 acres of vacant land in Long Beach Township, Ocean County, New Jersey for $300,-000 in 1956. By May 5,1982,199 acres had been improved by landfill, where necessary, and by the construction of homes. Most of these acres had been sold to the general public. Development of the remaining 51 acres was prevented by the enactment of certain state and federal statutes regulating wetlands. These statutes required permits before the filling of any wetlands.1 Most of the land at issue here could not be used without such fill permits.
[154]*154Plaintiffs twice applied for a state fill permit, first requesting a permit to fill 51 acres, and later, subsequent to a settlement offer by the state agency, a permit to fill 12.5 acres. The result of the state permitting process, including one appeal to the Appellate Division of the New Jersey Superior Court, was that plaintiffs were granted a permit to fill 11.5 acres subject to the condition that plaintiffs mitigate the destruction of the wetlands by creating a corresponding amount of new wetlands. The NJDEP denied plaintiffs request to fill an additional acre because it already had been filled.
At the same time they sought a state permit, plaintiffs applied to the Corps for a federal permit. After two denials by the Corps, and following the state’s grant of a permit for the fill of 11.5 acres, plaintiffs sought a federal permit for 11.5 acres, which would have enabled them to develop the 12.5 acres at issue. This permit application was denied by the Corps on May 5, 1982, a decision that subsequently was affirmed by the district court. See Loveladies Harbor, Inc. v. Baldwin, Civil No. 82-1948 (D.N.J. Mar. 12, 1984) (unpublished), affd without opinion, 751 F.2d 376 (3d Cir.1984). Plaintiffs then filed suit in this court, seeking just compensation for the alleged taking of 11.5 acres of wetlands and one acre of uplands.
On August 12, 1988, this court denied cross-motions for summary judgment on liability, stating that there remained a genuine issue of material fact as to whether the property retained any economically viable use after the Corps’ permit denial. 15 Cl.Ct. at 398.2 The court rejected defendant’s argument that the entire 250 acres should be considered for determining the extent to which the permit denial affected plaintiffs’ interests, holding that the only parcel at issue was the 12.5 acres. Id. at 391-93. The court also indicated that plaintiffs’ proposed use of the property, although validly prohibited by the Corps, did not constitute an activity that would bring it within the nuisance exception to the requirement of just compensation. Id. at 388-90.3
[155]*155DISCUSSION
In Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980), the Supreme Court indicated that a regulation, in that case a zoning law, as applied to a particular property may effect a taking if it does not substantially advance legitimate state interests (citing Nectow v. Cambridge, 277 U.S. 183, 188, 48 S.Ct. 447, 448, 72 L.Ed. 842 (1928)), or if it “denies an owner economically viable use of his land” (citing Penn Central Transp. Co. v. New York City, 438 U.S. 104, 138 n. 36, 98 S.Ct. 2646, 2666 n. 36, 57 L.Ed.2d 631 (1978)). See also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). It has become axiomatic that whether the application of a regulation results in a taking is highly fact-specific, and is not subject to analysis by a set formula. Penn Central, 438 U.S. at 128, 98 S.Ct. at 2661. It is “a question of degree — and therefore cannot be disposed of by general propositions.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922).
In this case, the court already has stated that the determination that a regulation is intended to advance a legitimate state interest does not preclude a taking; rather, it is but one factor in determining who should bear the burden of paying for the regulatory action. 15 Cl.Ct. at 388. Here, plaintiffs’ claim is that the Corps’ denial of plaintiffs’ permit application denied them all economically viable use of their land, and thus imposes upon these plaintiffs a confiscatory burden.
There is no tidy formula for determining when a regulation or its application denies an owner economically viable use of its land and thereby results in a taking. Rather, the Supreme Court has characterized the analytic process as one relying
instead on ad hoc, factual inquiries into the circumstances of each particular case____ To aid in this determination, however, we have identified three factors which have “particular significance.” (1) “the economic impact of the regulation on the claimant”; (2) “the extent to which the regulation has interfered with distinct investment-backed expectations”; and (3) “the character of the government action.”
Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 224-25, 106 S.Ct. 1018, 1026, 89 L.Ed.2d 166 (1986) (citations omitted). See also Keystone Bituminous Coal Ass’n v. De Benedictus, 480 U.S. 470, 494-95, 107 S.Ct. 1232, 1247, 94 L.Ed.2d 472 (1987) and cases cited therein.
As a part of this analysis, the court must compare the value of the property before the government action with the value after the government action. See, e.g., Keystone Bituminous, 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472; Goldblatt v. Hempstead, 369 U.S. 590, 594-95, 82 S.Ct. 987, 990, 8 L.Ed.2d 130 (1962); Formanek v. United States, 18 Cl.Ct. 785, 798 (1989). In a case factually similar to the one at bar, and on which this court relied in deciding the cross-motions for summary judgment, Court of Appeals for the Federal Circuit noted, “[i]f there is found to exist a solid and adequate fair market value ... which [plaintiffs] could have obtained from others for that property, that would be a sufficient remaining use of the property to forestall a determination that a taking had occurred____” Florida Rock Indus. v. United States, 791 F.2d 893, 903 (Fed.Cir. [156]*1561986), cert. denied, 479 U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987).
Value Before Government Action
At the outset, the court must define the terms “fair market value” and “highest and best use.” By industry definition, market value is:
The most probable price, as of a specified date, in cash, or in terms equivalent to cash, or in other precisely revealed terms, for which the specified property rights should sell after reasonable exposure in a competitive market under all conditions requisite to a fair sale, with the buyer and seller each acting prudently, knowledgeably, and for self-interest, and assuming that neither is under undue duress.
American Institute of Real Estate Appraisers, The Appraisal of Real Estate 19 (9th ed. 1987). Intrinsically linked to the determination of fair market value is a determination of the highest and best use. This is defined by the industry as, “[t]he reasonably probable and legal use of vacant land or an improved property, which is physically possible, appropriately supported, financially feasible, and that results in the highest value.” Id. at 269.4 Consistent with the foregoing, valuations in eminent domain proceedings “may reflect not only the use to which the property is presently devoted but also that use to which it may be readily converted.” United States v. Powelson, 319 U.S. 266, 275, 63 S.Ct. 1047, 1052, 87 L.Ed. 1390 (1943).
Plaintiffs maintain that the highest and best use for their property would have been as a prepared site for a 40-lot residential development. This is based on an appraisal performed by plaintiffs’ expert, James P. Montague, and includes the costs of preparing the site for further development. These costs are based on a development plan prepared by John L. Yoder, P.E., of the consulting engineering firm Horn, Tyson & Yoder, Inc. Both Mr. Montague and Mr. Yoder testified at trial. In addition, the court heard the testimony of Michael D. Miller, an environmental consultant, who testified to the cost and likelihood of complying with the NJDEP’s mitigation condition, a cost which was not included in Mr. Montague’s appraisal.
As a result of a comparable sales analysis, Mr. Montague determined that the gross value of the vacant land as of May 5, 1982 was $3,720,000, taking into account variations for lot sizes, shapes, views, and proximity to water. The cost of preparing the property was estimated by Mr. Yoder to be $900,500 as of May 5, 1982. Mr. Miller testified that complying with the states’ mitigation condition was feasible, and would have cost approximately $161,-500, including the acquisition of the mitigation site; this was supported by the testimony of defendant’s witness, John Weingart, the Director of the Division of Coastal Resources of the New Jersey Department of Environmental Protection.
Although defendant does not offer an alternative highest and best use, nor does it present its own appraisal of the property’s fair market value before the permit denial, it seeks to discredit plaintiffs’ argument, primarily by asserting that plaintiffs had not met the conditions imposed by the NJDEP, among which were mitigation and the very permit approval by the Army Corps of Engineers that is at issue in this case.5 Defendant claims that plaintiffs’ appraisal is inadequate because it does not account for a possibility that all permits would not be obtained, a factor by which a knowledgeable buyer would discount his purchase price. Moreover, because the necessary state permits were not in place, [157]*157the Corps’ action could not have effected a taking.6
Plaintiffs’ extensive evidence indicated that they would have been able to meet all of the state conditions had the Corps approved their permit request. Although plaintiffs had not located an acceptable mitigation site, there is ample evidence that compliance with this state-imposed condition was well within reason. Plaintiffs also presented thorough and detailed estimates of the cost of complying with the state conditions, as well as the cost of engineering and improvement to the property, including preparing the site for residential development. Although it may be true that the plaintiffs’ appraisal did not consider the possibility that all necessary permits would not be obtained, the evidence at trial indicated that the likelihood of that happening was negligible, and would have had no impact on the fair market value. Defendant may be correct that there are some deficiencies in the cost estimates used in plaintiffs’ appraisal, and defendant may be correct that the appraisal incorrectly assumed construction would have begun on the date of the alleged taking. The court, however, is convinced that plaintiffs’ appraisal is a fair and accurate estimate of the property’s fair market value as of May 5, 1982.
Plaintiffs have proven that the highest and best use for their property before the government action was as a 40-lot residential development. This proposed use would have been physically possible and financially feasible; furthermore, it was a use to which the property could have been readily converted. Based on the documentary evidence and testimony presented, the court therefore is persuaded that the fair market value of plaintiffs’ property before the government action was $2,658,000.
Value After Government Action
Defendant maintains that there has not been a taking of plaintiffs’ property because plaintiffs have failed to demonstrate that there are no remaining economically viable uses. More specifically, defendant argues that plaintiffs’ failure to apply for a permit to fill less than 12.5 acres defeats plaintiffs’ claim as a matter of law. Plaintiffs point out that their request for a permit to fill 12.5 acres follows the denial of a previous application covering 51 acres and an application that would have enabled plaintiffs to develop 37.6 acres. Plaintiffs further maintain that their evidence establishes that further applications would have been virtually futile, giving rise to the equivalence of a presumption that there are no economically viable uses, and that the burden is on defendant to prove otherwise. In light of the evidence presented by both sides, the court is strongly convinced that the property is without any economically viable use in the absence of a fill permit.
As a preliminary matter, it is incumbent upon the court to reiterate some ground rules concerning the parties’ respective burdens of proof. There is no dispute that plaintiffs bear the burden of proving the elements of their cause of action, including the absence of any remaining economically viable use. Common sense, however, indicates the impossibility of requiring the plaintiffs to prove a negative. The Federal Rules of Evidence and the wisdom of leading scholars buttress this conclusion.
Rule 301 of the Federal Rules of Evidence reads in its entirety:
In all civil actions and proceedings not otherwise provided for by Act of Con[158]*158gress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.
While directed at presumptions, this rule and the commentary on it make it clear that the risk of non-persuasion, or the burden of persuasion, never shifts. This is not true of the burden of production, i.e., the responsibility for presenting sufficient evidence that
if [that party] stops and his adversary does nothing, his victory (so far as it depends on having the inferences he desires drawn) is at once proclaimed____ Whenever the first producer has presented evidence sufficient to get him to [that] stage and the burden of producing evidence can truly be said to have shifted, his adversary may in turn pass through the same [process],
C. McCormick, McCormick on Evidence § 338 (3d ed. 1984).
In this case, plaintiffs correctly have characterized their ultimate burden as one of “persuading the court ... that it is more likely true than not that there remains no economically viable use for [their] property.” In doing so, if plaintiffs produce sufficient evidence to establish a prima facie case, i.e., to go to the jury if this were a jury ease, defendant may present no evidence and still prevail. If plaintiffs present sufficient evidence to be entitled to a directed verdict, the burden of production will have shifted to defendant. The testimony summarized below illustrates why the court finds it not only “more likely than not” but beyond any reasonable doubt that there is no remaining economically viable use for plaintiffs’ property.
Plaintiffs’ expert, William T. Ard, testified that in the absence of a § 404 permit, the highest and best use of the 12.5 acres is for environmental conservation or recreational purposes, with an attendant fair market value of $1,000 per acre as of May 5, 1982, based on a market data approach. Defendant’s expert, Allan G. Black, concurred with the valuation on the wetland portion, but estimated that the one upland acre might be worth somewhat more if a potential buyer perceived it could be developed. Mr. Black also admitted on cross-examination that included in that $1,000 per acre value was the property’s potential value for hunting, bird watching, and growing and harvesting salt hay.
Notwithstanding its own expert’s testimony, defendant argues that among the potential uses plaintiffs’ appraiser overlooks are bird watching, hunting, and harvesting salt hay. Defendant offers little or no proof of any of these uses, relying instead on its perception that plaintiffs bear the entire burden of proof and persuasion. Defendant also claims plaintiffs failed to explore the possibilities of using the property for a marina, for a mitigation site, for aquaculture, and for sale to neighbors who might be interested in preserving their unobstructed water views.
If this were a jury case, the court would be required to “screen the proffered potential uses and exclude from jury consideration those which have not been demonstrated to be practicable and reasonably probable uses.” United States v. 341.45 Acres of Land, 633 F.2d 108, 111 (8th Cir.1980), cert. denied sub nom. Bassett v. United States, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 324 (1981) (quoting United States v. 320.0 Acres of Land, 605 F.2d 762, 815 (5th Cir.1979)). By analogy, the court sitting as a finder of fact must discount proposed uses that do not meet a “showing of reasonable probability that the land is both physically adaptable for such use and that there is a demand for such use in the reasonably near future.” Id. (emphasis in original) (relying on Olson v. United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236 (1934)).
Although there was persuasive testimony that hunting would not be permitted on the property due to its close proximity to residences, and that farming salt hay would not be economically feasible due to the small size and relative inaccessibility of [159]*159the acreage, the parties’ disputes over these possibilities seem unnecessary. Defendant’s witness agreed that these uses, as well as bird watching, would be included in a highest and best use of conservation and recreation, the use that yielded a value of $1,000 per acre.
The remaining alternative uses suggested by defendant were as a marina, as a mitigation site for other developers, and for sale to neighboring property owners who might wish to ensure an unobstructed water view. Defendant does not represent that these are “reasonably probable” uses, see Olson, but points to plaintiffs’ failure to investigate thoroughly their possibility. Plaintiffs’ witnesses, Mr. Yoder and Mr. Miller, testified that deed restrictions, zoning requirements, the destruction of wetlands, and the degradation of water quality and of the already suffering shellfish habitat made the construction of a marina unlikely. Defendant’s state regulatory expert, Mr. Weingart, admitted on cross-examination that NJDEP would discourage the construction of a marina, and, in some cases, would prohibit it. He also testified that the uplands portion of the property might be used to create new wetlands, and that lagoons that previously had been dug by plaintiffs might be suitable for wetlands enhancement. Assuming that these possibilities rise to the level of reasonable probability, the only evidence that there is a market for this property as a mitigation site are the condition on plaintiffs’ own state permit, the testimony of Mr. Weingart that this is a condition frequently imposed by the state on other developers, and the testimony of Frank J. Cianfrani, the Chief of the Regulatory Branch, Operations Division, of the Philadelphia District of the Army Corps of Engineers, that the Corps now often requires mitigation. This does not establish the likelihood of a market for this property in 1982.
Finally, defendant proposes that neighboring property owners might well be interested in acquiring plaintiffs’ property to ensure their continued unobstructed water view. This suggestion is premised on the fact that some of the landowners formally opposed the permit applications, hiring attorneys to represent their interests before the state and federal agencies. In light of their successful opposition to plaintiffs’ permit requests and the resulting absence of permissible development, it is difficult to imagine why a rational property owner would spend additional money to purchase that which the government already has bestowed.
There is no evidence that the alternative uses proposed by defendant would have met the standard of a reasonable probability for adaptability and demand set forth in Olson, supra. Moreover, even if the court were to accept defendant’s unsupported contentions that the property could be adapted for use for hunting, agriculture, as a mitigation site, or a marina, that would not establish a market for that use. See, e.g., Olson, 292 U.S. at 256, 54 S.Ct. at 709; 341.45 Acres of Land, 638 F.2d 108 at 111; United States v. 1,291.83 Acres of Land, 411 F.2d 1081, 1084 (6th Cir.1969); Mills v. United States, 363 F.2d 78, 81 (8th Cir. 1966); United States v. Whitehurst, 337 F.2d 765, 771-72 (4th Cir.1964); Southern Amusement Co. v. United States, 265 F.2d 34, 37 (5th Cir.1959).
For the foregoing reasons, the court finds that the highest and best use for the property after the government action was for recreation and conservation, with a value of $1,000 per acre. Although there was some evidence that the one acre of uplands might be able to be developed and therefore might be able to be sold for up to $40,000, there is no evidence that there is a market for it, and therefore no evidence of a fair market value. The location of the lot makes it improbable that a single home would be built on it; it is more likely than not that this acre will remain an empty lot, and therefore although it was not included in the permit application, the denial of the permit effectively renders this acre without economically viable use, as well as the 11.5 acres of wetlands.7
[160]*160
Government’s Liability
For plaintiffs to prevail, the result of a comparison of the fair market value before the government action and that value after the government action must indicate more than a mere diminution in value, because “[government could hardly go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.” Pennsylvania Coal, 260 U.S. at 413, 43 S.Ct. at 159. When “regulation goes too far,” however, the fifth amendment requires just compensation. Id. at 415, 43 S.Ct. at 160.
In this case, the value of the property virtually has been eradicated as a result of government action. The value of the property before the taking was $2,658,000; the value of the property after the permit denial was $12,500, resulting in a diminution in value of over 99%. The significance of this impact is heightened when it is recalled that the $1,000 per acre figure represents a reasonable estimate of what a government entity could be expected to pay for the property, and is not the product of negotiations between a willing buyer and seller under no duress. As a result of government action, there is no market; the only potential buyer is a governmental unit, and the only remaining value is a nominal one.
A substantial reduction in value, however, in and of itself is not necessarily a sufficient basis for concluding that a taking has occurred. See, e.g., Penn Central, 438 U.S. at 131, 98 S.Ct. at 2662.8 However, the determination that there has been a taking “ultimately calls as much for the exercise of judgment as for the application of logic.” Andrus v. Allard, 444 U.S. 51, 65, 100 S.Ct. 318, 326, 62 L.Ed.2d 210 (1979). It is this court’s judgment that the drastic economic impact on plaintiffs’ property, coupled with the court’s earlier determination of a lack of a countervailing substantial legitimate state interest, 15 Cl.Ct. at 388-90, forms the basis for a finding that there has been a taking.9
[161]*161
Damages
When property is taken by the government, the proper measure of just compensation is said to be the property’s fair market value at the time of the taking. See, e.g., Yuba Natural Resources v. United States, 904 F.2d 1577, 1580 (Fed.Cir. 1990, reh’g denied July 6, 1990) (citing Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470, 474, 473-74, 93 S.Ct. 791, 794, 794-95, 35 L.Ed.2d 1 (1973)) (comparing the measure of damages in permanent and temporary takings). Although the property retains a residual value of $12,500, this effectuates the purpose of an action in inverse condemnation, which is to produce a result comparable to the one that would have been reached had the government directly condemned the property. For the reasons stated above, the property’s fair market value was $2,658,000 on the date of taking; in addition, damages must include interest on that amount from the taking date as a measure of just compensation.
CONCLUSION
Based on the foregoing, the court concludes that the denial of plaintiff’s permit application effected a taking of 12.5 acres of plaintiffs’ property as of May 5, 1982. To fulfill the mandate of the fifth amendment, the court awards plaintiff the amount of $2,658,000 plus interest from the date of taking, as a measure of just compensation. Plaintiff will tender the deed to the 12.5 acres upon the satisfaction of the judgment. It should be noted that plaintiffs indicated at trial that they expected to convey all or a substantial portion of their 51 acres of undeveloped land to the government upon the conclusion of this litigation, although they are not required to do this.
The entry of judgment will be stayed pending the determination of attorneys fees and costs to which plaintiff is entitled pursuant to 42 U.S.C. § 4654 (1988). Plaintiff is to file any such claim within 60 days from the filing of this opinion.
IT IS SO ORDERED.