National Food & Beverage Co. v. United States

96 Fed. Cl. 258, 2010 U.S. Claims LEXIS 934, 2010 WL 5121880
CourtUnited States Court of Federal Claims
DecidedDecember 16, 2010
DocketNo. 10-152L
StatusPublished
Cited by5 cases

This text of 96 Fed. Cl. 258 (National Food & Beverage 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
National Food & Beverage Co. v. United States, 96 Fed. Cl. 258, 2010 U.S. Claims LEXIS 934, 2010 WL 5121880 (uscfc 2010).

Opinion

OPINION AND ORDER

LETTOW, Judge.

This ease concerns an alleged taking by the government of property for public use without providing just compensation to the property owner. After levees were damaged by Hurricane Katrina, the United States Army Corps of Engineers (“Corps”) needed relatively impermeable clay to effect repairs to the levees. The Corps identified suitable deposits of clay in Mississippi and southern Louisiana, and, respecting one such deposit in southern Louisiana, entered into an agreement with Plaquemines Parish to use the Parish’s authority under state law to commandeer access to the property. The Parish duly commandeered access to land owned by the plaintiff, National Food and Beverage Company, Inc. (“National Food”), the Corps entered upon the property, and, over several years, a firm under contract to the Corps removed clay from the property and that clay was used by the Corps to repair damaged levees. To this date, National Food has not been paid for the removed clay.

National Food has filed suit to be compensated for the clay and for concomitant use of portions of its property on a temporary basis attendant to the Corps’ actions. The government has moved to dismiss National Food’s takings claim under Rule 12(b)(6) of the Rules of the Court of Federal Claims (“RCFC”) and has also asked that the case be stayed pending the resolution of a subsequently filed action pending in the Eastern District of Louisiana which involves the portion of National Food’s property from which the clay was removed.

BACKGROUND1

A. The Cooperation Agreement and the Government’s Actions

Hurricane Katrina decimated southern Louisiana on August 29, 2005. Following the storm, the Corps acted pursuant to 33 U.S.C. § 701n to undertake repairs to federally-authorized hurricane-protection levees in Plaquemines Parish that were damaged by the hurricane. Am. Compl. ¶ 5. In preparation, the Corps conducted a series of Environmental Assessments entitled “Response to Hurricanes Katrina and Rita in Louisiana, Environmental Assessment.” See Pl.’s Mem. in Opp’n to the U.S.A’s Motion to Dismiss (“Pl.’s Opp’n”) Ex. 6 (“EA # 433”). A total of 63 sites were identified by the Corps’ “borrow team,”2 most of which were located in Mississippi. Id. Plaquemines Parish, however, had a significant deposit of relatively impermeable clay, and that site was identified for use in a report styled “Project Information Report, PL 84-99, Rehabilitation of Damaged Hurricane or Shore Protection Projects from Hurricane Katrina, New Orleans to Venice, LA Hurricane Protection Project, Plaquemines Parish, LA” (“Project Information Report”). Id. Ex. 3 (Amendment to Cooperation Agreement between the United States of America and Plaquemines [261]*261Parish Government for Rehabilitation of a Federal Hurricane/Shore Protection Project (signed Jan. 17 and Jan. 19, 2006) (“Am. Cooperation Agreement”), at art. I.A). The Project Information Report was prepared by the Corps’ District Engineer, New Orleans District, on October 17, 2005, and was approved by the Division Engineer on October 19, 2005. Id. A revised Project Information Report was prepared by the Corps’ District Engineer on January 5, 2006, and approved by the Division Engineer on January 10, 2006. Id.

Representatives of the Corps met with officials of Plaquemines Parish respecting the clay deposit, and in October 2005, the Corps and the Parish entered into a Cooperation Agreement to facilitate the repairs contemplated by the Federal Hurricane/Shore Protection Project (“Federal Hurricane Protection Project”). See Am. Compl. Ex. A (Cooperation Agreement, Oct. 24, 2005).3 The Cooperation Agreement was amended on January 17 and 19, 2006. See Am. Cooperation Agreement at 10.

In the Amended Cooperation Agreement, Plaquemines Parish agreed to use its emergency powers, as set forth in La.Rev.Stat. §§ 29:721-738,4 to commandeer privately-owned “land, easements, and rights-of-way, including suitable borrow and dredged or excavated material disposal areas” “determined by the [United States] [gjovernment to be necessary for the construction, operation[,] and maintenance of’ the government’s efforts to repair and rehabilitate damaged hurricane and shore protection projects. Am. Cooperation Agreement, arts. 111(A), 111(A)(3)(a). The parish further agreed that it would grant to the federal government a “right of entry” to the property commandeered under the Cooperation Agreement. Id., art. 111(A)(3)(c).

In turn, the United States government agreed to “identify and pay just compensation to the owners of compensable interests” in the property to which Plaquemines Parish would provide entry. Am. Cooperation Agreement, art. 11(B)(1). The federal government and Parish also included in their agreement a clause which declared that each of the parties was acting “in an independent capacity in the performance of their respective functions under the Agreement, and none of the parties [were] to be considered the officer, agent, [or] employee of the other parties.” Id., art. VIII.

On January 26, 2006, the President of Plaquemines Parish, Benny Rousselle, signed an order commandeering approximately 77.2 acres of land owned by National Food. Am. Compl. ¶ 17; id. Ex. C (Commandeering Order, Jan. 26, 2006).5 The order specified that the property was commandeered “without the permission of the property owner(s)” and that “notice and hearing [was] suspended until after the date of completion of construction of the [Federal Hurricane Protection] Project.” Id. Ex. C, at 1. The Department of the Army, its agents, employees, and contractors were authorized by the order “to gain access” to National Food’s land “to obtain borrow, to stockpile and process material, and to construct (repair and rehabilitate)” the New Orleans to Venice Hurricane Protection Levees in Plaquemines Parish. Id. The right of entry granted by Plaquemines Parish to the Army would remain valid “until completion of [the] ... emergency construction work beginning with the date possession of the land is granted.” Id.

National Food alleges that the Corps and its agent entered upon its property and that between early 2006 and September 30, 2007, the Corps’ agent, The Shaw Group, removed a large amount of clay from its land, which clay was transported for use in levee repairs. Am. Compl. ¶¶ 22-23. The Corps’ Environmental Assessment # 433 represents that the Corps’ acquired 1,193,000 cubic yards of [262]*262levee-approved clays, leaving a pit on National Food’s land which would require 2,386,000 cubic yards of backfill. Id.; EA # 433. To date, National Food has not been compensated for the clay removed from its property, nor has the pit been backfilled.

B. Procedural Posture

National Food filed a complaint in the Court of Federal Claims on March 9, 2010, and amended its complaint on July 20, 2010.6 The company raises alternative claims for relief. First, National Food raises a Fifth Amendment takings claim, asserting that the clay removed from its property was inversely condemned by the Corps and that the Corps and its agent used portions of its property on a temporary basis to stockpile and then transport the clay offsite.

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Cite This Page — Counsel Stack

Bluebook (online)
96 Fed. Cl. 258, 2010 U.S. Claims LEXIS 934, 2010 WL 5121880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-food-beverage-co-v-united-states-uscfc-2010.