Stueve Bros. Farms, LLC v. United States

105 Fed. Cl. 760, 2012 U.S. Claims LEXIS 750, 2012 WL 2553392
CourtUnited States Court of Federal Claims
DecidedJuly 2, 2012
DocketNo. 11-799 L
StatusPublished
Cited by4 cases

This text of 105 Fed. Cl. 760 (Stueve Bros. Farms, LLC 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
Stueve Bros. Farms, LLC v. United States, 105 Fed. Cl. 760, 2012 U.S. Claims LEXIS 750, 2012 WL 2553392 (uscfc 2012).

Opinion

OPINION

HEWITT, Chief Judge.

This is an action for just compensation pursuant to the Takings Clause of the Fifth Amendment of the United States Constitution. See infra Part I. Plaintiffs, the owners of land within the Prado Dam Flood Control Basin, allege that the government has effected a physical taking by subjecting their properties to a risk of flooding above the elevation allowed by the government’s flowage easements. See infra Part I. Because plaintiffs’ claims are premised on the “apprehension of future flooding” rather than on flooding that has actually occurred and which is sufficiently substantial to warrant analysis as

a taking rather than a tort, the court grants defendant’s motion to dismiss for failure to state a claim upon which relief can be granted. See infra Parts III-IV.

Before the court are the United States’ Motion to Dismiss (defendant’s Motion or Def.’s Mot.), Docket Number (Dkt. No.) 7, filed February 29, 2012; Plaintiffs’ Brief in Response to Defendant’s RCFC 12(b)(6) Motion to Dismiss the Complaint (plaintiffs’ Response or Pis.’ Resp.), Dkt. No. 10, filed April 24, 2012; and defendant’s Reply Memorandum in Support of the United States’ Motion to Dismiss, Dkt. No. 13, filed May 18, 2012.

I. Introduction1

Plaintiffs, Stueve Bros. Farms, LLC and Mill Creek Farming Associates, LLC (plaintiffs), are the owners of several parcels of land (plaintiffs’ property) located in Chino, San Bernardino County, California. See Compl., Dkt. No. 1, at ¶¶ 1-2, 7.2

Plaintiffs allege that the United States government (the government or defendant), acting through the United States Army Corps of Engineers (the Corps), id. ¶ 3, has “inversely condemned a permanent physical and title flowage easement across the Property ... [by] authorizing flowage of impounded water from the newly elevated Prado Dam and Reservoir[,] ... making the vast majority of Plaintiffs’ Property subject to flooding and unfit for development of any kind, without the payment of just compensation” required by the Fifth Amendment to the United States Constitution, id. ¶ 34.

[762]*762The government completed the Prado Dam in its original form in 1941. Id. ¶ 9. Plaintiffs’ properties are in area that became the Prado Dam Flood Control Basin. See id. Because it was contemplated that releases of water impounded by the Prado Dam could inundate a portion of plaintiffs’ properties, the government condemned flowage easements over plaintiffs’ property to an elevation of 556 feet above sea level. See id. ¶¶ 9-11. Judgments establishing the flowage easements were entered in 1942 and 1945. Id. ¶¶ 10-11. Plaintiffs do not allege that the government has exercised its rights under the flowage easements.

Beginning in or around 1976, the government began to plan a series of improvements (the Project) to provide additional flood protection to Orange County, Riverside County and San Bernardino County. Id. ¶¶ 12-13. When completed, the Project will raise the flood inundation line associated with releases of water from the Prado Dam by ten feet, to 566 feet above sea level. See id. ¶ 12. Pursuant to the “General Design Memorandum” developed by the government in 1980 in collaboration with Orange County, the Orange County Board of Supervisors and the Orange County Flood Control District (the Orange County Governmental Entities), the Project is to take place in three phases. Id. The first phase — the elevation of the Prado Dam and the Prado Dam Reservoir — was completed on or around December 1, 2008. Id. ¶31. In the second phase, the government plans to “[ujpgrade the existing title of the [Prado Flood Control Basin, previously taken by the government,] from easement to fee.” Id. ¶ 12. Plaintiffs do not describe the third phase of the Project and do not claim that the second or third phases of the Project have been completed.

In 1989 the Corps entered into an agreement with the flood control districts of Orange County, Riverside County and San Bernardino County, pursuant to which all property and easements required for the Project — including, plaintiffs allege, property and easements in San Bernardino County— were to be acquired or condemned by the Orange County Governmental Entities.3 Id. ¶¶ 12, 14. Between 1993 and 2008, the Orange County Governmental Entities acquired “numerous parcels neighboring and encircling Plaintiffs’ Property.” Id. ¶¶ 28-29. In 1999 the Orange County Flood Control District offered to purchase plaintiffs’ property at a price between $6,000,000 and $9,000,000. Id. ¶ 18. Plaintiffs presented a counteroffer of $21,595,579. Id. No further negotiations took place and the Orange County Flood Control District withdrew its offer. Id.

The Corps has stated publicly that the Project will raise the flood inundation line associated with releases of water from the Prado Dam to 566 feet above sea level. Id. ¶ 20. In 2003 the Corps released flood plain maps showing the 566-foot flood inundation line. See id. In or after 2003 the city of Chino amended its zoning regulations by adopting a “Preserve Specific Plan” (the Preserve Specific Plan) for an area that includes plaintiffs’ property. See id. Although plaintiffs’ Complaint does not describe the Preserve Specific Plan in detail, plaintiffs allege that, were it not for the 566-foot flood inundation line associated with the Project and shown on the Corps’ 2003 flood plain maps, plaintiffs’ property “would have been entitled to be[] zoned for high density, mixed-use residential, commercial, office and industrial uses.” Id. ¶ 23. However, the city of Chino was required to incorporate the 2003 flood plain maps into the Preserve Specific Plan to [763]*763maintain the eligibility of properties in the city for federal flood insurance. See id. ¶ 21. The Preserve Specific Plan “limit[ed] that portion of Plaintiffs’ Property between the 556 and 566 foot flood inundation lines to passive recreation and open space use in an agricultural zone.” Id. ¶ 24.

In or around June 2009 the city of Chino approved an amendment to the Preserve Specific Plan that “allow[s] for mixed-use residential, commercial, office and industrial uses” on the 131.7-acre portion of plaintiffs’ property located above the 566-foot flood inundation line.4 Id. ¶ 26. The amendment also authorized plaintiffs to collect soil from a portion of plaintiffs’ property located below the 566-foot flood inundation line and use the soil to raise a 93.3-acre portion of plaintiffs’ property above the 566-foot flood inundation line. Id. Plaintiffs estimate that the cost of moving this soil would exceed $10,000,000. Id. By a letter dated June 6, 2005 the Corps approved a proposal submitted by plaintiffs for the construction of a “high density, mixed-use development” located above the 566-foot flood inundation line on plaintiffs’ property. Id. The Corps acknowledged in its letter that it had reviewed the proposal in light of “the future flood control easement” extending to an elevation of 566 feet, but did not state that the Corps had already acquired such easements. See id. Plaintiffs do not state in their Complaint whether they have constructed the mixed-use development approved by the city of Chino and by the Corps.

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105 Fed. Cl. 760, 2012 U.S. Claims LEXIS 750, 2012 WL 2553392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stueve-bros-farms-llc-v-united-states-uscfc-2012.