SITE INFORMATION AND CORRESPONDENCE

Home Browse Search

Services�of Mead Data Central, Ina r A { PAGE . 23 1991 't1.S. AAP. LEXIS 30233, X57 first, the original. trial Eijudge's refusal to grant the plaintiffs' summary - judgment motion on the issue !,of .a permanent physical Occupation slanted the . pasture of the case to issues; relevant only to requlator}r takings theory with its attendant :.balancinq and: emphasis on economic impact. 1 t Second, the` oUttessor trial judge's view of the prejudicial impact dU lntierrogatoriei 24, 24, and 27 was skewed by the first trial. ;j;udde's conclusion that the activities af' the StAte of California were irrelevant to thel case.. To the extent that the issues remaining, were focused on requ;latp;ry takings theory, tele second trial eaurt: Could riot have properly wealghed this question willeCt the. j bulk of theactivities were carried out by California. Also plaintiffs' : in tlility to. distinguish .. :its responses to the interrogatories between the activities of EPA and of California, see e,q. i 13, supra page 28, no doubt ieighed heavily :in the seconds jpctge''s impression .,of prejldic to the Ccverneertt.. As 4: matter df4law, this inability in plaintiffs' reSPOnses is lid d:efect;at :a17.* St and Federal activities were fungible goods itti a confused mass. , s. Thirdly was, the error with regard to interrogatories and 1 i-f?, discussed t51 above. 'These interrogatories sought detailed information already in EPA hands. The Government as on notice that all instances of .physical invasion provided factual grounding for plaintiffs, takings claim:. Furthermore, we note .that the propertyin question, was unoccupied and plaintiffs lived some distance away. The GoveMment will notEtie heard to complain that plaintiffs failed to MonItor their property around: the clock to discPver :each and every instance of intrusive Government activity; and then failed in some ditty to report these intrusions accurately to the Government during discovery. The cumulative effect Of these errors Compel us to conclude that plaintiffs' suit should not have been dismissed on the grounds given; to do so was an" abuse ofdiscretion. . . a Nothing we have; said will preclude the Government, from presenting evidence during the damages phase of this case on the intended duration of its occupancy. The trial court will of course consider all relevant evidence on that question;t. including events since the original hearing. For example, plaintiffs have alleged that a 'joint i114S/EPA cleanup plan ;was issued ,lune 30.,. 1999. Plaintiffs further alleged that the planl1proposes to 1*591 install extraction wells which will operate. forat least ten years, and that at least one such well has` already been: installed. Appellants' Opening Brief at 9 n 3i Plant:iffyr accordingly in,!Sep[tember 1488(1(1moved to suspend proceedings and: reopen discovery.. the; second trial judge. deemed11th s motion Groot in light of hfs: di 111ssal.'. Hen:dler 11. at 29 In view of our decision today, hat issue is now p!~dperly before the teial: da qe. even if 'the, trial Judgi' chooses to hold plaintiffs to the scope of thei.r interrogatory answers on the apecific issues addressed,, newly available information relevant to iwhat. is just compensation must be Considered. That evidence will, go to she question of whether the taking constitutes the acquisition of wan ;interest in iIfee, or something lesssuch: as a term Of years, oe ohle comb#natidn: thereof. . . And of COUrse., 'once a takirfcg, is adjudged, plaintiffs will have the opportunity to establish their severance damages, the damages accruing tm` their retained Land as a result of the takinq. n15 Since this case involves c aims of birth a takinq by physical oc-ctapation :and a regulatory taking, we leave to the j LE :M' EX11SNEX