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Services of Mead Data Central, Inc. -N. PAGE 23 , 1991 U.,& App. LEXIS 30233, X57 t , F'irst., the originall trial j#ge`s refusal to ;grant the plaintiffs' summary 1udoment Motion on thiiissue of a permanent physical occupation slanted the !` posture of the case tal issues relevant only to requlatar�r takings the€�ry, with its ,Attextdant balancing and emphasis on economic impact. � Second the successor trial E. udge's view of the preudi<cial impact of r interrogatories 24, 26'; and 27iiwa5 skewed by the first trial judge's conclusion. thalw; the ;activities ofj the State: of California were irrelevant to the case. To: the extent that the issues remaining were focused on regulatory takings. theory<,. , thL6' second trial caurt;could not: have properly weighed this question when ;the hulk of the activities were carried out by Californla. A1sfl, plainti°ffs' , iniability to distinguish in its responses to the interrogatories... nterrogatories between the activities of: EPA and .pf Calif, rnia, See e.g. 113, supra page ZB, tto doubt welled heavily irt. the- second Judge's impression of pare;judi.ce to the Government. As a matter of law, this inability in plaintiffs'" responses is no defect at alb; State and. Federal activities wird fungible goods in a confused ;mass. T.hirdl:y was the error with: ith egard to interrogatories 8 and 11-1 , dis;cusseti [*581 above. These Aterrogatories sought detailed infflrr!+tatton already .in EPA hands, The Government as on ;notice that all instances of physical invasion provaided factual groundinq foriplaintiffs' takings claim. Fa thermore, we note that; the propertyr n. gu..estion Was unoccupied and plaintiffs lured some distance away. The` Government wi71 not be heard to complain that plaintiffs failed.to monitor their property. around the clock to discover each Ind every instance of intrusive Government activity„hand thea failed in some duty to report these a` iritr�usions accurately+ ttt 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 ofr discretion. : Nothing we have sail will preclude the Government frau presenting evidence ddrfnu the damages phase of this case on the intended duration of its occcipancy. Ti�'e :trial court will of course consider all relevant evidence on that question, including events since the original hearing. For example, plaintiffs have alleged that a joint OHS/EPA cleanup plan was issued June 30, 1988. Plaintiffs further alleged that the plan proposes to 1*591 install extraction wells which will operate frr, at least tent years, and that at least one such well has already been installed.. Appellants ' Opening Brief at '9 n. 3. Plaintiffs accordingly in Sept 19 8 moved to suspend proceedings an11 d reopen discovery. The :second tri>al fudge deemed ,this motion moot in light of hIS dismissal. He"nd1Er `i I at. Z9.. . 1n view of flue decision toddy, hat issue is now proper1 before the trial { lodge, even i the trial „judge chooses: to hold plaintiffs to the scope of;their ir'terarogatory ;answers lion the.7 specific issues addressed, newly available informa ion relevant to what is just compensation must be considered. That. evidence i4al go to she question of whether the taking constitutes the x acquisition ofart interest in fee:, or something less such as a terra of years, :or some combination thereof;. And of course, once a taking!1 is adjudged, plaintiffs will have the Opp. un tyr to e5tabl siz the;il severance damagas. the damages accruing :..their retained land As A. result of the taking. n15 Since t`4ts case involves claims of oath a taking by ph.sical de`do0ation and a regulatory taking, we leeave tar the '&LEXI ON.. EMLEXIS