RICHARD LEWIS KATZIN, ESTATE OF ANNETTE KATZIN, ESTATE OF MARY BETH KATZIN-SIMON, ROSEMARIE KJELDSEN, Plaintiffs-Appellees
UNITED STATES, Defendant-Appellant
from the United States Court of Federal Claims in No.
1:12-cv-00384-CFL, Judge Charles F. Lettow.
Roberto Eduardo Berrios Falcon, Berrios Falcon, LLC, San
Juan, PR, argued for plaintiffs-appellees.
Michael Thomas Gray, Environment and Natural Resources
Division, United States Department of Justice, Jacksonville,
FL, argued for defendant-appellant. Also represented by
Jeffrey H. Wood, Washington, DC.
Prost, Chief Judge, Newman and Linn, Circuit Judges.
United States appeals from a final decision after trial by
the Court of Federal Claims ("Claims Court"),
holding that the government effected a physical taking of a
ten-acre peninsula on the island of Culebra in Puerto Rico,
when the U.S. Fish and Wildlife Service
("F&WS") faxed its claim of ownership to a gun
mount located on the peninsula to a potential purchaser.
Katzin v. United States, 127 Fed.Cl. 440 (2016)
("Katzin II"); see also Katzin v.
United States, 120 Fed.Cl. 199 (2015) ("Katzin
I") (denying summary judgment to the United
States). Because the fax was not a physical taking of
Appellees' land, we reverse.
Claims Court admirably described the history of the disputed
parcel. Katzin II, 127 Fed.Cl. at 446-57. We report
only that portion of the history relevant to our decision.
is the largest in a group of islands just east of Puerto
Rico. Prior to 1898, Culebra belonged to the Kingdom of
Spain. In 1887, Spain initiated a survey ("1887
Survey"), the resulting map of which is reproduced below
in Figure 1, dividing the property into privately
owned parcels. The peninsula in the eastern section of Parcel
24 roughly represents the land at issue in this litigation.
Under Spanish law at that time, the "maritime
terrestrial zone" surrounding the island-"the area
of the coasts or seashore . . . that is washed by the sea in
its ebb and flow, where the tide is perceptible, or the
highest (Image Omitted) tidal waves in stormy weather when
the tide is not perceptible"-was held by the Spanish
government in the public domain. Id. at 446-47.
1898, Spain transferred all lands owned by the Spanish
government on Culebra to the United States. Treaty of Peace
Between the United States of Am. and the Kingdom of Spain, 30
Stat. 1754 (Apr. 11, 1899) ("Treaty of Paris").
This included the maritime-terrestrial zones. In 1901,
President Roosevelt issued a general order, and in 1903 a
proclamation, that all public lands on Culebra would be
reserved for Naval purposes.
Treaty of Paris did not affect the privately owned parcels.
In 1903, several of the privately owned parcels, including
Parcels 24 and 25, were combined into a single tract and
registered with the Registry of Property of Puerto Rico
("Registry") as Property No. 117 ("Buena
Vista"). On June 28, 1903, the owners of the tract
signed a deed of sale, transferring a 2.25-acre plot to the
Navy. It was registered on June 29, 1903. The Registry
describes the plot as "bounded to the North by [property
owned by] Mr. Antonio Lugo and the sea on a tip of land; to
the East by the sea; and to the South and West by the main
property from which it is segregated." Katzin
II, 127 Fed.Cl. at 449-50. This description placed the
transferred plot within former Parcel 25 on the 1887 Survey.
Id. at 449. Also on June 29, the same owners and the
Navy signed an "Agreement of Sale," describing the
metes of the property in the same way, but indicating its
location as within "Plot Number 24, Official Chart of
Culebra, U.S.W.I." Id. at 450. The Navy traces
the location of the gun mount to this Agreement of Sale, and
has consistently referred to the location of the transferred
plot as within former Parcel 24. Id. at 457. The
dispute in this case revolves around the location and
ownership of this transferred plot. Hereinafter, we refer to
this uncertainly located plot as the gun mount site.
several conveyances, Plaintiffs Dr. and Mrs. Katzin became
owners of an undivided 50 percent interest (Image Omitted) in
Parcel 4, which roughly corresponds to Parcel 24 on the 1887
Survey, and Plaintiff Rose Marie Kjeldsen Winters became the
owner of the remaining 50 percent. Id.
1972, the General Services Administration ("GSA")
took control of Navy lands on Culebra. GSA transferred the
land to the F&WS, using Navy Map No. 323. See Figure
2. Navy Map No. 323 showed an overlay of the 1887 Survey
with highlights showing Navy ownership of a coastal strip
around the southern and eastern coast of the island, and a
gun mount location on the southern end of the peninsula.
Id. at 463. The F&WS published notice in the
Federal Register that it would prepare a Draft Environmental
Impact Statement on the transfer of lands from the Navy to
the F&WS, as well as a Final Environmental Impact
Statement. Intent to Prepare an Envt'l Impact Statement
on the Proposed Disposition and Administration of Lands on
the Islands of Culebra and Culebrita, 45 Fed. Reg. 16, 358-01
(Fish & Wildlife Serv. (Mar. 13, 1980)); Availability of
Final Envt'l Impact Statement, 46 Fed. Reg. 50, 421-01
(Fish & Wildlife Serv. (Oct. 13, 1981)); Record of
Decision on Proposed Disposition and Administration of Lands
Declared Excess by U.S. Navy on the Islands of Culebra and
Culebrita in Puerto Rico, 47 Fed. Reg. 11, 114-02 (Fish &
Wildlife Serv. (Mar. 15, 1982)). According to the Claims
Court, the Draft and Final Environmental Impact Statements
included a map of the property to be transferred, including
Tracts 1e (the coastal strip) and 1f (the gun mount on the
northeastern side of the peninsula). Katzin II, 127
Fed.Cl. at 463-64.
1985, the F&WS surveyed the eastern coast of Culebra. The
survey labels several points on the boundaries (Image
Omitted) of the F&WS property and includes labels for
Tract 1f and 1e. See Figure 3. The survey plat shows
Tract 1f bounded by points 606, 607, 609, 610, and 611.
Id. at 464-65. The F&WS placed signs at some of
the points on the plat that prohibited entry. See Figure
4. In 2012 and 2013, a F&WS representative located a
marker at point 606, and other markers were found at points
600, 601, 602, 603, 605, 612, 613, 614, 617, and 619.
1987, Edward Borges, the attorney representing the
Katzins' neighbor Culebra Enterprises Corporation, wrote
to the F&WS seeking resolution of boundary uncertainties
between the maritime-terrestrial zone and Culebra
Enterprises' land. Specifically, Borges explained that
the boundary lines defined in the 1985 F&WS survey at
some points did not secure all the sensitive wetlands for the
F&WS and in other spots encroached beyond the high-water
mark of the ocean and encroached on land that Culebra
Enterprises claimed as its own. Id. at 465. Borges
proposed that the F&WS take ownership of all the
wetlands, and that Culebra Enterprises take ownership of all
other areas outside the maritime zone. Id. The
letter included an aerial photograph of Culebra, with a
tracing matching the 1985 F&WS Survey, including the
numbered markers defining an enclosed polygon on the
peninsula at the east of former Parcel 24, as seen in Figure
April 1987, Dr. Katzin wrote to the F&WS, identifying
himself as owner or part-owner of land "from station 616
at the southern end of the refuge north to a point (Image
Omitted) midway between stations 614 and 613," and
"an undivided half interest in the property between that
point and Mr. Mailloux's property at station 602 to the
north." J. App'x 2936. Dr. Katzin also wrote that
"our boundary situation has many similarities to that of
Culebra Enterprises and I would like to explore with you the
possibilities of a similar solution." Id. The
F&WS replied that they would consider an exchange of
lands to resolve the ambiguity.
listed Parcel 4 for sale, and on March 23, 2006, William
Klaber signed a purchase agreement to buy it for $4 million.
Katzin II, 127 Fed.Cl. at 467. Mr. Klaber deposited
$50, 000 in earnest money, and the parties scheduled a
closing for June 30, 2006. The agreement provided for a
return of the deposit if the buyer discovered that "any
fact related to zoning, title and land survey, current
easements, real estate taxes and assessments (Image Omitted)
or legal access are not as represented." Id. In
June 2006, Mr. Klaber asked his attorney, Claudia Motta, to
find a way to "get. . . out of the deal" to
purchase Parcel 4. Id. The parties'
communications reveal a concern about potential government
claims on the property. Id. On June 15, 2006, Ms.
Motta e-mailed John Beasley, a F&WS representative, to
ask about the F&WS's claims on Parcel 4. Id.
22, Mr. Beasley replied by faxing several documents
("Beasley fax"), including a tracing of the 1887
Survey map with the F&WS parcel numbers added, including
Tract 1e, which Mr. Beasley described as "the maritime
zone," and Tract If, shown as a square north of the
peninsula, and described as "an old gun mount site
purchased by the Navy in 1903 from Escolastico Mulero."
J. App'x at 3115, 3117; see Figure 6.
28, 2006, Ms. Motta communicated to Plaintiffs that Mr.
Klaber would not buy Parcel 4. Thereafter, several potential
buyers refused to buy the property.
brought suit in the Claims Court against the United States,
alleging that the Beasley fax effected a physical taking of
the 10.01-acre peninsula in Parcel 24. Katzin II,
127 Fed.Cl. at 445. After trial, the Claims Court held that
Plaintiffs' takings claim was not beyond the statute of
limitations because it did not accrue at any time prior to
the Beasley fax in 2006. This was so, the Claims Court held,
because even though Plaintiffs or their predecessors in
interest "knew or had reason to know of the
government's claims to the maritime zone and the former
gun mount site prior to the contract with Mr. Klaber,"
the "disputes over ownership rights prior to June 2006
were never refined to the point of interfering with
plaintiffs' use and enjoyment." Id. at
473-74. The Claims Court explained that the "only
evidence" of government interference was the placement
of survey markers and wildlife refuge signs on the property,
but the court found that those markers and signs "could
have related to the maritime zone, which plaintiffs concede
the government controls," and therefore did not
interfere with Plaintiffs' property. Id. at 474
n.17. Separately, the Claims Court also held that
Plaintiffs' title to Parcel 4 included title to the
10.01-acre peninsula, and that the government's 2.25-acre
gun mount was not located on the peninsula. Id. at
the Claims Court concluded that the Beasley fax effected a
non-possessory physical taking of the entire 10.01-acre
peninsula. The Claims Court understood that, in the
case of a non-possessory taking, "governmental action
can effect a taking when it prohibits or prevents a landowner
from exercising his or her property rights because of a
governmental claim of ownership of those rights."
Id. at 479. The Claims Court reasoned that the
government "appropriated plaintiffs' property rights
such that they were not able to sell the parcel free of the
government's claims," and that this was a physical
taking requiring just compensation for the appropriation of
the 10.01-acre peninsula. Id. at 482. The Claims
Court set the value of all of Parcel 4 at $4 million, based
on Mr. Klaber's contract value, and awarded a fraction of
that value corresponding to the acreage of the peninsula, to
arrive at a reasonable compensation amount of $610, 962.97
plus interest. Id. at 483.
Standard of Review
review a final decision of the Claims Court by examining
legal conclusions de novo and factual findings for clear
error. Bass Enters. Prod. Co. v. United States, 381
F.3d 1360, 1365 (Fed. Cir. 2004). Whether a Fifth Amendment
taking has occurred is a question of law, based on factual
under the Tucker Act, 28 U.S.C. § 1491, in the Claims
Court must be brought "within six years after such claim
first accrues." 28 U.S.C. § 2501. We review whether
a claim is barred by the statute of limitations de novo, and,
as usual, review underlying fact-findings for clear error.
Brown v. United States, 195 F.3d 1334, 1337 (Fed.
physical takings claim accrues when the scope of what is
taken is fixed, see Samish Indian Nation v. United
States, 419 F.3d 1355, 1369 (Fed. Cir. 2005)(quoting
Martinez v. United States, 333 F.3d 1295, 1303 (Fed.
Cir. 2003) (en banc)) (stating that a claim under § 2501
accrues "when all events have occurred to fix the
Government's alleged liability, entitling the claimant to
demand payment and sue here for his money"), and the
plaintiff knew or should have known of the acts that fixed
the government's alleged liability, Hopland Band of
Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed.
Cir. 1988). The Tucker Act statute of limitations is
jurisdictional; we must therefore determine whether
Plaintiffs' claims are timely before proceeding to the
merits of the takings claim. John R. Sand & Gravel
Co. v. United States, 552 U.S. 130, 136 (2008). Because
the Tucker Act's statute of limitations is
jurisdictional, the plaintiffs bear the burden of proving
that their claims are not time-barred. Mildenberger v.
United States, 643 F.3d 938, 944- 45 (Fed. Cir. 2011);
Alder Terrace, Inc. v. United States, 161 F.3d 1372,
1377 (Fed. Cir. 1998).
case presents three distinct issues: (1) whether the Claims
Court erred in holding that Plaintiffs' takings claim was
not jurisdictionally time-barred; (2) whether the Claims
Court erred in holding that the communication from the
F&WS to Mr. Klaber's representative was a physical
taking of the 10.01-acre peninsula; and (3) whether the
Claims Court clearly erred in holding that Plaintiffs ...