Protecting Your Property Rights in Court of Federal Claims Taking Cases

Although the federal government has the power of eminent domain—which means it can condemn or take your property if needs your property for a legitimate public purpose—in such instances the government also has the constitutional duty to pay you for the property rights it takes from you. Payment of just compensation is part of the ordinary process in a common eminent domain proceeding. But, if the government argues that it didn’t take your property rights, things can quickly get complicated.

Types of “Property” in Takings Cases

How is a “property owner” defined? They come in many forms, including owners of:

  • Real estate, including lands and buildings
  • Intangible property, such as contracts, leases, easements, and franchises
  • Rights to natural resources, such as water and mining/minerals
  • Property that can no longer be fully used or accessed due to governmental actions or programs
  • Land or water that government regulations define as wetland or critical habitat for an endangered species

While it is common to think of “property” as only physical property (for example, real property or land), a government “taking” of private property also can result from a regulatory action in which the government so restricts an owner’s rights that the government action is the equivalent of a seizure of actual property (for example, the taking of a lease interest).

Do Property Owners Have Rights When the Government Claims Property?

Property owners have rights in their property that are enshrined in the Fifth Amendment of the U.S. Constitution which states that no person shall “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Property owners are not defenseless in these cases, but can avail themselves of the help of lawyers who are experienced in defending against both government takings and the lack of just compensation.

In inverse condemnation actions, when the government takes private property without paying the compensation required by the Fifth Amendment of the U.S. Constitution, it forces the property owner to sue to obtain required just compensation. These lawsuits are vigorously defended by the U.S. Department of Justice and federal agency lawyers, and require a thorough knowledge of the law and procedural rules governing these cases.

Suing the Government for Just Compensation: Checklist for Property Owners

If your property has been infringed, there are a few things you should know:

  • When seeking just compensation over $10,000, the U.S. Court of Federal Claims has exclusive, national jurisdiction to hear the taking claim.
  • Monetary judgments rendered by the Court of Federal Claims are paid out of the Judgment Fund, administered by the U.S. Treasury.
  • Litigation involving a taking claim against the federal government often depends heavily on expert witness testimony. Selecting a well-qualified expert witness is therefore often the key to success in takings litigation.
  • Legal counsel should be experienced in working with expert witnesses. Counsel should be apt in preparing expert reports and preparing witnesses for depositions and trial testimonies.
  • The vast majority of takings cases do not settle, but the Court of Federal Claims does have an Alternative Dispute Resolution process. Therefore, it is important to work with counsel who have successfully settled cases with the Department of Justice.
  • Under the Uniform Relocation Act, a successful taking plaintiff may recover attorney’s fees, expert witness fees, and other reasonable expenses.

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Roger J. Marzulla is one of the nation’s leading water, property and environmental lawyers. As Assistant Attorney General in charge of the U.S. Justice Department’s Environment and Natural Resources Division, Roger learned firsthand the operations and litigation styles of his client agencies: EPA, Interior Department, Bureau of Reclamation, Fish and Wildlife Service, National Marine Fisheries Service, Department of Transportation, and Department of Commerce.

Nancie G. Marzulla is a founding partner of Marzulla Law, LLC. Nancie’s litigation practice concentrates on water rights, takings, and contract claims in the U.S. Court of Federal Claims. She also has extensive experience in handling matters involving property, water, environmental law, Indian tribal claims, development, and natural resources in trial courts, courts of appeal, and the Supreme Court.

A Takings Law Primer

Has the government claimed your property? It may be that you need a takings lawyer to represent you.

Before you take that step, click here to read our Federal Takings Law Primer: A Guide on How to Protect Your Rights in Regulatory Takings and Inverse Condemnation Actions.

In this primer, Marzulla Law explains your options if your property has been claimed via a regulatory taking or inverse condemnation and suggests three initial steps you can take to protect yourself.