ELR Citation: ELR 20591
No(s). 266-82L (Cl. Ct. Jul 31, 1991)

The court holds that a mining company is entitled to $808,784.90 for its reasonable attorneys fees and costs of litigating its claim that the Army Corps of Engineers' denial of a permit to fill 98 acres of wetlands under §404 of the Federal Water Pollution Control Act (FWPCA) constituted an unconstitutional taking without just compensation. The company purchased a tract of 1,560 acres in Dade County, Florida, for the sole purpose of mining limestone. Shortly thereafter, Congress enacted FWPCA §404. In its first decision in this decade-long lawsuit, the Court of Claims found that no more than 98 of the 1,560 acres had been taken. On appeal, the Federal Circuit affirmed the lower court's cap on the number of acres that could have been taken and denied the company's cross-claim for damages based on an alleged taking of the entire 1,560-acre parcel had occurred and remanded to the lower court to reconsider whether such a taking had occurred. On remand, the lower court held that the denial of the company's §404 permit application effected a taking of the 98-acre parcel and awarded the company $1,029,000 plus interest.

Relying on precedent, the court first holds that the company is entitled to its reasonable fees and expenses for litigating the initial liability and valuation proceedings, although the company lost its appeal from the court's initial decision. The court finds that the company litigated its case in a reasonable and prudent manner, and it was ultimately successful. Relying on its initial decision, the court holds that the company is not entitled to recover fees and expenses for time spent on its unsuccessful 1,560-acre taking claim in the Claims Court. The court holds that an award is appropriate for fees and expenses incurred in the company's preparation for both the original application and the current application for attorney fees and expenses. The court recognized in previous cases that such an award is appropriate, and this is consistent with the policy of making a landowner whole for the loss that it sustains as the result of an inverse condemnation action. The court holds that the company is not entitled to fees and expenses incurred litigating the 1,560-acre claim on cross-appeal, because it did not ultimately prevail on that issue. However, the court holds that the company is entitled to fees and expenses incurred litigating the 98-acre issue on appeal. The court notes that the company concedes that it should not be awarded any costs with respect to its petition for rehearing or petition for certiorari to the Supreme Court.

The court holds that the hours expended by the company's counsel for retrial in the Claims Court were reasonable. After losing at the appellate level, the company could not be sure of an eventual victory, and knowing that it might bear the full cost of the litigation, the company undoubtedly exercised control over the time spent on the second trial. The court also notes that the company's counsel conducted the litigation with great competence, efficiency, and frugality. The court refuses to second-guess the reasonableness of the amount of time billed by the company's expert witnesses. The court holds that the expenses of retaining one of the company's expert witnesses should not be reduced simply because his hourly fee was the highest among the experts, and no showing has been made that his hourly fee was excessive.

Finally, the court holds that the company is entitled to compound interest on its award of damages on its takings claim, because the 10-year delay from the date of the taking to the date of recovery makes the award appropriate. During that time, the company was denied the opportunity to seek a reasonable profit from its investment in the property. To deny the company compound interest would be contrary to the purpose and spirit of the just compensation clause of the Fifth Amendment.

Counsel for Plaintiff
John A. DeVault III, C. Warren Tripp Jr., Jane A. Lester
Bedell, Dittmar, DeVault & Pillans
101 E. Adams St., Jacksonville FL 32202
(904) 353-0211

Counsel for Defendant
Fred R. Disheroon, David Kaplan
1140 19th St. NW, Washington DC 20036
(202) 625-0030