ELR Citation: ELR 20646
No(s). 90-5055 (Fed. Cir. Dec 31, 1991)

The court holds that private properties near the Stringfellow Acid Pits site in California were taken without just compensation when the U.S. Environmental Protection Agency (EPA) and the state of California, acting under an EPA administrative order, installed wells in the general area of the acid pits to monitor contaminated groundwater movement toward a nearby source of drinking and agricultural water. The court holds that the EPA administrative order standing alone does not meet the tests for a regulatory taking, but placing wells on the plaintiffs' property and engaging in other activities on the site was an inverse condemnation under traditional physical occupation theory. The court concludes that there is nothing temporary about the wells the government installed on the plaintiffs' property. The wells are 100 feet deep, lined with plastic and stainless steel, surrounded by gravel and cement, capped with a cement casing lined with reinforcing steel bars, and enclosed by a railing of steel pipe set in cement. When the governmental intrusion is as substantial a physical occupancy of private property as this, a taking has occurred. The concept of permanent physical occupation does not require that in every instance the occupation be exclusive, or continuous and uninterrupted. The court holds that California state officials entered onto the plaintiffs' land under the authority granted by the Comprehensive Environmental Response, Compensation, and Liability Act, and that the Claims Court's dismissal sanction was improvidently granted. The questions of total damages for the physical taking and whether the order had a sufficient economic impact on the plaintiffs to constitute a regulatory taking remain open on remand.

Counsel for Plaintiffs-Appellants
Michael M. Berger
Fadem, Berger & Norton
12424 Wilshire Blvd., P.O. Box 250050, Los Angeles CA 90025
(213) 207-2727

Elizabeth A. Peterson, David F. Shuey, Anne S. Almy
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before ARCHER, PLAGER, and CLEVENGER, Circuit Judges.