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The World of Inverse Condemnation
Ocean City Beach, MD;  “Warthogs” taking off, Naval  Air Station, Oceana, VA;  Hoover Dam, NV. Photo credits: Army Corps of Engineers -  Alan Dooley, Navy - Daniel L. McLain  BOR.
Among its varied responsibilities, the Division's Natural Resources Section must defend all real property claims brought in the United States Court of Federal Claims arising under the Just Compensation Clause of the Fifth Amendment to the United States Constitution.  Also known as the "Takings Clause," it states: "nor shall private property be taken for public use, without just compensation."  This provision does not prohibit the United States from acquiring property from private owners, but rather conditions such 'taking' on the payment of just compensation. 1

Unlike direct condemnation claims, in which the United States institutes suit in order to compensate property owners for property it has acquired through the exercise of eminent domain, the Natural Resources Section's jurisdiction encompasses so-called "inverse condemnation" claims. 2    In these cases, private property owners bring suit against the United States when they believe that some action has interfered with the use and enjoyment of their property.  Such government actions can be:

  • physical in nature, such as permanent flooding of property abutting a river caused by the construction of dam, or
  • regulatory in nature, such as the denial of a permit under the Clean Water Act to dredge and fill wetlands.3

To learn the history of ENRD’s relationship with the Court of Federal Claims around the defense of inverse condemnation claims and other matters, and for a description of key takings cases, click on the descriptions in the Highlights column.

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1 Deskbook for Practitioners, 63 (U.S. Ct. Fed. Cl. Bar Ass'n, 5th ed. 2008).

2 The Civil Division's Commercial Litigation Branch is responsible for defense of Fifth Amendment takings claims involving personal property.

3 For Fifth Amendment takings claims against the United States seeking more than $10,000, the United States Court of Federal Claims has exclusive jurisdiction. 28 U.S.C.§ 1491(a)(1) (Tucker Act). For claims of $10,000 or less, the Court of Federal Claims shares concurrent jurisdiction with the United States district courts. 28 U.S.C. § 1346(a)(2) ("Little Tucker Act"). This dollar threshold was originally set at $1,000 in the district courts, with the circuit courts having concurrent jurisdiction up to $10,000. Act of March 3, 1887, Ch. 359, 24 Stat. 505 (1887). In 1911, the jurisdictional limit was set at $10,000 for the district courts, Act of March 3, 1911, Ch. 231, 36 Stat. 1093 (1911), where it remains today.

 

Last Updated: January 2014