Waverley View Investors, LLC v. United States

In the United States Court of Federal Claims

No. 15-371 L

Filed: January 5, 2018

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*

* Comprehensive Environmental Response,

WAVERLEY VIEW INVESTORS, LLC, * Compensation, and Liability Act of

*

1980, 42 U.S.C. §§ 9601–9675 (2012);

Plaintiff, *

* Just Compensation;

v. * Right of Entry Agreement;

* Tucker Act Jurisdiction, 28 U.S.C. § 1491

THE UNITED STATES, * (2012);

* U.S. CONST. amend. V, Takings Clause;

Defendant. * Voluntary Consent.

*

*

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Clifford Jack Zatz, Crowell & Moring LLP, Washington, D.C., Counsel for Plaintiffs.

Jessica Michelle Held, United States Department of Justice, Environmental and Natural

Resources Division, Washington, D.C., Counsel for the Government.

POST-TRIAL MEMORANDUM OPINION AND ORDER DETERMINING THAT THE

GOVERNMENT HAS TAKEN CERTAIN PORTIONS OF THE WAVERLEY VIEW

PROPERTY

BRADEN, Chief Judge.

Section 104(e) of the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601–9675, authorizes the United States

Environmental Protection Agency (the “EPA”) “to take action . . . at any . . . property[,] . . . if there

is a reasonable basis to believe there may be a release or threat of release of a hazardous substance

or pollutant or contaminant.” 42 U.S.C. § 9604(e)(1).

In this case, the owner of real estate in Frederick, Maryland was faced with a demand for

access to the property to install wells for the testing and monitoring of groundwater contamination.

Faced with incurring the expenses of fighting federal authorities, potential civil penalties, and even

potential cleanup costs, the property owner negotiated an agreement to allow federal authorities to

access the property, install monitoring wells, and perform other necessary and incidental work.

After the agreement expired, federal authorities withdrew from the property, but left behind the

monitoring wells and a gravel access road. Some level of contamination was found on the

property, but, at present, the EPA and the United States Army (the “Army”) do not have a plan for

remediation and have represented that they have no need to continue testing on the property.

The property owner has filed suit under the Takings Clause of the Fifth Amendment to the

United States Constitution. The court has determined that the continued presence of the

monitoring wells and gravel access road on the property after expiration of the access agreement

establish the requirements of a physical taking under the precedential decision Hendler v. United

States, 952 F.2d 1364 (Fed. Cir. 1991)” (“Hendler III”). Ascertaining the actual damage incurred,

however, is problematic for the reasons discussed herein.

For the convenience of the parties, the court has prepared a Table Of Abbreviations,

attached hereto as Exhibit A. To facilitate review of this Post-Trial Memorandum Opinion And

Order, the court has provided the following outline:

I. FACTUAL BACKGROUND.

A. Contamination And Remediation Of Area B Of United States Army Garrison,

Fort Detrick, Maryland.

B. The History Of The Waverley View Property.

C. The Government’s Interactions With RGHGAB at Frederick, LLC To Gain

Access To The Waverley View Property.

D. The Government’s Interactions With Waverley View Investors, LLC To Gain

Access To The Waverley View Property.

II. PROCEDURAL HISTORY.

III. DISCUSSION.

A. Subject Matter Jurisdiction.

B. Standing.

C. Plaintiff’s Takings Clause Claims Against The Government.

1. At Trial, Plaintiff Established That It Owns Private Property Under

Maryland State Law.

2. At Trial, Plaintiff Established That The Government’s Activities After

Expiration Of The Right Of Entry Agreement Effected A Permanent Taking

Of Those Portions Of The Waverley View Property Physically Occupied

By The Army-Installed Monitoring Wells And Gravel Access Road.

a. Plaintiff’s Argument.

i. “Plaintiff Has Proved A Per Se Taking.”

ii. “The Right Of Entry Agreement Preserved Plaintiff’s

Takings Clause Claim.”

iii. “The Right Of Entry Agreement Is Not A Contract.”

b. The Government’s Response.

2

i. “Plaintiff Has Failed To Prove A Physical Taking Of Its

Property, Because It Consented To The Army’s

Groundwater Monitoring.”

ii. “Plaintiff Did Not Establish That The Government Has

Permanently Occupied Its Property.”

iii. “Because Plaintiff Consented To The Installation Of The

Monitoring Wells In A Valid Contract, Its Claims Are

Governed By Contract Law.”

c. Plaintiff’s Reply.

i. “Plaintiff’s Takings Clause Claim Is Ripe for Review.”

ii. “The Right Of Entry Agreement Does Not Bar Plaintiff’s

Takings Clause Claim.”

d. The Government’s Sur-Reply.

i. “The Right Of Entry Agreement Vitiates Plaintiff’s Takings

Clause Claims.”

ii. “The Right Of Entry Agreement Is Supported By Valid

Consideration.”

e. Plaintiff’s Sur-Reply.

i. “The Right Of Entry Agreement Does Not Bar Plaintiff’s

Takings Clause Claim.”

ii. “Plaintiff’s Takings Clause Claim Is Ripe For Review.”

iii. “The Framework From Arkansas Game and Fish Does Not

Apply To Permanent Takings Cases Like This One.”

f. The Court’s Resolution.

i. Governing Precedent.

ii. Plaintiff Voluntarily Consented To The Government’s Entry

And Use Of The Waverley View Property.

iii. The Reservation Of Rights In The Right Of Entry

Agreement Did Not Invalidate Plaintiff’s Consent.

iv. The Government’s Activities On The Waverley View

Property During The Term Of The Right of Entry

Agreement Did Not Exceed The Scope Of Work Described

Therein.

v. The Continued Presence Of The Army-Installed Monitoring

Wells And Gravel Access Road On The Waverley View

Property After Expiration Of The Right Of Entry Agreement

Effected A Permanent Taking Of Certain Portions Thereof.

3

3. At Trial, Plaintiff Established That It Is Entitled To Just Compensation.

a. Plaintiff’s Argument.

b. The Government’s Response.

c. Plaintiff’s Reply.

d. The Government’s Sur-Reply.

e. Plaintiff’s Sur-Reply.

f. The Court’s Resolution.

i. Governing Precedent.

ii. Plaintiff Failed To Establish That The Taking Of Certain

Portions Of The Waverley View Property Prohibited The

Development Or Sale Thereof.

iii. Plaintiff Failed To Establish That Any Stigma Attached To

The Waverley View Property Was Caused By The

Government’s Activities Thereon.

iv. Plaintiff Is Entitled To $1.06 Per Square Foot Of The

Waverley View Property Physically Occupied By The

Army-Installed Monitoring Wells And Gravel Access Road.

IV. CONCLUSION.

4

I. FACTUAL BACKGROUND.1

A. Contamination And Remediation Of Area B Of United States Army

Garrison, Fort Detrick, Maryland.

United States Army Garrison, Fort Detrick, Maryland (“Fort Detrick”) is a Medical

Command facility owned and operated by the Army. PX 65 at 2. For many years, “Fort Detrick

was the center of the U.S. biological weapons program.”2 PX 65 at 2. “Since the discontinuation

of that program, it has hosted elements of the U.S. biological defense program.” PX 65 at 2.

Today, Fort Detrick consists of three tracts of land: “Area A, comprising about 800 acres where

the main post area and installation activities are located; Area B, comprising about 400 acres

generally located west of Area A; and Area C, which consists of two parcels [of land] located on

the west bank of the Monocacy River.” PX 65 at 2; see also DX 108 at US002779 (depicting

Areas A and B). Area B is the focus of this case.

In 1943, the Army established a Biological Warfare Research Center in Area A. PX 24 at

PL004077. In 1944, the Army acquired Area C “to develop water and sewer treatment plants.”

PX 24 at PL004077. In September 1946, the Army acquired Area B, “as the primary location for

Fort Detrick’s waste management activities.” PX 24 at PL004077.

Until the 1970s, Area B was used as “both a proving ground and a disposal area for

chemical, biological[,] and radiological material” (PX 65 at 2; see also PX 24 at PL004077),

including Anthrax and “major components of . . . Agent Orange” (DX 41 at WVI00006710). In

addition, Area B-11, the “westernmost disposal area” of Area B, was used “from the early 1950s

through approximately 1972” for disposal of “acids and chemicals, incinerated medical waste,

waste herbicides and insecticides, [and] phosgene” in “unlined trenches or pits.” PX 24 at

PL004079.

1

The facts recited herein were derived from: testimony adduced at a trial held on January

17–18 and 24–26, 2017 in Washington, D.C. (“TR 1–1469”), including the parties’ Joint Exhibits

(“JX 1–31”), Plaintiff’s Exhibits (“PX 1–163”), and the Government’s Exhibits (“DX 1–142”);

and information obtained during a site visit conducted on December 1, 2017 (“SVTR 1–44”).

2

Between 1943 and 1945, Fort Detrick was “the site of an exhaustive biological warfare

research effort during World War II.” DX 142 at 12. Shortly after the war, the fort was

“designat[ed] . . . as a permanent installation for peacetime biological research[.]” DX 142 at 12.

In 1956, Fort Detrick was re-designated “with a mandate of continuing biological research and

remaining the world’s leading research campus for biological agents that require special

containment.” DX 142 at 12.

5

DX 108 at US002779.

6

Fort Detrick, Areas A and B.

In 1970 and 1971, “after the United States [banned] biological research for offensive

operations, the Army began a decontamination and certification program at Fort Detrick[.]” PX

24 at PL004078. But, it was not until 1977 that “[c]ontamination assessments” commenced and

the Army “determined that activities at [Fort Detrick] could have resulted in [the] release[] of

chemicals [into] the environment.” PX 24 at PL004078.

In 1981, after completing a “Field Investigation of Uncontrolled Hazardous Waste Sites,”

the EPA “recommended that the State [of Maryland] and [the] EPA monitor the Army’s

investigations to address the potential for off-site migration of toxic materials[.]” PX 24 at

PL004078.

In 1988, Fort Detrick was “listed on the federal facilities compliance docket.” DX 142 at

13. Later that year, the “Army conducted an environmental audit . . . to determine the existence

of or potential for environmental contamination and to assess [the] risk to human health and the

environment associated with the installation.” DX 142 at 13.

In February 1992, the Army discovered trichloroethylene (“TCE”)3 concentrations above

the maximum contamination level (the “MCL”) established under the Safe Drinking Water Act,

42 U.S.C. §§ 300f–300j-26, as well as elevated levels of trichlorofluoromethane (“TCFM”)4 in

Area B. PX 24 at PL004078; see also DX 142 at 13. Thereafter, the United States Army

Environmental Hygiene Agency “began a study of . . . Area B that included installation and

sampling of monitoring wells.” PX 24 at PL004078; see also DX 142 at 13.

In October 1992, the Maryland Department of the Environment (the “MDE”) “sampled 21

residential wells in the vicinity of Fort Detrick Area B and found TCE concentrations above the

3

The Agency for Toxic Substances and Disease Registry, a federal public health agency

within the United States Department of Health and Human Services, defines TCE as

a nonflammable, colorless liquid with a somewhat sweet odor and a sweet, burning

taste. It is used mainly as a solvent to remove grease from metal parts, but it is also

an ingredient in adhesives, paint removers, typewriter correction fluids, and spot

removers. [TCE] is not thought to occur naturally in the environment. However,

it has been found in underground water sources and many surface waters as a result

of the manufacture, use, and disposal of the chemical.

Toxic Substances Portal: Trichloroethylene (TCE), AGENCY FOR TOXIC SUBSTANCES AND DISEASE

REGISTRY (Mar. 3, 2011), https://www.atsdr.cdc.gov/substances/toxsubstance.asp?toxid=30.

TCE is “[k]nown to be a [h]uman [c]arcinogen” and is classified as a volatile organic compound

(“VOC”). Id.

4

TCFM is a “[colorless] gas or highly volatile liquid,” traditionally used as a refrigerant.

Trichlorofluoromethane, NAT’L INST. FOR OCCUPATIONAL SAFETY AND HEALTH (July 22, 2015),

https://www.cdc.gov/niosh/ipcsneng/neng0047.html. TCFM “can be absorbed into the body by

inhalation . . . causing a serious risk of suffocation when in confined areas [and] . . . effects on the

cardiovascular system and central nervous system, resulting in cardiac disorders and central

nervous system depression.” Id.

7

MCL in four wells[.]” PX 24 at PL004078. In response, the Army provided bottled water to

affected residents until their homes could be connected to the public water system. PX 24 at

PL004079.

Beginning in 1992, and continuing into 1993, “[e]nvironmental investigations were

performed at Fort Detrick, including Area B, to investigate, and evaluate conditions, locate

potential dump sites, and determine whether contamination was present at various Areas of

Concern[.]” DX 142 at 13.

In 1993, the Army also convened a Restoration Advisory Board (the “Fort Detrick RAB”)

to “provide a forum for cooperation between the [Army and the EPA], State representatives, local

community representatives, and natural resource trustees on actions and proposed actions at the

[s]ite.” PX 24 at PL004126. Since that time, the Fort Detrick RAB has held “semi-annual [or]

quarterly” meetings, open to the public, at which it “present[s] information to the community on

the restoration program, . . . provide[s the community] with updates, statuses of [the Fort Detrick

RAB’s] findings . . . [and] take[s] feedback from the community.”5 TR 921–22 (Gortva).

By 1997, the Army became concerned that contamination from Area B-11 had migrated

southwest onto an adjacent property (the “Waverley View Property”). DX 128 at 19–20. On

November 13, 1997, the Army reported to the Fort Detrick RAB that wells along a fence line

abutting the Waverley View Property showed elevated levels of TCE and perchloroethylene

(“PCE”).6 DX 128 at 2–3, 19–20. The report included images depicting a groundwater plume

extending from Area B onto the Waverley View Property, which the Army believed to have carried

TCE and PCE onto Phase II of the property. DX 128 19–20; see also TR 918–19 (Gortva). The

Army’s report was made available to the public at a Fort Detrick RAB meeting in 1997, at the

Frederick County Public Library, and on the Fort Detrick website. TR 919–20 (Gortva).

5

The Fort Detrick RAB’s meeting minutes and presentations for years 1997 through 2017

are publicly available on the Fort Detrick website. Restoration Advisory Board (RAB) Meeting

Minutes, FORT DETRICK, MD. (Aug. 8, 2017), http://www.detrick.army.mil/rab/meeting

Minutes.cfm.

6

PCE, also known as tetrachloroethylene, is “a manufactured chemical used for dry

cleaning and metal degreasing. . . . It is also used as a starting material (building block) for

making other chemicals and is used in some consumer products.” Toxic Substances Portal:

Tetrachloroethylene (PERC), AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY (Dec. 15,

2014), https://www.atsdr.cdc.gov/substances/toxsubstance.asp?toxid=30. “Exposure to very high

concentrations of [PCE] can cause dizziness headaches, sleepiness, incoordination, confusion,

nausea, unconsciousness, and even death.” Id. The EPA “considers [PCE] likely to be

carcinogenic to humans by all routes of exposure.” Id.

8

DX 128 at 19

9

Groundwater PCE Concentrations

DX 128 at 20

10

Groundwater TCE Concentrations

Beginning in 1999, “quarterly groundwater sampling [was] conducted at Area B

monitoring wells and drinking water wells along the southern boundary of Area B.” PX 65 at 4.

The groundwater samples were discovered to include TCE and PCE as “major constituents.” PX

24 at PL004079; see also PX 65 at 4 (“Since 1999, . . . the [chlorinated VOCs] TCE and [PCE]

have consistently been the most widespread and thus the focus of chemical constituents detected

in groundwater at Area B.”).

On July 14, 2000, the Army began a “hot spot interim removal action,” consisting of

excavating hazardous waste, i.e., “contaminated soil, chemical containers, compressed gas

cylinders, and laboratory waste[,]” from the disposal pits in Area B-11, and backfilling and

capping7 the disposal pits. PX 24 at PL004079–80; PX 65 at 5. This interim removal action was

completed in May 2004. PX 24 at PL004080; DX 142 at 13. During excavation of the disposal

pits, “[h]owever, the discovery of live pathogens in medical wastes at [A]rea B-11 caused the

suspension of [future] intrusive work at the disposal area[.]” PX 65 at 5; DX 142 at 13. As a

result, “waste remains buried at [A]rea B-11.” PX 65 at 5.

In addition, “[b]y 2004, several shallow (overburden) and deep (bedrock) monitoring wells

were installed throughout Area B.” PX 65 at 4. Groundwater samples along the southern property

line of Area B, adjacent to the Waverley View Property, “demonstrated groundwater

contamination by PCE and TCE at concentrations above the MCL . . . , with the highest

concentrations present within the bedrock.” PX 65 at 4. “Groundwater elevation maps prepared

around 2004 . . . [also] suggest[ed] that groundwater may flow southwest from Area B onto [the

Waverley View Property].” PX 65 at 4.

On September 3, 2008, “Fort Detrick Area B Groundwater” was proposed for listing on

the National Priorities List (the “NPL”).8 PX 65 at 2.

On April 8, 2009, Fort Detrick Area B Groundwater was listed on the NPL as a CERCLA

Superfund site. PX 65 at 2. “Four known source areas were identified [including the] Area B-11

Chemical Waste Disposal Pits[.]” PX 65 at 2.

In early 2010, the Kristen Renee Foundation, founded by Randy White, launched a public

campaign, entitled “Fighting for Frederick,” “to research and investigate the findings associated

with Fort Detrick ‘Area B’ groundwater.” DX 142 at 14. One of Mr. White’s daughters, Kristen

Renee, died from a brain tumor in April 2008 and another was diagnosed with growths in her

7

“Capping involves placing a cover over contaminated material such as landfill waste or

contaminated soil. Such covers are called ‘caps.’ Caps do not destroy or remove contaminants.

Instead, they isolate them and keep them in place to avoid the spread of contamination.” U.S.

ENVTL. PROT. AGENCY, A CITIZEN’S GUIDE TO CAPPING (2012).

8

The NPL is a “list of sites of national priority among the known releases or threatened

releases of hazardous substances, pollutants, or contaminants throughout the United States and its

territories. The NPL is intended primarily to guide the EPA in determining which sites warrant

further investigation.” Superfund: National Priorities List (NPL), U.S. ENVTL. PROT. AGENCY,

https://www.epa.gov/superfund/superfund-national-priorities-list-npl (last visited Oct. 24, 2017).

11

abdomen in 2009. DX 41 at WVI00006709, WVI00006712. Both daughters grew up near Fort

Detrick, on property that “adjoins” the Waverley View Property, and their conditions were

believed by doctors to be “likely caused by something in their environment.” TR 1187

(McPherson); DX 41 at WVI00006712.

On July 10, 2010, Mr. White, called a town hall meeting in Frederick, Maryland to discuss

concerns about contamination at Fort Detrick and effects on the residents of the surrounding

community. DX 41 at WVI00006712; DX 142 at 14. The meeting was attended by “[d]ozens of

base neighbors who shared [Mr. White’s] concerns.” DX 41 at WVI00006712.

On December 17, 2010, the Army and the EPA signed a Federal Facilities Agreement (the

“FFA”) that “was made effective [A]utumn 2011.” PX 65 at 2. The FFA described the

“procedures under which the Army, [the MDE], and the [EPA would] investigate and, if necessary,

remediate sites at Area B in accordance with CERCLA.” PX 65 at 2.

On October 8, 2011, The Baltimore Sun published an article, entitled “A death from cancer,

and a search for answers,” about contamination at Fort Detrick and concerns for the surrounding

community. DX 41 at WVI00006709–12. The article reported that “[f]or decades, Frederick

residents had speculated about the possible effects of the experiments at [Fort Detrick] on the

health of the surrounding community.” DX 41 at WVI00006709. The article also discussed Mr.

White’s concerns and reported that “[o]fficials [began a] cancer cluster investigation . . . and have

scheduled regular meetings to keep the community abreast of their findings.” DX 41 at

WVI00006712. In addition, the article reported that Mr. White “has filed a mass tort lawsuit

[against the Army]. He has been joined by more than 100 fellow plaintiffs.” DX 41 at

WVI00006709.

During 2011 and 2012, the Army installed additional wells throughout Area B, including

“a nested group of four wells . . . installed on Fort Detrick property along the perimeter of Area B

adjacent to [the Waverley View Property].” PX 65 at 4; see also TR 926–27 (Gortva) (testifying

that this “nested group” of wells was located less than 20 feet from the Waverley View Property).

Groundwater sampling from these wells showed “contamination at concentrations 1000 times

greater than the MCL[.]” PX 65 at 4; see also TR 927 (Gortva) (testifying that “[i]n [the] October,

November time frame, [the Army] received . . . results that were significantly elevated, around

5000 parts per billion, and . . . in subsequent tests, . . . around 11,000 parts per billion”).

During this time, the Army also requested permission to investigate properties in the

vicinity of Fort Detrick to “complete the [R]emedial [I]nvestigation of the Area B groundwater.”

TR 924 (Gortva).9 To explain the purpose of its investigation, the Army prepared a “Project

Overview” (JX 15), to inform property owners that groundwater contamination was present on the

“western side of Area B at the highest concentrations and extends to the east, [and] that the [Army]

suspected contamination also extended onto the Waverley [View P]roperty” (TR 930–31 (Gortva);

9

For example, on October 25, 2012, the Army entered into an agreement with Loch Inver

Court, a residential subdivision near Fort Detrick, entitled “Right-Of-Entry for Environmental

Assessment and Response” that allowed the Army to enter the property for the purpose of

“environmental investigation.” DX 37. On April 27, 2015, the Army entered into a similar

agreement with another nearby subdivision, Carroll Park Manor. DX 103.

12

see also JX 15 at US002781). The “Project Overview” included an image depicting a groundwater

plume extending from Area B onto the Waverley View Property, which the Army believed to have

carried TCE and PCE onto Phase II of the property. JX 15 at US002781.

Distribution of PCE and TCE in Groundwater

JX 15 at US002781

13

B. The History Of The Waverley View Property.

In 2001, Detrick Overlook, LLC (“Detrick Overlook”) “purchased the land that comprises

[the] Waverley View [Property]” from the Krantz Family Partnership.10 PX 65 at 2; DX 1 at

WVI00008560. The Waverley View Property consists of approximately 92.8 acres of land,

located along the southwest border of Area B of Fort Detrick. PX 76; TR 859 (Harvey). “Area B

forms the northern boundary of the Waverley View [P]ropert[y], and farmland and residences

border [the] Waverley View [Property] to the west, east[,] and south.” PX 65 at 2; see also PX 70.

10

The Krantz family continues to farm the Waverley View Property (SVTR 13; TR 449

(Anderson)), however, Waverley View Investors, LLC (“WVI”), the current owner of the property,

receives no income for this use (SVTR 13–14).

14

PX 70.

15

Fort Detrick Area B and the Waverley View Property.

After purchasing the Waverley View Property, Detrick Overlook entered into agreements

with several firms, including Geo-Technology Associates, Inc. (“GTA”) and W. L. Gore &

Associates, Inc. (“WLGA”), to investigate the environmental conditions of the property. PX 151

at 1; DX 1 at WVI00008560. On August 24, 2001, GTA provided an Environmental Site

Assessment (the “2001 ESA”) to Detrick Overlook. DX 1 at WVI00008560. The 2001 ESA

concluded that, based on “two surface water samples” collected on land comprising what would

later become Phase I of the Waverley View Property (compare DX 1 at WVI00008566, with PX

70), “no VOCs were reported above the laboratory’s reporting limit . . . [and] TCE and PCE were

not reported above the practical quantification limit” (DX 1 at WVI00008560, WVI00008564–

65).

On October 4, 2001, WLGA provided Detrick Overlook with a “limited soil gas screening

survey” concluding that “1,1,1 [t]richloroethane, tetrachloroethene, and trichloroethene were

detected [on the Waverley View Property] in September/October 2001.” PX 151 at 1.

On February 25, 2002, Detrick Overlook submitted an application to the MDE Voluntary

Cleanup Program (“VCP”), seeking a “No Further Requirements Determination” (“NFRD”) for

the Waverley View Property.11 PX 65 at 2; see also MD. DEP’T OF THE ENV’T, WAVERLY VIEW,

ENVTL. RESTORATION & REDEVELOPMENT PROGRAM SITE FACTSHEET (Apr. 6, 2005),

http://mde.maryland.gov/programs/LAND/MarylandBrownfieldVCP/Documents/www.mde.state

.md.us/assets/document/brownfields/Waverly_View_Property.pdf. In turn, the MDE “requested

additional information and further subsurface investigation in order to complete the application

package.” PX 65 at 3; see also MD. DEP’T OF THE ENV’T, WAVERLY VIEW, ENVTL. RESTORATION

& REDEVELOPMENT PROGRAM SITE FACTSHEET (Apr. 6, 2005).

11

The EPA provided the following relevant information on the MDE VCP and NFRDs:

The [MDE] . . . administers the [VCP] to provide state oversight for the

voluntary cleanup of properties contaminated with hazardous substances. . . . Any

property contaminated or perceived to be contaminated by controlled hazardous

substances or oil is eligible for participation in the VCP. . . . The VCP provides two

types of final site approval documents for properties contaminated or perceived to

be contaminated by controlled hazardous substances or oil: a [NFRD] and a

certificate of completion. . . . [The] MDE issues a [NFRD] for an eligible property

when [the] MDE approves the application package and determines that a remedial

action plan . . . is not required. The determination states there are no further

requirements related to the investigation of controlled hazardous substances or oil

at the property. The determination is based on VCP specific land use and may

contain certain land use requirements.

U.S. ENVTL. PROT. AGENCY, CLEANING UP BROWNFIELDS UNDER STATE RESPONSE PROGRAMS –

GETTING TO “NO FURTHER ACTION” (2015).

16

On July 1, 2002, Detrick Overlook retained Environmental Service & Technology

Corporation (“ENSAT”) to “perform an extensive site characterization of the Waverley View

[P]roperty” to satisfy the requirements for participation in the MDE VCP. PX 151 at 1.

In November 2002, Detrick Overlook submitted a draft site characterization report to the

MDE VCP, prepared by ENSAT, seeking a NFRD for the property. PX 151 at 1.

On February 3, 2003, “the MDE requested additional information and further subsurface

investigation.” PX 65 at 3.

On November 11, 2003,12 Rocky Gorge Homes, LLC (“RGH”) and GAB Enterprises, Inc.

(“GAB”) formed RGHGAB at Frederick, LLC (“RGHGAB”) to “buy, develop, and sell property

in Frederick County.” PX 65 at 3. RGH was the managing member of RGHGAB, with 80 percent

ownership; and GAB was a minority member, with 20 percent ownership. TR 78 (Anderson). At

that time, Christopher Dorment was the Chairman, Chief Executive Officer (“CEO”), and majority

owner of RGH; John Anderson was a minority owner of RGH; and Gary Berman was President

of GAB. TR 78–79 (Anderson).

On January 29, 2004, RGHGAB submitted an application to the MDE VCP seeking a

NFRD for the Waverley View Property,13 as an inculpable person.14 PX 65 at 3; see also MD.

DEP’T OF THE ENV’T, WAVERLY VIEW (Apr. 6, 2005).

The next day, on January 30, 2004, RGHGAB purchased approximately 90 acres of land

for $5,600,000 from Detrick Overlook, that included most of the Waverley View Property. 15 PX

12

See Articles of Organization, RGHGAB at Frederick, LLC, MD. SEC’Y OF STATE: MD.

BUS. EXPRESS, https://egov.maryland.gov/BusinessExpress/EntitySearch (last visited Dec. 18,

2017) (search by “Business Name” for “RGHGAB;” then follow the “W07656309” hyperlink

under “Department ID;” then follow the “ARTICLES OF ORGANIZATION” hyperlink under the

“Filing History” tab).

13

RGHGAB appears to have filed this application as a “prospective purchaser.” See

Voluntary Cleanup Program Frequently Asked Questions, MD. DEP’T OF THE ENV’T,

http://mde.maryland.gov/programs/Land/MarylandBrownfieldVCP/Pages/vcp_ info.aspx (last

visited Dec. 5, 2017) (“[A]n application may be submitted by the responsible person for a

particular property, and, if the property is being marketed for sale, a prospective purchaser may

also submit an application seeking inculpable person status.”).

14

“An inculpable person, . . . means a person who, at the time of application for

participation in the VCP, has no prior or current ownership interest in an eligible property and has

not caused or contributed to contamination at the eligible property.” MD. DEP’T OF THE ENV’T,

FACTS ABOUT: VOLUNTARY CLEANUP PROGRAM, INCULPABLE & RESPONSIBLE PERSON STATUS

(2017).

15

WVI’s June 16, 2017 Opening Post-Trial Brief (“Pl. Post-Tr. Br.”) asserts that “[t]he

[Waverley View] Property has been under the continuous control of Mr. Dorment since 2004.” Pl.

Post-Tr. Br. at 4.

17

54. RGHGAB financed a portion of the purchase with a loan secured by a promissory note (the

“BB&T Note”) held by BB&T Bank (“BB&T”). TR 123 (Anderson); see also GAB Enters.,

Inc. v. Rocky Gorge Dev., LLC, 108 A.3d 521, 523 (Md. Ct. Spec. App. 2015) (“GAB v. RGD”)

(“The parties secured the financing with a Promissory Note dated January 30, 2004 . . . held by

BB & T Bank[.]”);16 In re RGHGAB at Frederick, LLC, Bankruptcy No. 11–10627PM, Adversary

No. 11–0346PM, 2012 WL 1424684, at *1 (Bankr. D. Md. April 24, 2012) (“In re RGHGAB”)

(“Rocky Gorge executed a promissory note on January 30, 2004, for $2.75 million[.]”).17 That

same day, “[a]n ‘inculpable person status’ qualifying letter was issued to RGHGAB[.]” PX 65 at

3; see also MD. DEP’T OF THE ENV’T, WAVERLY VIEW (Apr. 6, 2005). Thereafter, RGHGAB

divided development of the Waverley View Property into two non-contiguous phases: Phase I,

approximately 70 acres of land separated from Fort Detrick by Shookstown Road; and Phase II,

approximately 23 acres of land directly adjacent to Fort Detrick. PX 70.

On February 4, 2004, in order to file a new application addressing the MDE’s concerns

regarding Detrick Overlook’s November 2002 Application, RGHGAB engaged Chesapeake

GeoSciences, Inc. (“CGS”) to “determine the on-site extent . . . of contamination as a direct result

of potential off-site migration from the adjacent Fort Detrick Military Reservation.” PX 151 at 1.

Thereafter, CGS “excavat[ed] seventeen (17) test pits, install[ed] seven (7) [groundwater]

monitoring wells,18 and . . . collect[ed] and analy[zed] soil, [groundwater], stream sediment, and

surface water samples.” PX 151 at 1. The groundwater monitoring wells were installed “to depths

of about 115 feet below ground surface” (PX 155 at 5), and “were constructed of 6-inch diameter

steel casing,” except for GW-7 which “was constructed of 4-inch diameter . . . PVC [pipe]” (PX

151 at 2–3; see also PX 88 at A-14 (Image 7)).

16

This opinion, by the Court of Special Appeals of Maryland, reversed the Circuit Court

of Frederick County’s partial dismissal of a complaint filed by GAB on September 28, 2012,

alleging, among other things, “that Mr. Dorment ‘secretly created [WVI] for the purpose of

improperly transferring RGHGAB's assets to [WVI] and thus wiping out GAB's interest in

RGHGAB.” GAB v. RGD, 108 A.3d at 527.

17

This opinion, by the United States Bankruptcy Court for the District of Maryland,

dismissed a bankruptcy complaint filed by the Bankruptcy Trustee in RGHGAB’s involuntary

bankruptcy proceeding, alleging, among other things, “that Mr. Dorment, [RGH], and [WVI] had

‘engaged in inequitable conduct’ and improperly engaged in self-dealing that harmed RGHGAB

and its creditors.” GAB v. RGD, 108 A.3d at 526. The bankruptcy complaint arose from a petition

for involuntary bankruptcy filed by GAB on January 11, 2011. In re RGHGAB, 2012 WL

1424684, at *3.

18

The monitoring wells are labeled: GW-1–GW-7. TR 433–34 (Anderson); see also PX

76 (Figures 11A and 11B).

18

Image 7: CGS-Installed Monitoring Well.

PX 88 at A-14 (Image 7).

In April 2004, CGS provided a Site Characterization Report (the “2004 Site

Characterization Report”) to RGHGAB summarizing CGS’s findings, including that “[n]o

contaminants of potential concern . . . were identified in [groundwater], sediment, and surface

water through generic risk-based screening utilizing MDE Cleanup Standards.” PX 151 at 15.

Thereafter, RGHGAB submitted an application, including the 2004 Site Characterization Report,

to the MDE VCP seeking a NFRD. TR 97 (Anderson).

On September 3, 2004, the MDE issued a NFRD for the Waverley View Property (the

“2004 NFRD”). PX 65 at 3; DX 4. The 2004 NFRD was conditioned on the Waverley View

Property being used for “limited residential, commercial[,] or industrial purposes,” and explicitly

excluded “use of groundwater.” DX 4 at PL003175.

On September 13, 2004, the City of Frederick Planning Commission (the “Planning

Commission”) approved RGHGAB’s Planned Neighborhood Development (“PND”) Master

Plan.19 JX 20; PX 156 at 5; TR 112 (Anderson). The Planning Commission “conditioned [its]

approval . . . on the preparation of ‘an environmental assessment’ to ensure that ‘no negative

impacts from Fort Detrick Area B exist.’ The approval required either that an independent

environmental consultant or the [MDE] concur that the property would suffer no negative impacts

from Fort Detrick Area B.” PX 156 at 5. Another “condition of approval” required RGHGAB to

19

“Generally speaking, a [PND m]aster [p]lan . . . is a land use plan that designates major

land uses, commercial, residential[, or] open space. It provides a general road network . . . [.] It

also establishes a maximum density of development.” JX 30 at 11. In other words, a PND master

plan is a “conceptual . . . plan.” JX 30 at 34.

19

“construct or contribute to five (5) major infrastructure improvements to roads and a sewer line

extension.”20 DX 114 at 39–40.

On April 6, 2005, the Planning Commission approved a “Preliminary Plan of Subdivision”

for Phase I and Phase II of the Waverley View Property, authorizing the “construction of 732

[residential] units, all of which could commence construction by 2011 so long as other

infrastructure and development approvals were obtained[.]” PX 156 at 5.

On April 24, 2006, the Planning Commission approved RGHGAB’s Final Site Plan21 for

Phase I, allowing development of Phase I to begin. PX 120; PX 156 at 6.

20

The five “major infrastructure improvements” included:

1. Construct[ing] the extension of a sewer outfall from Shookstown Road

through the Bartgis property.

2. Upgrad[ing] and reconstruct[ing] Shookstown Road for approximately

1,600 linear feet through [the] Waverley View [Property], including a

major stream crossing.

3. Relocat[ing] and construct[ing] Waverley Drive from Waverley

Elementary School to Shookstown Road.

4. Provid[ing] an appropriate monetary contribution to the cost of the

future extension of Old Camp Road, south of Shookstown Road to the

Waverley View [Property] property line.

5. Construct[ing] an approximately 2,100 linear foot section of

Christopher’s Crossing, across the northwest boundary of the [Waverley

View] Property, which road section would provide no access to [the]

Waverley View [Property].

DX 114 at 39–40.

Improvements 1–3 were conditions on developing Phase I, and Improvements 4 and 5 were

conditions on developing Phase II. DX 114 at 40. In January 2013, after negotiations, a “Deferral

Agreement” between the City of Frederick and WVI was executed, permitting WVI, “in lieu of

constructing a 2,100 linear section of Christopher’s Crossing, to pay a Regional Road

Improvement Fee . . . in the amount of $880,000 to be paid upon application for building permits

for the 293 units it proposed on . . . Phase II.” DX 114 at 40; see also TR 175–76 (Anderson).

This “reduc[ed WVI’s] up-front financial outlay” requirement by “$2 million.” TR 175–76, 471

(Anderson). As of the December 1, 2017 site visit, however, neither RGHGAB, nor its successor-

in-interest WVI, had completed each of the remaining “required” improvements. See SVTR 36–

37.

21

“The final site plan . . . establishes . . . finer details of the development, unit locations,

landscaping, lighting, sidewalk locations, all of that.” JX 30 at 12. “After . . . [final] site plan

approval, the next course of action is . . . to . . . fine-tune engineering of roadways, water and sewer

infrastructure, things of that nature . . . through [the] Engineering Department. And then it would

move into building permits.” JX 30 at 12–13.

20

On June 29, 2006 and December 7, 2006, RGHGAB purchased two smaller land parcels,

comprising approximately 2.8 acres of land for $1,200,000. PX 55; PX 56. These parcels, together

with the land purchased by RGHGAB on January 30, 2004, became the entirety of the Waverley

View Property.

By September 12, 2007, the principal amount of the BB&T Note had grown, so that

RGHGAB “owe[d] the bank $9 million,” much more than the value of the Waverley View

Property, i.e., “around $2 million.” TR 122–29 (Anderson); see also PX 152 at WVI00106322;

GAB v. RGD, 108 A.3d at 524 (“As time went by, the principal amount of the [BB&T] Note was

amended, ballooning to nearly $9 million as of September 12, 2007[.] . . . By late 2009, the

[Waverley View] Property's value had dropped far below the increasing amount due under the

[BB&T] Note.”); In re RGHGAB, 2012 WL 1424684, at *1 (“Rocky Gorge executed [the BB&T

N]ote on January 30, 2004, for $2.75 million, later increased to $8.95 million on September 12,

2007.”)

On August 19, 2008, RGHGAB submitted a Final Site Plan for Phase II of the Waverley

View Property to the Planning Commission for approval. PX 156 at 6. This plan quickly

proceeded through the review process and the Planning Commission provided “review comments”

to RGHGAB. TR 119 (Anderson). Late in 2008, however, a recession hit Maryland’s housing

market. PX 156 at 6; TR 119–20 (Anderson); TR 1220–21 (McPherson). As a result, RGHGAB

withdrew the Final Site Plan for Phase II and never resubmitted it.22 JX 20; PX 120; PX 156 at 6;

TR 471 (Anderson).

On June 23, 2010, Mr. Dorment and several other investors formed WVI, with Mr.

Dorment as the managing member, to acquire the BB&T Note. PX 152 at WVI00106335; see also

Articles of Organization, Waverley View Investors, LLC, MD. SEC’Y OF STATE: MD. BUS.

EXPRESS, https://egov.maryland.gov/BusinessExpress/EntitySearch (last visited Dec. 18, 2017)

(search for “Waverley View Investors;” then follow the “W13627708” hyperlink under

“Department ID;” then follow the “ARTICLES OF ORGANIZATION” hyperlink under the

“Filing History” tab); TR 78 (Anderson).

In September 2010, WVI purchased the BB&T Note for $2.2 million. TR 126 (Anderson)

(“[T]he [BB&T N]ote was purchased by [WVI] from the bank. . . . I believe it was $2 million,

$200,000 cash and then a deferral for the $2 million. So, it was $2.2 million.”); see also GAB v.

RGD, 108 A.3d at 525 (“Rocky Gorge assigned the note purchase agreement to [WVI], completing

the transaction . . . on September 17, 2010.”).

On September 23, 2010, CGS conducted a “Site Investigation” of the Waverley View

Property. PX 150 at PL002152. The Site Investigation entailed “the collection of 12 soil samples

from six locations and one sediment sample.” PX 150 at PL002152. From these samples CGS

concluded, in an October 29, 2010 Site Investigation Report (the “2010 CGS Site Investigation

Report”), that the Waverley View Property exhibited “normal background conditions” and that

22

Subsequent promotional materials concerning the Waverley View Property provided that

“[f]inal plan approval [of Phase II] will be necessary and will need to be completed by the

purchaser . . . offering the potential to modify the current plan.” PX 29 at WVI00007847.

21

“Fort Detrick’s historic testing of Agent Orange does not appear to have impacted the [property].”

PX 150 at PL002153.

In October 2010, after RGHGAB defaulted on the BB&T Note, WVI began foreclosure

proceedings on the BB&T Note (TR 82, 130–31 (Anderson);23 see also GAB v. RGD, 108 A.3d at

525 (“[I]n October 2010, Waverley undertook to foreclose on the [p]roperty.”)).

In January 2011, before the foreclosure proceedings were completed, GAB filed a petition

for involuntary bankruptcy that halted foreclosure and subjected RGHGAB to involuntary

bankruptcy proceedings. TR 131–35 (Anderson); see also GAB v. RGD, 108 A.3d at 525 (“GAB

. . . filed a Petition for Involuntary Bankruptcy (Chapter 7) in the Bankruptcy Court on January 11,

2011. . . . The filing brought the foreclosure proceeding to an abrupt halt[,] because of the

automatic stay that issued from the Bankruptcy Court[.]”). As a result, RGHGAB’s assets,

including the Waverley View Property, were turned over to a Bankruptcy Trustee. TR 132–33

(Anderson).

After negotiations with the Bankruptcy Trustee, WVI offered to purchase the Waverley

View Property out of bankruptcy for $4,000,000,24 based on a 2010 appraisal value of “plus or

[minus] $2 and a half million.” TR 133–34 (Anderson); see also PX 152 at WVI00106324,

WVI00106350. The Bankruptcy Trustee solicited other offers in order to “bid [WVI’s offer] up

some;” however, no other offers materialized. TR 133–34 (Anderson); see also PX 152.

On November 15, 2012, WVI purchased the Waverley View Property out of bankruptcy

for $4,000,000 “paid via credit bid.” PX 53; PX 152 at WVI00106363; TR 134–35 (Anderson);

23

As Mr. Anderson testified at trial:

[WVI] purchase[d] the bank’s position. So, [WVI] is now effectively the

lender to RGHGAB, who has an asset that is not performing, doesn’t have a way to

make payments on the loan, though they weren’t in default with BB&T. I mean,

they would have been in default in this. It was just–there was no more money.

So, [WVI], in its role as the–sort of the bank, the owner of the deed of trust

on the property, as a lender can do, foreclosed on its rights under the deed of trust,

which was secured by the property. So, the remedy is you go through a foreclosure

and then the lender, after the foreclosure proceeding, owns the property free and

clear of any other liens on the property. It just wipes out everything else. So,

RGHGAB’s ownership is gone. And, now, [WVI] owns both the deed of trust on

the property and the actual property.

TR 130–31 (Anderson).

24

WVI’s $4,000,000 offer was a “credit bid,” i.e., a non-cash bid, made against the amount

owed on the BB&T Note owned by WVI (PX 152 at WVI00106363; see also TR 135 (Anderson)),

which, as of June 30, 2012, was $10,160,787 (PX 152 at WVI00106334).

22

DX 88 at 28. That same day, however, CL Group LLC (“CL Group”) appraised the Waverley

View Property as having an “as is” value of $12,800,000.25 PX 125 at WVI00006628–30.

On September 19, 2014, WVI entered into a “Sales/Purchase Agreement” with S.L.

Nusbaum Realty Co. (“Nusbaum”), pursuant to which Nusbaum agreed to purchase approximately

13.72 acres of Phase I for $5,000,000. PX 127 at WVI00109347, WVI00109377. Nusbaum’s

obligation to purchase the property was subject to numerous conditions, some of which were to be

undertaken by WVI. PX 127; DX 112, TR 243–46 (Anderson). In August 2016, WVI

consummated the sale of the property to Nusbaum. TR 215 (Anderson).

C. The Government’s26 Interactions With RGHGAB at Frederick, LLC To

Gain Access To The Waverley View Property.

On March 10, 2011, the United States Army Corps of Engineers, Baltimore District (the

“Army Corps”) sent a letter to RGHGAB27 requesting permission to enter the Waverley View

25

The CL Group appraisal, however, provided that:

The values estimated in this report are based upon the assumption that the

property is not negatively affected by the existence of hazardous substances or

detrimental environmental conditions.

As previously noted, Fort Detrick adjoins the property to the northeast. In

2009 the [EPA] put the site of major toxic waste contamination at Fort Detrick in

Frederick on its Superfund [NPL]. Environmental clean-up specialists created a

landfill “cap” on the area known as “Area B” in a remote northwest corner of the

Fort Detrick installation. In 1992, off-post contamination from Area B was first

detected in residential wells. The remediation project at the installation should be

completed by 2014.

The Kristen Renee Foundation has launched a campaign to research and

investigate the findings associated with Fort Detrick “Area B” groundwater. . . . [I]t

should be emphasized that the subject was submitted to the State of Maryland’s

[VCP] and later issued a letter of [NFRD].

Per the subject representative, with regard to the site’s close proximity to

Area B, tests have revealed no contamination on the subject property. The future

residents of Waverley View will be served through public water and sewer, so any

potential for groundwater issues is further removed.

PX 125 at WVI00006703 (emphasis in original omitted and emphasis added).

26

Numerous agencies, including the Army and the EPA, interacted with various owners of

the Waverley View Property, on behalf of the Government, seeking access to the property.

27

The Government asserts in its July 14, 2017 Post-Trial Response Brief (“Gov’t Post-Tr.

Resp. Br.”) that, as of March 10, 2011, the Army believed that RGHGAB owned the Waverley

View Property; unbeknownst to the Army, however, the property was under the control of the

Bankruptcy Trustee from January 11, 2011 to November 15, 2012, and RGHGAB never advised

23

Property for the purpose of “conducting site investigation activities in connection with the Fort

Detrick Area B Groundwater Remedial Investigation[.]” DX 16 at US007141. This letter included

a “Right of Entry . . . for Environmental Response Form” (the “ROE form”) and requested that

RGHGAB “sign and return the [ROE] form” to the Army Corps. DX 16 at US007138. The letter

and the ROE form were sent to an incorrect mailing address, however, and were returned as

“undeliverable.” TR 924–25 (Gortva).

On March 22, 2011, the Army Corps resent the letter and the ROE form to RGHGAB. DX

16 at US007134. The Army Corps did not receive a response. DX 17 at US001211.

On May 5, 2011, the Army Corps sent another letter and the ROE form to RGHGAB, again

requesting permission to enter the Waverley View Property. DX 16 at US007138–39; DX 17.

On May 9, 2011, Mr. Anderson, on behalf of RGHGAB, sent a letter to the Army Corps

“in response to [its] request for right-of-entry.” JX 1. The letter provided “Your request is denied.

Any entry on the [Waverley View] Property by the . . . [Army Corps] or [its] contractors will be

treated as trespassing.” JX 1. The letter also provided that, although RGHGAB “appreciate[d] the

efforts to clarify the impact of the Fort Detrick Area B groundwater on the area, [RGHGAB] ha[d]

already performed extensi[ve] investigation on the [Waverley View] Property,” and included

copies of numerous documents as evidence on a compact disc (“CD”).28 JX 1.

On May 11, 2011, Mr. Anderson contacted Christine Milligan, Realty Specialist for the

Army Corps, to inform her of the May 9, 2011 letter and stated that RGHGAB “[didn’t] want to

be the ‘bad guy’ but [was] declining to sign the ROE [form].” DX 16 at US007134. Thereafter,

the Army reviewed the documents on the CD included with Mr. Anderson’s May 9, 2011 letter to

determine whether there was a continued need for access to the Waverley View Property. TR

1039 (Gortva). After reviewing the documents, however, the Army decided that it could not accept

the results of RGHGAB’s testing in lieu of conducting its own groundwater monitoring. TR 925

(Gortva).

In October 2011, the Army took groundwater samples from several deep monitoring wells

in Area B-11, located about 20 feet from the Waverley View Property, that showed “significantly

elevated” levels of contaminants. TR 926–27 (Gortva); see also PX 65 at 4 (Groundwater

sampling from these wells showed “contamination at concentrations 1000 times greater than the

MCL[.]”).

the Army of the bankruptcy proceedings. Gov’t Post-Tr. Resp. Br. at 16; see also, e.g., TR 420,

490 (Anderson).

28

The CD included the following documents: (1) a “Preliminary Subsurface Exploration,”

dated December 18, 2000; (2) the 2004 Site Characterization Report; (3) a “Phase I ESA

Screening,” dated August 25, 2004; (4) the 2004 NFRD; (5) a “Professional Opinion Regarding

Testing of Agent Orange at Fort Detrick;” (6) a “Site Investigation Proposal,” dated September

14, 2010; (7) a “Laboratory Report,” dated October 12, 2010; and (8) the 2010 CGS Site

Investigation Report. JX 1.

24

On October 17, 2011, the Army Corps sent another letter to Mr. Anderson, confirming

receipt of RGHGAB’s “acknowledgement and intent to decline participation in . . . [the] site

investigation activities for the Fort Detrick Area B Groundwater Remedial Investigation[.]” DX

16 at US007135. Therein, the Army Corps stated that “[it] would like the opportunity to discuss

the program and address any of [RGHGAB’s] concerns or questions” and provided a list of various

times during which the Army Corps would be “in [RGHGAB’s] area and available to meet[.]” DX

16 at US007135. The letter included a “copy of the ‘P[rogram] O[verview] P[amphlet]’ for the

Fort Detrick Area B Groundwater Remedial Investigation . . . [and] an additional copy of the

[ROE] form.” DX 16 at US007135.

Sometime in late October 2011, Mr. Anderson contacted Ms. Milligan again to inform her

that “even though he [was] not inclined to sign [the] ROE [form], he [would] meet with [the Army

Corps], at his office, to hear what [the Army Corps had] to say.” DX 16 at US007134; TR 148

(Anderson).

On November 16, 2011, Messrs. Anderson and Dorment met with representatives from the

Army Corps, including John Buck, Project Manager, at RGH’s office in McLean, Virginia. DX

22; TR 150–51 (Anderson). At this meeting, the Army Corps informed Messrs. Anderson and

Dorment of the “significantly elevated” levels of contaminants found less than 20 feet from the

Waverley View Property (TR 926–27 (Gortva)), and again requested access to the Waverley View

Property (TR 151 (Anderson)). Relying on the 2004 NFRD, however, Messrs. Anderson and

Dorment indicated that they believed the Waverley View Property was “neat [and] clean.” TR

151 (Anderson). Thereafter, when the Army Corps declined to “offer . . . any compensation for

the use of [the] property . . . [Messrs. Anderson and Dorment] said, thank you very much, but

[access is] denied.” TR 151 (Anderson).

On February 7, 2012, the Army Corps sent another letter to Mr. Anderson, requesting

permission to enter the Waverley View Property. JX 3. This letter stated that access to the

Waverley View Property was “critical to achieving [the Army’s] project goals and no viable

alternative locations exist.” JX 3 at WVI00009453. The letter included “a modified [ROE form]

that contain[ed] non-intrusive activities that may be more amenable to [RGHGAB].”29 JX 3 at

WVI00009453. Again, RGHGAB refused to grant the Army access. TR 152 (Anderson).

On September 6, 2012, the MDE contacted the Army to report that

the owner of the Waverley [View] Property . . . ha[s] requested a “comfort letter”

from the [VCP] regarding the NFRD that [the] MDE issued for the property in

2004. They hoped that [the] MDE would be willing to state that there would be no

known health risk if the property were to be developed under the constraints of the

[2004] NFRD (essentially no groundwater use). [The] MDE politely declined to

29

The modified ROE form “eliminate[d] all activities on [the Waverley View P]roperty

with the exception of access to the stream to conduct stream surveys, collect surface water and

sediment samples, and conduct dye trace sampling/monitoring activities.” JX 3 at WVI00009453.

25

issue such a letter, citing the unknown . . . extent of groundwater contamination

associated with Area B.

DX 33 at US000157.

On November 8, 2012, the Army Corps sent another letter to Mr. Anderson, requesting

permission to enter the Waverley View Property, emphasizing that access was “critical for the

completion of [the Army’s] efforts.” PX 7 at WVI0008362. The letter also included a “Program

Overview Pamphlet” and an original, unmodified, ROE form. PX 7 at WVI00008365–69.

RGHGAB continued to refuse to grant the Army access. TR 152 (Anderson).

On November 15, 2012, despite the Army’s “susp[icion of] groundwater contamination on

[Phase II] of [the] Waverley View [Property],” and without “further environmental testing or other

due diligence” (TR 393 (Anderson)), WVI purchased the Waverley View Property out of

bankruptcy (PX 53; TR 134–35 (Anderson)).

D. The Government’s Interactions With Waverley View Investors, LLC To

Gain Access To The Waverley View Property.

On February 8, 2013, the Associate Director of the EPA’s Office of Federal Facility

Remediation and Site Assessment, sent a letter to Mr. Anderson,30 requesting permission to enter

the Waverley View Property. DX 44. This letter “strongly urge[d]” [Mr. Anderson] to consent to

federal government access to undertake groundwater sampling on [the Waverley View Property]

. . . as requested by the [Army.]” DX 44 at US000008. The letter also indicated that the “EPA

believe[d] the proposed work [was] necessary and appropriate to better understand the nature and

extent of contamination migrating from the Fort Detrick Area B Superfund NPL [S]ite, and to

ensure the protection of human health and the environment.” DX 44 at US000008. The letter

stated that the Waverley View Property “lies immediately adjacent to the Area B-11 trenches,

where contaminated groundwater has been detected flowing in the direction of [the Waverley View

P]roperty[,]” and that the “EPA and the Army believe[d] . . . that the groundwater contaminant

plume extend[ed] beneath” the Waverley View Property. DX 44 at US000008. The letter also

emphasized that,

[r]epresentatives of the United States government have authority granted by federal

law to gain access to [the] property to perform response activities related to the

contaminated groundwater plume migrating from the Fort Detrick Area B

Superfund NPL [S]ite. Under Section 104(e)(1) of [CERCLA], any officer,

employee, or representative of the President has the authority to take action at any

facility, property, or location, at which there is a reasonable basis to believe that

there may be a release or threat of release of a hazardous substance, pollutant, or

contaminant. Section 104(e)(1) extends the entry authority to any property or

30

Although WVI owned the Waverley View Property by this time, and Mr. Anderson

“[had] no ownership, [and] no role in [WVI]” (TR 78 (Anderson)), the EPA’s February 8, 2013

letter was nevertheless received by Mr. Dorment, the managing member of WVI (TR 644

(Dorment)).

26

location, such as [the Waverley View P]roperty, that lies adjacent to any place, such

as the Fort Detrick Area B Superfund NPL [S]ite, where such representative has a

reasonable basis to believe that there may be a release or threat of release of a

hazardous substance, pollutant, or contaminant.

Section 104(e)(3) of CERCLA gives the federal government the authority

to gain entry at reasonable times to any place, including [the Waverley View

P]roperty, where there may be a release or threatened release of a hazardous

substance, pollutant, or contaminant, or where entry is needed to determine the need

for response, to determine the appropriate response, or to effectuate a response

action under CERCLA.

Under CERCLA, the categories of parties liable for investigation and

cleanup costs include generators and transporters of hazardous substances disposed

of at a facility or property, and owners and operators of the facility or property at

the time of disposal, as well as current owners and operators. (See Section 107(a)

of CERCLA, 42 U.S.C. § 9607(a).) Section 107(q) of CERCLA, 42 U.S.C.

§ 9607(q), provides a limitation from CERCLA liability, under certain conditions,

for a person who owns property that is contiguous, or is otherwise similarly

situated, to a facility or property that is the only source of contamination found on

that person’s property. However, one of the conditions for the limitation from

liability is that the owner of the contiguous property must provide full cooperation,

assistance, and access to authorized persons to conduct response actions. See 42

U.S.C. § 9607(q)(l)(A)(iv). If you do not agree to provide access for the work

authorized by CERCLA, you will no longer have the benefit of the “contiguous

properties” defense to liability provided by Section 107(q) of CERCLA.

Furthermore, CERCLA Sections 104(e)(5)(A) and (B), 42 U.S.C.

9604(e)(5)(A) and (B), provide the federal government with enforcement

authorities to issue a unilateral order to the property owners to grant the request for

access for response actions, including sampling and other investigation activities;

and, if access is not granted, to seek a court order to compel cooperation with such

unilateral order. If the United States does not obtain . . . consent for access to

perform the necessary sampling on [the Waverley View P]roperty related to the

contaminated groundwater plume migrating from the Fort Detrick Area B

Superfund NPL [S]ite, the United States may exercise any other options available

to it under the law to obtain access, which could include issuing an administrative

order for access or seeking a warrant for access.

DX 44 at US000009.

On February 13, 2013, The Frederick News-Post, after obtaining a copy of the EPA’s

February 8, 2013 letter, reported that “[t]he federal government wants access to a residential

development site near Fort Detrick's Area B to drill wells and complete groundwater testing[,]”

but the owner “has repeatedly ignored requests from the Army to gain access to monitor the 90-

27

acre Shookstown Road property.” DX 48 at US144422. On that same day,31 Thomas Lynch, an

attorney for Messrs. Anderson and Dorment, sent a letter to the EPA agreeing to meet to discuss

“a plan for addressing [the] EPA’s and the Army’s request.” DX 48 at US144420. The letter also

provided that “the [Waverley View P]roperty is in the process of being reviewed for purposes of

development by the City of Frederick and the media has commented in news stories today about

the request for further investigation on [the] property[,]” and attached a copy of The Frederick

News-Post’s article.

On February 25, 2013, representatives from the Army, an Army environmental contractor,

Arcadis, and the Army Corps met with Messrs. Dorment, Anderson, and Lynch in Frederick,

Maryland. DX 126. At this meeting, the Army provided Messrs. Dorment, Anderson, and Lynch

with a presentation prepared by Arcadis, entitled “Waverley Property Right of Entry Discussion,”

that included a map of proposed drilling locations, all on Phase II of the Waverley View Property.

DX 52.

On March 14, 2013, Messrs. Dorment, Anderson, and Lynch met with representatives from

the Army, the EPA, and the MDE to discuss “on-going efforts to both identify remediation issues

at Area B and ask that [WVI] grant access to the [Waverley View P]roperty to the [Army] to

conduct groundwater sampling[.]” DX 125. At this meeting, Mr. Dorment “expressed his

frustration that the Army [wasn’t] moving faster to financially compensate him for the damage

. . . caused to his property.” DX 125. Mr. Dorment was advised that he would need to “file a tort

claim . . . to begin the compensation process.” DX 125.

Thereafter, on March 25, 2013, WVI filed an administrative tort claim against the Army

claiming $37,199,488 in property damage, of which $12,800,000 represented the appraisal value

of the Waverley View Property. PX 1 at PL000873–85.32

On April 24, 2013, Messrs. Dorment, Anderson, and Lynch again met with representatives

from the Army, the EPA, and the MDE, in Philadelphia, Pennsylvania, together with:

representatives from Arcadis; and WVI’s environmental contractor, S.S. Papadopulos &

Associates, Inc. (“SSPA”). DX 126. At this meeting, SSPA presented “justifications and

reasoning why [Phase I] of the Waverley [View P]roperty did not need to have any sampling

conducted on it.” TR 941–42 (Gortva). WVI’s concern focused on Phase I, because “[t]hey [had]

‘offers on the table’ . . . for [the] Phase I lots.” DX 126; see also TR 942 (Gortva). After the

presentation, a tentative agreement was reached to allow the Army to access Phase II of the

Waverley View Property. TR 945 (Gortva).

31

In a July 7, 2013 “mid-year update,” Mr. Dorment indicated to WVI’s investors that

“[l]ocal media has extensively covered [WVI’s interactions with the Army Corps] which impeded

our sales program of the parcels in Phase [I] for the time being. The reality is that our site has

passed test after test . . . , but the ‘perception’ of a problem can trump the reality.” JX 22 at

WVI00008412.

32

WVI’s administrative tort claim was later dismissed without WVI “collect[ing] any

judgement from the United States.” TR 716–17 (Dorment).

28

On May 10, 2013, after “weeks . . . [of] negotiations” (PX 10 at WVI00004486), in which

WVI was represented by counsel (JX 22; TR 724–25 (Dorment)), and during which WVI

“exchanged several drafts of [a ROE form] with the EPA and . . . the Army” (TR 725 (Dorment)),

the Army Corps, on behalf of the Army, sent a final ROE form (the “WVI ROE”) to Mr. Lynch,

and indicated that “[i]f acceptable, please have [WVI] sign the [WVI ROE] and then return . . . for

signature by the [Army]” (DX 77). On that same day, Mr. Dorment, on behalf of WVI, signed the

WVI ROE, granting

the Government33 an irrevocable right to enter in, on, over and across [34.75 ± acres

of Phase II (the “ROE Property”)], for a period not to exceed eighteen (18) months,

unless further extended by [a]greement of the parties commencing on May 14,

2013, and running through November 13, 2014, or, if sooner, the date of completion

of the [R]emedial [I]nvestigation.

JX 5 at US000001, US000004.

The WVI ROE also granted

the Government . . . the right to store, move, and remove equipment and supplies;

investigate and collect samples . . . ; construct, operate, maintain, alter, repair, and

remove groundwater monitoring wells, appurtenances thereto, and other devices

for the monitoring of contamination in soil, air, and water; and, perform any other

such work which may be necessary and incident to the Government’s use for the

investigation and determination of need for response on [the ROE Property.]

JX 5 at US000001–02.

In exchange, the Army and the EPA “agree[d] to provide [WVI with] a copy of all validated

laboratory results derived from [the] Government’s investigation on the [ROE Property] within a

reasonable time, but in no event later than four (4) weeks after the completion of such validated

laboratory results.” JX 5 at US000002. The Army and the EPA also promised that, “[if] any action

of the Government’s employees or agents in the exercise of [the WVI ROE] results in damage to

the real property, the Government will . . . either repair such damage or make an appropriate

settlement with [WVI].” JX 5 at US000003.

The WVI ROE also provided the following:

3. All tools, equipment, and other property taken upon or placed upon the

[ROE Property] by the Government shall remain the property of the Government

and may be removed by the Government at any time within a reasonable period,

not to exceed thirty (30) days, after the expiration of [the WVI ROE]. However, if

it appears from the monitoring results that they remain necessary for the continuing

investigation, or for the monitoring and assessment of the need for any necessary

response action, the monitoring wells installed by the Government shall remain the

The WVI ROE defines “Government” to include both the Army and the EPA. JX 5 at

33

US000001.

29

property of the Government, and may be maintained on the land, subject to further

extension of [the WVI ROE] by the parties.

* * *

5. [WVI] expressly reserves any and all rights it may have to make a claim

under the Takings Clause of the Fifth Amendment, U.S. Const., amend. V. The

Government acknowledges this reservation without any concession that any such

rights or claim may exist.

JX 5 at US000003–04.

In addition, the WVI ROE included a map showing the proposed location of “drilling

areas” and described the “Scope of Work” as follows:

1. Evaluation, logging, surveying, measuring, and testing of existing wells

(GW-1, GW-2, GW-3, GW-4) on the [ROE Property], including regular access

during the groundwater tracer study (e.g., weekly, biweekly, or monthly for the

duration of the study and/or right-of-entry period).

2. Drilling, logging, and borehole testing in three areas on the [ROE

Property] (see Figure 1), including rig access to each drill area, monitoring well

construction (multiple), surveying, measuring, and testing of completed wells for

the duration of the right-of-entry period. Any other drilling areas identified by [the]

EPA, [the] MDE, or the Army would be restricted to the [ROE Property].

3. Access to any streams, seeps, springs, or other surface water features that

may exist on the [ROE Property] for surveying, monitoring, and sampling[.]

JX 5 at US000006.

30

JX 5 at US000006.

On May 24, 2013, Mr. Dorment sent a letter to the Army and the EPA, reiterating that: (1)

he felt pressured into signing the WVI ROE; (2) the Army and the EPA were interfering with

WVI’s ability to develop the Waverley View Property; (3) WVI had “made abundantly clear to

[the Army and the EPA] that the [Waverley View Property] is valuable for real estate development

purposes[;]” (4) WVI “ha[d] concrete plans to develop” the Waverley View Property because

“[m]arket conditions [were then] quite favorable[;]” and (5) WVI’s “business plans [were]

jeopardized by [the Government’s] activities.” PX 10 at WVI00004486. Mr. Dorment concluded

that “if [the Army] require[s] a substantial and/or prolonged use of [the Waverley View P]roperty,

[WVI] expect[s] a good faith offer to purchase the property at fair market value and to do so soon.”

PX 10 at WVI00004487.

31

On July 7, 2013, in a “mid-year update,” Mr. Dorment advised WVI’s investors that the

Army has

enlisted Ben Cardin, the junior senator from Maryland, to offer an amendment to

the Defense appropriations bill authorizing Fort Detrick to purchase [the] Phase [II]

section. [The Army] used a figure of 8 million dollars in the amendment for the

acquisition.34

[WVI] currently [has] two lobbyists and a team of six lawyers working on

advocacy for the amendment as well as pursuit of the [administrative] tort claim.

Although this effort is expensive, and a bit frustrating, from an investor’s viewpoint

there is a great deal of equity in this property[.] . . . [I]f the Army paid 8M for 40%

of the property, the valuation for the whole property would grow extensively so we

see opportunity in crisis.

JX 22 at WVI00008412–13.

On, or just prior to, November 21, 2013, the Army entered the Waverley View Property

pursuant to the terms of the WVI ROE, to construct a gate35 and gravel access road. TR 199

(Anderson). The gravel access road consisted of several inches of stone and was “20 [to] 25 feet

wide and hundreds of feet long.” TR 200 (Anderson); TR 953 (Gortva); see also PX 88 at A-14

(Image 8). The stone was laid upon “geotextile fabric” to make removal of the gravel access road

easier. TR 953 (Gortva); SVTR 21–22, 38.

34

Contrary to Mr. Dorment’s statement, John Tesner, Director for Restoration in the Office

of the Deputy Assistant Secretary of the Army for Environmental, Safety, and Occupational

Health, testified that the Army never “approach[ed] members of Congress about the possibility of

purchasing the Waverley View [P]roperty.” TR 1335–36 (Tesner).

35

During the December 1, 2017 site visit, WVI’s counsel stated that the gate is not located

on the Waverley View Property; instead, the gate is situated on the boundary between the property

and Fort Detrick. SVTR 37–38. Therefore, because the gate is not located on the Waverley View

Property, the installation and continued presence of the gate does not constitute a taking of WVI’s

property. See Oscanyan v. Arms Co., 103 U.S. 261, 263–64 (1880) (holding counsel’s statement

during a trial binding on client); see also Jones v. Morehead, 68 U.S. 155, 165 (1863) (holding

that a client is bound by his counsel’s statements, despite evidence to the contrary).

32

Image 8: Gravel Access Road on Phase II.

PX 88 at A-14 (Image 8).

In December 2013, drilling began on Phase II of the Waverley View Property. TR 949

(Gortva). At times, drilling could not be performed in the planned location, because of certain

geologic features that posed a risk of sink holes, requiring the location to be moved or “offset.”

TR 949–50 (Gortva). When these features were encountered, the Army would contact Mr. Lynch

to inform WVI of the proposed offset location where the Army wanted to install an alternative

monitoring well. TR 950, 1142–44 (Gortva); see also DX 127. The Army, however, never

received any response from WVI. TR 951 (Gortva). Nevertheless, four deep monitoring wells36

and eleven shallow monitoring wells (or temporary monitoring wells) were installed on Phase II

of the Waverley View Property.37 TR 951–52 (Gortva).

The deep monitoring wells are approximately the size of a “dinner plate” in diameter. TR

335 (Thomson). These wells are “installed into the bedrock” (TR 951 (Gortva)), range in depth

36

A fifth deep monitoring well, labeled WVLY-4, was “pilot” drilled but abandoned “due

to sinkhole concerns.” PX 86; TR 1058 (Gortva); SVTR 36.

37

The deep monitoring wells are labeled: WVLY-1–WVLY-3 and WVLY-5; and the

shallow monitoring wells are labeled TW-1–TW-11. PX 76 (Figures 11A and 11B). The

Government also was given access to four of the preexisting CGS-installed monitoring wells

labeled: GW-1–GW-4. JX 5 at US000006.

33

from 142 to 400 feet below the ground surface (PX 86), and feature “steel casings that typically

go down to a depth of 30 to 40 feet” (TR 1008 (Gortva)). The shallow monitoring wells on the

other hand, are constructed of smaller diameter “PVC pipe,” and are “only installed down through

the dirt overburden” (TR 952, 955–56 (Gortva)), approximately 10 to 15 feet below the ground

surface (SVTR 36). The deep monitoring wells project “2 ½ [ to] three feet” above ground and

are surrounded by concrete and bollards, whereas the shallow monitoring wells project “18 inches”

above ground and “[t]here is no surface casing . . . [or] protective bollards.”38 TR 951, 955–56,

1159–60 (Gortva); see also PX 68 (Figures 1, 4).

Figure 1: Deep Monitoring Well on Phase II.

PX 68 (Figure 1).

38

If necessary, all the monitoring wells can be “cut down so [as to be] slightly below

ground surface,” and the bollards may be removed. TR 507 (Gortva); see also DX 120 (showing

“flush-mounted” monitoring wells installed at Cameron Station, a neighborhood community in

Alexandria, Virginia).

34

Figure 4: Shallow Monitoring Well on Phase II.

PX 68 (Figure 4).

The Army did not detect PCE in deep monitoring wells WVLY-3 and WVLY-5, however,

“very low[]level[s]” of PCE were detected in deep monitoring well WVLY-2. PX 76 (Figure

11A); TR 954 (Gortva). TCE was not detected in deep monitoring wells WVLY-2, WVLY-3, or

WVLY-5. PX 76 (Figure 11B); see also TR 954 (Gortva). Levels of PCE and TCE, however,

were detected in deep monitoring well WVLY-1 at 12 parts per billion and 340 parts per billion

respectively, with the level of TCE exceeding the MCL by “50 times.” TR 355–56 (Thomson).

Deep monitoring well WVLY-1 is located closest to Area B of Fort Detrick, “about 90 to 100 feet”

away. PX 76 (Figures 11A and 11B); TR 355–56 (Thomson). PCE and TCE also were detected

in several shallow monitoring wells along the boundary between Phase II of the Waverley View

Property and Area B of Fort Detrick. PX 76 (Figures 11A and 11B); TR 954–55 (Gortva). Overall,

however, the levels of PCE and TCE detected on Phase II “were significantly lower than the [levels

detected] . . . on Fort Detrick.” TR 956 (Gortva).

35

PX 76 (Figure 11A).

36

Figure 11A – Concentration of PCE on Phase II.

PX 76 (Figure 11B).

37

Figure 11B – Concentration of TCE on Phase II.

In August 2014, the Army contacted Mr. Lynch to inquire about a “possible extension” of

the WVI ROE. JX 7 at WVI00009396. On August 27, 2014, Mr. Lynch sent an email to the

Army, “asking for a written request.” JX 7 at WVI00009396.

On October 16, 2014, the Army Corps, on behalf of the Army, sent a letter to Mr. Dorment

requesting a “one year extension of [the WVI] ROE, through November 13, 2015 . . . [because

c]ontinued access [was] needed . . . due to the difficulties of, and delays from, attempting to

successfully drill monitoring wells in the karst39 geology underlying [the Waverley View

P]roperty[.]” JX 6 at WVI00009383. This letter included a copy of a ROE form indicating that it

would expire on November 13, 2015 (the “renewal ROE”). JX 6 at WVI00009392–95.

On October 24, 2014, Mr. Dorment sent a letter to the Army Corps, refusing to grant the

extension requested in the Army Corps’ October 16, 2014 letter. JX 7.

On October 31, 2014, WVI “sent a letter to the [United States Department of Justice (the

“DOJ”)], with copies to . . . the . . . Army and the . . . EPA, stating that [WVI] would cooperate

and sign the renew[al ROE], so long as the [DOJ] signed a concurrent stipulation to be filed in the

[United States] Court of Federal Claims, stating that the signing of [the renewal ROE] would not

waive or diminish [WVI’s] . . . claim for just compensation[.]” JX 9 at WVI00009406,

WVI00009408.

On November 6, 2014, the DOJ declined WVI’s offer. JX 9 at WVI00009406.

On November 13, 2014, the WVI ROE expired. JX 5 at US000001; TR 959–60 (Gortva).

Since that time, the Army has not entered the Waverley View Property, but the gravel access road

and the monitoring wells remain on the property.40 TR 1160–61 (Gortva).

On February 5, 2015, the EPA sent a letter to WVI’s counsel, Clifford J. Zatz, stating that

“much remains to be done with regard to the continuing [Remedial Investigation] of the

groundwater plume” and “urg[ing] WVI to continue to provide access to the Army to allow it to

pursue its investigation of the groundwater plume that extends beneath [the Waverley View

Property].” JX 8 at WVI00009414. This letter also stated that

Mr. Dorment, in his October 24, 2014 letter, states that the Army and the EPA have

not provided him with an estimate of the expected duration of the Army’s activities

on the property. At this time, since the full extent of the contaminated groundwater

plume is not yet known, the Army and [the] EPA cannot estimate the total length

39

The United States Geological Survey defines “karst” as “[a] distinctive topography that

indicates dissolution of underlying soluble rocks by surface water or ground water.” Karst

Topography - Teacher's Guide and Paper Model, U.S. GEOLOGICAL SURVEY (Apr. 21, 2017, 4:35

PM), https://geomaps.wr.usgs.gov/parks/cave/karst.html; see also TR 296–97 (Thomson)

(explaining that there is the “ability to form sink holes in karst geology”).

40

WVI has never asked the Army to remove or relocate the monitoring wells (TR 1422

(Tesner)), and also has never consented to the Army reentering the Waverley View Property to do

so (TR 961, 1161 (Gortva)).

38

of time needed to address the contamination on WVI’s property. Once the

[Remedial Investigation] is completed, and a Feasibility Study . . . to analyze

remedial alternatives has been performed, the Army and [the] EPA will be in a

better position to estimate the length of time required to implement a remedy.

However, in order to get to this point, the Army will need continued access to

complete the sampling required under the [Remedial Investigation].

JX 8 at WVI00009415.

On February 11, 2015, Mr. Zatz sent a letter to the EPA, declining to execute the Renewal

ROE unless “the [DOJ] execute[d] the requested stipulation, communicated . . . on October 31,

2014[.]” JX 9 at WVI00009407.

II. PROCEDURAL HISTORY.

On April 13, 2015, WVI filed a Complaint in the United States Court of Federal Claims

(ECF No. 1 (“Compl.”)) alleging: (1) a permanent physical taking by the Government of WVI’s

private property, without just compensation (Compl. ¶¶ 56–63); and (2) a temporary physical

taking by the Government of WVI’s private property, without just compensation (Compl. ¶¶ 64–

74). On April 17, 2015, WVI filed a Motion For Summary Judgment, arguing that the

Government’s “installation and servicing of groundwater monitoring wells and other related

activities on WVI’s property constitute a per se taking” and that the WVI ROE does not negate

the Government’s liability. ECF No. 7 at 15, 18.

On July 27, 2015, the Government filed an Answer to WVI’s April 13, 2015 Complaint

(ECF No. 10 (“Gov’t Ans.”)) asserting three affirmative defenses: (1) “[WVI] fails to state a claim

upon which relief can be granted;” (2) “[WVI] granted the right to the [Government] to access

certain portions of its property;” and (3) any liability for compensation is “offset by the special

benefit [WVI] will derive from the [Government’s] activities.” Gov’t Ans. at 13.

On July 28, 2015, the parties filed a Joint Motion To Stay Proceedings For Three Months

(“Motion To Stay”), i.e., until October 28, 2015, while the parties engaged in settlement

discussions. ECF No. 11. On that same day, the court granted the parties’ Motion To Stay. ECF

No. 12.

On October 28, 2015, the parties filed a Joint Status Report, requesting an additional three-

month stay to continue settlement discussions. ECF No. 13. On November 4, 2015, the court

convened a status conference. Thereafter, on November 5, 2015, the court issued an Order, staying

the case until February 4, 2016 “for settlement negotiations.” ECF No. 14. Thereafter, the court

convened status conferences and issued additional Orders staying the case until July 21, 2016.

ECF No. 15 (February 8, 2016 Order, staying the case until March 16, 2016); ECF No. 16 (March

16, 2016 Order, staying the case until May 16, 2016); ECF No. 17 (March 30, 2016 Order, setting

a status conference for April 13, 2016); ECF No. 18 (April 13, 2016 Order, setting a status

conference for April 22, 2016); ECF No. 19 (April 22, 2016 Order, setting a status conference for

May 23, 2016); ECF No. 20 (May 23, 2016 Order, staying the case until June 20, 2016); ECF No.

21 (June 20, 2016 Order, staying the case until July 19, 2016 and setting an “open court status

conference [for that same day] . . . [i]f the parties have not reached a settlement by then”); ECF

39

No. 22 (June 29, 2016 Order, changing the date of the open court status conference to July 21,

2016).

On July 20, 2016, the Government filed an Expedited Motion For Relief From Order

(“Motion For Relief”) (ECF No. 23) requesting “that the General Counsel of the Army be relieved

from the obligation to appear in [c]ourt on . . . July 21, 2016 . . . [to] explain . . . why the settlement

has not yet been approved” (ECF No. 23 at 1, 4). On that same day, the court issued an Order

granting the Government’s Motion For Relief (ECF No. 24) and a second Order providing that

“the court will convene the July 21, 2016 Status Conference by telephone” (ECF No. 25). On July

21, 2016, the court convened a status conference. ECF No. 26 (status conference transcript).

On August 10, 2016, the parties filed a Joint Preliminary Status Report. ECF No. 28. On

that same day, the court issued an Order, denying WVI’s April 17, 2015 Motion For Summary

Judgment as moot, and setting a trial date and pretrial schedule. ECF No. 29. On August 29, 2016,

the parties filed a Joint Motion For Entry Of An Order Consistent With Fed. R. Evid. 502(d) (“Joint

Motion For Entry”). ECF No. 30. On August 30, 2016, the court issued an Order, granting the

parties’ Joint Motion For Entry. ECF No. 31.

On September 30, 2016, the Army Corps sent a letter to WVI, indicating that “[t]he [WVI

ROE] . . . has expired, the Army’s rights under [the WVI ROE] are at an end, as specified in the

[WVI ROE] itself, and the Army has no continuing rights with respect to the [Waverley View

P]roperty that was the subject of [the WVI ROE], or the wells located thereon.” JX 10 at

WVI00009417.

On October 6, 2016, the parties filed a Joint Motion To Extend Time To Complete Fact

Discovery, requesting “that the deadline for the completion of fact discovery be extended to

December 23, 2016.” ECF No. 32. On October 11, 2016, the court issued an Order, granting that

motion. ECF No. 33.

On November 6, 2016, the Government filed a Motion To Amend Scheduling Order And

Continue Trial, requesting “that the [c]ourt continue the trial date for seven weeks – from January

17, 2017 to March 6, 2017 and adjust interim deadlines,” because the Government’s counsel of

record was retiring and the case was being assigned to a new trial team. ECF No. 35. On

November 7, 2016, WVI filed an Opposition to that motion. ECF No. 37. On November 14, 2016,

the court issued an Order, denying the Government’s November 6, 2016 Motion. ECF No. 38.

On November 22, 2016, the parties filed a Joint Certification Of Meeting Of Counsel. ECF No.

39.

On December 16, 2016, WVI filed a Pre-Trial Brief (ECF No. 40), Witness List (ECF No.

41), Exhibit List (ECF No. 42, Ex. 1–3), and Direct Testimony Of Expert Witnesses (ECF No. 43).

On January 4, 2017, the Government filed a Pre-Trial Brief (ECF No. 47), Witness List

(ECF No. 46), Exhibit List (ECF No. 46, Ex. A), and Direct Testimony Of Expert Witnesses (ECF

No. 44–45). On January 5, 2017, the court convened a pre-trial conference. ECF No. 54. On that

same day, WVI filed Expert Witness Reports. ECF No. 48.

On January 9, 2017, WVI filed an Expert Rebuttal Report. ECF No. 49. On January 12,

2017, the Government filed a Response to that report, “oppos[ing WVI’s] untimely submission of

40

[its January 9, 2017] rebuttal report, and [stating its] inten[t] to object to its use at trial.” ECF No.

51. On that same day, WVI filed a Reply To Defendant’s Response, stating that submission of the

January 9, 2017 Expert Rebuttal Report was proper, because no deadline was specified and it was

requested by the Government’s counsel. ECF No. 52.

On January 17–18 and 24–26, 2017, the court held a trial at the United States Court of

Federal Claims in Washington, D.C. ECF No. 58, 60, 62, 64, 66.

On January 25, 2017, the Government filed a Notice Of Objection To Admission Of

Evidence Of Claims Not Pleaded, because “any testimony or other evidence beyond the scope of

the claims in [WVI]’s Complaint,” and reaffirming that it did not “consent to the trial of issues or

claims that were not raised in [WVI’s] pleadings.” ECF No. 55. On January 30, 2017, WVI filed

a Motion To Complete The Examination Of John Tesner And Close The Trial Record. ECF No.

56.

On February 3, 2017, the court sent an email to the parties, instructing the Government to

file a status report regarding a “pilot project/study” meeting scheduled for February 9, 2017 in

Newton, Pennsylvania. On February 15, 2017, the Government informed the court that the

February 9, 2017 meeting “between individuals from the . . . Army and its contractors regarding

the pilot project/study to be conducted on government-owned property at Fort Detrick regarding

the remediation of the Area B Groundwater Superfund Site,” was canceled and rescheduled for

March 14, 2017. ECF No. 67. On March 16, 2017, the Government filed a Status Report,

informing the court that the March 14, 2017 meeting was canceled and rescheduled for March 30,

2017. ECF No. 68. On March 20, 2017, the court issued an Order staying the case until April 3,

2017 and instructing the Government to file a status report on April 3, 2017 “regarding the pilot

project/study meeting.” ECF No. 69.

On April 3, 2017, the Government informed the court that the March 30, 2017 meeting

“took place . . . [and t]he meeting participants . . . confirmed that the pilot project/study would not

require access to the Waverley View [P]roperty.” ECF No. 70. In addition, the Government stated

“that completion of [the] meeting ha[d] no bearing on the parties’ ability to complete the trial and

. . . that it [was joining WVI’s] request that the [c]ourt set a date for the completion of trial.” ECF

No. 70.

On May 15, 2017, the court re-convened the trial at the United States Court of Federal

Claims in Washington, D.C. ECF No. 74. On May 16, 2017, WVI filed a Notice Of Filing Of

Trial Exhibit 160, Deposition Transcript Of Paul Leonard. ECF No. 71. On May 22, 2017, the

parties filed a Joint Status Report On Proposed Post-Trial Briefing Schedule. ECF No. 72. On

May 24, 2017, the court issued a Post-Trial Scheduling Order. ECF No. 75.

On June 16, 2017, WVI filed an Opening Post-Trial Brief. ECF No. 76. On June 27, 2017,

WVI also filed a Motion To Compel Disclosure Of Minutes From March 30, 2017 Pilot

Project/Study Meeting. ECF No. 77. On July 11, 2017, the Government filed a Response. ECF

No. 78. On July 13, 2017, WVI filed a Reply. ECF No. 79. On July 18, 2017, the court issued

an Order, granting WVI’s June 27, 2017 Motion To Compel Disclosure. ECF No. 81.

41

On July 14, 2017, the Government filed a Post-Trial Response Brief. ECF No. 80. On

July 31, 2017, WVI filed a Post-Trial Reply Brief. ECF No. 82 (“Pl. Post-Tr. Reply Br.”).

On August 11, 2017, WVI filed a Motion To Submit Supplemental Trial Exhibits 161, 162,

And 163—Minutes Of The March 30, 2017 Pilot Project/Study Meeting. ECF No. 83.

On August 15, 2017, the Government filed a Post-Trial Sur-Reply Brief. ECF No. 86

(“Gov’t Post-Tr. Sur-Reply Br.”). On August 31, 2017, WVI filed a Post-Trial Sur-Reply Brief.

ECF No. 87 (“Pl. Post-Tr. Sur-Reply Br.”).

On November 16, 2017, the court issued an Order, granting WVI’s August 11, 2017

Motion and ordering the parties to “file a final Joint Exhibit List, Plaintiff’s Exhibit List, and

Defendant’s Exhibit List on, or before, November 27, 2017.” ECF No. 89.

On November 27, 2017, WVI filed a Plaintiff’s Exhibit List. ECF No. 90. That same day,

the Government filed a Joint Exhibit List and a Defendant’s Exhibit List. ECF No. 91.

On December 1, 2017, the court convened a site visit of the Waverley View Property in

Frederick, Maryland. ECF No. 93.

On December 5, 2017, WVI filed a Response To Questions Posed By The Court Following

December 1, 2017 Site Visit To The Waverley View Property. ECF No. 94. That same day, the

Government filed a Response To Questions Posed By The Court Following December 1, 2017

Site Visit To The Waverley View Property. ECF No. 95.

III. DISCUSSION.

A. Subject Matter Jurisdiction.

The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28 U.S.C.

§ 1491, to adjudicate “any claim against the United States founded either upon the Constitution,

or any Act of Congress or any regulation of an executive department, or upon any express or

implied contract with the United States, or for liquidated or unliquidated damages in cases not

sounding in tort.” 28 U.S.C. § 1491(a)(1) (2012). The Tucker Act, however, is “a jurisdictional

statute; it does not create any substantive right enforceable against the United States for money

damages. . . . [T]he Act merely confers jurisdiction upon [the United States Court of Federal

Claims] whenever the substantive right exists.” United States v. Testan, 424 U.S. 392, 398 (1976).

Therefore, a plaintiff must identify and plead an independent contractual relationship,

constitutional provision, federal statute, or executive agency regulation that provides a substantive

right to money damages. See Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en

banc) (“The Tucker Act itself does not create a substantive cause of action; in order to come within

the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source

of substantive law that creates the right to money damages.”). The burden of establishing

jurisdiction falls upon the plaintiff. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990) (holding

that the burden is on the plaintiff to allege facts sufficient to establish jurisdiction); see also Rule

of the United States Court of Federal Claims 12(b)(1).

42

The United States Court of Appeals for the Federal Circuit has held that the Takings Clause

of the Fifth Amendment is “money-mandating.” See Schooner Harbor Ventures, Inc. v. United

States, 569 F.3d 1359, 1362 (Fed. Cir. 2009) (“The Tucker Act waives sovereign immunity and

provides jurisdiction for certain types of claims, including . . . where there is a money-mandating

provision on which the plaintiff may base its recovery. In this case, that provision is the Fifth

Amendment.” (internal citations omitted)); see also Moden v. United States, 404 F.3d 1335, 1341

(Fed. Cir. 2005). Therefore, “to the extent [WVI has] a nonfrivolous takings claim founded upon

the Fifth Amendment, jurisdiction under the Tucker Act is proper.” See Moden, 404 F.3d at 1341.

WVI’s April 13, 2015 Complaint alleges: (1) a permanent physical taking by the

Government of WVI’s private property, without just compensation (Compl. ¶¶ 56–63); and (2) a

temporary physical taking by the Government of WVI’s private property, without just

compensation (Compl. ¶¶ 64–74). Since WVI’s April 13, 2015 Complaint alleges “a taking of

property within the meaning of the Fifth Amendment to the Constitution of the United States for

which compensation is due and owing,” it properly invokes the jurisdiction of the United States

Court of Federal Claims under 28 U.S.C. § 1491(a)(1). Compl. ¶¶ 3–4, 56–74.

For these reasons, the court has determined that it has jurisdiction to adjudicate the Takings

Clause claims alleged in WVI’s April 13, 2015 Complaint.

B. Standing.

“[S]tanding is a threshold jurisdictional issue.” Myers Investigative & Sec. Servs., Inc. v.

United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002). The standing requirements derived from

Article III of the United States Constitution also apply to the United States Court of Federal

Claims. See Starr Int’l Co. v. United States, 856 F.3d 953, 964 (Fed. Cir. 2017) (quoting

Anderson v. United States, 344 F.3d 1343, 1350 n.1 (Fed. Cir. 2003) (holding that the United States

Court of Federal Claims, “though an Article I court, . . . applies the same standing requirements

enforced by other federal courts created under Article III.”)), petition for cert. filed, No. 17-540

(Oct. 11, 2017). Therefore, a plaintiff must establish “an injury-in-fact that is both fairly traceable

to the challenged conduct of the defendant and likely redressable by a favorable judicial decision.”

Figueroa v. United States, 466 F.3d 1023, 1029 (Fed. Cir. 2006). In addition, the party invoking

jurisdiction bears the burden of establishing constitutional standing. See Myers Investigative, 275

F.3d at 1369 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (“[T]he party invoking

federal jurisdiction bears the burden of establishing [its] elements.”)).

WVI’s April 13, 2015 Complaint alleges an injury-in-fact that is traceable to the

Government’s activities on the Waverley View Property that have caused economic injury that can

be determined in a specific amount. Compl. ¶¶ 56–74.

For these reasons, the court has determined that WVI has standing to seek an adjudication

of the Takings Clause claims alleged in WVI’s April 13, 2015 Complaint.

C. Plaintiff’s Takings Clause Claims Against The Government.

The Takings Clause of the Fifth Amendment to the United States Constitution provides

that “private property [shall not] be taken for public use, without just compensation.” U.S. CONST.

amend. V. The purpose of the Takings Clause is to prevent the “Government from forcing some

43

people alone to bear public burdens which, in all fairness and justice, should be borne by the public

as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960). The protections of the Takings

Clause apply to real property. See Acceptance Ins. v. United States, 583 F.3d849, 854 (Fed. Cir.

2009). The United States Court of Appeals for the Federal Circuit has “developed a two-part test

for determining whether ‘fairness and justice’ require compensation for burdens imposed by a

particular governmental action.” Huntleigh USA Corp. v. United States, 525 F.3d 1370, 1377 (Fed.

Cir. 2008) (“First, . . . the court must determine whether the claimant has established a property

interest for purposes of the Fifth Amendment. . . . Second, after having identified a valid property

interest, the court must determine whether the government action at issue amounted to a

compensable taking of that property interest.” (internal citations omitted)).

1. At Trial, Plaintiff Established That It Owns Private Property Under

Maryland State Law.

As a threshold matter, the court must determine “whether the claimant has identified a

cognizable Fifth Amendment property interest that is asserted to be the subject of the taking.”

Acceptance Ins., 583 F.3d at 854; see also Huntleigh USA Corp., 525 F.3d at 1377–78 (“[O]nly

persons with a valid property interest at the time of the taking are entitled to compensation.”)

(citations and quotation marks omitted). Because “the Constitution protects rather than creates

property interests, [however,] the existence of a property interest is determined by reference to

‘existing rules or understandings that stem from an independent source such as state law.’”

Phillips v. Wash. Legal Found., 524 U.S. 156, 164 (1998) (quoting Bd. of Regents of State

Colls. v. Roth, 408 U.S. 564, 577 (1972)).

Subtitle 6 of Title 14 of the Maryland Code, Real Property, defines “property” as “real

property or any interest in or appurtenant to real property, including fixtures.” MD. CODE ANN.,

Real Property § 14-601 (2016). Subtitle 3 of Title 9 of the Maryland Code, Real Property, defines

“owner,” in part, as “[t]he owner of the land.” Id. § 9-301; see also id. § 7-105.2 (defining “record

owner,” in part, as “the person holding record title to property”).

WVI proffered evidence at trial that it is the owner of the Waverley View Property, as

defined by the Maryland Code. PX 53; TR 134–35 (Anderson); see also Real Property Data, MD.

DEP’T OF ASSESSMENT & TAXATION, https://sdat.dat.maryland.gov/RealProperty/Pages/default.

aspx (last visited Dec. 18, 2017) (select “FREDERICK COUNTY” as the “county in which to

search” and “PROPERTY ACCOUNT IDENTIFIER” as the “search method;” using “02” as the

“District,” search the following “Account Identifiers” listed in PX 53: “069970;” “070014;”

“069954;” and “241641”) (listing “Waverley View Investors, LLC” as the current owner of each

parcel of land).

For these reasons, the court has determined that WVI established at trial that it is the owner

of the Waverley View Property, i.e., a “cognizable Fifth Amendment property interest,” under

Maryland state law. See Acceptance Ins., 583 F.3d at 854.

44

2. At Trial, Plaintiff Established That The Government’s Activities After

Expiration Of The Right Of Entry Agreement Effected A Permanent

Taking Of Those Portions Of The Waverley View Property Physically

Occupied By The Army-Installed Monitoring Wells And Gravel Access

Road.

a. Plaintiff’s Argument.

i. “Plaintiff Has Proved A Per Se Taking.”

WVI argues that the Army and the EPA engaged in a per se taking, because the EPA “used

its CERCLA authority to take . . . a dominant easement . . . across all of . . . [Phase] II . . . for

which the [Army and the EPA have] paid nothing.” Pl. Post-Tr. Br. at 35–36. That this is a per

se taking is “borne out by the [United States Court of Appeals for the Federal Circuit’s] decision

in Hendler [III].” Pl. Post-Tr. Br. at 36. Hendler III “involved [an EPA] investigation of a

groundwater contaminant plume from a Superfund site. The [c]ourt had little trouble concluding

that the Government’s occupation of the plaintiff’s nearby property for purposes of installing,

servicing, and using groundwater monitoring wells constituted a per se taking of the plaintiff’s

property[,]” because the EPA: (1) occupied private property, without valid consent; (2) “took for

itself the right to use the private property to conduct a CERCLA investigation and remediation;”

(3) used its access “to drill wells that were permanent fixtures;” and (4) never “suggested that its

intrusion would be brief, or gave any indication of when [it] would return to the plaintiffs the full

use of their property.” Pl. Post-Tr. Br. at 36–37; see also Hendler III, 952 F.2d at 1376–77. WVI

contends that the taking in this case goes “far beyond [that] . . . in Hendler [III],” because “the

[Army’s] repeated delays and complete uncertainty[,]” with respect to further investigation and

remediation, has impaired WVI’s “ability to develop or sell any part of [Phase] II” of the Waverley

View Property. Pl. Post-Tr. Br. at 37. In addition, “the value of [Phase] I has been dramatically

diminished,” because of “the uncertainty surrounding the [Army’s] continued occupation of

[Phase] II,” making it “impracticable for WVI to move forward with new development plans.” Pl.

Post-Tr. Br. at 37–38.

The Army’s promise that it “will work with WVI [to] locat[e] future impediments on the

[Waverley View] Property is unreliable” for three reasons: (1) no documents commit the Army to

work with WVI; (2) the EPA’s Model Access Order “states that the property owner shall not

interfere with or otherwise limit any [CERCLA] activity conducted at the [p]roperty,” confirming

that WVI’s “use is subservient to the [EPA’s] dominant use;” and (3) regardless of “where future

wells or remedial structures are located, they will almost inevitably require a new site plan,” made

impracticable by the Army’s lack of cooperation. Pl. Post-Tr. Br. at 39–40.

In addition, contradicting letters from the different federal agencies “aggravate[] the

uncertainty [that] WVI faces.” Pl. Post-Tr. Br. at 40. For example, the EPA’s February 5, 2015

letter emphasized the “ongoing need for access to the [Waverley View] Property” and indicated

that the EPA “did not require WVI’s permission to access and use the wells.” Pl. Post-Tr. Br. at

41. In contrast, the Army Corps’ September 30, 2016 letter, written after a trial date was set in

this case, “disclaim[ed] any ongoing ownership interest in the wells or right to access the

[p]roperty.” Pl. Post-Tr. Br. at 40.

45

At present, “the [WVI ROE] has expired. Yet the Army’s . . . gravel access road, and

costly monitoring well network remain on [the Waverley View] Property. [And, t]he [Army] has

not said if or when it will remove them. At a minimum, this ongoing physical occupation plainly

constitutes a per se taking under Hendler [III] for which just compensation is owed.” Pl. Post-Tr.

Br. at 41.

ii. “The Right Of Entry Agreement Preserved Plaintiff’s

Takings Clause Claim.”

The WVI ROE “provides that WVI ‘expressly reserves any and all rights it may have to

make a claim under the Takings Clause of the Fifth Amendment, U.S. Const., amend. V.’” Pl.

Post-Tr. Br. at 41 (citing JX 5 at US000003–04). The United States Court of Claims’s decision in

Fonalledas v. United States, 107 F. Supp. 1019 (Ct. Cl. 1952), confirms that such a reservation

preserves a Takings Clause claim. Pl. Post-Tr. Br. at 41.

According to the Government, “the reservation of rights gives WVI the right to bring a

takings claim, but the [WVI ROE] — of which the reservation of rights is a part — simultaneously

dooms that claim to defeat. If that were the case, a [r]ight of [e]ntry with a reservation of rights

would have no different effect from one without a reservation.” Pl. Post-Tr. Br. at 42. A “familiar

rule of interpretation, known as the rule against superfluities,” provides that “[a]n interpretation

which gives effect to all provisions of the [document] is preferred to one which renders part of the

writing superfluous, useless, or inexplicable.” Pl. Post-Tr. Br. at 42 (quoting 11 RICHARD A. LORD,

WILLISTON ON CONTRACTS § 32.5 (4th ed.)). This supports WVI’s interpretation of the WVI

ROE’s reservation of rights and “shows why the Government’s reading is wrong.” Pl. Post-Tr.

Br. at 42.

iii. “The Right Of Entry Agreement Is Not A Contract.”

The WVI ROE is not “a contractual bar to WVI’s takings claim,” because there was no

bargained-for consideration. Pl. Post-Tr. Br. at 43. Although the Government claims that WVI

received a benefit “in the form of certainty about the [Army’s] use [of] WVI[’s p]roperty,” the

Army’s use has not been limited, because “CERCLA authorizes the [EPA] to force its way onto

the property wherever and whenever it finds there is a need to do so.” Pl. Post-Tr. Br. at 43.

Therefore, “[a]ny limitations identified in the [WVI ROE] are . . . illusory and inadequate as

consideration.” Pl. Post-Tr. Br. at 43 (citing RESTATEMENT (SECOND) OF CONTRACTS

(“RESTATEMENT OF CONTRACTS”) § 77 (1981)).

b. The Government’s Response.

i. “Plaintiff Has Failed To Prove A Physical Taking Of Its

Property, Because It Consented To The Army’s

Groundwater Monitoring.”

The Government responds that, “to constitute a taking, the intrusion . . . must be without

consent.” Gov’t Post-Tr. Resp. Br. at 40. In this case, “the parties negotiated and signed a written

contract[,] the [WVI ROE,] pursuant to which WVI allowed the Army’s installation of

groundwater monitoring wells on [Phase] II” of the Waverley View Property. Gov’t Post-Tr. Resp.

Br. at 40. But, “a person’s property cannot be said to have been ‘taken’ if the property owner and

46

the government negotiate a purchase agreement, lease or some other sort of contract allowing for

entry beforehand.” Gov’t Post-Tr. Resp. Br. at 41.

In Hendler III, “after the landowner plaintiff refused [the] EPA’s request for access to their

property, the EPA issued an ‘administrative order granting itself and the State of California access

to plaintiff[’s] property for, inter alia, locating, constructing, operating, maintaining and repairing

monitoring/extraction wells.’” Gov’t Post-Tr. Resp. Br. at 42 (italics added) (quoting Hendler III,

952 F.2d at 1369) (internal quotation marks omitted)). Thereafter, “without any effort to reach an

agreement with [the] plaintiff as to well placement, the EPA installed a series of wells on [the]

plaintiff[’s] property.” Gov’t Post-Tr. Resp. Br. at 42. In this case, however, “the Army entered

WVI’s property with WVI’s express written consent [pursuant to] an agreement negotiated over

the course of many weeks with the assistance of counsel.” Gov’t Post-Tr. Resp. Br. at 42.

The WVI ROE “is a valid contract . . . [as it] includes an unambiguous offer and

acceptance; consideration; and was signed by both parties.” Gov’t Post-Tr. Resp. Br. at 42. In

exchange for “WVI’s agreement to permit the Army [and the EPA] to access [Phase] II [of the

Waverley View Property] for a period of eighteen months, . . . the Army agree[d] to install

groundwater monitoring wells . . . and obtain samples from those wells, all at the Army’s expense.”

Gov’t Post-Tr. Resp. Br. at 43. In addition, “the Army agreed to provide WVI with the results of

its testing and to repair damages caused to the property by the Army or its contractors.” Gov’t

Post-Tr. Resp. Br. at 43. All of “[t]his constitutes consideration.” Gov’t Post-Tr. Resp. Br. at 43.

Once consideration is established, “courts do not weigh the adequacy of that

consideration.” Gov’t Post-Tr. Resp. Br. at 43 (quoting Davis Wetlands Bank, LLC v. United

States, 114 Fed. Cl. 113, 121 n.9 (Fed. Cl. 2013)). WVI’s argument that no consideration supports

the WVI ROE, “because it does not limit the [Army’s or the EPA’s] use of the [Waverley View]

Property[,] is specious.” Gov’t Post-Tr. Resp. Br. at 44. WVI asserts that, “notwithstanding the

express language of the [WVI] ROE, its limitations are ‘illusory and inadequate as consideration’

because the [EPA] is supposedly authorized under CERCLA ‘to force its way onto the property.’”

Gov’t Post-Tr. Resp. Br. at 44 (quoting Pl. Post-Tr. Br. at 43). If that were the case, “then all

government contractual agreements entered into in lieu of taking unilateral administrative action

would be illusory.” Gov’t Post-Tr. Resp. Br. at 44.

Although the WVI ROE reserved “any and all rights [WVI] may have to make a claim

under the Takings Clause,” it also provided that “[t]he Government acknowledges this reservation

without any concession that any such rights or claim may exist.” Gov’t Post-Tr. Resp. Br. at 44

(citing JX 5 at US000003–04). It is well established that “[a]n interpretation that gives meaning

to all parts of the contract is to be [preferred] over one that leaves a portion of the contract useless,

[inexplicable], void, or superfluous.” Gov’t Post-Tr. Resp. Br. at 44–45 (quoting NVT Techs,

Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004)). WVI construes the WVI ROE “to

mean that . . . the Army is liable for the very conduct that the [WVI] ROE purportedly authorizes.

That construction swallows the entire bargained-for agreement. Moreover, it ignores [that] the

Government expressly refuse[d] to acknowledge that any such rights or claim may exist.” Gov’t

Post-Tr. Resp. Br. at 45. In short, WVI’s construction “obliterates its consent to access the

property and indeed the agreement in its entirety.” Gov’t Post-Tr. Resp. Br. at 45.

47

In Scogin v. United States, 33 Fed. Cl. 568 (Fed. Cl. 1995), the United States Court of

Federal Claims determined that because the “plaintiff did not demonstrate that the EPA undertook

activity on his property ‘beyond the scope of valid agreements granting the [g]overnment access

to the subject property for specified purposes,’ the plaintiff failed to prove that he did not consent

fully to the EPA’s presence on his property.” Gov’t Post-Tr. Resp. Br. at 45 (quoting Scogin, 33

Fed. Cl. at 578). Similarly, in this case, “WVI presented no evidence that the Army’s activities on

WVI’s property exceeded those authorized under the [WVI] ROE.” Gov’t Post-Tr. Resp. Br. at

45. Consequently, the consent provided in the WVI ROE “vitiates WVI’s takings claim.” Gov’t

Post-Tr. Resp. Br. at 45.

In addition, WVI’s reliance on Fonalledas “is misplaced,” because that “decision . . . has

never been followed or approved by the [United States Court of Appeals for the] Federal Circuit

and . . . has been called into question by the [United States] Supreme Court’s subsequent

development of takings jurisprudence.” Gov’t Post-Tr. Resp. Br. at 45–46. And, “[u]nlike this

case, . . . in Fonalledas the permit included no refusal on the part of the [government] to

acknowledge that any . . . ‘rights’ existed. By that omission, the government essentially conceded

that such rights existed.” Gov’t Post-Tr. Resp. Br. at 46. In contrast, here

the Army’s explicit refusal to acknowledge that WVI had any right to assert a

takings claim preserved its argument that the permission given in the [WVI] ROE

to access the [ROE] Property subject to explicit limitations, vitiated any takings

claim except to the extent that the Army exceeded the scope of the agreement.

Gov’t Post-Tr. Resp. Br. at 46.

Finally, WVI argues that the Government’s construction of the WVI ROE “renders the

reservation of rights . . . meaningless. This is not so.” Gov’t Post-Tr. Resp. Br. at 45. Although

WVI effectively waived “any taking claim based on a physical intrusion authorized by the [WVI]

ROE” by signing that agreement, “WVI retained the right to assert either a regulatory taking claim

or a taking claim for exceeding the access rights in the [WVI] ROE.” Gov’t Post-Tr. Resp. Br. at

45.

ii. “Plaintiff Did Not Establish That The Government Has

Permanently Occupied Its Property.”

WVI’s argument that the EPA “used its CERCLA authority to take for itself [and the Army]

a dominant easement for CERCLA investigation and remediation purposes across all of the [Phase]

II property,” is speculative. Gov’t Post-Tr. Resp. Br. at 54 (quoting Pl. Post-Tr. Br. at 36). WVI’s

permanent Takings Clause claim is “based on actions the [EPA or the Army] may take in the future

to remediate contaminated groundwater from Area B on WVI’s property. Thus, WVI’s takings

claims . . . are not ripe.” Gov’t Post-Tr. Resp. Br. at 54. In addition, “[c]ontrary to the thrust of

WVI’s argument, there is no such thing as an action for ‘anticipatory taking,[’] i.e., a suit such as

that filed by WVI alleging that the mere possibility the [Army or the EPA] might take the party’s

property at some unknown date and time in the future gives rise to a cause of action in the present.”

Gov’t Post-Tr. Resp. Br. at 54–55.

48

The CERCLA process is “ongoing” and the Remediation/Feasibility Study has not

determined “what remediation plan will proceed for the Fort Detrick Area B groundwater

Superfund Site.” Gov’t Post-Tr. Resp. Br. at 56 (citing DX 136 at 3–4). In addition, “there is no

evidence at this time that active remediation would be required on the Waverley View [P]roperty.”

Gov’t Post-Tr. Resp. Br. at 56 (citing DX 136 at 3–4). And, “even if the [Army or the EPA] does

ultimately require additional access to the Waverley View [P]roperty, that access would be tailored

to work with any existing or planned development.” Gov’t Post-Tr. Resp. Br. at 56 (citing DX

136 at 7–8). Accordingly, “the determination of what, if any, taking may occur in the future is

speculative, [and] WVI cannot assert a ripe claim based on such speculation.” Gov’t Post-Tr.

Resp. Br. at 56.

iii. “Because Plaintiff Consented To The Installation Of The

Monitoring Wells In A Valid Contract, Its Claims Are

Governed By Contract Law.”

WVI is entitled to recover, “only to the extent that the [Army or the EPA] did not comply

with the [WVI] ROE, and WVI has provided no evidence that the [Army’s or the EPA’s] actions

did not conform to the provisions of that [a]greement.” Gov’t Post-Tr. Resp. Br. at 56. Even if

the court concludes that “the [WVI] ROE required the Army to decommission the wells and the

gravel road installed on the [Waverley View P]roperty, the failure to do so constitutes at most a

breach of contract, not a taking.” Gov’t Post-Tr. Resp. Br. at 56.

WVI also has “adduced no evidence that the Army entered WVI's property without . . .

consent before, during, or after the time in which the [WVI] ROE was in place.” Gov’t Post-Tr.

Resp. Br. at 57. And, the WVI ROE “did not require, the decommissioning of the wells or removal

of the gravel road the Army installed on [the Waverley View P]roperty.” Gov’t Post-Tr. Resp. Br.

at 57. Therefore, “[t]he fact that the wells and gravel road remain on WVI’s property is consistent

with the parties’ negotiated agreement.” Gov’t Post-Tr. Resp. Br. at 57. Because WVI “did not

plead and prove a breach of the [WVI ROE] and[,] because the relationship between the [Army]

and WVI is governed by the terms of that [a]greement, WVI is not entitled to any recovery in this

action.” Gov’t Post-Tr. Resp. Br. at 57.

In addition, the “continued existence of the wells and gravel road on [WVI’s] property after

expiration of the [WVI] ROE” is not a “permanent taking,” because “the [WVI] ROE did not

require removal of the monitoring wells or gravel road.” Gov’t Post-Tr. Resp. Br. at 57. Moreover,

even if the continued presence of the wells or road . . . exceeded the scope the

[WVI] ROE, any taking would only last from the expiration of the [WVI] ROE,

November 13, 2014, until the issuance of the September 30, 2016 letter from the

Army [Corps], confirming the expiration of the [WVI] ROE and [the Army’s] lack

of further rights or interest in the monitoring wells.

Gov’t Post-Tr. Resp. Br. at 57–58 (citing DX 109).

49

c. Plaintiff’s Reply.

i. “Plaintiff’s Takings Clause Claim Is Ripe for Review.”

WVI replies that “[t]here is nothing ‘anticipatory’ about [its] taking” claim. Pl. Post-Tr.

Reply Br. at 8 (quoting Gov’t Post-Tr. Resp. Br. at 54). “[The taking] began in 2013 and persists

to this day. The [Army] . . . forced its way onto WVI’s [p]roperty and installed a network of wells

[and] a gravel road[.] . . . That is a per se physical taking.” Pl. Post-Tr. Reply Br. at 8 (citing

Hendler III, 952 F.2d at 1375–76). Moreover, in addition to the ongoing physical occupation, the

Army and the EPA have “effectively asserted an easement across whole swaths” of the Waverley

View Property. Pl. Post-Tr. Reply Br. at 9 (citing JX 8).

ii. “The Right Of Entry Agreement Does Not Bar Plaintiff’s

Takings Clause Claim.”

Regardless of WVI’s consent, “one way or another, the [Army and the EPA were]

inevitably going to occupy [WVI’s] [p]roperty.” Pl. Post-Tr. Reply Br. at 11. WVI was coerced

into signing the WVI ROE and Mr. Dorment only agreed, because “‘[WVI] had no leverage, no

negotiating capacity . . . , and [Mr. Dorment’s] attorneys had informed [him] that [the Army and

the EPA] were going to get whatever they wanted to get.’” Pl. Post-Tr. Reply Br. at 11 (quoting

TR 647 (Dorment)). Communications from the Army and the EPA made clear that WVI had two

choices: “admit the [Army and the EPA] to the [Waverley View] Property involuntarily by

[agreement], or . . . involuntarily by unilateral administrative order.” Pl. Post-Tr. Reply Br. at 11.

The Government’s argument that “choos[ing] between ‘unpleasant’ alternatives is not the same

thing as being coerced” is unsupported by legal authority. Pl. Post-Tr. Reply Br. at 11 (quoting

TR 57 (Held)). In addition, WVI did not “contaminate the groundwater beneath the property” nor

did it bring about this “untenable ‘choice.’” Pl. Post-Tr. Reply Br. at 12. Because “the [Army] is

responsible for both of the ‘unpleasant alternatives’ and [WVI was forced] to yield control of its

[p]roperty, the [WVI] ROE is a product of coercion.” Pl. Post-Tr. Reply Br. at 12.

In addition, the WVI ROE is not supported by any bargained-for consideration and is not

a contract. Pl. Post-Tr. Reply Br. at 14–15. Neither the “provisions about duration, hour of entry,

notice, installation of the wells, and sampling,” nor “[t]he . . . commitment to supply test results”

constitute consideration. Pl. Post-Tr. Reply Br. at 14–15.

Finally, the Government “either mischaracterizes or misunderstands WVI’s argument

about the reservation of rights in the [WVI] ROE.” Pl. Post-Tr. Reply Br. at 15. The reservation

of rights does not mean that the Army and the EPA cannot enter WVI’s property; instead, it means

that, although WVI did not stop the Army and the EPA from entering the ROE Property, WVI will

“insist on just compensation under the Fifth Amendment for . . . taking of the [p]roperty.” Pl.

Post-Tr. Reply Br. at 15–16. Likewise, the Government’s argument that WVI may only assert a

takings claim “for exceeding the access rights in the [WVI] ROE” is without support. Pl. Post-Tr.

Reply Br. at 16 (quoting Gov’t Post-Tr. Resp. Br. at 45). The reservation of rights does not

“distinguish between types of takings claims, whether ‘for exceeding the access rights in the [WVI]

ROE’ or otherwise. It simply says that WVI preserves its right to bring a takings claim[.]” Pl.

Post-Tr. Reply Br. at 16.

50

d. The Government’s Sur-Reply.

i. “The Right Of Entry Agreement Vitiates Plaintiff’s

Takings Clause Claims.”

The Government adds that, “because the groundwater monitoring wells on which WVI

bases its takings claims were installed with WVI’s permission, there was no ‘taking’ within the

meaning of the Fifth Amendment.” Gov’t Post-Tr. Sur-Reply Br. at 4. As the United States

Supreme Court explained in Yee v. City of Escondido, 503 U.S. 519 (1992), “[t]he government

effects a physical taking only where it requires the landowner to submit to the physical occupation

of his land. ‘This element of required acquiescence is at the heart of the concept of occupation.’”

Id. at 527 (internal citations omitted). As such, “whether the government floods a landowner's

property[] or does no more than require the landowner to suffer the installation of a cable, the

Takings Clause requires compensation[,] if the government authorizes a compelled physical

invasion of property.” Id. Because WVI’s right to exclude was voluntarily relinquished, [its

property was] not taken. Gov’t Post-Tr. Sur-Reply Br. at 5.

The WVI ROE is enforceable, because “[c]oercion sufficient to negate WVI’s consent

requires far more” than the Government’s actions in this case. Gov’t Post-Tr. Sur-Reply Br. at 5.

Simply because “WVI was unhappy about entering into the [WVI ROE] after the fact does not

negate its consent to the entry. And that consent vitiates WVI’s per se permanent physical taking

claim.” Gov’t Post-Tr. Sur-Reply Br. at 8. And, for these same reasons, the reservation of rights

language in the WVI ROE only “preserve[d] a takings claim for an intrusion exceeding the access

rights in the [WVI ROE], or for a regulatory taking[.]” Gov’t Post-Tr. Sur-Reply Br. at 11.

In any event, if the court determines that there was a taking, the court must “determine

whether such taking was permanent or temporary.” Gov’t Post-Tr. Sur-Reply Br. at 13. This

requires an analysis of the factors set forth in Arkansas Game and Fish Commission v. United

States, 568 U.S. 23 (2012). Gov’t Post-Tr. Sur-Reply Br. at 13–14. The Army’s presence “lasted

for less than two years,” and “WVI had extensive knowledge of the ‘character of the land’ and

likelihood of contamination when it purchased the [Waverley View] Property.” Gov’t Post-Tr.

Sur-Reply Br. at 14. As such, the “investment-backed expectations” and the “extent of

interference” weigh against finding a temporary taking. Gov’t Post-Tr. Sur-Reply Br. at 17.

ii. “The Right Of Entry Agreement Is Supported By Valid

Consideration.”

WVI does not cite a single case in support of the contention that the WVI ROE “is not a

contract because it is not supported by consideration.” Gov’t Post-Tr. Sur-Reply Br. at 8 (quoting

Pl. Post-Tr. Reply Br. at 14). The Government “is aware of no case that has held a [r]ight of [e]ntry

[a]greement . . . invalid for lack of consideration.” Gov’t Post-Tr. Sur-Reply Br. at 8. Apart from

the specific terms of any such agreement, both the Government and WVI benefited: “[t]he [Army

and the EPA] gain[ed] access to obtain necessary data and to remediate environmental

contamination,” and “[b]y cooperating with the [R]emedial [I]nvestigation, [WVI] avoid[ed] the

risk of relinquishing any defenses it may have under CERCLA and further benefits[,] because the

cost of drilling wells and sampling [was] borne by the [Army].” Gov’t Post-Tr. Sur-Reply Br. at

8. The WVI ROE also provided other benefits that can be seen “by comparing the [WVI]

51

ROE . . . with standard [r]ight of [e]ntry [a]greements the Army entered into with neighboring

subdivisions, Carroll Park . . . and Loch Inver Court[.]” Gov’t Post-Tr. Sur-Reply Br. at 9 (citing

JX 5; DX 37; DX 103).

e. Plaintiff’s Sur-Reply.

i. “The Right Of Entry Agreement Does Not Bar Plaintiff’s

Takings Clause Claim.”

WVI argues that the WVI ROE “is not supported by consideration.” Pl. Post-Tr. Sur-Reply

Br. at 7. WVI did not “get anything from the terms of the [WVI] ROE that it did not already have.”

Pl. Post-Tr. Sur-Reply Br. at 7. And, the Government’s argument that the WVI ROE is “supported

by consideration because it contains terms not found in other rights of entry,” ignores that “[t]he

concept of consideration . . . looks to whether this document recites consideration bargained for

by these parties.” Pl. Post-Tr. Sur-Reply Br. at 7.

In determining whether the WVI ROE was the product of coercion, the United States Court

of Appeals for the Federal Circuit has held that a party must establish: “(1) that the [g]overnment

‘effectively imposed the terms’ of the action at issue; (2) that the party ‘had no realistic alternative’

but to accept the [g]overnment’s terms; and (3) that the party’s action ‘was the result of improper

acts by the agency.’” Pl. Post-Tr. Sur-Reply Br. at 9 (quoting Staats v. United States Postal

Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996)). Although Staats “arose in the employment context,

the principles articulated are not inherently limited to that setting. And[,] the Government has not

identified any other [United States Court of Appeals for the] Federal Circuit precedent to guide

this [c]ourt.” Pl. Post-Tr. Sur-Reply Br. at 10.

The Government’s construction of the WVI ROE’s reservation of rights requires the court

impermissibly to “insert terms and qualifiers into the reservation of rights.” Pl. Post-Tr. Sur-Reply

Br. at 10. Even if the court could do so, the “most glaring defect in the Government’s arguments

about the reservation of rights[, however,] remains [its] inability to account for the [United States]

Court of Claims’[s] decision in Fonalledas[.]” Pl. Post-Tr. Sur-Reply Br. at 11.

ii. “Plaintiff’s Takings Clause Claim Is Ripe For Review.”

The Army’s continued occupation of the Waverley View Property “rendered [Phase] II [of

the Waverley View Property] . . . essentially worthless, and caused a significant loss in the market

value of [Phase] I,” but the “Government continues to urge that this case is not ripe.” Pl. Post-Tr.

Sur-Reply Br. at 11. The uncertainty that the Government points to is not only an issue of damages

. . . rather than one of ripeness; it is a part of the taking.” Pl. Post-Tr. Sur-Reply Br. at 12. In fact,

“[i]t is precisely because the [Army] admittedly cannot provide any specifics about its continuing

and future occupation . . . that WVI cannot move forward with developing its land.” Pl. Post-Tr.

Sur-Reply Br. at 12. The court should not dismiss WVI’s claim as “unripe,” simply because the

Army is unable to provide “a concrete end date to the [Army’s] occupation of the [p]roperty.” Pl.

Post-Tr. Sur-Reply Br. at 12. Instead, this is a “component of the claim[.]” Pl. Post-Tr. Sur-Reply

Br. at 12.

52

iii. “The Framework From Arkansas Game and Fish Does

Not Apply To Permanent Takings Cases Like This One.”

Finally, the Government argues, for the first time, that the framework set out in Arkansas

Game and Fish Commission controls in this case, because any taking was only temporary. Pl.

Post-Tr. Sur-Reply Br. at 12. But, “Hendler [III] could not be clearer: the [Army’s] investigative

activities on the [Waverley View] Property constitute a permanent physical invasion sufficient to

establish a per se taking under Loretto [v. Teleprompter Manhattan CATV Corp., 458 U.S. 419

(1982)].” Pl. Post-Tr. Sur-Reply Br. at 13. “[T]his case is a textbook example of a permanent

physical occupation;” therefore, Arkansas Game and Fish Commission is irrelevant. Pl. Post-Tr.

Sur-Reply Br. at 13.

f. The Court’s Resolution.

i. Governing Precedent.

A compensable taking occurs when the government “physical[ly] inva[des] or

appropriat[es] . . . private property.” Huntleigh USA Corp., 525 F.3d at 1378; see also Acceptance

Ins., 583 F.3d at 854 (“The Fifth Amendment to the United States Constitution proscribes the

taking of private property for public use, without just compensation.”) (internal quotations

omitted). A physical invasion or appropriation occurs when “the government itself occupies the

property or requires the landowner to submit to physical occupation of its land.” Stearns Co. v.

United States, 396 F.3d 1354, 1357 (Fed. Cir. 2005) (emphasis and internal quotations omitted).

Although physical takings “are relatively rare,” they are “easily identified, and usually represent a

greater affront to individual property rights.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l

Planning Agency, 535 U.S. 302, 324 (2002). Therefore, when the government physically takes

property, “it has a categorical duty to compensate the former owner, . . . regardless of whether the

interest that is taken constitutes an entire parcel or merely a part thereof.” Id. at 322 (internal

citations omitted).

As the United States Supreme Court observed in Arkansas Game and Fish Comm'n,

however, “permanent physical occupations” of property must be distinguished from “temporary

[physical] invasions.” Ark. Game & Fish Comm'n, 568 U.S. at 36. And, as the United States Court

of Appeals for the Federal Circuit explained in John R. Sand & Gravel Co. v. United States, 457

F.3d 1345 (Fed. Cir. 2006),

“[p]ermanent” has a special meaning in the determination of whether a physical

occupation has occurred. In the context of physical takings “‘permanent’ does not

mean forever, or anything like it.” A government occupation is “permanent” when

the government's “intrusion is a substantial physical occupancy of private

property.” The government's occupation may be permanent[,] even if it is not

“exclusive, or continuous and uninterrupted.” The [United States] Supreme Court

held in Loretto that the placement of cable and connection boxes on the plaintiff's

property was a physical taking. In Hendler [III], [the United States Court of

Appeals for the Federal Circuit] held that the placement of groundwater monitoring

wells on the plaintiff's property and the government's periodic presence for

installing and servicing the wells was “permanent” and therefore a physical taking.

53

In contrast, [the court] noted that a transient and relatively inconsequential

incursion by the government, such as a truckdriver parking on a vacant lot to eat

lunch, is not sufficiently permanent to comprise a taking. Similarly, in Boise

Cascade [Corp. v. United States, 296 F.3d 1339 (Fed. Cir. 2002)], [the same court]

determined that government surveyors who briefly entered the plaintiff's land over

a period of five months to perform owl surveys did not “permanently” occupy the

plaintiff's property. Thus, the determination of whether government occupancy is

“permanent” is highly fact-specific. In any event, the installation of fixed physical

structures, such as the cable and cable connections in Loretto or the groundwater

monitoring wells in Hendler [III] is typical of a “permanent” occupation, while the

transient entry of persons via government authority on a plaintiff's property is

generally not “permanent.”

Id. at 1357 (internal citations omitted), aff’d, 552 U.S. 130 (2008).

A claim for a physical taking, however, may not arise where a property owner voluntarily

consents to the government’s entry onto private property and to those governmental activities

giving rise to such a claim. See, e.g., J. J. Henry Co. v. United States, 411 F.2d 1246, 1249 (Ct.

Cl. 1969)41 (“[W]here the government possesses property under the color of legal right, as by an

express contract, there is seldom a taking in violation of the Fifth Amendment. The amendment

has limited application to the relative rights in property of parties . . . which have been voluntarily

created by contract.”); see also, e.g., Nat’l Bd. of YMCA v. United States, 396 F.2d 467, 474 (Ct.

Cl. 1968), (denying just compensation for damage to plaintiffs’ properties, in part, because “the

structural changes were made with the consent of the plaintiffs”), aff’d, 395 U.S. 85 (1969); Scogin,

33 Fed. Cl. at 578 (determining there was no taking, based on physical use and occupation, where

plaintiff failed to demonstrate any EPA activity that exceeded the scope of plaintiff’s consent).

In this case, the parties argue at length about whether the WVI ROE is a “valid” contract.

Although a contract may reflect an agreement to allow the government access to and use of private

property, the relevant inquiry is only whether there was voluntary consent to the same. As the

United States Supreme Court explained in Yee, “[t]he government effects a physical taking only

where it requires the landowner to submit to . . . physical occupation of his land. This element of

required acquiescence is at the heart of the concept of occupation.” Yee, 503 U.S. at 527. Required

acquiescence, however, cannot exist when consent is voluntarily given. Accordingly, whether the

Army or the EPA required WVI to “submit to . . . physical occupation” of the Waverley View

Property is dispositive of whether a taking occurred during the term of the WVI ROE, i.e., from

May 14, 2013 to November 13, 2014.

ii. Plaintiff Voluntarily Consented To The Government’s

Entry And Use Of The Waverley View Property.

On April 8, 2009, Fort Detrick Area B Groundwater was listed on the NPL as a CERCLA

Superfund site, thereby triggering the EPA’s authorities under CERCLA. PX 65 at 2.

41

The United States Court of Appeals for the Federal Circuit has held that United States

Court of Claims decisions issued prior to September 30, 1982, are binding precedent. See S.

Corp. v. United States, 690 F.2d 1368, 1369 (Fed. Cir. 1982).

54

Nevertheless, on November 15, 2012, WVI purchased the Waverley View Property. PX 53; TR

134–35 (Anderson). Thus, the EPA’s authority to enter the property, pursuant to § 104(e)(3) of

CERCLA, 42 U.S.C. § 9604(e)(3), predated WVI’s ownership by more than three and a half years.

As such, when WVI purchased the Waverley View Property, it did so subject to the EPA’s

“significant enforcement authorities under . . . CERCLA,” including the right to access the

Waverley View Property, with or without WVI’s consent. PX 10 at WVI00004487.

In attempting to gain access to the Waverley View Property, however, the Army and the

EPA did not exercise the EPA’s CERCLA authority or the power of eminent domain to compel

WVI’s consent. See United States v. Dow, 357 U.S. 17, 21 (1958) (“[T]he United States may take

property pursuant to its power of eminent domain in one of two ways: it can enter into physical

possession of property without authority of a court order; or it can institute condemnation

proceedings under various Acts of Congress providing authority for such takings.”). Instead, after

weeks of negotiations, during which WVI was represented by counsel and “exchanged several

drafts of the [WVI ROE] with the EPA and . . . the Army” (TR 725 (Dorment)), the parties agreed

on terms of access and memorialized them in the WVI ROE (JX 5). Neither the Army nor the

EPA required WVI to sign the WVI ROE. Instead, the WVI ROE was the culmination of “weeks

. . . [of] negotiations” between the parties. PX 10 at WVI00004486; see also TR 725 (Dorment).

Although WVI may have felt pressure to participate in these negotiations,42 WVI retained the right

to walk away; a right that Messrs. Dorment and Anderson exercised on numerous prior occasions.

See, e.g., JX 1; TR 151–52 (Anderson). Accordingly, when WVI gave its consent by signing the

WVI ROE, it did so voluntarily.

WVI nevertheless argues that the WVI ROE was the product of coercion or duress. Pl.

Post-Tr. Resp. Br. at 12. To render an agreement unenforceable for coercion or duress, a party

“must establish that (1) it involuntarily accepted [the other party's] terms, (2) circumstances

permitted no other alternative, and (3) such circumstances were the result of [the other party's]

coercive acts.” Dureiko v. United States, 209 F.3d 1345, 1358 (Fed. Cir. 2000).

Although some evidence43 suggests that WVI signed the WVI ROE “under protest,”44 WVI

nevertheless failed to establish the second and third elements of the duress test.

42

In his May 24, 2013 letter, Mr. Dorment indicates that “all of the negotiations . . . were

conducted within the coercive context of [the EPA’s] significant enforcement authorities under the

CERCLA statute.” PX 10 at WVI00004487.

43

See, e.g., PX 10 WVI00004486–87 (Mr. Dorment explaining that WVI “could not

accept” a proposal to include language in the WVI ROE that WVI “‘freely and voluntarily’ grants

access . . . because all of the negotiations concerning such demanded access were conducted within

the coercive context of [the EPA’s] significant enforcement authorities under the CERCLA

statute.”)

44

See N. Star Steel Co. v. United States, 477 F.3d 1324, 1334 (Fed. Cir. 2007) (holding

that signing an agreement “under protest” may satisfy the first element of the duress test, i.e.,

involuntary acceptance of the other party’s terms, but that alone is insufficient to demonstrate

duress).

55

As to the second element, WVI could have refused to sign the WVI ROE. Although such

refusal may have subjected WVI to liability for “investigation and cleanup costs” under CERCLA

as described in the EPA’s February 8, 2013 letter (DX 44 at US000009), the “threat of considerable

financial loss” is not sufficient to establish duress (see Rumsfeld v. Freedom NY, Inc., 329 F.3d

1320, 1330 (Fed. Cir. 2003)). Instead, WVI could have continued to refuse to sign the WVI ROE

as Messrs. Dorment and Anderson had done on numerous prior occasions. See, e.g., JX 1; TR

151–52 (Anderson).

Regarding the third element, “coercion requires a showing that the [g]overnment's action

was wrongful, i.e., (1) illegal, (2) a breach of an express provision of the [agreement] without a

good-faith belief that the action was permissible under the [agreement], or (3) a breach of the

implied covenant of good faith and fair dealing.” N. Star Steel Co., 477 F.3d at 1334 (internal

citations and quotation marks omitted). There is no evidence that the Army or the EPA acted

illegally. Nor was the EPA’s February 8, 2013 letter an “improper threat.” See David Nassif

Assocs. v. United States, 644 F.2d 4, 12 (Ct. Cl. 1981) (defining “improper threat” as “threats to

commit a crime or a tort . . . [or] that would accomplish . . . economic duress . . . includ[ing] threats

that would breach a duty of good faith and fair dealing under a contract as well as threats which,

though lawful in themselves, are enhanced in their effectiveness in inducing assent to unfair

terms[,] because they exploit prior unfair dealing on the part of the party making the threat”)

(internal citations omitted). Instead, the EPA’S February 8, 2013 letter described relevant

CERCLA provisions and the EPA’s authority thereunder, including that the EPA had legal

authority to access the Waverley View Property, with or without WVI’s consent.

Accordingly, the EPA’s February 8, 2013 letter did not threaten WVI; instead, it described

relevant CERCLA provisions and the EPA’s authority thereunder, including that the EPA had legal

authority to access the Waverley View Property.

For these reasons, the court has determined that the WVI ROE was not the product of

coercion or duress; instead, WVI voluntarily consented to the terms of that agreement, authorizing

the Army and the EPA to enter and use the ROE Property from May 14, 2013 to November 13,

2014.

iii. The Reservation Of Rights In The Right Of Entry

Agreement Did Not Invalidate Plaintiff’s Consent.

The WVI ROE provided that WVI “expressly reserves any and all rights it may have to

make a claim under the Takings Clause of the Fifth Amendment, U.S. Const., amend. V. The

Government acknowledges this reservation without any concession that any such rights or claim

may exist.” JX 5 at US000004 (emphasis added). WVI argues that this reservation of rights

preserved its right to bring Takings Clause claims based on the Army’s activities pursuant to the

WVI ROE. Pl. Post-Tr. Br. at 41–43. In effect, WVI argues that the reservation or rights renders

its voluntary consent, and thus the entire WVI ROE, meaningless. WVI insists, however, that

Fonalledas, “shows that [the] reservation [of rights] is effective to preserve a takings claim.” Pl.

Post-Tr. Br. at 41. But, WVI construes the holding in Fonalledas too broadly.

In Fonalledas, the dredging of a channel in San Juan Harbor, Puerto Rico caused “mud,

silt and salt water” to flow over the plaintiffs’ lands. See Fonalledas, 107 F. Supp. at 1020–21.

The plaintiffs “protested . . . to various [g]overnment officials and finally brought a suit in the

56

United States District Court to enjoin the [dredging].” Id. at 1021. Thereafter, the government

“advised . . . the plaintiffs that dredging operations . . . would stop, [and] that a drainage canal

would be dug to drain off the salt water already accumulated on the plaintiffs’ lands and afford

future drainage.” Id. Based on these assurances, plaintiffs’ counsel “gave the [g]overnment a

letter of authorization to construct the canal,” providing “[i]t is expressly understood that this

permit is granted[,] without prejudice to any and all rights of our clients, or, in other words, it is

expressly understood that our clients waive no rights whatsoever by reason of this permit.” Id.

The drainage canal “was thereupon constructed and the injunction suit was dismissed.” Id.

Thereafter, plaintiffs’ filed suit in the United States Court of Claims “to recover for the alleged

taking of [plaintiffs’] lands.” Id. at 1020. The government “contend[ed] that the permission given

by the plaintiffs for the construction of the canal was a waiver of any claims which the plaintiffs

might otherwise have had for its construction and the harmful effects thereof.” Id. at 1022. The

Fonalledas court disagreed, explaining that, “the statement in the written permission that ‘it is

expressly understood that our clients waive no rights whatsoever by reason of this permit’ is a

complete answer to the [g]overnment's contention.” Id.

Unlike this case, however, in Fonalledas, the plaintiffs’ Takings Clause claims accrued

before any agreement to permit dredging was reached with the government, i.e., the plaintiffs’

Takings Clause claims predated its consent, as the letter from plaintiffs’ counsel reflected.

Therefore, the Fonalledas court determined that a reservation of rights may preserve Takings

Clause claims predating a consent agreement, not that a reservation of rights invalidates consent,

as WVI would have it.

Nevertheless, it is an established canon that, “[w]hen interpreting [an agreement], the

document must be considered as a whole and interpreted so as to harmonize and give reasonable

meaning to all of its parts.” NVT Techs., Inc., 370 F.3d at 1159. Therefore, the court has

determined that the reservation of rights in the WVI ROE preserves any Takings Clause claim that

WVI had prior to signing that agreement or which arose outside the scope and duration thereof,

but not any claim that arose within the scope and duration of the WVI ROE.

iv. The Government’s Activities On The Waverley View

Property During The Term Of The Right of Entry

Agreement Did Not Exceed The Scope Of Work

Described Therein.

The WVI ROE broadly granted the Army and the EPA authority to perform a number of

activities on the ROE Property. First, the WVI ROE granted the Army and the EPA

an irrevocable right to enter in, on, over and across [the ROE Property], for a period

not to exceed eighteen (18) months, unless further extended by [a]greement of the

parties commencing on May 14, 2013, and running through November 13, 2014,

or, if sooner, the date of completion of the [R]emedial [I]nvestigation.

JX 5 at US000001.

Second, the WVI ROE granted the Army and the EPA

57

the right to store, move, and remove equipment and supplies; investigate and collect

samples . . . ; construct, operate, maintain, alter, repair, and remove groundwater

monitoring wells, appurtenances thereto, and other devices for the monitoring of

contamination in soil, air, and water; and, perform any other such work which may

be necessary and incident to the Government’s use for the investigation and

determination of need for response on [the ROE Property.]

JX 5 at US000001–02 (emphasis added).

The WVI ROE also included a map showing proposed locations of “drilling areas,” and

described the “Scope of Work” as follows:

1. Evaluation, logging, surveying, measuring, and testing of existing wells

(GW-1, GW-2, GW-3, GW-4) on the [ROE Property], including regular access

during the groundwater tracer study (e.g., weekly, biweekly, or monthly for the

duration of the study and/or right-of-entry period).

2. Drilling, logging, and borehole testing in three areas on the [ROE

Property] (see Figure 1), including rig access to each drill area, monitoring well

construction (multiple), surveying, measuring, and testing of completed wells for

the duration of the right-of-entry period. Any other drilling areas identified by [the]

EPA, [the] MDE, or the Army would be restricted to the [ROE Property].

3. Access to any streams, seeps, springs, or other surface water features that

may exist on the [ROE Property] for surveying, monitoring, and sampling[.]

JX 5 at US000006.

Pursuant to the WVI ROE, on or about, November 21, 2013, the Army entered the ROE

Property and constructed a gravel access road. TR 199 (Anderson). This work was within the

Army’s authority to “perform any other . . . work which may be necessary and incident to the

Government’s use” under the WVI ROE. JX 5 at US000002. Beginning in December 2013, the

Army also installed and maintained fifteen monitoring wells on the ROE Property. TR 949

(Gortva). And, during the term of the WVI ROE, the Army collected samples from these

monitoring wells. TR 954 (Gortva). All of this work was included within the Army’s authority to

“investigate and collect samples . . . ; [and] construct, operate, maintain, alter, repair, and remove

groundwater monitoring wells, appurtenances thereto, and other devices for the monitoring of

contamination in soil, air, and water” under the WVI ROE. JX 5 at US000002.

Moreover, all of this work occurred during the term of the WVI ROE, i.e., between May

14, 2013 and November 13, 2014, and the Army complied with the WVI ROE’s notice and timing

requirements “[f]or all [of its] activities.” TR 959–60 (Gortva). On expiration of the WVI ROE,

the Army ceased all work on the ROE Property and has not re-entered the Waverley View Property

since. JX 5 at US000001; TR 959–60 (Gortva).

In addition, all of the monitoring wells installed by the Army were located on the ROE

Property. Compare JX 5 at US000006, with PX 76. And, despite the need to offset some

monitoring wells (TR 949–50 (Gortva)), there appears to be an attempt to cluster most of the

58

monitoring wells within the three “drilling areas” proposed in the WVI ROE’s “Scope of Work”

(compare JX 5 at US000006, with PX 76). This was done, without any feedback from WVI about

the proposed offset locations (TR 951 (Gortva)), and despite the Army’s broad authority to identify

“[a]ny other drilling areas” on the ROE Property (JX 5 at US000006 (“Any other drilling areas

identified by [the] EPA, [the] MDE or the Army would be restricted to the [ROE Property].”)).

For these reasons, the court has determined that the Army’s and the EPA’s activities

throughout the duration of the WVI ROE, i.e., from May 14, 2013 to November 13, 2014, did not

exceed the scope of work described by that agreement. Therefore, no Takings Clause claims arose

from those activities.

v. The Continued Presence Of The Army-Installed

Monitoring Wells And Gravel Access Road On The

Waverley View Property After Expiration Of The Right

Of Entry Agreement Effected A Permanent Taking Of

Certain Portions Thereof.

The duration of the WVI ROE was “not to exceed eighteen (18) months, unless further

extended by [a]greement of the parties commencing on May 14, 2013, and running through

November 13, 2014, or, if sooner, the date of completion of the [R]emedial [I]nvestigation.” JX

5 at US000001 (emphasis added). Despite the Army Corps’ attempts, on behalf of the Army, to

extend the WVI ROE, an extension agreement was not reached. JX 6; JX 7; TR 959–60 (Gortva).

Therefore, on November 13, 2014, the WVI ROE, and the Army’s and the EPA’s “right to enter

in, on, over and across” the ROE Property, expired. JX 5 at US000001; TR 959–60 (Gortva).

Nevertheless, the access road and monitoring wells, installed by the Army, remain on the Waverley

View Property to this day. TR 1160–61 (Gortva); SVTR 19, 24.

The WVI ROE, however, provided that,

[a]ll tools, equipment, and other property taken upon or placed upon the [ROE

Property] by the Government shall remain the property of the Government and may

be removed by the Government at any time within a reasonable period, not to

exceed thirty (30) days, after the expiration of [the WVI ROE].

JX 5 at US000003 (emphasis added).

Accordingly, the gravel used for the access road, as “other property taken upon or placed

upon the [ROE Property] by the [Army],” “remain[s] the property of the [Army,]” despite

expiration of the WVI ROE. And, although the Army was given “a reasonable period, not to

exceed thirty (30) days, after the expiration of [the WVI ROE],” to remove the gravel access road,

it remains on the Waverley View Property. TR 1160–61 (Gortva); SVTR 20.

In addition, the WVI ROE provided that,

if it appears from the monitoring results that they remain necessary for the

continuing investigation, or for the monitoring and assessment of the need for any

necessary response action, the monitoring wells installed by the Government shall

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remain the property of the Government, and may be maintained on the land, subject

to further extension of [the WVI ROE] by the parties.

JX 5 at US000003 (emphasis added).

Therefore, the Army’s continued ownership of the monitoring wells depends upon whether

“it appears from the monitoring results that they remain necessary.” Relevant to this

determination, the Government’s expert, Keith White,45 testified that

[t]he available data demonstrate that the source of . . . contamination and . . . the

vast majority of the contaminant mass occurs beneath Area B, not [the] Waverley

View [Property]. A relatively small amount of contamination is present beneath a

fraction of [the] Waverley View [Property], adjacent to Area B-11. Based on these

facts, investigatory efforts and remedial efforts, will logically be focused on Area

B-11.

DX 136 at 3–4.

Mr. K. White also testified, however, that “it is evident that some monitoring wells will

likely be needed on [Phase] II [of the Waverley View Property] to complete the [Remedial

Investigation] and potentially to monitor the effects of potential future remedial actions.” DX 136

at 4. Mr. K. White’s opinion is consistent with statements the EPA made in its February 5, 2015

letter, including that “much remains to be done with regard to the continuing [Remedial

Investigation] of the groundwater plume,” and “urg[ing] WVI to continue to provide access to the

Army to allow it to pursue its investigation of the groundwater plume that extends beneath [the

Waverley View Property].” JX 8 at WVI00009414.

Accordingly, as of the expiration of the WVI ROE, i.e., November 13, 2014, the monitoring

wells “remain[ed] necessary for the continuing investigation, or for the monitoring and assessment

of the need for any necessary response action.” JX 5 at US000003. Therefore, “the monitoring

wells installed by the [Army] . . . remain the property of the [Army]” despite expiration of the

WVI ROE. But, the Army’s right to maintain the monitoring wells on the ROE Property, was

“subject to further extension of [the WVI ROE] by the parties.” JX 5 at US000003. No extension

45

To avoid confusion with Randy White, the court will refer to Keith White as “Mr. K.

White.”

At trial, the Government proffered Mr. K. White as an expert in “hydrogeology with a

particular expertise in karst geology.” TR 1065. WVI did not object. TR 1066. Mr. K. White

has “over 28 years’ consulting experience in evaluating the nature, extent, and transport of

contaminants in groundwater––20 of those years focused on karst geology” and “currently leads

[Arcadis’s] Karst Hydrology Focus Area[.]” DX 136 at 2, Appendix A. Mr. K. White’s education

includes a Bachelor of Science (“BS”) in Geology from the State University of New York and

Graduate Studies at Syracuse University in Containment Hydrogeology and Geochemistry and

Advanced Hydrogeology. DX 136 at Appendix A. Therefore, the court considers Mr. K. White

an expert in “hydrogeology with a particular expertise in karst geology.” TR 1065–66; see also

FED. R. EVID. (“FRE”) 702.

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agreement was reached, however, and the Army’s right to maintain the monitoring wells on the

property expired with the WVI ROE, on November 13, 2014.

Therefore, although the Army was not required to remove either the gravel access road or

the monitoring wells, by failing to do so, the Army has, and continues to, physically occupy certain

portions of the Waverley View Property. Such “p

This text is long and has been trimmed here. Open the source document for the complete record.