# Resource Investments, Inc. v. United States

> United States Court of Federal Claims · January 23, 2009 · 85 Fed. Cl. 447

URL: https://www.frixlaw.com/law-library/cases/6658811

## Case

- **Full name:** RESOURCE INVESTMENTS, INC. and Land Recovery, Inc. v. United States
- **Court:** United States Court of Federal Claims
- **Decided:** January 23, 2009
- **Citations:** 85 Fed. Cl. 447; 2009 U.S. Claims LEXIS 11; 2009 WL 188044
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Block
- **Judges:** Block
- **Cited by:** 59 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6658811

## How later opinions describe it (automated extraction)

- stating that “[g]overnment regulation goes ‘too far,’ and effects a total or ‘categorical’ taking, when it deprives a landowner of all economically viable use of his ‘parcel as a whole’ ” (citations omitted)
- stating that “[a] year or two of delay, without bad faith, is exceedingly unlikely to be extraordinary”
- explaining the relationship between these two interrelated companies and their joint interest in this matter

## Opinion text

OPINION AND ORDER
BLOCK, Judge.
Before this court are cross-motions for summary judgment pursuant to Rule 56 of the Rules of the Court of Federal Claims (“RCFC”). The underlying claim is predicated on the Takings Clause of the Fifth Amendment. 1 In essence, plaintiffs are alleging a “temporary taking” 2 of its solid waste disposal site due to a wrongful assertion of jurisdiction by the United States Army Corps of Engineers (“Corps”). Am. Compl. H 55. The issues, both factual and legal, are complex, and, as such, some initial background is in order.
At first blush, it might not seem that a regulatory dispute over refuse can give rise to a constitutional claim. Yet the disposal industry has become big business. The United States generates approximately 220 million tons of municipal solid waste per year, which amounts to about 4.5 pounds of garbage per person per day. 3 The United States’ production of municipal solid waste, commonly known as garbage, is the highest in the world and continues to grow. Bruce R. Parker & John H. Turner, Overcoming Obstacles to the Siting of Solid Waste Management Facilities, 21 N.M. L.Rev. 91, 91 (1990). In addressing the problem of what to do with all our garbage, the Environmental Protection Agency (“EPA”) prefers reuse and recycling over landfills. 4 Nevertheless, Americans dispose of 75-90 percent of their garbage in landfills. Parker & Turner, supra, at 92.
Landfill disposal, however, presents certain issues. For example, most people do not want an unsightly or odorous landfill nearby — a serious problem also known as “Not in My Backyard,” or “NIMBY” for short. 5 Additionally, decomposing garbage produces methane, which, if left uncaptured, can travel through the ground into nearby homes and other buildings, creating the potential for *456 explosions. 6 Landfills also run the risk of contaminating groundwater through a byproduct known as leachate. See Pis.’ Ex. 43 at 343. Finally, overlapping federal, state, and local regulations, adopted in response to public concerns, have made it more difficult to increase landfill capacity to match the growth in garbage, thus leading to a “solid waste disposal crisis.” 7 In the absence of available local landfills, many municipalities opt to “longhaul,” or transport their refuse via truck, train, or other means, to distant places. 8
Regulators in Washington State, the site of the case now before this court, face these same issues in deciding how best to dispose of the state’s solid waste. In 2006, Washington State produced almost 5.4 million tons of municipal solid waste for deposit in its 16 solid waste landfills. 9 This works out to roughly 7.9 lbs of garbage per citizen per day, which is above the national average. 10 However, because of a robust recycling program, only about half of Washington’s municipal garbage ends up in a landfill. 11 Yet, following the nationwide trend, the residents of Washington State are expected to generate increasingly more waste even as their available landfill space decreases. 12 This may have already started — each year since 1994, Washington State’s residents have, on average, generated six percent more waste per capita than the prior year. 13 Like much of the United States, many counties in Washington State choose to longhaul them garbage, often shipping it to Oregon or other landfills in southern Washington. 14
As the saying goes, “one man’s trash is another man’s treasure,” 15 .and the solid waste management business can be lucrative. Plaintiffs in this case are two interrelated companies in the business of solid waste management. Plaintiff Land Recovery, Inc. (“LRI”) was framed in 1977 to manage the solid waste system in Pierce County, the second most populous county in Washington State. See Weyerhaeuser v. Pierce County (“Weyerhaeuser I”), 124 Wash.2d 26 , 873 P.2d 498, 500-01 (1994); see also Pis.’ Ex. 1. In turn, LRI formed plaintiff Resource Investments, Inc. (“RII”) in 1986 for the express purpose of locating and purchasing a new landfill site in Pierce County. Def.’s Facts H 3; see also Pis.’ Ex. 4. Because the main difference between LRI and RII is that RII has one additional owner, Def.’s Facts 116, the court hereafter will refer to LRI and RII collectively as “plaintiffs” for convenience sake, unless the court must refer to only one particular plaintiff.
Plaintiffs’ responsibilities included assuming the operation and management of Pierce County’s Hidden Valley landfill. Def.’s Ex. 1 at 5. In the mid-1980s, it became obvious that the Hidden Valley landfill would soon reach capacity and that Pierce County would require new strategies for waste disposal. Pis.' Facts 114; Def.’s Facts 113. To address this issue, Pierce County contracted with plaintiffs to locate a site for a new solid waste landfill in Pierce County. See Def.’s Facts 1112. Plaintiffs spent several years searching for, and acquiring title to, what it claimed was the ideal site in Pierce County. Pis.’ Facts 11119-11.
*457 As municipal solid waste disposal is a highly regulated industry, plaintiffs faced a labyrinthine regulatory process to obtain the necessary permits to construct the landfill. Def.’s Cross-Mot. Summ. J. 7-15; see also Weyerhaeuser I, 873 P.2d at 500-02 (relating the details of the local permitting process); infra Section I-B. In all, to construct the landfill, plaintiffs had to obtain a total of twelve state or local permits, four quasi federal-state permits, and one federal Clean Water Act (“CWA”) permit, the last of which is at the heart of this Fifth Amendment takings claim. Def.’s Ex. 73. Plaintiffs commenced the state and local permitting process in 1989. On September 20, 1989, the Corps asserted jurisdiction over the site and required plaintiffs to obtain a permit under section 404 of the CWA (“404 permit”) to construct a solid waste landfill. See 33 U.S.C. § 1344 . Nine years and several legal battles later, the U.S. Court of Appeals for the Ninth Circuit held that the Corps did not have jurisdiction over the landfill site because solid waste landfills, even those constructed in wetlands, were outside the Corps’ jurisdiction. Resource Invs., Inc. v. U.S. Army Corps of Eng’rs (“Resource I"), 151 F.3d 1162 (9th Cir.1998). No longer needing a 404 permit, and armed with the two critical state and local permits, plaintiffs filed for and obtained the remaining necessary permits and began construction of the landfill in October 1998. Operation of the landfill began on or about December 13,1999.
On May 4, 1998, plaintiffs filed then’ complaint initiating this action, alleging a taking. In 2005, plaintiffs filed an amended complaint, alleging instead a temporary taking, in part predicated on Resource 7’s holding that the Army Corps of Engineer’s assertion of jurisdiction was erroneous. Supplemental briefing, oral argument, and status conferences occurred in 2006-08, which focused in large measure on the issue of causation — e.g., whether the county and state or the federal government were responsible for the alleged delay and whether that delay rose to the level of a taking. Currently before this court are the parties’ cross motions for summary judgment, which, as explained more fully below, are denied.
I. Background 16
A. FACTS
In the mid-1980s, plaintiffs identified a roughly 320-aere site (“project site”) in Pierce County, Washington, of which the landfill would comprise 168 acres. Pis.’ Ex. 21 at 122; Def.’s Ex. 1(B) at 131; Def.’s Ex. 51 at 496, 500. In all, plaintiffs spent about $2.3 million to purchase the properties comprising the project site. Pis.’ Ex. 138 1f 6. Plaintiffs claimed they selected the site because it was located in Pierce County and because it contained hydrological features that made the contamination of groundwater extremely improbable. See Pis.’ Mem. Summ. J. 6; Pis.’ Ex. 43 at 351. These special features included “a 30 to 40 foot thick, uninterrupted layer of Yashon till, [which is] a highly compacted soil with low hydraulic conductivity.” Pis.’ Ex. 43 1120. Beneath the Vashon till flows a “confined aquifer .... [which] pushes water to within 2 feet of the surface during certain times of the year and saturates the till.” Id. at 1131. However, the project site also overlies the Central Pierce County Aquifer System, which serves more than 400,000 people. Pis.’ Resp. 7-8. The EPA had designated this aquifer system as a “sole source aquifer,” meaning that it provided most of the drinking water for the county. Def.’s Cross-Mem. *458 Summ. J. 5-6. Yet the project site’s proximity to the aquifer system was not unique; most of Pierce County — including all of its industrial and agricultural facilities, gas stations, and other potential sources of environmental effluent — is located over the same sole source aquifer system. Pis.’ Resp. 7-8. Nevertheless, plaintiffs found this configuration desirable, because “the confined aquifer will provide a constant upward flow gradient [that] will push any leachate escaping from the landfill into a leak detection and collection system (LDCS) which will be located on top of the Vashon till and below the protective liners of the landfill.” Pis.’ Ex. 43 1131. In other words, the plaintiffs expected that the combination of the pressure within the aquifer and the special nature of the Vashon till would protect the aquifer from any contamination leaking out of the landfill. Pls.’s Mem. Summ. J. 6.
As is typical in the modern regulatory state, before plaintiffs could begin construction of the landfill, they had to obtain a number of federal, state, and local permits. Of the many permits, plaintiffs identify the county Conditional Land Use Permit (“CUP”) 17 and the state Solid Waste Handling Permit (“Solid Waste Permit”) 18 as the key permits necessary to construct and operate the landfill. Pis.’ Mem. Summ. J. 16. Plaintiffs also claim that the remaining permits, with the notable exception of the 404 permit, were ministerial in nature and, thus, could not be denied once the CUP and Solid Waste Permit were in hand. Pis.’ Resp. 16. Plaintiffs accordingly applied for the CUP and Solid Waste Permit on December 29, 1989. Def.’s Ex. 73.
The Corps asserted jurisdiction and required a 404 permit because the project site included about 70 acres of wetlands. Def.’s Ex. 1(B) at 138. Specifically, the landfill required the destruction of about 21.6 acres of wetlands, including 13.7 acres of forested wetlands, 6.1 acres of scrub-shrub wetlands, and 1.8 acres of emergent meadow wetlands. Id. at 132. Plaintiffs proposed to mitigate the loss of wetlands by creating or enhancing wetlands on an 85-aere mitigation area, situated elsewhere on the landfill site. Id. at 227-28.
1. Obtaining the State Permits
The CUP, along with the Solid Waste Permit, required plaintiffs to comply with the State Environmental Protection Act (“SEPA”), 19 which in turn necessitated the preparation of a state Environmental Impact Statement (“SEIS”). 20 Def.-’s Ex. 27 at 393. In September 1990, Pierce County issued a draft SEIS, which concluded favorably towards plaintiffs’ project. Weyerhaeuser I, 873 P.2d at 500 . The final version was published on November 28, 1990. Id. From December 1990 though January 1991, the county held several public hearings to assess the adequacy of the SEIS and plaintiffs’ CUP application. Id. On April 10, 1991, the county’s Hearing Examiner released a report and decision upholding the adequacy of the SEIS and approving the CUP — subject to certain conditions, including a requirement that plaintiffs “secure the permits that are required from the other agencies prior to activation of the landfill.” Pis.’ Ex. 12 at 97; see also Weyerhaeuser I, 873 P.2d at 500-01 .
The Hearing Examiner’s decision with regard to both the CUP and the SEIS was appealed to the Pierce County Council, which remanded the decision for further fact-finding and additional hearings. See Def.’s Ex. 56 at 632. The Hearing Examiner held the second set of public hearings on plaintiffs’ CUP application and, on January 31, 1992, issued his second report, once again approving the permit. Id.; Pis.’ Ex. 169. On April 13,1992, the county council resumed its hearing on the appeals, approved the Hearing Examiner’s decision on the CUP, and denied the SEIS appeal, thus approving the SEIS. Weyerhaeuser I, 873 P.2d at 501 .
At this point, Gail and William Weyerhaeuser, neighbors to the project site, petitioned Pierce County Superior Court for a writ of review. Id. On February 12, 1993, the trial *459 court reversed the issuance of the CUP and the county’s dismissal of the SEIS appeal. Id. In response, both plaintiffs and Pierce County sought direct review by the Washington Supreme Court, bypassing the intermediate Court of Appeals. Id. The Washington Supreme Court granted review, and, on May 26, 1994, affirmed the Superior Court’s reversal of the CUP. Id. at 500, 504. The court further held that where the county’s alternatives analysis was concerned, “[t]he findings and conclusions are clearly inadequate to determine the basis for the hearing examiner’s decision upholding the adequacy of the EIS.” Id. at 504. The court also opined that the SEIS was unsatisfactory with regard to the Solid Waste Permit because the SEIS treated the county’s Solid Waste Management Plan (“SWMP”) 21 as a non-binding guideline instead of a mandatory criteria. Id. at 508-09. The court remanded the matter for further heai'ings on the CUP. Id. at 506. The court further required the county to revise the SEIS to “contain a sufficient discussion of offsite alternatives,” and to consider plaintiffs’ compliance with the SWMP’s mandatory criteria. Id. at 509. Accordingly, before the county could hold a third round of public hearings, it had to complete a supplemental SEIS, a process that took eleven months. Pis.’ Ex. 781125.
In October 1994, while the SEIS revisions were underway, the county Planning and Land Use Services Department (“Planning Department”), the lead agency on the CUP review and SEIS drafting processes, 22 informed plaintiffs that it would no longer act on their CUP application, and instead, plaintiffs would have to file a new CUP application. Weyerhaeuser v. Pierce County (“Weyerhaeuser II”), 95 Wash.App. 883 , 976 P.2d 1279 , 1282 n. 5 (1999); see also Def.’s Ex. 26 at 389-91. Plaintiffs sought a writ of mandamus to force the county to consider its original application. Weyerhaeuser II, 976 P.2d at 1282 n. 5. On January 13, 1995, the state Superior Court granted plaintiffs’ writ, ordering the county to proceed on plaintiffs’ original application. Id.; Def.’s Ex. 26 at 389-91.
Additionally, during the SEIS revisions, the county Health Department would not process plaintiffs’ Solid Waste Permit application. Def.’s Ex. 27. On April 21, 1995, in an attempt to reinitiate the Solid Waste permitting process, plaintiffs submitted a clarifying report to the department. Def.’s Ex. 25 at 385. On June 15, 1995, the department recognized plaintiffs’ clarifying report, but stated that until the revised SEIS had been finalized, the department could not consider plaintiffs’ Solid Waste Permit application complete. Id. at 385-87.
Once the revised SEIS was complete, the county held the final set of public heai’ings in September 1995, and on January 2,1996, the local Hearing Examiner approved the CUP for the third time, subject to conditions that plaintiffs obtain: (1) a Reasonable Use Exception (“RUE”) under the Pierce County Wetland Management Regulations (‘Wetland Regulations”), 23 Weyerhaeuser II, 976 P.2d at 1282 , 1282 n. 6; Pis.’ Ex. 43 at 340; and, (2) a 404 permit from the Corps, Def.’s Ex. 56 at 632-33. The Hearing Examiner also favorably reviewed plaintiffs’ Solid Waste Permit application. Following the Hearing Examiner’s report in favor of plaintiffs’ project and a review by the state Department of Ecology, the Health Department issued the Solid Waste Permit on February 7, 1996. Pis.’ Ex. 7. Again, a condition of this permit required plaintiffs to “obtain a 401 Certification from the Department of Ecology and a 404 permit from the United States Army Corps of Engineers (Corps) prior to implementing any construction of mitigation activities at this site as required by federal and state law.” Def.’s Ex. 34 at 482.
At this point, plaintiffs and the Weyerhaeuser each sought judicial review in Superior Court. The Weyerhaeuser appealed the grant of the two permits, while plaintiffs appealed the RUE requirement. Weyerhaeuser II, 976 P.2d at 1282 . On March 13, 1997, the court upheld both the Hearing Examiner’s approval of the CUP and the RUE *460 requirement. Id. at 1282 n. 6. The court also upheld the Solid Waste Permit, finding that “[t]he Health Officer’s decision to issue this permit is supported in the record and is therefore not arbitrary and capricious.” Def.’s Ex. 56 at 634.
Plaintiffs, but not the Weyerhaeusers, then appealed to the Court of Appeals, which reversed on May 29, 1999, holding that under. Washington’s vested rights doctrine, the RUE did not apply to plaintiffs because the county enacted the RUE requirement in 1992, after plaintiffs filed them permit applications. Id. at 1280-81. The court held that plaintiffs’ CUP application was subject only to the “regulations in effect at the time LRI submitted its application.” Id. at 1286.
Meanwhile, while waiting for the RUE issue to wind its way through the state judicial system, plaintiffs filed an application for a RUE with the Planning Department on May 23, 1996. Def.’s Ex. 73. On November 27, 1996, the county issued the RUE, subject to the condition that plaintiffs obtain “all appropriate federal, state, and local approvals, including a federal permit under Section 404 of the Clean Water Act.” Pis.’ Ex. 52 at 525.
2. Obtaining the Federal Permit
As if the state and local processes were insufficiently convoluted, because the landfill project apparently involved the fill of wetlands, plaintiffs apparently believed that they had to obtain a 404 permit from the Corps. See 33 U.S.C. § 1344 . Plaintiffs contend that they had no knowledge of the presence of wetlands on the project site until June 1989, when officials from the county Planning and Health Departments first suggested the presence of federal wetlands. Pis.’ Ex. 79 112. Subsequently, plaintiffs’ wetlands consulting firm confirmed that, under the Corps’ wetlands delineation guidelines, the project site likely contained jurisdictional wetlands. Id. at 113 . Plaintiffs first met with the Corps in September 1989, and, after concluding that it would be unwise to proceed without a 404 permit, filed their application for a 404 permit nearly a year later, in August 1990. Pis.’ Ex. 10; 'Pis'.’ Ex. 79(A); Pis.’ Facts 1118.
The 404 permit process was rife with disagreements between plaintiffs and the Corps, commencing with the publication of the public notice of plaintiffs’ permit application. Regulations require the Corps to issue a public notice within 15 days of the submission of a 404 permit application, but only if the application is complete. See 33 C.F.R. § 325.2 . Here, the parties disagree as to what happened. Defendant asserts that the Corps did not consider plaintiffs’ application complete and therefore could not move forward to publish a public notice on the application. Def.’s Ex. 1 at 12; Def.’s Facts 1111145-47; Def.’s Cross-Mem. Summ. J. 21; Def.’s Reply 5; but see Pis.’ Resp. to Def.’s Facts HU 145-47 (disputing that the application was incomplete). For the next 18 months, plaintiffs, nevertheless, in their own words, “eonstant[ly] badger[ed] and prodd[ed]” the Corps to issue the public notice. Pis.’ Ex. 79 1117; see also id. at (C), (E). This alleged “badgering and prodding” apparently ended on March 13, 1992, when the Coips issued the required public notice. Pis.’ Ex. 79(H).
Disagreements continued after the publication of the public notice, this time concerning the statement of the project purpose. This statement is important because it impacts the scope of the Coips’ practicable alternatives analysis, 24 which in ton affects whether a project receives approval. Plaintiffs originally stated that the project purpose was to “[ejonstruct and operate municipal solid waste landfill to respond to the requirements of the Pierce County Solid Waste Management Plan and to comply with Federal, State, and local sitting [sic] requirements.” Pis.’ Ex. 79(J) at 1083.
The Corps considered this statement of purpose too restrictive and wanted plaintiffs to rework it to allow the Corps to consider longhaul as a practicable alternative. Pis.’ Ex. 79(J) at 1083. Plaintiffs believed that they had correctly stated the project purpose and that the Corps’ position was contrary to *461 case law. Id. at (I) (citing Sylvester v. U.S. Army Corps of Eng’rs, 882 F.2d 407 , 409 (9th Cir.1989), and Louisiana Wildlife Fed’n, Inc. v. York, 761 F.2d 1044, 1048 (5th Cir.1985)). Over the next 14 months, the parties went back and forth over the necessity of revising the project purpose, but could not agree. See, e.g., Pis.’ Ex. 79 H1121-23; Def.’s Ex. 19. Finally, on February 25, 1994, plaintiffs acceded to the Corps’ demand and changed them project purpose, “[rjeeognizing that we have reached a stalemate” and not wanting “to delay the 404 process any further.” Pis.’ Ex. 79(P) at 1022. The final project purpose “provide[d] the unincorporated areas and the incorporated cities in Pierce County that participated in the 1989 Tacoma-Pierce County Solid Waste Management Plan (SWMP), with a viable, affordable, environmentally sound solid waste project to meet the projected needs.” Def.’s Ex. 1(B) at 143.
Furthermore, on March 4, 1994, to plaintiffs’ dismay, the Corps determined that it would require a federal EIS. See Def.’s Ex. 24 at 381-83. Plaintiffs assert that the Corps initially told them that a federal EIS would not be necessary, but nonetheless agreed to the development of a federal EIS because they calculated that it would require the Corps to assign more people to their application and provide an opportunity for plaintiffs to address Corps’ concerns about their plans to mitigate the impacts on affected wetlands. Pis.’ Ex. 79(P) at 1103; Pis.’ Ex. 80 H 8(b). Accordingly, the parties met to plan an expedited schedule for the preparation of the federal EIS. Pis.’ Ex. 79(P) at 1103. The schedule called for the drafting of the federal EIS by December 13, 1994, and its completion by May 8, 1995. Pis.’ Ex. 25 at 159. However, the federal EIS took longer to draft than the initial schedule allotted, and thus did not issue until December 8, 1995. Pis.’ Ex. 40. Public hearings occurred in January 1996.
During the drafting of the federal EIS, plaintiffs altered their landfill project plan, specifically attempting to address the Corps’ stated concerns. Specifically, plaintiffs’ revised plan reduced impacted wetlands from 37 acres to 21.6 acres, abandoned plans to relocate the South Ci'eek, a small stream on the project site, and modified the original wetlands mitigation plan. Def.’s Ex. 1 at 13.
A key component of the federal EIS involved the Corps’ analysis of practicable alternatives. After publishing the draft EIS and reviewing the public comments, the Corps preliminarily concluded that plaintiffs had not fully demonstrated that there were no practicable alternatives to the proposed landfill project. 25 The Corps asked plaintiffs for any additional information weighing on the subject, but claims that it did not receive any new information. Def.’s Ex. 1 at 13. Plaintiffs then requested that the Corps terminate the federal EIS process and, on June 7, 1996, the Corps terminated the EIS process without a final draft. Id.
On September 30, 1996, the Corps issued its Record of Decision (“ROD”) officially denying plaintiffs’ application. Def.’s Ex. 1. Plaintiffs subsequently filed a challenge to the Corps’ denial of plaintiffs’ 404 permit application in the U.S. District Court for the Western District of Washington on October 31, 1996. Def.’s Ex. 2; Pis.’ Ex. 56. The district court issued an oral opinion on September 16, 1997, upholding the Corps’ denial under the standards of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706 (governing judicial review of agency factfinding and legal interpretation). Def.’s Ex. 2; Pis.’ Ex. 56. Shortly thereafter, plaintiffs appealed to the Ninth Circuit. Resource I, 151 F.3d at 1165.
On July 27, 1998, the Ninth Circuit held that the Corps had “unreasonably]” asserted jurisdiction over the project site. Id. at 1169. The court determined that because the project in question was a solid waste landfill, rather than a fill or dredged material project, the EPA under RCRA, not the Corps through the CWA, had jurisdiction over federal permits for the project site. Id. Central to the court’s decision was a 1986 Memorandum of Agreement between the Corps and the EPA providing that the EPA would assume jurisdiction over the disposal of solid waste into wetlands under RCRA. Id. As such, the court held that requiring a 404 *462 permit from plaintiffs exceeded the Corps’ authority. Id. On February 3, 1999, the Ninth Circuit denied the Corps’ petition for reconsideration and rehearing en banc. Def.’s Facts 11202. On February 10, 1999, defendant’s deadline to petition the Supreme Court for certiorari passed and the Ninth Circuit’s decision issued its mandate, making the decision final.
3. Aftermath
In October 1998, approximately a decade after plaintiffs began the federal, state, and local permitting processes, plaintiffs finally began construction of the landfill. While plaintiffs still had to obtain some permits, they considered these “only ministerial permits, that the agency had no discretion to deny.” Def.’s Ex. 52 at 610. Additionally, plaintiffs explain that some of the permits required the placement of bonds of significant amounts of money that plaintiffs did not want to expend until construction was imminent. Pis.’ Supp. Mem. 8 n. 6. The remaining permits, and a brief summary of the application and issuance dates, are listed below. See also Pis. Supp. Mem. 9-11.
1. Forest Practices Permit. Applied November 5,1990; reapplied November 16, 1998; issued April 9, 1999. Def.’s Cross-Mem. Summ. J. 14; Def.’s Ex. 48.
2. Hydraulic Project Approval. Applied March 16, 1992; issued February 25, 1999. Def.’s Cross-Mem. Summ. J. 13; Def.’s Ex. 46.
3. National Pollutant Discharge Elimination System (“NPDES”) Permit for Stormwater Discharge Associated with Construction Activities & NPDES Permit for Stormwater Discharge Associated with Industrial Activities. Applied January 2, 1996; issued February 16, 1996. Def.’s Cross-Mem. Summ. J. 12; Def.’s Ex. 45.
4. Industrial Wastewater Discharge Permit. Effective February 15, 1996. Def.’s Ex. 73.
5. Dam Safety Permit. Applied May 22, 1996; issued March 31, 1999. Def.’s Exs. 45, 47.
6. County Wetlands Approval. Applied February 8, 1996, issued April 7, 1999. Def.’s Exs. 49, 73; Pis.’ Ex. 91.
7. Access Connection Permit. Applied November 20, 1998; issued July 27, 1999. Def.’s Supp. Br. 8; Def.’s Ex. 45.
8. Site Development Permit. Applied February 11, 1999; issued April 27, 1999. Def.’s Ex. 73.
9. Clean Air Act Permit. Applied November 5, 1999; issued December 10, 1999. Def.’s Ex. 55.
10. Five Building Permits. Applied April 27, 1999, September 1, 1999, November 1, 1999; issued September 17, 1999, October 21, 1999; December 7-8, 1999, respectively. Def.’s Ex. 73.
4. The Instant Complaint
On May 4, 1998, plaintiffs filed their original complaint against the United States in this court, seeking “just compensation” for a permanent regulatory taking under the Fifth Amendment, pursuant to this court’s jurisdiction under the Tucker Act, 28 U.S.C. § 1491 (a). Pis.’ Mem. Summ. J. 1; see also Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1362 (Fed.Cir.2005) (observing that this court’s Tucker Act jurisdiction “includes all takings claims against the United States”). On January 27, 2000, defendant filed a motion for summary judgment; plaintiffs responded by filing a cross-motion for summary judgment on February 28, 2000. Pis.’ Mem. Supp. Summ. J. 3. Subsequently, both parties submitted to mediation; those proceedings were terminated by court order on August 30, 2005.
Plaintiffs then filed an amended complaint on October 14, 2005, contending that any potential permanent taking converted into a temporary one when the Ninth Circuit’s Resource I opinion became final, on February 3, 1999. The parties then renewed them respective motions for summary judgement on November 29, 2005. This court heard oral arguments on the motions on April 27, 2006, and on May 3, 2006, entered an order requesting supplemental briefs from the parties on the issues of causation and the preclu *463 sive effect of the Ninth Circuit’s opinion. Scheduling Order, May 3, 2006. The parties filed their supplemental briefs on July 10, 2006. On February 25, 2008, the court held a telephone status conference with the parties. Currently before the court are these cross-motions for summary judgment as to the issue of liability.
B. REGULATORY PROCESS
Given the complex, overlapping regulatory processes at work in plaintiffs’ ease, and the government’s argument that state and local regulatory requirements (as opposed to the federal ones) caused the ills of which plaintiffs complain, it is useful at this point to provide an overview of the relevant regulations.
1. State & Local Landfill Regulations
The Solid Waste Division of the Pierce County Department of Public Works and Utilities is responsible for the development and administration of comprehensive solid waste management policy for Pierce County and its cities and towns. Washington State law requires the Solid Waste Division to prepare a Solid Waste Management Plan (“SWMP”). Wash. Rev.Code 70.95.080. The SWMP is a planning tool that provides the legal basis for Pierce County to make permitting decisions on solid waste facilities. 26 Pierce County developed its SWMP jointly with neighboring Tacoma County. In 1991, Pierce County amended the SWMP to expressly “select[] a local landfill as a long-term solid waste technology for disposal of source separated waste.” Pis.’ Ex. 43 at 347-48 (quoting Pierce County Ordinance 91-126).
Landfills in Pierce County require the acquisition of a solid waste handling permit and a conditional use permit. See Pierce County Code (“PCC”) § 19.80.080; SWMP. Both the solid waste handling permit and the conditional use permit require compliance with Washington’s State Environmental Policy Act (“SEPA”), Wash. Rev.Code 43.21C.010-43.21C.914. Wash. Admin. Code 173-351-700 (specifying state criteria for municipal solid waste landfills); 173-351-720 (detailing application procedures for landfill permits, including evidence of compliance with SEPA). SEPA requires a detailed environmental impact statement where the proposed activity constitutes an “action[] having a probable significant, adverse environmental impact.” Wash. Rev.Code 43.21C.031. Further, under SEPA, the health department can order mitigation of any adverse environmental impacts. Wash. Admin. Code 173-351-750(1). As a general rule, Washington prohibits the construction of landfills over sole source aquifers, as designated by the EPA, unless the permit applicant “can demonstrate ... that the sole source aquifer is not vulnerable to potential ground water contamination from the active area.” Wash Admin. Code 173-351-140(l)(b); see also 173-351-140(l)(b)(vii).
Solid waste handling permits are reviewed and approved by the state Department of Ecology and the relevant county health department. Wash. Admin. Code 173-351-185. In reviewing the permit application, the agencies must ensure that the application meets the SEPA criteria, satisfies the local SWMP, and complies with any zoning laws. Wash. Rev.Code 70.95.180. For wetlands, the agencies require, among other criteria, that the permit applicant rebut the presumption that other alternatives are available that do not require the destruction of wetlands. See Wash. Admin. Code 173 — 351—130(4)(a)(iii). In addition, solid waste landfills “must comply with any other applicable federal, state, and local rules, laws, regulations, and other requirements.” Wash. Admin. Code 173-351-120.
Additionally, the county code requires a conditional use permit — the written decision of hearing examiner authorizing a conditional use — when the characteristics of a site “require[ ] a special degree of control to determine if uses can be made compatible with the [Pierce County] Comprehensive Plan, adjacent uses, planned uses, and the character of the vicinity.” PCC § 18.25.030. The Planning Department is the lead agency for CUP *464 review and SEIS development. See Wash. Admin. Code 197-11-924 (defining rules for determining the lead agency); 197-11-050(2) (“The lead agency shall be the agency with the main responsibility for complying with SEPA’s procedural requirements and shall be the only agency responsible for: (a) The threshold determination; and (b) Preparation and content of environmental impact statements.”); PCC §§ 18D.10.050; 18D.10.060(B) (mandating that the Planning Department prepare a SEIS).
To approve a conditional use permit, the hearing examiner must make findings, based on the record, including that: (1) the proposed use will not harm the public health; (2) the proposed use will not adversely affect the character of the neighborhood; and (3) any hazardous conditions will be mitigated. PCC § 18A.75.030(B)(1). The burden of proving these elements lies with the permit applicant. PCC § 18A.75.040(B)(2). The hearing examiner is authorized to impose conditions or restrictions on the permit as necessary to ensure that the proposed use does not violate any of the required findings. PCC § 18A.75.030(B)(3). Under SEPA, these conditions can include ' mitigation requirements. Wash Admin. Code 197-11-660; PCC § 18D.40.060 (authorizing the hearing examiner to attach conditions that “are necessary to mitigate specific probable adverse environmental impacts identified in environmental documents prepared pursuant to [Pierce County’s environmental laws implementing SEPA]”).
2. Federal Wetlands Regulations
On the federal level, either the Corps or the EPA, but typically not both, will have jurisdiction over permits that can affect wetlands. For example, the EPA has authority over solid and hazardous waste disposal under RCRA. 42 U.S.C. § 6942 (a). This authority covers all solid waste landfills, even if they are located on wetlands. Id.; see also 40 C.F.R. § 258.12 (a)(1). Indeed, the Corps, recognizing the potential for regulatory overlap, entered into a Memorandum of Agreement (“MOA”) with the EPA agreeing to cede authority for solid waste disposal into wetlands with the promulgation of final RCRA regulations incorporating federal wetlands protection standards. Water Pollution Control; Memorandum of Agreement on Solid Waste, 51 Fed.Reg. 8871 (Mar. 14, 1986). The EPA promulgated most of these regulations on October 9, 1991. Solid Waste Disposal Facility Criteria, 56 Fed.Reg. 50,978 (Oct. 9, 1991) (eff. Oct. 9, 1993). On May 17, 1993, the EPA and the Corps extended the 1986 MOA “in its entirety until further notice ____” Def.’s Ex. 33 at 465 (memorandum from John G. Studt, Chief, Regulatory Branch, U.S. Amy Corps of Engineers).
The Corps has broad authority under section 404 of the CWA to “issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters____” 33 U.S.C. § 1344 (a); see also 33 U.S.C. § 1344 . “[N]avigable waters” includes certain wetlands. 33 C.F.R. § 328.3 (a)(3); 40 C.F.R. § 2303 (s)(3). See generally United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 , 106 S.Ct. 455 , 88 L.Ed.2d 419 (1985). “Dredged material” includes “material that is excavated or dredged from the waters of the United States,” 33 C.F.R. § 323.2 (c), (f), while “fill material” is defined as
material placed in waters of the United States where the material has the effect of: (i) Replacing any portion of water of the United States with dry land; or (ii) Changing the bottom elevation of any portion of water of the United States____ The term fill material does not include trash or garbage.
33 C.F.R. § 323.2 (e) (emphasis added).
It is significant that, neither all wetlands nor all “waters of the United States” fall within the Corps’ jurisdiction. See, e.g., Rapanos v. United States, 547 U.S. 715 , 126 S.Ct. 2208 , 165 L.Ed.2d 159 (2006) (holding that more than a remote hydrological connection to navigable waters is required for Corps’ jurisdiction); Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng’rs, 531 U.S. 159 , 121 S.Ct. 675 , 148 L.Ed.2d 576 (2001) (holding that the Corps’ CWA jurisdiction does not extend to non-navigable, hydrologieally isolated, intra-state wetlands adjacent to navigable waters). For the Corps to exercise jurisdiction over a wet *465 land on private property, the wetlands must be delineated as a “jurisdictional wetland.” Since January 1989, the Corps has operated under a wetlands delineation manual developed jointly with other federal agencies to identify such jurisdictional wetlands. See generally 53 Am.Jur. Trials § 511 (2008).
Once the delineation is complete and jurisdiction has attached, an application for the 404 permit follows. Undertaking this permit application process is no small feat, as it can “begin[] months, and often years before a project proponent actually files an application.” George A. Somerville, Developing Water Supplies: Navigating Federal Regulatory Requirements, in Water Law: Trends, Policies, and Practice 229, 229 (Kathleen Marion Carr & James D. Crammon, eds.1995). Indeed, “[a] major project requires extensive evaluation and documentation of alternatives and impacts before the Corps will consider the permit application complete.” Id. Once the application is complete, however, the regulations require the Corps to issue a public notice within 15 days of receipt. 33 C.F.R. § 325.2 ; see also 33 U.S.C. § 1344 (a) (“Not later than the fifteenth day after the date an applicant submits all the information required to complete an application for a permit [for dredged or fill material], the Secretary shall publish the notice----”). If incomplete, the Corps must notify the applicant of the remaining information necessary to complete the application within that same 15-day period. 33 C.F.R. § 325.2 . Despite the legal requirement to do so, it appears that the Corps rarely meets this deadline. See 53 Am.Jur. Trials § 511 (“In practice, Army Corps offices are nearly always late despite the clear mandate of the regulations.”); Pis.’ Ex. 175 at H 7.2 (“[I]t is very rare for any Corps district to react within the required 15 days of receipt of an application.”).
In evaluating whether to issue a permit, the Coips considers a number of factors including “the probable impacts ... of the proposed activity and its intended use of the public interest,” 33 C.F.R. § 320.4 , as well as the public and private needs and practicability of alternative locations for the proposed activity. 40 C.F.R. § 320.4 (a)(2). The Coips also requires a statement of project purpose. This statement impacts how the Corps determines if there are “practicable alternatives” to the dredge or fill of wetlands. This practicable alternatives provision is one of the more important and controversial aspects of the Corps’ application review process. 53 Am.Jur. Trials § 511. In brief, Corps regulations prohibit the discharge of dredge or fill material if “there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.” 40 C.F.R. § 230.10 (a). Wetlands are included under this provision, as “special aquatic sites.” 40 C.F.R. § 230.3 (q-1), 230.41. More specifically, where a project is not “water dependent,” meaning that it “does not require access or proximity to or siting within the special aquatic site in question to fulfill its basic purpose” (as defined in the project purpose), like a landfill, the Corps will presume that practicable alternatives are available. 40 C.F.R. § 230.10 (a)(3). There is a further presumption that all practicable alternatives that do not require discharge into the wetlands will have a “less adverse impact ... unless clearly demonstrated otherwise.” Id. An applicant must rebut both these presumptions to obtain a permit. 53 Am.Jur. Trials § 511. The Corps will consider an alternative practicable if it can be done “after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” 40 C.F.R. § 230.10 (a)(2).
If there are no practicable alternatives available, the Coips can still require “mitigation” to offset some of the damage from filling wetlands. See Kim Diana Connolly, Wetlands Law & Policy: Understanding Section 404 253, 257 (2005); see also 33 C.F.R. § 320.4 . Mitigation commonly involves the redevelopment of former wetlands or the rehabilitation of degraded wetlands. Id. at 258 . The Corps alone decides whether the applicant must mitigate and the amount of mitigation required, but the Corps’ guidance documents also require it to consider input from the applicant, other relevant federal agencies, state and local agencies, and the public. Id. at 256 .
*466 The National Environmental Protection Act (“NEPA”), 42 U.S.C. §§ 4321-70 , is also relevant to the permitting process because the creation of Environment Assessments and EIS helps the Coips conduct the analysis set forth above. Under NEPA, the Corps first prepares an Environmental Assessment, which briefly outlines the potential environmental impacts from the proposed project and determines the necessity for a more comprehensive EIS. 40 C.F.R. § 1508.9 . An EIS is required for “major federal action significantly affecting the quality of the human environment.” 42 U.S.C. § 433 (2)(c). In addition, as a prerequisite to the issuance of any 404 permit, the applicant must also obtain a state water quality certification under Section 401 of the CWA for any activity “which may result in any discharge into the navigable waters.” 33 U.S.C. § 1341 .
The whole process finally concludes when the Corps’ District Engineer issues a Statement of Findings (“SOF”). 33 C.F.R. § 325.2 . Aternaüvely, in when the Corps has prepared an EIS, the process can conclude when the District Engineer issues a ROD explaining the Corps’ reasons for granting or denying the permit. Id.
II. Discussion
A. Legal Standards
As the court faces cross-motions for summary judgment, a brief discussion is in order on summary judgment standards in the takings context. It should be emphasized that “[wjhether or not a taking has occurred is a question of law based on factual underpinnings.” Wyatt v. United States, 271 F.3d 1090, 1096 (Fed.Cir.2001). Thus, due to the “fact-intensive” nature of takings claims, courts are typically reluctant to decide such claims at the summary judgment stage, preferring to wait for a trial to fully develop the factual record. See Moden v. United States, 404 F.3d 1335, 1346 (Fed.Cir.2005); Yuba Goldfields, Inc. v. United States, 723 F.2d 884, 887 (Fed.Cir.1983); Sartori v. United States, 67 Fed.Cl 263, 266-67 (2005). Nevertheless, just because this is a takings case does not render summary judgment unavailable if it is appropriate to the circumstances before the court. Avenal v. United States, 100 F.3d 933, 936 (Fed.Cir.1996); Sartori, 67 Fed.Cl. at 266-67. Accordingly, the traditional standard for summary judgment remains applicable to this ease.
Pursuant to that standard, it is well-accepted that summary judgment is only appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See RCFC 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). Therefore, a court therefore must deny a motion for summary judgment if there are any factual disputes that would affect the outcome of the case. Liberty Lobby, 477 U.S. at 249 , 106 S.Ct. 2505 . The party moving for summary judgment initially bears the evidentiary burden to show that there are no genuine issues of material fact regarding the matter on which summary judgment is sought. Celotex Corp. v. Catrett, 477 U.S. 317, 323 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). The moving party may discharge this burden by demonstrating that the record lacks evidence for a required element of the nonmoving party’s case. Id. at 325 , 106 S.Ct. 2548 . Therefore, the movant may succeed whether or not it relies “on the pleadings, depositions, answers to interrogatories and admissions on file.” Id. at 324 , 106 S.Ct. 2548 .
When the movant properly identifies an absence of evidence in the non-movant’s case, the non-movant then has the burden to establish that element by identifying specific facts in the record that show a genuine issue of material fact for trial. Id. at 322 , 106 S.Ct. 2548 . Under these circumstances, the non-movant must go beyond its own pleadings to defeat a motion for summary judgment; “the court may not simply accept a party’s statement that a fact is challenged.” Barmag Barmer Maschinenfabrik AG v. Murata Machinery, Ltd., 731 F.2d 831, 835-36 (Fed.Cir.1984); see also RCFC 56(e)(2); Celotex, 477 U.S. at 324 , 106 S.Ct. 2548 ; TechSearch L.L.C. v. Intel Corp., 286 F.3d 1360, 1371 (Fed.Cir.2002) (“conelusory statements ... entirely lacking in factual support” are insufficient for summary judgment). Instead, the non-movant must oppose the summary judgment motion by identifying “an evidentiary conflict created on the record at *467 least by a counter statement of a fact or facts set forth in detail in an affidavit by a knowledgeable affiant. Mere denials or conclusory statements are insufficient.” Barmag Barmer, 731 F.2d at 836 (emphasis added). Thus, if the non-movant cannot identify a genuine issue of material fact in the record, the court must render summary judgment in favor of the movant so long as the movant is entitled to judgment as a matter of law. Celotex, 477 U.S. at 324 , 106 S.Ct. 2548 .
These same rules apply to cross-motions. See Gart v. Logitech, Inc., 254 F.3d 1334, 1338-39 (Fed.Cir.2001); GHS Health Maint. Org. v. United States, 76 Fed.Cl. 339, 349 (2007), aff'd, 536 F.3d 1293 (Fed.Cir. 2008); Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, 10A Federal Practice & Procedure § 2720 (2008). Cross-motions are not a claim that each side alone is entitled to summary judgment; rejecting one does not mean that the other is justified. Rains v. Cascade Industries, Inc., 402 F.2d 241, 245 (3d Cir.1968); see also Massey v. Del Labs., Inc., 118 F.3d 1568, 1573 (Fed.Cir. 1997); General Elec. Co. v. United States, 60 Fed.Cl. 782, 789 (2004); J. Cooper & Associates, Inc. v. United States, 53 Fed.Cl. 8, 15 (2002), aff'd, 65 Fed.Appx. 731 (2003). “The fact that both parties have moved for summary judgment does not mean that the court must grant judgment as a matter of law for one side or the other.” Prineville Sawmill Co., Inc. v. United States, 859 F.2d 905, 911 (Fed.Cir.1988); see also California v. United States, 271 F.3d 1377, 1380 (Fed.Cir.2001); Ecolab, Inc. v. Envirochem, Inc., 264 F.3d 1358, 1364 (Fed.Cir.2001).
B. The Parties’ Main Contentions
At this juncture, it is helpful to an understanding of the case to summarize the general positions of the warring parties. We shall see these a more detailed version of these arguments below when addressing the various specific issues emanating from the parties arguments. In their motion for summary judgment, plaintiffs argue that the Corps’ wrongful assertion of jurisdiction over the project site amounted to a regulatory taking of plaintiffs’ property, for which the federal government must pay “just compensation.” U.S. Const, amend. V; Pis.’ Mem. Summ. J. 2. Plaintiffs advance three overlapping theories in support of their takings claim, each thus becoming issues to be resolved. Pis. Mem. Summ. J. 2.
First, plaintiffs claim that the Corps, by denying plaintiffs’ 404 permit application, has denied plaintiffs all economically viable use of their property and thus effected a categorical taking of their property pursuant to Lucas v. South Carolina Coastal Council, 505 U.S. 1003 , 112 S.Ct. 2886 , 120 L.Ed.2d 798 (1992). Id. at 4. Plaintiffs contend that because the denial of economically viable use of their property was prospectively permanent, though subsequently cut short by the Ninth Circuit decision in Resource I, this court must find that there has been a taking if plaintiffs were without economically viable use of then- land and their proposed use as a landfill was permissible under the background principles of Washington State’s law of property and nuisance. Id. at 25-28. Plaintiffs assert that their operation of a landfill is a compensable use interest that is not barred by Washington State’s law of nuisance, because Washington State’s solid waste disposal statutes explicitly allow landfills. Id. at 29.
Plaintiffs also contend that once the Corps denied their Section 404 permit application to use the project site as a landfill, it was without any other economically viable use precisely because of the hydrogeological characteristics that made it so appropriate for a landfill. Id. at 30-38. According to plaintiffs, defendant’s attempts to show that the project site had some economically viable use are insufficiently supported by the record to create a genuine issue of material fact. Id. at 35-36; Pis.’ Resp. 34-38; Pis.’ Reply 16-20.
Plaintiffs further assert that this Court should grant summary judgment because there is no dispute as to any material fact that the Corps’ actions throughout the 404 permit process constituted an “extraordinary delay” that caused an economic loss to plaintiffs. Pis.’ Resp. at 39. Based on the Ninth Circuit’s decision in Resource I, characterizing the Corps’ assertion of jurisdiction as “unreasonable,” plaintiffs claim that the en *468 tire period during which the Corps asserted jurisdiction is per se unreasonable (and thus extraordinary) as a matter of law. Id. at 40-42. Plaintiffs also maintain that the Corps unreasonably delayed processing their permit, treated plaintiffs differently than other similarly-situated applicants, and ultimately denied the permit based on grounds that were obvious from the moment plaintiffs filed their application. Id. at 42-44. Plaintiffs assert that this delay caused extensive economic harm as the project site had neither interim nor long-term viable use while the Corps maintained jurisdiction and prevented plaintiffs from operating their landfill. Id. at 44-56.
As a fallback to both their Lucas and extraordinary delay arguments, plaintiffs assert that they are still entitled to summary judgment that the Corps affected a taking under the Penn Central balancing test. 27 Pis.’ Mem. Summ. J. at 57-58. Beyond the economic impact of being without economically viable use of the project site, plaintiffs contend that there are no genuine issues of material fact concerning either the Corps’ interference with plaintiffs’ reasonable investment-backed expectations or the economic impact of the Corps’ permit denial. Id. at 60-62. Moreover, plaintiffs assert that the Ninth Circuit’s opinion in Resource I has estopped defendant from asserting that the Corps’ assertion of jurisdiction and the entire permitting process was anything other than unreasonable. This, according to plaintiffs, is sufficient to establish, at the summary judgment stage, that the Corps did not have any real interest in regulating the wetlands on the project site. Id. at 58-60.
For each theory, plaintiffs contend that summary judgment is appropriate, that they are entitled to judgment as a matter of law, and that they have adequately supported their motion with facts on the record. Pis.’ Mem. Summ. J. at 20-22. According to plaintiffs, defendant has failed to show that a genuine dispute as to issues of material fact exists; thus, the Court should enter summary judgment for plaintiffs on all three theories.
Defendant, for its part, disputes both the factual and legal bases of all three theories in plaintiffs’ motion. Defendant asserts that it, not plaintiffs, is entitled to summary judgment on plaintiffs’ categorical and extraordinary delay takings claims. Defendant also argues that plaintiffs are not entitled to summary judgment on their Penn Central claim. Def.’s Cross-Mot. Summ. J. at 2-4.
Specifically, defendant asserts that plaintiffs are not entitled to summary judgment on their temporary categorical takings claim. Id. at 29. Instead, defendant urges that this court grant it summary judgment on that same claim. Id. at 29. According to defendant, there is no such thing as a temporary categorical taking; instead, a temporary taking can only be determined by balancing, pursuant to Penn Central, the government’s interest against the harm to the claimants, thus plaintiffs’ claim must fail as a matter of law. Id. at 29, 32-36, 38-42. Defendant further maintains that even if plaintiffs are correct that temporary categorical takings exist, plaintiffs’ alleged taking is not categorical because they did retain economically viable use of their land both while the 404 permit was pending and after its denial. Id. at 38-42.
Just as with plaintiffs’ categorical takings claim, defendant asserts that it is, and plaintiffs are not, entitled to summary judgment on plaintiffs’ extraordinary delay claim. Id. at 3. Defendant maintains that extraordinary delay only applies where an agency has not made a final decision, not in a situation where the relevant federal permit was denied, as plaintiffs charge in the instant case. Id. at 43-44. Defendant argues that even if the permit was denied, this court must still assess the alleged taking pursuant to Penn Central. Id. Moreover, according to defendant, the Corps’ mistaken assertion of juris *469 diction is legally insufficient to support plaintiffs’ extraordinary delay claim; thus, the Court should enter summary judgment for defendant. Id. at 44-46.
Nor are plaintiffs entitled to summary judgment on them Penn Central claim, according to defendant, because all three prongs of the test, which this opinion discusses in detail below, cut against plaintiffs on summaiy judgment. Id. at 3-4. Defendant contends that because the Corps acted to protect the public interest by preventing any risks to wetlands or aquifers and because it had no reason to think that there were any legal defects in its assertion of jurisdiction over the project site, plaintiffs cannot establish the “character of the government action” prong at the summary judgment stage. Id. at 46-51. Similarly, defendant argues that the complex regulatory permitting scheme on the state and local levels prevents this court from granting summary judgment that plaintiffs had reasonable investment-backed expectations in operating a landfill on their property. Id. at 51-53. Defendant also maintains that plaintiffs retained substantially economically viable uses of the project site, such that plaintiffs cannot establish the economic impact prong of the Penn Central test at this stage of the litigation. Id. at 54-57.
Accordingly, the parties raise the following issues, which the court will address seriatim. For plaintiffs’ categorical takings claim, there are three issues: (1) whether plaintiffs possessed a Fifth Amendment-protected property interest; (2) whether applying Lucas to plaintiffs’ temporary regulatory takings claim would violate Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 , 122 S.Ct. 1465 , 152 L.Ed.2d 517 (2002), and the “parcel as a whole” rule; and if not, (3) whether plaintiffs retained economically viable use of their parcel despite the Corps’ denial of them 404 permit application. For plaintiffs’ extraordinary delay claim there are three related issues: (4) whether the Corps’ denial of plaintiffs’ 404 peimit application is fatal to the extraordinary delay claim because such a claim must be based on agency inaction; if not, (5) whether Resource /’s finding that the Corps’ assertion of jurisdiction was “unreasonable” is binding under the doctrine of collateral estoppel and whether this finding established a per se extraordinary delay as a matter of law; and, finally, (6) whether there was in extraordinary delay in the permitting process and if so, who bears such responsibility. For plaintiffs’ fallback Penn Central claim, the parties dispute each of the three prongs prong of that balancing test: (7) the economic impact of the Corps’ denial on plaintiffs; (8) whether plaintiffs had reasonable investment-backed expectations; and (9) the character of the government action. Additionally, and most critically, this court will separately address (10) the issue of causation as a requisite element in any takings claim. Because defendant contends that it was the actions of state and local authorities, or even plaintiffs’ own actions, that effected the alleged taking, and not those of the federal government, the question of causation becomes a paramount one. See Moden, 404 F.3d at 1343 (observing that causation must be shown in an inverse condemnation case because it is necessary to establish liability); Applegate v. United States, 35 Fed.Cl. 406, 415-16 (1996) (holding that causation is an essential element in a takings claim). This also means that the discussion of the above enumerated legal issues becomes an exercise in adjudication of whether plaintiffs’ claims are cognizable.
Nevertheless, to address these multiple issues in a coherent manner, it is desirable to first turn to the substantive law of takings. Some background in the development of the law of takings is necessary because the holdings of certain case law permeate all the issues and arguments in the instant action. It is this underlying commonality that justifies its own introductory discussion. As is customary, it is always a good idea to begin at the beginning.
C. Traveling the Path to a Taking
The Fifth Amendment of the Constitution specifically protects private property from governmental incursions by preventing “private property [from] be[ing] taken for *470 public use without just compensation.” 28 U.S. Const, amend. V. The “Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some 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 , 80 S.Ct. 1563 , 4 L.Ed.2d 1554 (1960). Indeed, James Madison, often described as “the Father of the Constitution,” 29 explained that such protection is government’s chief responsibility, 30 because, in the words of Arthur Lee, a Founding Father from Virginia, property is the “guardian of all rights.” 31
Over the years, the law has distinguished three broad categories of takings: those defined by the governments’ powers of eminent domain, 32 those resulting from a “physical invasion” by the government without bringing an eminent domain proceeding, 33 and those resulting from the impact of *471 regulation. 34 The first two, having an older lineage, could be referred to as “traditional takings,” and the latter two require a landowner to file an “inverse condemnation” suit seeking just compensation. See Agins v. City of Tiburon, 447 U.S. 255 , 258 n. 2, 100 S.Ct. 2138 , 65 L.Ed.2d 106 (1980) (distinguishing eminent domain from inverse condemnation); Tabb Lakes, Ltd. v. United States, 10 F.3d 796 , 800 n. 3 (Fed.Cir.1993) (quoting Agins); see also Hendler v. United States, 952 F.2d 1364, 1371-74 (Fed.Cir.1991) (tracing the historical development of these categories). “While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings.” First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 316 , 107 S.Ct. 2378 , 96 L.Ed.2d 250 (1987). Traditionally, all three categories covered interference with private property “to an extent that, as between private parties, a servitude is taken.” United States v. Dickinson, 331 U.S. 745, 748 , 67 S.Ct. 1382 , 91 L.Ed. 1789 (1947).
For the purposes of the cross-motions for summary judgment, several cases establishing binding legal precedent (which crisscross the multiple issues facing the court) create a conceptual roadmap that this court must follow. A biief discussion that will establish that the law binding this court is thus is in order. The first, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 , 43 S.Ct. 158 , 67 L.Ed. 322 (1922), established the legal standard to evaluate takings resulting from regulatory actions as opposed to eminent domain or physical invasions. The Supreme Court faced a challenge to Pennsylvania’s Kohler Act, which banned the mining of anthracite coal “in such way as to cause the subsidence” of a dwelling. Id. at 412-13 , 43 S.Ct. 158 . In essence, the regulation made it commercially impracticable to mine the coal where the owner possessed the underlying mineral rights but not the surface estate. Id. at 412, 414-15 , 43 S.Ct. 158 .
Writing for the Court, Justice Holmes recognized the conundrum that “[gjovemment hardly could go on if, to some extent, values incident to property could not be diminished without paying for every such change in the general law.” Id. at 413 , 43 S.Ct. 158 . Yet, just because a government should not pay for every such change does not meant that the government need not pay for any such change. Id. The Supreme Court highlighted the extent of diminution of “values incident to property” as a key consideration in determining when a government need compensate a landowner. Id. “[Wjhen [the diminution of values incident to property] reaches a certain magnitude, in most if not in all cases, there must be an exercise of eminent domain and compensation to sustain the act.” Id. Thus, Pennsylvania could not enact the Kohler Act without compensating the landowners, because its requirement to retain surface support extensively interfered with value of mining rights, did not treat a public nuisance, was not justified by personal safety, and purported to abolish what Pennsylvania recognized as a valid and valuable property interest. See id. at 413-14 , 43 S.Ct. 158 . 35 Justice Holmes then summarized the holding in the now-famous maxim “[t]he general rule is that while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking.” *472 Id. at 415 , 43 S.Ct. 158 . It would not be inaccurate to characterize all subsequent regulatory takings jurisprudence as the search for directions to Justice Holmes’s “too far” destination. Whether the federal government went “too far” in its alleged regulation of plaintiffs’ property is one, if not the paramount, issue in this case.
Although the Supreme Court did not provide turn-by-turn directions to this destination, it identified some useful landmarks along the way in Penn Central Transportation Co. v. New York City, 438 U.S. 104 , 98 S.Ct. 2646 , 57 L.Ed.2d 631 (1978), elaborating on just how far is “too far.” In Penn Central, the owners of Grand Central Station (“the owners”) sought compensation for its designation as a landmark 36 pursuant to New York City’s Landmarks Preservation Law (“Landmark Law”), which prevented the owners from using their air rights 37 to construct a building over the eight-story Grand Central Station building. Id. at 109-115, 129-30 , 98 S.Ct. 2646 . 38
Subsequently, the owners sought further review in the Supreme Court, which began with an extensive historical exposition of takings law. Id. at 122-24 , 98 S.Ct. 2646 . The Court observed that takings typically do not occur when: (a) government causes economic harm to interests that were not “sufficiently bound up with the reasonable expectations of the claimant to constitute ‘property’ for Fifth Amendment purposes”; 39 or (b) a state validly exercises its police power, such as zoning, to promote “ ‘health, safety, morals, or general welfare’ by prohibiting particular contemplated uses of land ... [and thereby] destroyed or adversely affected recognized real property interests.” Id. at 125 , 98 S.Ct. 2646 . In turn, the Court characterized those precedents finding a taking without a permanent physical invasion as divided between: (a) those like the regulation gone “too far” in Mahon , where the functional destruction of a property interest or denial of economically viable use of property “so frustrates distinct investment-backed expectation to amount to . a taking”; and (b) those in which “government actions that may be characterized as acquisitions of resources to permit or facilitate uniquely public functions” without functionally destroying the property right, such as those caused by periodic invasions of air *473 rights for air traffic and military purposes. 40 Id. at 127-28, 98 S.Ct. 2646 .
Significantly, the Court, unlike in Mahon , did not view the issue before it as whether state law regulated out of existence a valid, clearly-defined, property interest. Id. at 124-25, 98 S.Ct. 2646 . Instead, the Penn Central Court abandoned the common law-based inquiry into the contours of the police power, nuisance law, and property interests in favor of “essentially ad hoc, factual inquiries,” crafting a balancing test that included weighing “the character of the government action,” “the economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.” See id. at 124-25 , 98 S.Ct. 2646 . Moreover, the Court differentiated between government interference with property lights “from adjusting the benefits and burdens of economic life to promote the common good,” and interference that can be characterized as a physical invasion, the latter being more likely to effect a taking. Id. at 124 , 98 S.Ct. 2646 . 41
Even more important to the modern law of takings (and an important issue in the case at bar), the Supreme Court established what came to be known as the “parcel as a whole” rule when it rejected the argument that any restriction on any possessory interest or parcel of property affected by regulation could rise to a level of a taking. Id. at 130-31 , 98 S.Ct. 2646 . Instead, the Penn Central Court focused on the “nature and extent of the interference with rights in the parcel as a whole,” which in this ease was the entire block, rather than just the air rights over Grand Central Station. Id. at 130-31 , 98 S.Ct. 2646 . Nevertheless, the viability of the “parcel of the whole” approach was thrown in some doubt by the Court in Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 479 , 107 S.Ct. 1232 , 94 L.Ed.2d 472 (1987), which required the application of the so-called “denominator test.” The denominator test typically looks to the degree of harm suffered by the property owner instead of the extent of the property interest owned by the property holder as is the case in the “parcel as a whole approach.” The degree of harm under the denominator test depends on the extent of property affected by the restriction. This was termed the “takings fraction,” where the numerator is the diminution in the value of the property right and the denominator is the owner’s relevant property interest, i.e., the “affected interest” of property impacted by the regulation. See generally Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L.Rev. 1165, 1190-93 (1967) (discussing the difficulties in identifying the “denominator” against which the diminution in value is to be compared). Clearly, the more restrictive the denominator, the greater the chance the law will find a taking. See id. The Court in Palazzolo seemed to favor the denominator test. See 535 U.S. at 631-32 , 122 S.Ct. 1781 (declining to answer “the diffi *474 cult, persisting question of what is the proper denominator in the takings fraction” because the petitioner alleged a taking of the entire parcel); see also Appolo Fuels, Inc. v. United States, 381 F.3d 1338, 1346-47 (Fed.Cir. 2004) (assessing the relevant denominator for an alleged taking of multiple mining leases); Florida Rock V, 18 F.3d at 1578-79 (concluding that the appropriate denominator is the entire fee interest because there is no question of the taking of a severable interest such as mineral rights).
In short, subsequent decisions have characterized Penn Central to require a three-pronged balancing test weighing: (1) the “economic impact of the regulation on the claimant”; (2) “the extent to which the regulation has interfered with distinct investment backed expectations”; and (3) “the character of the governmental action.” See, e.g., Cienega Gardens v. United States (Cienega Gardens IX), 503 F.3d 1266, 1279 (Fed.Cir.2007); Appolo Fuels, 381 F.3d at 1344-45 ; Cooley v. United States, 324 F.3d 1297, 1306-07 (Fed. Cir.2003). Nonetheless, the Penn Central Court did not resolve whether its balancing-test applied to all regulatory impingements— regardless of the amount by which the regulation reduced the value of the affected property interest — and exactly what remedy courts may award when a taking has occurred without just compensation.
The Supreme Court, in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 306-07, 311 , 107 S.Ct. 2378 , 96 L.Ed.2d 250 (1987), 42 resolved the second issue by holding that once a taking has occurred, just compensation is the only proper remedy. Importantly, in considering this issue, the Supreme Court established the concept of a “temporary takings,” whereby the property owner was entitled to compensation for the period a regulation had unconstitutionally taken the property interest in question until it had been rescinded or repealed — or, in other words, the effect of the taking had been “cut short.”
The other issue left open in Penn Central — whether its balancing test is applicable to all regulations regardless of the degree of harm the regulation caused — was answered in the negative in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 , 112 S.Ct. 2886 , 120 L.Ed.2d 798 (1992). 43 In essence, the Court held that if a regulation works a complete “wipe out” of economic value, the balancing factors do not apply, because the regulation is a per se taking (also called a “categorical” taking), because it is functionally equivalent to a taking caused by physical destruction or eminent domain. Id. at 1016-18 , 112 S.Ct. 2886 . It should be pointed out that even before Lucas , the Court had recognized the two classes of per se regulatory takings that side-stepped the Penn Central “ease-specific inquiry into the public interest advanced in support of the restraint.” Id. at 1015-16 , 112 S.Ct. 2886 . The first “encompasses regulations that compel the property owner to suffer a physical ‘invasion’ of his property ____ no matter how minute the intrusion.” Lucas, 505 U.S. at 1015 , 112 S.Ct. 2886 (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 , 102 S.Ct. 3164 , 73 L.Ed.2d 868 (1982)). As the *475 Lucas Court explained, it had already held that Penn Central did not abrogate the rule that a permanent physical occupation is a taking without regard to other factors discussed at length in Penn Central. Id. at 1016-17, 112 S.Ct. 2886 ; see also Loretto, 458 U.S. at 426 , 102 S.Ct. 3164 .
The other category of per se takings are those in which “regulation denies all economically beneficial or productive use of land.” Lucas at 1016-17, 112 S.Ct. 2886 . While the Supreme Court had previously identified this category, 44 the Lucas Court noted that it “ha[d] never set forth the justification for this rule,” id., nor previously held that a regulatory prohibition denying all economically beneficial use of land, as opposed to a physical invasion, sufficed to establish a prima facie [in other words, a per se] taking. Id. at 1016-18 , 112 S.Ct. 2886 . 45 To be sure, implicit in Lucas is that the concept of per se or categorical taking is its corresponding opposite doctrine of “partial taking,” determined not by a bright line per se rule, but by application of the Penn Central balancing factors. See Palazzolo v. Rhode Island, 533 U.S. 606, 617 , 121 S.Ct. 2448 , 150 L.Ed.2d 592 (2001) (“Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a congruence of factors, including the regulation’s evasive effect on the landowner, the extent to which the regulation interferes with reasonable investment backed expectations, and the character of the government action.” (citing Penn Central, 438 U.S. at 124 , 98 S.Ct. 2646 )); Florida Rock V, 18 F.3d at 1568 (noting that “[njothing in the language of the Fifth Amendment compels a court to find a taking only when the Government divests the total ownership of ... private property without reference to the owner’s remaining property interest” (emphasis in original)).
What is more, the Lucas Court refused to adopt an exception for regulation to combat “noxious use” of property, reasoning that such an exception would swallow the rule and nullify Mahon’s holding that a total taking, even pursuant to the police power, requires just compensation. See id. at 1025-26 , 112 S.Ct. 2886 . Instead, the Court identified two much narrower exceptions in setting forth the test to assess whether the regulation amounts to a categorical taking. Id. at 1027-30 , 112 S.Ct. 2886 . As a threshold matter, a court must “determine the nature of the owner’s estate” to ensure that the proscribed use interests were not excluded from the owner’s title, either by transaction or by the “background principles of the State’s law of property and nuisance.” 46 Id. at 1027, 1029 , 112 S.Ct. 2886 . If the proscribed uses are indeed compensable property interests, a court must then assess whether the owner has been deprived of all economically beneficial use of that interest. 47 Id. at 1018, 1029-30 , 112 *476 S.Ct. 2886 . Thus, if the landowner owns a use interest that is not prohibited by the background, principles of the state’s law of property and nuisance, and the taking of which leaves the landowner without economically viable use of his land, that denial of use is a per se taking for which the landowner must be compensated. See id. at 1027-30 , 112 S.Ct. 2886 .
The final, and most controversial, piece of the puzzle is Tahoe-Sierra Pres. Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 320 , 122 S.Ct. 1465 , 152 L.Ed.2d 517 (2002). Like Lucas, TahoeSierm presented the Supreme Court with a facial challenge to local land use regulation. Id. Yet, unlike Lucas , the regulation at issue in Tahoe-Sierra specified that it was only temporary, a moratorium on development. Id. It was not a permanent regulation “cut short” as was the case in First English. See id. Furthermore, and significantly, the Tahoe-Sierra Court breathed new light into the “parcel of the whole” approach. See id. at 327, 331-32 , 122 S.Ct. 1465 .
The regulation at issue in Tahoe-Sierra consisted of two moratoria “to maintain the status quo while studying the impact of development on Lake Tahoe and designing a strategy for environmentally sound growth.” Id. at 306 , 122 S.Ct. 1465 . Ordinance 81-5 “prohibited the construction of any new residences” in areas that were considered vulnerable to adverse impacts from development and “specified that it would terminate when the regional plan” to deal with the threat development posed became final. Id. at 311 , 317 n. 13, 122 S.Ct. 1465 . After the regional plan was delayed in development, the land use authority passed Resolution 83-21 “ ‘which completely suspended all project reviews and approvals’ .... until a new regional plan was adopted____” Id. at 311 , 122 S.Ct. 1465 . This resolution specifically stated that it was limited to 90 days. Id. at 317 n. 13, 122 S.Ct. 1465 . These two moratoria, in concert, prevented all construction on certain lands in the Tahoe-Sierra basin for 32 months. See id. at 312 , 122 S.Ct. 1465 . Two months into Resolution 83-21, a group of landowners whose property was affected by the moratorium filed suit, claiming, like in Lucas , that the mere enactment of the two moratoria had taken all viable economic uses of their property without compensation. Id. at 313, 122 S.Ct. 1465 .
The Supreme Court, however, disagreed, “relying on the familiar Penn Central approach when deciding cases like this, rather than by attempting to craft a new categorical rule.” Id. at 342, 122 S.Ct. 1465 . Whereas the regulation at question in Lucas stated that the ban on development “ “was unconditional and permanent,’” the Court found it dispositive that the regulations at issue in Tahoe-Sierra were merely temporary measures, which specifically stated that they would terminate. Id. at 329, 122 S.Ct. 1465 (quoting Lucas, 505 U.S. at 1012 , 112 S.Ct. 2886 ). Nonetheless, the Court did not hold that “the answer to the abstract question whether a temporary moratorium effects a taking is [either] ‘yes, always’ [or] ‘no, never’; the answer depends upon the particular circumstances of the case.” Id. at 321, 122 S.Ct. 1465 .
This temporizing was the result of the revival of the “parcel of the whole” approach. Instead of analyzing a taking from the perspective of the harm to that portion of property or property interest affected by the regulation, the Court looked to the harm with respect to all of the property or to the entirety of all the property owner’s interests. Tahoe-Sierra at 327, 331-32, 122 S.Ct. 1465 (citing to Penn Central , it was clear that the Court rejected the denominator approach that it used in Keystone and advocated in Palazzolo). The Tahoe-Sierm Court thus explained that because an interest in real property is defined by the metes and bounds of its geographic dimensions and bounded by the length of the owner’s temporal interest, any analysis of the “parcel as a whole” must consider both. Id. at 331-32, 122 S.Ct. 1465 . *477 In other words, the “whole” in “parcel of a whole” included temporal future interests as well as present possessory interests (such as tenancies or easements) recognized at common law. 48 See id. (discussing “the temporal aspect of the owner’s interest”). Therefore, the Supreme Court in Tahoe-Sierm held that “a permanent deprivation of the owner’s use of the entire area is a taking of ‘the parcel as a whole,’ whereas a mere temporary restriction that simply causes a diminution in value is not,” presumably because, much like a future interest, the property owner will regain the use of the property at a future date. Id. at 332 , 122 S.Ct. 1465 .
Based on that logic, the Supreme Court in Tahoe-Sierm deemed it improper to assess the impact of the 32-month moratorium on only the landowner’s use interests over that same 32-month span. Id. at 326-27, 330-31 , 122 S.Ct. 1465 . The Court criticized this approach as one of “conceptual severance,” 49 which ignores the “parcel as a whole” approach by severing a mere temporal slice fi’om the entire use interest, rather than assessing the regulation’s impact on the entire parcel. Id. at 326-27, 330-31 , 122 S.Ct. 1465 . Deeming it improper to find a total taking of some stick in the bundle of rights only after slicing up the temporal dimensions of the landowner’s property interests, the Court refused to analyze this isolated 32-month segment in isolation. See id. at 331-32 , 122 S.Ct. 1465 . Instead, the Court emphasized that Lucas treatment is only appropriate if “there was a total taking of the entire parcel; if not, then Penn Central [is] the proper framework.” See id. at 331 , 122 S.Ct. 1465 . The Court reasoned that a temporary prohibition on economically viable use logically could not effect a taking of an entire fee simple estate, which would recover its value when the prohibition is lifted. Id. at 332 , 122 S.Ct. 1465 . Such a temporary prohibition, according to the Court, is only a temporary restriction on property, rather than a taking. See id. Thus, because the landowner alleged a total taking of only a temporal segment, rather than one of “the parcel as a whole,” the Court did not apply Lucas. Id. at 306, 331-33 , 122 S.Ct. 1465 . Instead, the Court instructed that without a total taking of the parcel as a temporal whole, the Penn Central test will determine whether regulation has effected a partial taking. Id.; see also Palazzolo v. Rhode Island, 533 U.S. 606, 633 , 121 S.Ct. 2448 , 150 L.Ed.2d 592 (2001) (O’Connor, J., concurring) (observing that Penn Central , along with other partial regulatory takings cases, is the “polestar” for such analysis).
Based on the foregoing discussion, several points are clear, and helpful in framing this court’s analysis of the issues presented by the parties’ cross-motions for summary judgment. Government regulation goes “too far,” and effects a total or “categorical” taking, when it deprives a landowner of all economically viable use of his “parcel as a whole.” See Palm Beach Isles Assocs. v. United States (Palm Beach Isles II), 231 F.3d 1354 , 1359-65 (Fed.Cir.2000) (differentiating categorical takings from partial ones). If the taking is not of the entire parcel as a whole, either temporally or by its metes and bounds, government regulation can still ef *478 feet a partial taking pursuant to the fact-intensive Penn Central balancing test. See id..; Florida Rock V, 18 F.3d at 1568 (justifying application of Penn Central balancing test to partial takings). And, once an uncompensated taking has occurred, the remedy is for government to provide just compensation for what it has taken, even if the government action causing the taking is later rescinded, discontinued, or abrogated. See Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 800-802 (Fed.Cir.1993) (quoting First English for the proposition that the government must provide just compensation for what it has taken). Further, for a court to find an unconstitutional taking by applying either the per se rule or the Penn Central balancing test, the property owner must establish a legitimate property interest that is detrimentally affected by the governmental action. See, e.g., Air Pegasus of D.C. Inc. v. United States, 424 F.3d 1206, 1212 (Fed.Cir.2005) (observing that only those with a valid property interest are entitled to just compensation). However, a showing of a mere diminution in value of a property interest alone is insufficient to constitute an unconstitutional taking. See Florida Rock V, 18 F.3d at 1570 (differentiating partial takings from non-compensable “mere diminutions”); see also Cienega Gardens v. United States (Cienega Gardens VI), 331 F.3d 1319, 1343-44 (Fed.Cir.2003) (quoting Florida Rock V).
With the relevant background in hand, we now turn to assessing, in turn, each of plaintiffs’ specific theories that the Corps’ actions concerning plaintiffs’ 404 permit application effected a taking of the project site.
D. The Specific Issues Before the Court
1. Did Plaintiffs Possess a Fifth Amendment-Protected Property In- . terest?
Before assessing plaintiffs’ categorical takings claim, this court must, as a threshold matter, determine whether plaintiffs possessed a property interest protected by the Fifth Amendment. See, e.g., Colvin Cattle Co. Inc. v. United States, 468 F.3d 803, 806 (Fed.Cir.2006); Chancellor Manor v. United States, 331 F.3d 891, 901 (Fed.Cir. 2003); M & J Coal Co. v. United States, 47 F.3d 1148, 1153-54 (Fed.Cir.1995); The Federal Circuit, whose precedent binds this court, explicitly requires a two-step approach to takings claims regardless of the type of taking before the court. “First, a court determines whether the plaintiff possesses a valid interest in the property affected by the governmental action, i.e., whether the plaintiff possessed a ‘stick in the bundle of property rights.’ ” Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 (Fed.Cir.2002) (quoting Karuk Tribe of Cal. v. Ammon, 209 F.3d 1366, 1374 (Fed.Cir.2000) (internal citation omitted)); see also Lucas, 505 U.S. at 1030 , 112 S.Ct. 2886 (explaining that relevant state law to is typically used to define the interests that qualify as “property” under the Fifth Amendment). If the plaintiff does possess such an interest, “the court proceeds to the second step, determining whether the governmental action at issue constituted a taking of that ‘stick.’” Boise Cascade at 1343 (quoting Karuk Tribe, 209 F.3d at 1374 ).
Concerning this first step, both plaintiffs clearly had valid property interests. Plaintiff RII owned the project site in fee simple and LRI initially had a right of entry, which then converted to a 99-year lease with the right to use the property for any purpose, including building construction and general improvements. Def.’s Ex. 7, 32; Def.’s Facts HIT 7 — 10. There is no evidence that either plaintiff acquired a property interest specifically excluding the right to construct and operate a solid waste landfill. Because neither plaintiffs title excluded landfill use, each plaintiffs respective title implicitly permitted such use. See Lucas, 505 U.S. at 1029 , 112 S.Ct. 2886 (regulations leaving property without economically viable use must “inhere in the title itself’); Karuk Tribe, 209 F.3d at 1375 (“the term ‘property1 as used in the Taking Clause includes all rights inhering in ownership, including the right to possess, use, and dispose of the property”); see also Billings v. United States, 232 U.S. 261, 280-81 , 34 S.Ct. 421 , 58 L.Ed. 596 (1914) (discussing use inherent in the right of ownership); Mitchell Arms, Inc. v. United States, 7 F.3d 212, 217 (Fed.Cir. 1993) (same). See generally 1 William *479 Blackstone, Commentaries 138 (“The third absolute right, inherent in every Englishman, is that of property: which consists of the free use, enjoyment, and disposal of his acquisitions.”); Hansen v. United States, 65 Fed.Cl. 76, 98-101 (2005) (discussing the history of the common law right to use property). But merely observing that neither plaintiffs title excluded such use is only a starting point for this court’s analysis. See Chancellor Manor v. United States, 331 F.3d at 901.
Crucially, Washington State statutes neither prohibit solid waste landfills nor considers them a nuisance, which would have meant that plaintiffs could not have suffered a taking. See Lucas, 505 U.S. at 1029-31 , 112 S.Ct. 2886 (abating and preventing nuisance is never a taking, because the landowner never has the right to create a nuisance). Rather, Washington State law explicitly allows solid waste landfills (though not without some regulation). See Wash. Rev.Code 70.95 (solid waste statute regulating landfills). Moreover, Washington State statute also expressly bars nuisance actions for anything “done or maintained under the express authority of a statute.” See Wash. Rev.Code 7.48.160. Thus, merely constructing and operating a solid waste landfill, as plaintiffs planned to do, is not a nuisance in the abstract in Washington State.
But if the particulars of plaintiffs’ proposed use created a nuisance under Washington State common law, it would mean that plaintiffs did not have a valid use interest in creating and/or operating their landfill. See Lucas, 505 U.S. at 1029-31 , 112 S.Ct. 2886 (requiring that regulations barring economically viable use of land already be present in “the background principles of the State’s law of property and nuisance”). In evaluating whether plaintiff’s proposed construction and operation of a landfill was likely to create a nuisance, the Pierce County hearing examiner found that plaintiffs’ proposed solid waste landfill lacked adverse impact from noise, Pis.’ Ex. 43 Iff 72-79; air pollution, id. 11H 80-84; traffic, id. 111196-97; and groundwater and surface water, Pis.’ Ex. 46 H118R, 9R; and did not qualify under the statutory definition of a nuisance, Pis.’ Ex. 43 11109A. The Pierce County Superior Court eventually upheld all of these findings. Pis.’ Ex. 53 at 528-59. Consequently, the particulars of plaintiffs’ proposed uses were not within the state’s power to bar absent payment of just compensation. See Lucas at 1029-31, 112 S.Ct. 2886 .
In short, plaintiffs’ titles did not exclude their proposed use. That use, in the abstract, was expressly allowed by statute, and thus not a nuisance by statutory definition. Nor did the specifics of that proposed use constitute a nuisance or even a likelihood thereof under the background principles of Washington State’s law of property and nuisance. Because that legal background defines the scope of the Fifth Amendment-protected property interests, plaintiffs each possessed valid and protected property interests in using their land to construct and operate a solid waste landfill.
2. Does Plaintiffs’ Temporary “Categorical” Regulatory Takings Claim Violate Tahoe-Sieira and the “Parcel As a Whole” Rule?
Having determined that plaintiffs did possess a compensable stick in their bundle of property rights, this court must now assess whether the Corps’ actions effected a taking of that stick, the second prong of this inquiry. See Boise Cascade, 296 F.3d at 1343 (quoting Karuk Tribe, 209 F.3d at 1374 ). Because causation of the alleged taking is at issue in this ease (that is, whether the taking was caused by federal, state, or local action), the discussion below assumes, arguendo, that any taking was the result of federal regulation. In other words, what is being tested is whether plaintiffs state a cognizable claim.
Defendant first disputes the legal theory underlying plaintiffs’ categorical takings claim. According to defendant, a court can only apply the Lucas categorical test to an alleged taking when government action has completely eliminated “all value” from a parcel. Def.’s Cross-Mot. 39; Def.’s Br. Opp’n 7-8. Defendant thus asks this court to conclude that plaintiffs’ temporary categorical takings claim is insufficient as a matter of law under Tahoe-Siem, contending that plaintiffs did not suffer a total taking of their entire property simply because plaintiffs *480 were eventually able to construct and operate their landfill. See, e.g., Def.’s Cross-Mot. Summ. J. 3, 38, 41-42; Def.’s Br. Opp’n 7-8. Defendant further argues that the Federal Circuit has declined to apply the Laicas categorical (or per se) test to any temporary taking, and has instead required a Penn Central analysis for all temporary takings. Def.’s Br. Opp’n 13-14. But contrary to the map that defendant uses, these precedents do not require this court to arrive at defendant’s preferred destination. Rather, as will be shown, a proper reading of Supreme Court and Federal Circuit precedent, far from precluding categorical treatment for these facts, instead invites it at this particular juncture.
According to defendant, no temporary taking can destroy the value of the “parcel as a whole,” both temporally and geographically, as Tahoe-Sierra requires for categorical treatment. Def.’s Resp. 8.; see Def.’s Br. Opp’n 7-8; see also Tahoe-Sierra, 535 U.S. at 330-32 , 122 S.Ct. 1465 . Defendant maintains that adopting plaintiffs’ categorical taking theory would contravene Tahoe-Sierra’s requirement that courts not find a categorical taking by “conceptually severing” a temporal slice from the fee simple estate as a whole. Def.’s Br. Opp’n 8-9. Defendant contends that because “the Corps’ regulatory authority over the property was terminated by virtue of the Ninth Circuit mandate on February 10, 1999, plaintiffs’ property regained the landfill value it had lost,” as was the case in Tahoe-Sierra . Def.’s Resp. 9; Def.’s Br. Opp’n 8-9. Thus, even if the Corps did effect a taking, defendant argues such a taking, as a mere temporal slice measured against the 99-year lease and fee simple estate that comprise plaintiffs’ parcel “as a whole,” therefore cannot be categorical by definition. Id. To be sure, defendant is correct that the categorical treatment requires a total taking of the parcel as a whole. But here, defendant’s ambitious legal theory oversteps what precedent supports. In other words, defendant’s reach exceeds Tahoe-Sierra’s grasp.
As the Tahoe-Sierra majority took pains to emphasize, its holding did not overturn or limit First English. Tahoe-Sierra, 535 U.S. at 328, 122 S.Ct. 1465 (“First English was certainly a significant decision, and nothing we say today qualifies its holding.’’ (emphasis added)). Nor did it, despite eschewing categorical treatment to the facts at bar, limit or overrule Lucas. See id. at 329-332, 122 S.Ct. 1465 . Instead, it emphasized that Lucas applies to eases in which there was a total taking of the parcel as a whole, but does not apply to partial takings — those in which the landowner retains some interest in economically viable use in some of the parcel as a whole. See id.
Thus, the Tahoe-Sierra majority made clear that “a permanent deprivation of the owner’s use of the entire area is a taking of ‘the parcel as a whole,’ whereas a temporary restriction that merely causes a diminution in value is not.” Id. at 332 , 122 S.Ct. 1465 . The 32-month moratorium on economic development before the Court in Tahoe-Sierra was, from the point of enactment, only a temporary fix to maintain the status quo while a new conservation plan was developed. Id. at 306, 337-38 , 122 S.Ct. 1465 . That the endpoint of the development moratorium was as-then unknown did not mean, unlike in Lucas , that an endpoint did not and could not exist under that legal regime.
And although the regulations creating the moratorium did not specify the date of their expiration, they were expressly temporary when enacted, serving as a stop-gap to maintain the current state of development pending the permanent land use plan that was in the works. 50 Id. at 311, 122 S.Ct. 1465 . When the Tahoe-Sierra regulations took effect, the affected landowners were without economically viable use of their land for a finite period of time; their future interests still existed. Id. at 306 , 122 S.Ct. 1465 . After the regulations expired, as it was stipu *481 lated they would, the land would regain its value and the owners would be able to make economically viable use of that land once again. 51 Id. at 317 n. 13, 122 S.Ct. 1465 . This, as the Supreme Court explained, was not a taking of the parcel of the whole because the landowners’ future interests, though diminished in value, always remained intact. See id. Thus, at the moment the moratorium took effect, it effected a taking of property values for a finite and limited segment of time rather than permanently and indefinitely.
In contrast, when the BMA took effect in Lucas , it prohibited any and all further development of the affected property, extinguishing the present and future use interests rather than merely diminishing their value. See Lucas, 505 U.S. at 1012 , 112 S.Ct. 2886 ; see also Whitney Benefits, Inc. v. United States, 926 F.2d 1169, 1172-73 (Fed.Cir.1991) (federal statute bailing coal mining effected a taking upon enactment). Although the South Carolina Legislature might have abrogated the Beachfront Management Act (“BMA”) by subsequent statute or amended it, or some court found the BMA unconstitutional or otherwise legally insufficient, the BMA was not temporary at the time it was enacted. Lucas, 505 U.S. at 1012 , 112 S.Ct. 2886 ; see also Tahoe-Sierra, 535 U.S. at 337-38 , 122 S.Ct. 1465 (contrasting Lucas with temporary moratoria and “interim development controls” like those in Tahoe-Sierra). Nor was there even a hypothetical point at which the parcels’ future use interests would spring back into existence. Instead, if the BMA were to become temporary at some point in the future — in other words, a permanent taking “cut short” — the BMA would and could only be temporary in retrospect, as it was permanent by its own text. 52 See Tahoe-Sierra, 535 U.S. at 329-30 , 122 S.Ct. 1465 . Because the BMA as enacted, as it was in force at trial, “effected a taking that ‘was unconditional and permanent,’ ” the Supreme Court deemed the landowner’s claim appropriate as a categorical taking. See id.; Lucas, 505 U.S. at 1012 , 112 S.Ct. 2886 ; see also Seiber v. United States, 364 F.3d 1356 (Fed.Cir.2004) (explaining the interaction of Tahoe-Sierm and Lucas). This prospectively permanent restriction on economically viable use effected a taking of the parcel as a temporal whole, regardless of the interests that reverted to the landowner upon the BMA’s subsequent amendment. See Tahoe-Sierra, 535 U.S. at 329-30 , 122 S.Ct. 1465 ; Lucas at 1012, 1020, 112 S.Ct. 2886 .
Further contrary to defendant’s argument, the Federal Circuit has continually refused to hold that categorical treatment is inapposite for a temporary taking, despite numerous opportunities and invitations to do so. In the context of a physical invasion, to which the Supreme Court compared the totality of the taking in Lucas , “ ‘permanent’ does not mean forever, or anything like it. A taking can be for a limited term — what is ‘taken’ is, in the language of real property law, an estate for *482 years, that is, a term of finite duration as distinct from the infinite term of an estate in fee simple absolute.” Hendler v. United States, 952 F.2d 1364, 1376 (Fed.Cir.1991). The Hendler court further recognized that “[a]ll takings are ‘temporary,’ in the sense that the government can always change its mind at a later time, and this is true whether the property interest taken is a possessory estate for years or a fee simple acquired through condemnation, or an easement of use by virtue of a regulation.” Id.; see also Caldwell v. United States, 391 F.3d 1226, 1234 (Fed.Cir.2004) (observing that the precise nature of the takings claim, including whether it is permanent or temporary, may be unknown when it accrues), cert. denied, 546 U.S. 826 , 126 S.Ct. 366 , 163 L.Ed.2d 72 (2005). The Federal Circuit has explained that the category of temporary regulatory takings includes permanent takings cut short as well as prospectively temporary takings. See, e.g., Am. Pelagic Fishing Co. v. United States, 379 F.3d 1363 , 1371 n. 11 (Fed.Cir. 2004) (observing that temporary takings occur when would-be permanent takings are cut short); Seiber v. United States, 364 F.3d 1356, 1364 (Fed.Cir.2004) (same); Wyatt v. United States, 271 F.3d 1090 , 1097 n. 6 (Fed. Cir.2001) (“The essential element of a temporary taking is a finite start and end to the taking.”). That category clearly includes scenarios like the one currently before this court, “when ‘a court invalidates a regulation’ that had previously effected a taking.” Seiber, 364 F.3d at 1364 (quoting Wyatt).
Nor did the Federal Circuit interpret Tahoe-Sierra to require the Penn Central test for all temporary takings. See Seiber, 364 F.3d at 1368 (declining to adopt the government’s argument that temporary categorical takings cannot exist and explaining that Tahoe-Sierra may have only “rejected [the] application of the per se rule articulated in Lucas to temporary development moratoria” and not to takings that are temporary only in retrospect because they have ended); see also Boise Cascade Corp. v. United States, 296 F.3d 1339, 1350-52 (Fed.Cir.2002) (observing that Tahoe-Sierra rejected the Lucas per se rule for temporary moratoria). Despite these suggestive dicta, which assumed that temporary categorical takings could exist for the purposes of analyzing those plaintiffs’ claims, the Federal Circuit has not determined whether categorical treatment is proper for a retrospectively temporary regulation that leaves the landowner without economically viable use of his land. See Seiber, 364 F.3d at 1368 .
Instead, the Federal Circuit has recognized, albeit in dictum, that categorical treatment has not been foreclosed for all temporary takings. In Seiber v. United States, 364 F.3d 1356 (Fed.Cir.2004) the Federal Circuit provided its most extensive discussion of temporary regulatory takings in light of Tahoe-Sierra and Lucas. Seiber concerned an inverse condemnation suit seeking just compensation for the Department of the Interi- or’s denial of an “incidental take permit,” (“ITP”) which would have permitted the Seibers to engage in logging on their property. 53 Id. at 1359-61. The Oregon Department of Forestry (“ODF”) had designated 40 acres of the Seibers’ 200-acre property as a habitat for spotted owls, which are protected as a threatened species under the federal Endangered Species Act (“ESA”). Id. at 1359-60. Consequently, ESA prevented the Seibers from removing any trees on the 40 acres without an ITP. Id. After the Seibers exhausted their administrative remedies, they filed suit in the Court of Federal Claims, alleging that the denial of the ITP effected a taking of their property without just compensation. Id. at 1361-62. Subsequently, ODF informed them that their property was no longer designated as a habitat for spotted owls, and as such, they would no longer need an ITP to engage in logging. Id. at 1362. Based on this change, the Seibers amended their complaint to seek just *483 compensation for a temporary, rather than permanent, taking. Id. at 1362, 1363-64. The Court of Federal Claims granted the government’s motion for summary judgment, ruling that the Seibers did not have a viable categorical takings claim under Lucas, because only 20% of their property was without economically beneficial use. Id.
On appeal, the Federal Circuit first observed that both Supreme Court and its own precedent permit temporary regulatory takings claims. Id. at 1364. In addition to extraordinary delay in government decision making (discussed in subsections 4-6, infra), “a temporary taking occurs when what would otherwise be a permanent taking is temporally cut short.” Id. (emphasis added; internal quotation marks omitted); see also Am. Pelagic, 379 F.3d at 1371 n. 11 (same); Wyatt, 271 F.3d at 1097 n. 6 (same). This can occur when: (1) “a court invalidates a regulation that had previously effected a taking,” as in the facts of Lucas (though the temporal issue was not before the Supreme Court — see 505 U.S. at 1011-14 , 112 S.Ct. 2886 ); (2) “the government elects to discontinue regulations after a taking has occurred,” as in First English; or (3) “when the government denies a permit ... [and] at some [later] point reconsiders the earlier denial and grants a permit (or revokes the permitting requirement),” as was alleged in Seiber. 364 F.3d at 1364-65 (internal quotation marks and citations omitted); see also Boise Cascade, 296 F.3d at 1347 (discussing observing that takings can be temporary because when the government reconsiders an earlier permit denial or revokes the permitting requirement); Wyatt, 271 F.3d at 1097 n. 6 (recognizing that temporary takings can result when a taking is cut short by a judicial invalidation of a regulation or the government’s election to discontinue the taking).
Having established the appropriate legal framework, the Federal Circuit toned to the Seibers’ claim that they suffered a temporary categorical taking during the period when they needed an ITP to engage in logging on their property. Seiber at 1368 . Specifically, the Seibers alleged that the denial of their ITP application left them without economically beneficial use of their 40 acres of land. Id. In response, the government argued that because an affected property will recoup some value when the temporary taking ends, no temporary taking can be categorical under Tahoe-Sierra. See id. In essence, the government contended that applying categorical treatment to the Seibers’ temporary takings claim would result in the sort of impermissible “temporal severance” of the parcel of a whole that Tahoe-Sierra foreclosed. See id. (citing Tahoe-Sierra, 535 U.S. at 331 , 122 S.Ct. 1465 ).
But because the Seibers alleged a categorical taking of only 40 acres of their 200-acre property, they were not without economically viable use of their parcel as a whole for any length of time. Id. at 1368. Consequently, even if the Seibers suffered a taking, such a taking could not be categorical without regard to the temporal severance issue. Id. at 1368-69. Therefore, the Federal Circuit declined to address that issue in its holding, though it did address the government’s argument in dicta. Id. at 1369-70. As the Federal Circuit observed, its precedent instead suggested that temporary categorical takings remained viable. Id. (citing Boise Cascade, 296 F.3d at 1350 ). The Federal Circuit expressed concern with the government’s broad reading of Tahoe-Sierra, reiterating its earlier observation “that the Supreme Court may have only rejected [the] application of the per se rule articulated in Lucas to temporary development moratoria, and not to temporary takings that result from the rescission of a permit requirement or denial.” Id. (alteration in original; internal quotation marks and citations omitted).
Just as in Seiber , defendant cites Tahoe-Sierra to support its argument that merely because plaintiffs regained economically viable use of their land after Resource I, the Corps could not have effected a taking of the parcel as a temporal whole. See, e.g., Def.’s Resp. 9 (“it becomes clear that any deprivation suffered by plaintiffs did not constitute a ‘total loss’ ”). But it is well-settled that when a regulatory takings claim arises from a permit denial, the taking accrues when a permit is denied. See Riverside Bayview, 474 U.S. at 127 , 106 S.Ct. 455 (“Only when a permit is denied and the effect of the *484 denial is to prevent ‘economically viable’ use of the land in question can it be said that a taking has occurred.”); Cooley v. United States, 324 F.3d 1297, 1301-02 (Fed.Cir.2003) (“To be ripe, a taking claim based on a § 404 permit denial must spring from a final decision”). Because it is the permit denial that can effect a regulatory taking, this court must examine the effect of that denial on plaintiffs’ property interests. See id.; Whitney Benefits, 926 F.2d at 1172-73 (observing that a taking occurs when economic development is effectively prevented).
Thus, whether that denial effected a categorical taldng depends on if it left plaintiffs without any present or future interest in economically viable use in their parcel as a whole or only diminished the value of their use interests. See Tahoe-Sierra, 535 U.S. at 329-31 ; 122 S.Ct. 1465 . To be sure, events after the taking has accrued (as with the amendment of the BMA in Lucas, see 505 U.S. at 1011-14 , 112 S.Ct. 2886 , and the abandonment of the prohibition on construction in First English, see CITE) can certainly reduce the impact of a taking by cutting it short. 54 (In effect, it goes to the amount of “just compensation” that must be paid.) Yet, such subsequent events cannot change what property interests the taking took when it accrued. Applying this precept to the facts of the ease at bar, the fact that Resoiurce I later abrogated the effect of the Corps’ denial does not alter the interests that the denial took. In other words, whether the denial effected a categorical taking of the parcel as a whole, a partial taking, or no taking at all depends only on the effect of that particular denial on plaintiffs’ property interests at the time of the denial.
Unlike the Tahoe-Sierra moratorium, the Corps’ denial of plaintiffs’ 404 permit application specified no date or condition on which it would terminate. From the point it took effect, it was unconditional and permanent, thus effecting a taking of the parcel as a temporal whole. Here, like Lucas , it appeared to plaintiffs that they would never be able to develop their property. 505 U.S. at 1010-11 , 112 S.Ct. 2886 . The Corps stated in its September 30, 1996 letter:
Your application for a Department of the Army permit is denied____ Denial occurred for the following reasons: Resource Investments, Inc. has failed to clearly demonstrate that there are no less environmentally damaging practicable alternatives for achieving the project purpose. The proposed project represents an unacceptable risk to public heath and safety due to the potential contamination of the Central Pierce County Aquifer System. Based on the above finding, the proposed work is not in the public interest.
Pis.’ Ex. 50, at 489. Unlike the moratorium in Tahoe-Sierra, which was explicitly temporary and set to terminate once the permanent land use plan took effect, this statement accompanying the denial of plaintiffs’ 404 permit application cannot be read to be anything other than permanent. See Whitney Benefits, 926 F.2d at 1172-73 (holding that the taking of all economically viable use of property accrued when the enacting statute passed). Had Resource I not abrogated the Corps’ denial, plaintiffs, like the landowner in Lucas , would have never been able to make any economically viable use of their property without a change in the law.
Merely because Resource I cut short any alleged taking does not diminish the extent of what, if anything, the Corps had taken from plaintiffs (who, unlike Seiber , contend that they were without economically viable use of their parcel as a whole — see subsection 3, infra). The Corps’ denial of plaintiffs’ 404 permit application was prospectively permanent, extinguishing the future interests rather than damaging them as did the temporary moratorium in Tahoe-Sierra. To be sure, it is important that the Corps’ jurisdiction over the project site was terminated by Resource I. Yet, that the taking was “cut short” does not transmute the interests that it had taken, but instead informs the amount of just compensation, an *485 issue that is not currently before this court. 55 See Tahoe-Sierra, 535 U.S. at 327-28 , 122 S.Ct. 1465 (quoting San Diego Gas & Elec., 450 U.S. at 636, 101 S.Ct. 1287 ); Lucas, 505 U.S. at 1030 & n. 17, 112 S.Ct. 2886 (quoting First English). Therefore, it matters not for liability whether a regulation remains in force or has been rescinded by the time the ease makes it to court. See Lucas, 505 U.S. at 1011-12 , 112 S.Ct. 2886 (citing First English); cf. Esposito v. South Carolina Coastal Council, 939 F.2d 165, 168 (1991) (“Even if the amended [BMA] cured all of the plaintiffs’ concerns, the amendments would not foreclose the possibility that a taking had occurred during the years when the 1988 Act was in effect.”).
That plaintiffs’ original complaint only sought relief for a permanent taking further supports assessing the Corps’ denial of plaintiffs 404 permit application as a categorical taking. Pis.’ Mem. Summ. J. 1. When plaintiffs brought suit, they were without any future interest in the economically viable use of their parcel. Only after the Ninth Circuit’s decision in Resource I terminated the Corps’ jurisdiction did plaintiffs amend their complaint to seek compensation only for a temporary taking. Pis.’ Mem. Summ. J. 2-3 & n. 2. As in Lucas , plaintiffs had no reason to proceed on a temporary takings theory when, to their knowledge, the alleged taking for which they sought compensation was permanent. See 505 U.S. at 1010-13 , 112 S.Ct. 2886 (observing that when the plaintiff filed suit “the taking was unconditional and permanent”). Therefore, as the Supreme Court did in Lucas , this court must examine the extent of the alleged taking when it accrued.
Thus, that plaintiffs eventually regained economically viable use of their property is not ipso facto fatal to their categorical takings claim. But in order to determine whether the denial effected a categorical taking as a matter of law, this court must now inquire whether plaintiffs lacked any economically viable use of their property after the Corps denied plaintiffs’ permit. See Lucas, 505 U.S. at 1030 & n. 17, 112 S.Ct. 2886 (citing First English for the proposition that government can rescind a regulation to avoid paying for a permanent taking, but must still compensate for what it has taken).
3. Did Plaintiffs Retain Economically Viable Use of Their Parcel Despite the Corps’ Denial of Plaintiffs’ 404 Permit Application?
Defendant also denies that plaintiffs were without economically viable use of their property, contending that “[e]ven had the Section 404 permit denial been upheld by the Ninth Circuit ... Plaintiffs could still not establish a categorical taking. Instead, plaintiffs would only have been deprived of their preferred use of them property as a landfill, not all use.” Def.’s Resp. 10. Defendant asserts that plaintiffs were only denied the “highest and best use” 56 of the land, and instead *486 maintains that plaintiffs enjoyed some economically viable use of their property. Def.’s Resp. 10. Significantly, according to defendant, plaintiffs’ property had some value, which means that the taking is not categorical and thus renders Lucas inapposite. See Def.’s Cross-Mot 39; Def.’s Br. Opp’n 7-8. The latter is at best misleading.
As Lucas elaborates, categorical assessment of an alleged taking is appropriate when the property is purportedly without economically viable use, and does not require the parcel to be without all accounting or appraisal value. 57 Both in its holding and its reasoning, Lucas thus focuses on whether a regulation permits economically viable rise of the property, not whether the property retains some value on paper. 58 See, e.g., 505 U.S. at 1027 , 112 S.Ct. 2886 (observing that a property owner cannot expect to be deprived of “all economically beneficial use” if those uses were part of the owner’s title), 1028 (rejecting South Carolina’s argument that a property owner’s title is “subject to the ‘implied limitation’ that the State may subsequently eliminate all economically valuable use”), 1030 (“When, however, a regulation that declares ‘off-limits’ all economically productive or beneficial uses of land goes beyond what the relevant background principles [of the state’s law of property and nuisance] would dictate, compensation must be paid to sustain it.”), 1031-32 (discussing the BMA’s impact on “essential use” and “beneficial uses” of land) (all emphases added). Instead, the Lucas majority looks to uses of the land as a touchstone for categorical takings analysis. See id. at 1019 n. 8, 112 S.Ct. 2886 (“our prior takings cases evince an abiding concern for the productive use of, and economic investment in, land”); see also James S. Burling, Use Versus Value in the Wake of Tahoe-Sierra, in Taking Sides on Takings Issues: The Impact op Tahoe-Sierra 99-106 (Thomas E. Roberts ed., 2003) (concluding that economically viable use is the criterion for categorical takings, for which value is sometimes a convenient shorthand); James Burling, Can Property Value Avert a Regulatory Taking When Economically Beneficial Use Has Been Destroyed?, in Takings Sides on Takings Issues: Public and Private Perspectives, ch. 19 at 463-67 [hereinafter Burling, Property Value] (Thomas E. Roberts, ed.2002) (same).
The Federal Circuit, as well, has explained that it is the lack of economically viable use, rather than impact on property values, that *487 triggers categorical treatment for an alleged taking. Florida Rock II, 791 F.2d 898, 895-97 (Fed.Cir.1986), concerned the denial of a permit to dredge and fill 98 acres of a 1560-acre tract that only had economically viable use for limestone mining. The government, trying to prove that there was no taking, nevertheless maintained that the parcel as a whole retained value to “investors willing to forego immediate income in favor of long-term gain.” See id. at 902 . The Federal Circuit agreed, recognizing that the location of this piece of land, in proximity to Miami, had “substantial residual value” even without the mineral rights. See id. Following up after remand in Florida Rock V, 18 F.3d 1560, 1567 (Fed.Cir.1994), the Federal Circuit did use the change in the parcel’s value in assessing whether it had suffered a categorical taking. However, the Federal Circuit recognized that a categorical taking turned on whether the parcel retained economically viable use, for which the change in market value was not a substitute but merely a measure of it. See id. Thus, the Florida Rock V court concluded that when “a regulation prohibits less than all economically beneficial use of the land and causes at most a partial destruction of its value, the case does not come within the Supreme Court’s ‘categorical’ taking rule.” 18 F.3d at 1564-65 .
Similarly, in Palm Beach Isles Assocs. v. United States (Palm Beach Isles II), 231 F.3d 1354 (Fed.Cir.2000), the Federal Circuit reiterated that the relevant consideration in finding that there was a categorical taking was whether there was “a total wipeout of economically viable use.” Id. at 1365 (emphasis added). The landowner in Palm Beach Isles II asserted a categorical taking based on the Corps’ denial of a dredge and fill permit for the 1.4 acres of wetlands and the adjacent 49.3 acres of submerged lands comprising the property. Id. at 1364. Discussing its earlier precedents assessing claims of categorical takings, the Federal Circuit characterized those inquiries as requiring that there be “a sufficient denial of economically viable use,” 59 “a prohibition of all economically viable use of land,” 60 or “[rjemoval of all use.” 61 Id. at 1359. In contrast, the Federal Circuit described its cases finding no categorical taking as concluding that the claimant’s property “had substantially reduced [ ] value” 62 or “retains value ... for development.” 63 Id. at 1360-61. The Federal Circuit did recognize that the parcel’s value retained some role in categorical takings, but only insofar as the value determined “just compensation” for the taking. See id. at 1363-64.
To be sure, the complete elimination of a property’s value may be sxifficient to establish a categorical taking under many circumstances, given the obvious correlation between uses and their market values; a parcel of real property without value would usually have no lawful economically viable use. 64 Yet the lack of value is not necessary *488 to effect a taking, as a parcel will typical retain some quantum of value even without economically viable use. See note 64, supra. Such a scintilla of value is insufficient to defeat an otherwise-viable takings claim. See Palazzolo v. Rhode Island, 533 U.S. 606, 631 , 121 S.Ct. 2448 , 150 L.Ed.2d 592 (“Assuming a taking is otherwise established, a State may not evade the duty to compensate on the premise that the landowner is left with a token interest.”); see also notes 54 & 57, supra. Even the property at issue in Lucas retained some accounting or appraised value. See Lucas, 505 U.S. at 1044 , 112 S.Ct. 2886 (Blackmun, J., dissenting) (recognizing that the parcel nevertheless retained value despite its lack of economically viable use). Indeed, it is not difficult to identify other circumstances, such as purchasing a parcel to preserve development-free open space or natural land, in which a parcel may have some value despite its lack of economically viable uses. Therefore, categorical treatment remains appropriate even if a parcel retains some nominal value, so long as that the claimant is without economically viable use of his property. Palazzo

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6658811. Public record. Not legal advice.