# Love Terminal Partners v. United States

> United States Court of Federal Claims · February 11, 2011 · 97 Fed. Cl. 355

URL: https://www.frixlaw.com/law-library/cases/6661685

## Case

- **Full name:** LOVE TERMINAL PARTNERS v. United States
- **Court:** United States Court of Federal Claims
- **Decided:** February 11, 2011
- **Citations:** 97 Fed. Cl. 355; 2011 U.S. Claims LEXIS 125; 2011 WL 613263
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Sweeney
- **Judges:** Sweeney
- **Cited by:** 9 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/6661685

## How later opinions describe it (automated extraction)

- stating that the court can consider “exhibits attached to the complaint, undisputed documents relied upon by the plaintiff, other items appearing in the record of the case, and matters of public record” without converting a Rule 12(b)(6) motion to a Rule 56 motion for summary …
- noting that “Courts ‘have allowed consideration of matters incorporated by reference or integral to the claim’” in deciding a motion to dismiss (quoting 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d ed. 2004))
- finding that Congress effected a taking when it mandated the demolition of gates at the claimant’s airport terminal
- noting that “public records and government documents available from reliable sources on the Internet” are generally subject to judicial notice
- describing a physical taking arising from the government’s enactment of legislation targeting the plaintiffs six-gate terminal for destruction

## Opinion text

OPINION AND ORDER
SWEENEY, Judge.
Before the court are Defendant’s Motion to Dismiss Plaintiffs’ Complaint for Failure to State a Claim (“motion”) and Plaintiffs’ Cross-Motion for Summary Judgment on Partial Liability (“cross-motion”). In this action, plaintiffs Love Terminal Partners, L.P. and Virginia Aerospace, LLC (“Love Terminal Partners” and “Virginia Aerospace,” respectively; “plaintiffs,” collectively) allege that the Wright Amendment Reform Act of 2006 (“WARA”) prohibited the use of 26.8 acres of Dallas Love Field Airport (“Love Field”) to which they hold long-term lease rights and effected a taking without just compensation in contravention of the Fifth Amendment to the United States Constitution. Defendant moves, pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”), to dismiss the complaint, asserting that plaintiffs have failed to plead any facts that, if true, prove that the government placed regulatory limitations upon plaintiffs’ use of the leased property. Furthermore, defendant contends that any impact the WARA had upon plaintiffs constitutes a consequential loss for which compensation is unavailable. Plaintiffs seek partial summary judgment on liability, contending that the WARA constituted a per se, physical taking of six air passenger gates that Love Terminal Partners constructed on the leased property. For the reasons discussed below, defendant’s motion is denied and plaintiffs’ cross-motion is granted.
Due to the length of this opinion, the court provides the following table of contents:
I. FACTUAL BACKGROUND . 00
A Love Field and Dallas-Fort Worth International Airport (“DFW”) CO
B. 1979-1996 CO
1. The Amendment. CO
2. The Amendment. CO
C. Love Terminal Partners’ Construction of a New Terminal at Love Field CO
D. Efforts to Amend or Repeal the Wright Amendment CO
1. Recommends a Local Solution. CO
2. Enactment of the WARA. CO
E. Plaintiffs’ CO
F. Plaintiffs Default on the Master Lease. CO
G. Plaintiffs’ Property Interests . CO
II. PROCEDURAL HISTORY.371
III. LEGAL STANDARDS. CO
A. Nature of a Fifth Amendment Takings Claim CO
1. . CO
2. CO
3. The Lucas “Antecedent Inquiry” . CO
B. CO
C. RCFC 12(b)(6) Motion to Dismiss. CO
D. Motion for Summary Judgment. CO
IV. DISCUSSION. CO -3 co
A Plaintiffs’ Takings Claim Is Ripe. CO OO o
B.Defendant’s Motion. CO GO ^
1. The Parties’ Exhibits Are Not “Matters Outside the Pleadings” That Require Conversion of Defendant’s Motion to a Motion for Summary Judgment. CO oo cn
*361 2. Plaintiffs Have Identified a Property Interest That Was Allegedly Taken . to 00 CO
3. Plaintiffs Have Aleged Government Appropriation of Their Ownership in the Leaseholds. 00
4. Plaintiffs’ Complaint States a Takings Claim. 00
a. Plaintiffs’ Complaint States a Claim for a Physical Taking... 00 00
to in Support of Their Regulatory Takings Theory. 1 — 1 Ci
C. Plaintiffs’ RCFC 56 Cross-Motion. OO Cft
1. Defendant’s Discovery-Related Objections Are Insufficient Under
Principles of Statutory Construction. (M OiH 050 CO
The Doctrine of Judicial Estoppel Does Not Apply to Plaintiffs’ Contrary Positions Advanced Before the Northern District of Texas and the Court of Federal Claims. CO Od © ^
Numerous Provisions of the WARA Contain Language Utilized in the Contract. ^ ^ o ^
a. The WARA Contains Identical Provisions to Those Set Forth in the Contract . o ^
The WARA Explicitly References the Contract. r-Q ZD o ^
Section 5 of the WARA Codifies Under Federal Law Specific Obligations Set Forth in the Contract. O ZD ©
i. The WARA Requires That Dallas Reduce the Number of Gates at Love Field. 4^ o -3
ii. The WARA Requires That Dallas Alócate the Number of Gates in Accordance With the Contract. l> o
iii. The WARA Requires That Dallas Manage Love Field in Accordance With the Contract.
iv. The WARA Requires That Dallas Demolish the Lemmon Avenue Terminal.
v. The WARA Specifies how Dallas May Fund the Reduction of Gates at Love Field.
vi. The WARA s Limitations Upon the DOT and the FAA Do Not Affect the Determination That the WARA Incorporates the Contract Into Federal Law.414
5. Incorporation of the Contract Into the WARA Does Not Create Constitutional, Contractual, or Statutory Conflicts .415
a. The Canon of Constitutional Avoidance Is Not Implicated in This Case.415
b. Incorporation of the Contract Into the WARA Creates No Conflict for Dallas .417
e. Incorporation of the Contract Does Not Result in an “Unfunded Mandate”.417
6. The WARA’s Legislative History Confirms That Congress Intended to Incorporate the Contract Into Federal Law.421
7. Plaintiffs Are Entitled to Partial Summary Judgment.424
V. CONCLUSION.425
I. FACTUAL BACKGROUND 1
A. Love Field and Dallas-Fort Worth International Airport (“DFW”)
The history of Love Field is defined, in large measure, by the rivalry between the *362 City of Dallas (“Dallas”) and the City of Fort Worth (“Fort Worth”). In 1917, the Dallas Chamber of Commerce purchased the land that now constitutes Love Field and leased it to the United States Army. Royce Hanson, Civic Culture and Urban Change Governing Dallas 37 (2003). Following World War I, the Dallas Chamber of Commerce developed Love Field into an aviation-oriented industrial park and, in 1927, sold Love Field to Dallas. Id. at 38 . Love Field then began servicing Dallas as its municipal airport.
During the 1950s and early 1960s, Dallas and Fort Worth, which are separated by approximately thirty miles, City of Dallas, Tex. v. Sw. Airlines Co., 494 F.2d 773, 774 (5th Cir.1974), aff'g 371 F.Supp. 1015 (N.D.Tex.1973), operated competing airports, Am. Airlines, Inc. v. U.S. Dep’t of Transp., 202 F.3d 788 , 793 (5th Cir.2000), and were “bitter rivalfs] for the business of commercial aviation and commercial air carriers,” Sw. Airlines Co., 371 F.Supp. at 1019 ; see also H.R.Rep. No. 109-600, pt. 2, at 4 (2006) (noting that Dallas and Fort Worth “engaged in a protracted airport rivalry”). In 1962, the Civil Aeronautics Board (“CAB”), the predecessor to the United States Department of Transportation (“DOT”), explored the benefits of designating a specific airport as the single point through which all interstate air carrier service to Dallas and- Fort Worth would be provided. Sw. Airlines Co., 371 F.Supp. at 1020 . Two years later, the CAB determined that the competition between the two cities’ airports was harmful and ordered Dallas and Fort Worth to reach a voluntary agreement designating one airport through which CAB-regulated carriers would serve both communities. See id.
The cities were unable to designate one of the existing airports to serve the region. Instead, they reached a compromise by agreeing to construct a new airport, DFW, that would be located halfway between Dallas and Fort Worth. In 1968, Dallas and Fort Worth adopted a Regional Airport Concurrent Bond Ordinance (“1968 Bond Ordinance”), which provided that both cities would take all necessary steps to provide for the orderly and efficient phase-out at Love Field and transfer of services to DFW. 2 In 1970, the eight air earners that serviced the Dallas and Fort Worth communities agreed to transfer their operations to DFW. 3
Southwest Airlines Company (“Southwest”), however, chose to stay at Love Field. In 1971, Southwest commenced intrastate air service from Love Field to the Cities of Houston and San Antonio pursuant to a certificate issued by the Texas Aeronautics Commission (“TAC”). 4 Because it was running solely intrastate flights from Love Field, Southwest was exempt from CAB certification, did not execute a use agreement, see supra note 3, and refused to transfer its operations to DFW, Am. Airlines, Inc., 202 F.3d at 793. On October 20, 1971, Southwest advised the DFW Board that it intended to remain at Love Field. Southwest’s refusal to transfer its operations to DFW spawned liti *363 gation between Southwest and the cities, both of which maintained that permitting Southwest to remain at Love Field would financially threaten DFW. In 1973, the Northern District of Texas ruled that Dallas and Fort Worth could “not lawfully exclude” Southwest from Love Field “so long as Love Field remains open as an airport.” Sw. Airlines Co., 371 F.Supp. at 1035 . As a result, Dallas, Fort Worth, and the DFW Board could not consolidate passenger service at DFW as envisioned by the 1968 Bond Ordinance. H.R.Rep. No. 109-600, pt. 1, at 2. DFW ultimately opened for commercial air service in 1974.
In 1975, Dallas adopted Ordinance 14505 in order to exclude all commercial airlines from Love Field. S.Rep. No. 109-317, at 2. Ordinance 14505 imposed a fine of $200 per landing at — or takeoff from — Love Field by certificated airlines. Southwest sued and successfully enjoined Dallas from enforcing the ordinance, which “flew squarely in the face” of the order previously entered by the Northern District of Texas in Sw. Airlines Co. Sw. Airlines Co. v. Tex. Int'l Airlines, Inc., 396 F.Supp. 678, 680 (N.D.Tex.1975), aff'd, 546 F.2d 84 (5th Cir.1977).
B. Congressional Involvement, 1979-1996
Congress deregulated the airline industry and fostered competition by enacting the Airline Deregulation Act of 1978. Southwest “viewed deregulation as an opportunity to become an interstate air carrier,” S.Rep. No. 109-317, at 2, and announced plans to commence interstate service from Love Field to the City of New Orleans, Louisiana. It submitted an application to the CAB, which granted the application over the objections of DFW and American after concluding that it lacked the authority to deny it. 5 Id.; Am. Airlines, Inc., 202 F.3d at 793. After the CAB granted Southwest’s application, “[mjany Texas officials, particularly those in Fort Worth, worried that Southwest and other airlines would begin to fly all over the country from Love Field, thus drawing traffic away from DFW and endangering DFWs financial stability.” Erie A Allen, Comment, The Wright Amendment: The Constitutionality and Propriety of the Restrictions on Dallas Love Field, 55 J. Air L. & Com. 1011 , 1018-19 (1990). Litigation over air service at Love Field seemed imminent.
1. The Wright Amendment
Congress, with the consent of Dallas and Fort Worth, intervened in order to end the “continuous disagreement, frequent litigation, and constant uncertainty” associated with Love Field. S.Rep. No. 109-317, at 16. The Senate Report indicated the unique nature of Congress’s involvement in Love Field, emphasizing that it was the “only time” Congress intervened in such a manner. Id. After the CAB permitted Southwest to commence interstate service from Love Field, Texas Congressman Jim Wright of Fort Worth, the Majority Leader of the United States House of Representatives, introduced an amendment to the International Air Transportation Competition Act of 1979 that was intended to protect the economic vitality of DFW by prohibiting interstate commercial air service from Love Field. Ultimately, a compromise agreement, known as the “Wright Amendment,” was reached. The Wright Amendment authorized flights from Love Field to locations within Texas and four contiguous states — Arkansas, Louisiana, New Mexico, and Oklahoma — and limited interstate air transportation provided by commuter airlines to the operation of aircraft with a passenger capacity of fifty-six passengers or less. The agreement was codified into section 29 of the International Air Transportation Competition Act of 1979.
The Wright Amendment (1) allowed Love Field to remain open, (2) limited the region Southwest served out of Love Field, and (3) generally banned interstate service from the airport. It authorized travel to the four exempted states only if those flights did not “provide any through service or ticketing with another air carrier” and did not “offer for sale transportation to or from, and the flight or aircraft d[id] not serve, any point which [was] outside any such State.” 6 *364 Pub.L. No. 96-192, § 29 , 94 Stat. 35 , 48-49 (1980). The Wright Amendment “was intended to provide ‘a fair and equitable settlement’” to the “unique” situation presented by Love Field and was “not to be construed ‘as a harbinger of any similar proposals for any other airport or area.’” H.R.Rep. No. 109-600, pt. 1, at 2. Congress did not modify the Wright Amendment until 1996, S.Rep. No. 109-317, at 3, after which time several amendments loosened air travel restrictions at Love Field, Pis.’ Opp’n Def.’s Mot. & Pis.’ Cross-Mot. Summ. J. Partial Liability (“Pis.’ Cross-Mot.”) 5.
2. The Shelby Amendment
In 1996, Legend Airlines, Inc. (“Legend”) sought to provide long-haul air service to and from Love Field using larger airplanes configured to comply with the Wright Amendment’s fifty-six seat limitation. Although Legend “filed a petition to operate pursuant to the exception in the Wright Amendment that appeared to permit unrestricted interstate service by airlines operating aircraft with a seating capacity of less than 56 passengers,” the DOT Office of General Counsel determined that the Wright Amendment exception applied only to aircraft that had been originally configured to hold fewer than fifty-six passengers. S.Rep. No. 109-317, at 3. Following this determination, Alabama Senator Richard Shelby sought to expand the Love Field service area to include five additional states. John Grantham, A Free Bird Sings the Song of the Caged: Southwest Airlines’ Fight to Repeal the Wright Amendment, 72 J. Air L. & Com. 429 , 448 (2007). The final bill, however, contained only three states, id., and Congress ultimately adopted the “Shelby Amendment” as part of the Department of Transportation and Related Agencies Appropriations Act of 1998.
The Shelby Amendment defined the phrase “passenger capacity of 56 passengers or less” contained in the Wright Amendment to “include[ ] any aircraft, except aircraft exceeding gross aircraft weight of 300,000 pounds, reconfigured to accommodate 56 or fewer passengers if the total number of passenger seats installed on the aircraft does not exceed 56.” Am. Airlines, Inc., 202 F.3d at 794 (alteration in original). Therefore, the Shelby Amendment permitted longer-haul flights on larger airplanes so long as the airplanes were reconfigured to accommodate fifty-six or fewer passengers. The Shelby Amendment also added Alabama, Kansas, and Mississippi to the list of states that airlines could serve directly from Love Field. S.Rep. No. 109-317, at 3.
After passage of the Shelby Amendment, Southwest offered flights from Love Field to Mississippi and Alabama. Am. Airlines, Inc., 202 F.3d at 794-95. Legend also announced plans to offer long-haul service to states outside the Love Field service area using reconfigured aircraft. Shortly thereafter, the Love Field air service controversy reignited. Fort Worth and American sought to enjoin enforcement of the Shelby Amendment, and the ensuing litigation prevented Legend from offering service from Love Field until 1999. Love Terminal Partners, L.P., 527 F.Supp.2d at 544.
C. Love Terminal Partners’ Construction of a New Terminal at Love Field
Braniff commenced express and freight services from Love Field in 1929. On June 10, 1955, Dallas executed a long-term lease (“Master Lease”) with Braniff, granting Braniff the exclusive use of approximately thirty-six acres, together with the nonexelu- *365 sive right to use runways, taxiways, and other airport facilities, at Love Field. 7 Compl. ¶ 5; see also Def.’s Reply Supp. Mot. Dismiss & Opp’n Pis.’ Mot. Partial Summ. J. (“Def.’s Reply”) Ex. 1 (containing the Master Lease). The Master Lease permitted the use of the premises solely for air transportation purposes.
On August 11, 1999, Love Terminal Partners, a Delaware limited partnership with its principal place of business in Dallas, subleased approximately nine acres encompassed under the Master Lease for the purpose of providing commercial air passenger service at Love Field. 8 Compl. ¶¶ 1, 6. Thereafter, Love Terminal Partners constructed a luxury airline passenger terminal (“Lemmon Avenue Terminal”), which included “parking, concessions, state-of-the-art facilities for accommodating air travelers, and six passenger gates,” 9 id. ¶ 7, at a cost of approximately $20 million, Pis.’ Ex. 1 at 2 (Naul Deck ¶ 4). According to plaintiffs, the luxury and regional jet business was a significant part of their business plan. Plaintiffs state that they constructed the Lemmon Avenue Terminal to eater to the market for first-class airplanes flying out of Love Field with destinations to Los Angeles, New York, and Washington, DC. Dallas, plaintiffs allege, eventually “incorporated the six gates” at the Lemmon Avenue Terminal into a master plan for expansion of Love Field (“Love Field Master Plan”). Compl. ¶ 7.
Love Terminal Partners licensed the Lem-mon Avenue Terminal to Legend. Plaintiffs acknowledge that Legend’s ability to commence air transportation services was undermined by the several years of litigation of which it was a part. Legend ultimately filed for bankruptcy protection in 2000. Thereafter, the Lemmon Avenue Terminal reverted back to Love Terminal Partners.
On December 12,2003, Virginia Aerospace, a Virginia limited liability corporation with its principal place of business in Dallas, acquired the Master Lease, subject to the Love Terminal Partners sublease, to provide commercial passenger airline service at Love Field in conjunction with Love Terminal Partners. Plaintiffs ultimately “planned to expand the terminal and related air passenger services beyond the 9 acres subleased by [Love Terminal Partners] as air traffic at Love Field increased.” Id. ¶ 3. In 2006, plaintiffs entered into negotiations with Pinnacle Airlines, Inc. (“Pinnacle”) to assign their leasehold interests in the Lemmon Avenue Terminal. Such an agreement “would have introduced a new competitive airline to the Love Field market, increased competition by using a terminal that was not subject to control by Dallas, and introduced competition into markets monopolized by Southwest and Dallas.” Love Terminal Partners, L.P., 527 F.Supp.2d at 544. Although plaintiffs and Pinnacle worked to complete the transfer of plaintiffs’ interests in the leases on the land and the Lemmon Avenue Terminal, they ultimately failed to reach an agreement. 10
*366 Plaintiffs also negotiated with other airlines, including JetBlue Airways. Nevertheless, defendant asserts that plaintiffs “do not allege that there has been any regularly scheduled commercial air service utilizing the Lemmon Avenue Terminal since Legend’s dissolution.” Def.’s Mot. Dismiss Pis.’ Compl. Failure State Claim (“Def.’s Mot.”) 4. According to plaintiffs, the September 11, 2001 terrorist attacks significantly and adversely affected their business as well as air transportation generally.
D. Efforts to Amend or Repeal the Wright Amendment
In late 2004, Southwest initiated a new campaign to repeal the Wright Amendment. In response, the Senate Committee on Commerce, Science, and Transportation conducted a hearing, after which Missouri Senator Kit Bond lobbied for through-ticketing to states outside of the Love Field service area. Ultimately, Congress added only Missouri to the list of Wright Amendment exempted states. See Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and Independent Agencies Appropriations Act of 2006, Pub.L. No. 109-115, § 181 , 119 Stat. 2396 . Shortly thereafter, American opened additional ticket counters and gates at Love Field.
Thereafter, several bills were introduced in Congress concerning the repeal or modification of the Wright Amendment. See H.R. 6228, 109th Cong. (2006); H.R. 5830, 109th Cong. (2005); H.R. 5576, §§ 901-906, 109th Cong. (2006). Southwest advocated for a complete repeal of the Wright Amendment. American, by contrast, “lobbied for ..., at a minimum, continuation of the Wright Amendment restrictions.” Love Terminal Partners, L.P., 527 F.Supp.2d at 545.
1. Congress Recommends a Local Solution
In March 2006, members of Congress, recognizing “decades of litigation and contentious debate among local communities, airports and airlines over the establishment and development of DFW, the subsequent use of Love Field, and proposed legislative changes to the Wright Amendment,” H.R.Rep. No. 109-600, pt. 1, at 3, recommended that Dallas and Fort Worth jointly propose a solution to the problems caused by Wright Amendment, Love Terminal Partners, L.P., 527 F.Supp.2d at 545; accord S.Rep. No. 109-317, at 3. Dallas and Fort Worth passed resolutions requesting that Congress “not act concerning the Wright Amendment” until the cities could propose a solution. Love Terminal Partners, L.P., 527 F.Supp.2d at 545; see also S.Rep. No. 109-317, at 3 (stating that both cities requested that Congress “provide them time to develop a local solution”). On June 16, 2006, the mayors of Dallas and Fort Worth, together with other officials, announced an agreement, issuing a “Joint Statement Among the City of Dallas, the City of Fort Worth, Southwest Airlines, American Airlines, and DFW International Airport to Resolve the ‘Wright Amendment’ Issues” (“Joint Statement”). 11 See Def.’s Mot. Ex. A.
The Joint Statement memorialized the signatories’ commitment to seeking the enactment of legislation that would amend and ultimately repeal the Wright Amendment. *367 Among other provisions, the Joint Statement indicated that the signatories agreed that international commercial passenger service would be limited exclusively to DFW, and “[t]hrough ticketing to or from a destination beyond the 50 United States and the District of Columbia [would] be prohibited from Dallas Love Field.” Id. at 1 (Joint Statement ¶ 1(a)). The Joint Statement signatories sought “to eliminate all the remaining restrictions on service from [Love Field] after eight years from the enactment of legislation,” id. (Joint Statement ¶ 1(b)), and to reduce “as soon as practicable” the number of gates available for passenger air service at Love Field from thirty-two to twenty, id. (Joint Statement ¶3). Dallas agreed to acquire “the portions of the lease on the Lem-mon Avenue faeility[,] up to and including condemnation, necessary to fulfill the obligations under this agreement” and to “demolish] ... the Legend gates immediately upon acquisition of the lease to ensure the facility can never again be used for passenger service.” Id. at 2 (Joint Statement ¶ 5). The signatories also agreed that the Joint Statement was predicated on Congress enacting legislation to implement the terms of the agreement.
On July 11, 2006, the Joint Statement signatories executed a “Contract Among the City of Dallas, the City of Forth Worth, Southwest Airlines Co., American Airlines, Inc., and DFW International Airport Board Incorporating the Substance of the Terms of the June 15, 2006 Joint Statement Between the Parties to Resolve the ‘Wright Amendment’ Issues” (“Contract,” also referred to by the parties as the “Local Agreement”). See Pis.’ Ex. 2. By executing the Contract, Dallas, Fort Worth, American, Southwest, and the DFW Board “bound themselves to the terms of the Joint Statement, with certain modifications.” Love Terminal Partners, L.P., 627 F.Supp.2d at 545. The Contract indicated that
[t]he Parties hereby represent to the Congress of the United States, and to the Citizens of the Dallas-Fort Worth [area] that they have approved of and support the proposed local solution. The Parties each separately covenant that they will not now or in the future, support, encourage or participate in any effort to defeat or modify or amend the legislation that is described in this Agreement.
Pis.’ Ex. 2 at 6 (Contract art. I ¶ 14).
2. Enactment of the WARA
On July 13, 2006, two days after execution of the Contract, Texas Senator Kay Bailey Hutchison introduced S. 3661, “A bill to amend section 29 of the International Air Transportation Competition Act of 1979 regulating air transportation to and from Love Field, Texas.” S.Rep. No. 109-317, at 14. Senator Hutchison’s bill was enacted, as amended, as the WARA on October 13, 2006. Pub.L. No. 109-352, 120 Stat.2011 (2006). As enacted, the WARA expanded service by permitting
[a]ir carriers and, with regard to foreign air transportation, foreign air carriers, [to] offer for sale and provide through service and ticketing to or from Love Field, Texas, and any United States or foreign destination through any point within Texas, New Mexico, Oklahoma, Kansas, Arkansas, Louisiana, Mississippi, Missouri, or Alabama.
Id. § 2(a), 120 Stat. at 2011. The WARA repealed the Wright Amendment in its entirety after a period of eight years. Id. § 2(b), 120 Stat. at 2011. It also addressed specific Contract provisions concerning the future of Love Field. Section 5 of the WARA, “Love Field Gates,” provides:
(a) IN GENERAL. — The city of Dallas, Texas, shall reduce as soon as practicable, the number of gates available for passenger air service at Love Field to no more than 20 gates. Thereafter, the number of gates available for such service shall not exceed a maximum of 20 gates. The city of Dallas, pursuant to its authority to operate and regulate the airport as granted under chapter 22 of the Texas Transportation Code and this Act, shall determine the allocation of leased gates and manage Love Field in accordance with contractual rights and obligations existing as of the effective date of this Act for certificated air carriers providing scheduled passenger service at Love Field on July 11, 2006. To accommo *368 date new entrant air carriers, the city of Dallas shall honor the scarce resource provision of the existing Love Field leases, (b) REMOVAL OF GATES AT LOVE FIELD. — No Federal funds or passenger facility charges may be used to remove gates at the Lemmon Avenue facility, Love Field, in reducing the number of gates as required under this Act, but Federal funds or passenger facility charges may be used for other airport facilities under chapter 471 of title 49, United States Code. 12
Id. § 5(a)-(b), 120 Stat. at 2012 (footnote added). The statute was not intended to affect general aviation service at Love Field. 13 Id. § 5(c), 120 Stat. at 2012. The Love Terminal Partners, L.P. court held “plainly and unambiguously incorporates all the rights and obligations of the Contract.” 14 527 F.Supp.2d at 558.
E. Plaintiffs’ Legal Challenges
After execution of the Contract but before Congress enacted the WARA, plaintiffs filed an antitrust lawsuit in the Northern District of Texas. Mr. Naul explained:
In an all-out effort to save our business, on July 17, 2006, [plaintiffs] sued the City of Dallas and the other parties to the July 11, 2006 agreement in the federal district court for the Northern District of Texas, alleging that the July 16, 2006 agreement (codified a few months later in the [WARA]) was invalid under the Sherman Antitrust Act [of 1890, 15 U.S.C. §§ 1-7 (2006),] as an agreement in restraint of trade. Separately, [plaintiffs] also filed suit in Texas State court, alleging that the July 11, 2006 agreement had been negotiated in secret, in violation of the Texas Open Meetings Act [ (“TOMA”), Tex. Gov’t Code Ann. §§ 551.001-.146 (West 2004 & Supp.2007) ].
Pis.’ Ex. 1 at 2-3 (Naul Decl. ¶ 7) (footnotes omitted). The Love Terminal Partners, L.P. court determined that the parties’ conduct in connection with the adoption of both the Joint Statement and the Contract “represented] the culmination of [their] efforts to petition Congress,” 527 F.Supp.2d at 552, holding that the WARA “compelled the signatories to the Contract] to implement the terms of the Contract,” id. at 560, and that the Joint Statement and Contract — as well as the signatories’ activities leading up to execution of the Joint Statement and Contract that it determined were directed toward lobbying the government for legislative action — were immune from antitrust liability under the Noerr-Pennington doctrine, 15 id. at 558. A *369 year later, the Court of Appeals of Texas affirmed the dismissal of plaintiffs’ state claim. 16 Love Terminal Partners, L.P., 256 S.W.3d at 895, 897. According to Mr. Naul, “[t]he dismissal of both lawsuits ... dashed [plaintiffs’] hopes for saving the[ir] business.” Pis.’ Ex. 1 at 3 (Naul Decl. ¶ 9).
F. Plaintiffs Default on the Master Lease
While their lawsuits were pending, plaintiffs made monthly lease payments of approximately $45,000 to Dallas. Id. (Naul Decl. ¶ 8). Plaintiffs also paid approximately $100,000 per month in expenses associated with utilities, maintenance, insurance, and security services for the Lemmon Avenue Terminal. 17 Id. (Naul Decl. ¶ 8). Mr. Naul stated that
[t]he failure of [plaintiffs’] legal challenges meant, as we well knew, that [plaintiffs] would never be allowed to use this property for air passenger service, that at least part (and probably all) of the terminal would be demolished (since it is hard to conceive how or why one would demolish the gates and leave the building standing). [Plaintiffs] had no other prospect of deriving any significant income (other than some minor parking charges) from any of the [26.8] acres.
Id. (Naul Decl. ¶ 9).
On October 18, 2006, less than one week after enactment of the WARA, the Dallas City Council passed a resolution (“Dallas City Council Resolution”) authorizing Dallas to acquire the Master Lease and the Love Terminal Partners sublease. Pis.’ Ex. 6. The Dallas City Council acknowledged that “certain tracts of property on Lemmon Avenue at Love Field have, among other things, six gates that have not been used for commercial air passenger service since late 2000....” Id. at 2 (Dallas City Council Resolution Whereas ¶ 12). It determined that acquisition of “all or a portion of the leasehold interests, if any, on the Lemmon Avenue tracts in order to comply with the provisions of [the WARA]” was in the public interest. Id. (Dallas City Council Resolution *370 Whereas ¶ 13). Accordingly, the Dallas City Council directed the city manager and city attorney
to promptly take all necessary steps to ensure that the City of Dallas complies with the provisions of [the WARA] and all other applicable laws, including taking all appropriate steps to acquire, including the exercise of the right of eminent domain, if such becomes necessary, all or a portion of the leasehold interests, if any, from Virginia Aerospace ..., Love Terminal Partners ..., and all other persons claiming an interest in certain tracts of property at Love Field with addresses of 7701 and 7777 Lemmon Avenue.
Id. (Dallas City Council Resolution § 1). Acquisition of this property, the Dallas City Council indicated, was “for municipal and public purposes and a public use and that public necessity require[d] the acquisition.” Id. (Dallas City Council Resolution § 2).
Plaintiffs learned that Dallas obtained an appraisal valuating their leaseholds. According to Mr. Naul, the appraisal valued the property “at next to nothing,” which was not surprising to him because “the sole economic use of the terminal and leased area [wa]s for air passenger service and, under the [WARA], that use [wa]s forbidden.” Pis.’ Ex. 1 at 4 (Naul Decl. ¶ 10). Plaintiffs
did not believe that [they] could obtain an appraisal showing significant value for the lease and terminal, given the provisions of the [WARA], and [they] therefore saw no reason to continue paying rent and other monthly charges during a condemnation proceeding, which would likely result in little, if any; compensation to [them].
Id. “Seeing no alternative,” plaintiffs determined in March 2008 that they “must stop the financial hemorrhage of about $145,000 per month in rent and expenses for the ... leases and terminal.” Id. (Naul Decl. ¶ 11). To that end, plaintiffs informed Dallas of their intent to cease rental payments and to extricate themselves from the monthly costs of utilities, maintenance, insurance, and security. Id.
In a May 13, 2008 letter to plaintiffs, Daniel T. Weber, Director of Aviation for Dallas, advised that plaintiffs’ failure to provide security and other services at the Lemmon Avenue Terminal and related facilities constituted a breach of the Master Lease:
We understand from your May 8, 2008, letter that ... Virginia Aerospace ... and Love Terminal Partners ... no longer have tenants, staff, or utilities on the leased premises. This is a serious concern to the City of Dallas....
The City is obligated under its Federal grants with the Federal Aviation Administration ... to keep Love Field and all the facilities which are necessary to serve the aeronautical users of the airport ... “operated at all times in a safe and serviceable condition.” ... [T]hese obligations extend to [plaintiffs’] use of the leased premises. [At] a minimum, the leased premises must be kept safe and secure. [Plaintiffs] must ensure that all locks are working properly, all secured areas are kept secure, and the absence of utilities on the leasehold does not compromise the security or safety of Love Field. Failure to comply with these standards will both violate Federal requirements and constitute a breach of Virginia Aerospace’s and Love Terminal Partners’ lease obligations.
Pis.’ Ex. 5 at 1. On May 22, 2008, Dallas notified plaintiffs that their failure to make monthly lease rental payments for April 2008 and May 2008 constituted a breach of the Master Lease, and further advised that, “[i]n the event that the delinquent rental payments [were] not paid to the City ..., the City [would] proceed to enforce any and all of the rights and remedies that it may have under the terms of the Lease, or that the City may have in law or equity.” Pis.’ Ex. 3 at 3.
Following significant discussions between the parties, Dallas, on November 20, 2008, informed plaintiffs that their lease rights were terminated and demanded that plaintiffs vacate the premises for failure to pay rent. Dallas then instituted eviction proceedings against plaintiffs. On December 9, 2008, Dallas obtained a final judgment granting it possession of the premises. Plaintiffs estimate that, from June 2006 until they surrendered possession of the premises in De *371 cember 2008, they spent approximately $3.8 million in rent and other expenses.
G. Plaintiffs’ Property Interests
The property interests plaintiffs claim they possess are threefold. First, plaintiffs assert ownership interests in leaseholds. Love Terminal Partners asserts a leasehold interest in nine acres of land encompassed under the Master Lease that it subleased in order to provide commercial air passenger service at Love Field. Virginia Aerospace asserts a leasehold interest in the Master Lease, subject to the Love Terminal Partners sublease. These leaseholds, plaintiffs contend, granted them the right to exclude others from entry upon the property encompassed therein. Second, plaintiffs assert a property right to engage in commercial air passenger service at Love Field, as authorized under their respective leases. Third, Love Terminal Partners asserts an ownership interest in the Lemmon Avenue Terminal, which it constructed in 1999 and over which it asserted an exclusive right to use, rent, alter, renovate, and lease space within that facility.
II. PROCEDURAL HISTORY
Plaintiffs filed their complaint in the United States Court of Federal Claims (“Court of Federal Claims”) on July 23, 2008. On January 5, 2009, while briefing on the government’s motion was pending, plaintiffs moved the court to schedule a site inspection of the premises encompassed by the Master Lease because Dallas planned to demolish the Lem-mon Avenue Terminal. Pis.’ Mot. Schedule Site Inspection Before Demolition Leased Premises 1; see also id. Ex. 1 (containing a December 24, 2008 letter from Christopher Caso, Assistant City Attorney, representing that Dallas “agree[d] to postpone the demolition of any structures on the property prior to the judge’s inspection”). The court granted the motion, see Order, Jan. 5, 2009, and, on March 25, 2009, toured the Love Field facilities, as well as the Lemmon Avenue Terminal and other structures on the leased premises, with counsel, Messrs. Naul and Caso, and other officials representing Dallas and Love Field. Plaintiffs advised the court that demolition of the Lemmon Avenue Terminal gates commenced in August 2009 and was completed in September 2010.
III. LEGAL STANDARDS
A. Nature of a Fifth Amendment Takings Claim
“The chief and one of the most valuable characteristics of the bundle of rights commonly called ‘property’ is ‘the right to sole and exclusive possession — the right to exclude strangers, or for that matter friends, but especially the Government.’” Mitchell Arms, Inc. v. United States, 7 F.3d 212, 215 (Fed.Cir.1993) (quoting Hendler v. United States, 952 F.2d 1364, 1374 (Fed.Cir.1991)). The Takings Clause of the Fifth Amendment provides that private property shall not “be taken for public use, without just compensation.” U.S. Const, amend. V. This provision “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). The Takings Clause does not prohibit the taking of property. Rather, it proscribes a taking without just compensation. Brown v. Legal Found, of Wash., 538 U.S. 216, 235 , 123 S.Ct. 1406 , 155 L.Ed.2d 376 (2003); see also First English Evangelical Lutheran Church of Glendale v. County of L.A., 482 U.S. 304, 315 , 107 S.Ct. 2378 , 96 L.Ed.2d 250 (1987) (explaining that the Takings Clause “is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking”). “Real property, tangible property, and intangible property all may be the subject of takings claims.” Conti v. United States, 291 F.3d 1334, 1338-39 (Fed.Cir.2002) (citations omitted). Lease rights are recognized property rights that are subject to the Takings Clause. See Lynch v. United States, 292 U.S. 571, 579 , 54 S.Ct. 840 , 78 L.Ed. 1434 (1934) (“The Fifth Amendment commands that property be not taken without making just compensation. Valid contracts are property, whether the obligor be a private individual, a municipality, a state, or the United States.”); see *372 also U.S. Trust Co. of N.Y. v. New Jersey, 431 U.S. 1 , 19 n. 16, 97 S.Ct. 1505 , 52 L.Ed.2d 92 (1977) (“Contract rights are a form of property and as such may be taken for a public purpose provided that just compensation is paid.”); Sun Oil Co. v. United States, 572 F.2d 786, 818 (Ct.Cl.1978) (“As a general proposition, a leasehold interest is property, the taking of which entitles the leaseholder to just compensation for the value thereof.” (citing Lemmons v. United States, 496 F.2d 864, 873 (Ct.Cl.1974))). The Court of Federal Claims possesses jurisdiction over takings claims against the United States. See Murray v. United States, 817 F.2d 1580, 1583 (Fed.Cl.1987) (“[T]he ‘just compensation’ required by the Fifth Amendment has long been recognized to confer upon property owners whose property has been taken for public use the right to recover money damages from the government.”); Russell v. United States, 78 Fed.Cl. 281, 289 (2007) (“The Takings and Just Compensation Clauses of the Fifth Amendment do constitute a money-mandating source and claims under these clauses are within the jurisdiction of the court.”).
The Supreme Court “has recognized that the government may ‘take’ private property by either physical occupation or regulation.” Tuthill Ranch, Inc. v. United States, 381 F.3d 1132, 1135 (Fed.Cir.2004); see also Yee v. City of Escondido, Cal., 503 U.S. 519, 522-23 , 112 S.Ct. 1522 , 118 L.Ed.2d 153 (1992) (describing “two distinct classes” of takings: (1) physical occupation of property; and (2) regulation of the use of property); Acceptance Ins. Cos. v. United States, 583 F.3d 849, 854 (Fed.Cir.2009) (“A ‘taking' may occur either by physical invasion or by regulation.”); Huntleigh USA Corp. v. United States, 525 F.3d 1370, 1378 (Fed.Cir.2008) (“A compensable taking can occur not only through the government’s physical invasion or appropriation of private property but also by government regulations that unduly burden private property interests[.]” (citation omitted)), aff'g 75 Fed.Cl. 642 (2007), cert. denied, — U.S. -, 129 S.Ct. 626 , 172 L.Ed.2d 608 (2008). The analysis employed with respect to cases involving a physical occupation, “for the most part, involves the straightforward application of per se rules,” whereas “regulatory takings jurisprudence ... is characterized by ‘essentially ad hoe, factual inquires,’ designed to allow ‘careful examination and weighing of all the relevant circumstances.’ ” 18 Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 322 , 122 S.Ct. 1465 , 152 L.Ed.2d 517 (2002) (quoting Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104, 124 , 98 S.Ct. 2646 , 57 L.Ed.2d 631 (1978)); see also Yee, 503 U.S. at 523 , 112 S.Ct. 1522 (“The first category of cases requires courts to apply a clear rule; the second necessarily entails complex factual assessments of the pui-poses and economic effects of government actions.”). Nevertheless, courts have recognized that “there is no bright line between physical and regulatory takings.” 19 Estate of Hage, 82 Fed.Cl. at 208.
*373 The Federal Circuit “has developed a two-step approach to takings claims.” Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 (Fed.Cir.2002); accord Acceptance Ins. Cos., 583 F.3d at 854 . First, a plaintiff must identify the property interest that was allegedly taken. Nw. La. Fish & Game Pres. Comm’n v. United States, 79 Fed.Cl. 400, 408 (2007); see also Karuk Tribe of Cal. v. Ammon, 209 F.3d 1366, 1374 (Fed.Cir.2000) (“[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.’ ”). Second, “[o]nee a property right has been established, the court must then determine whether a part or a whole of that interest has been appropriated by the government for the benefit of the public.” Members of Peanut Quota Holders Ass’n v. United States, 421 F.3d 1323, 1330 (Fed.Cir.2005) (citing Conti, 291 F.3d at 1339 ); see also Ammon, 209 F.3d at 1374 (“If a plaintiff possesses a compensable property right, ... a court determines whether the governmental action at issue constituted a taking of that ‘stick.’ ” (citing M & J Coal Co. v. United States, 47 F.3d 1148, 1154 (Fed.Cir.1995))). Courts “do not reach this second step without first identifying a cognizable property interest.” Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206, 1213 (Fed.Ch.2005).
“Whether a compensable taking has occurred is a question of law based on factual underpinnings.” Maritrans Inc. v. United States, 342 F.3d 1344, 1350 (Fed.Cir.2003). While takings cases involve fact-intensive inquiries, see Penn Cent. Transp. Co., 438 U.S. at 124 , 98 S.Ct. 2646 ; see also Ammon, 209 F.3d at 1374 (noting that the second step of the court’s analysis is “an intensely factual inquiry”), such inquiries are “not standard-less,” Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 , 102 S.Ct. 3164 , 73 L.Ed.2d 868 (1982).
1. Physical Takings
A physical taking constitutes “a permanent and exclusive occupation by the government that destroys the owner’s right to possession, use, and disposal of the property.” Boise Cascade Corp., 296 F.3d at 1353 ; see also Loretto, 458 U.S. at 426 , 102 S.Ct. 3164 (“[A] permanent physical occupation authorized by government is a taking....”); Hendler, 952 F.2d at 1375 (“A physical occupation of private property by the government which is adjudged to be of a permanent nature is a taking_”). A physical taking occurs when “government encroaches upon or occupies private land for its own proposed use.” Palazzolo v. Rhode Island, 533 U.S. 606, 617 , 121 S.Ct. 2448 , 150 L.Ed.2d 592 (2001); see also Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 832 , 107 S.Ct. 3141 , 97 L.Ed.2d 677 (1987) (explaining that a “permanent physical occupation” occurs “where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises”). “When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner.” Tahoe-Sierra Pres. Council, Inc., 535 U.S. at 322 , 122 S.Ct. 1465 (citing United States v. Pewee Coal Co., 341 U.S. 114, 115 , 71 S.Ct. 670 , 95 L.Ed. 809 (1951)); see also Yee, 503 U.S. at 522 , 112 S.Ct. 1522 (“Where the government authorizes a physical occupation of property (or actually takes title) the Takings Clause generally requires compensation.”). A permanent physical occupation “is a per se physical taking ... because it destroys, among other rights, a property owner’s right to exclude.” John R. Sand & Gravel Co. v. United States, 457 F.3d 1345, 1356 (Fed.Cir.2006), aff'd on other grounds, 552 U.S. 130 , 128 S.Ct. 750 , 169 L.Ed.2d 591 (2008); accord Kaiser Aetna v. United States, 444 U.S. 164 , 100 S.Ct. 383 , 62 L.Ed.2d 332 (1979) (characterizing the right to exclude others as “one of the most essen *374 tial sticks in the bundle of rights that are commonly characterized as property”).
“A permanent physical invasion, however minimal the economic cost it entails, eviscerates the owner’s right to exclude others from entering and using her property— perhaps the most fundamental of all property interests.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 , 125 S.Ct. 2074 , 161 L.Ed.2d 876 (2005). Permanent, however, “does not mean forever, or anything like it.” Hendler, 952 F.2d at 1376 . “[T]he concept of permanent physical occupation does not require that in every instance the occupation be exclusive, or continuous and uninterrupted.” Id. at 1377 . In fact, the Federal Circuit noted that “[a]ll takings are ‘temporary/ in the sense that the government can always change its mind at a later time....” Id. at 1376 . Moreover, the physical occupation “need not occur directly, but can be found in a physical injury to real property substantially contributed to by a public improvement.” Applegate v. United States, 35 Fed.Cl. 406, 414 (1996).
The inquiry in a physical takings case “is limited to whether the claimant can establish a physical occupation of his property by the Government.” Id. In Loretto , the Supreme Court explained: “[W]hen the ‘character of the governmental action’ is a permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation, without regal’d to whether the action achieves an important public benefit or has only minimal economic impact on the owner.” 458 U.S. at 434-35 , 102 S.Ct. 3164 (citation omitted). While physical takings precedents are not necessarily applicable to cases in which a regulatory taking has been alleged, Tahoe-Sierra Pres. Council, Inc., 535 U.S. at 323 , 122 S.Ct. 1465 , “a pure physical taking rarely exists ‘because our government and its agents rarely seize or occupy property without some arguable legal or regulatory authority,’ ” 20 Roth v. United States, 73 Fed.Cl. 144, 148 (2006) (quoting Store Safe Redlands Assocs. v. United States, 35 Fed.Cl. 726, 728 (1996)).
2. Regulatory Takings
A regulation that restricts the use of property or unduly burdens private property interests is not a physical taking. Huntleigh USA Corp., 525 F.3d at 1378 ; Tuthill Ranch, Inc., 381 F.3d at 1137 . The Federal Circuit characterizes a regulatory taking as one in which “the government prevents the landowner from making a particular use of the property that otherwise would be permissible.” Forest Props., Inc. v. United States, 177 F.3d 1360, 1364 (Fed.Cir.1999) (citing Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1014 , 112 S.Ct. 2886 , 120 L.Ed.2d 798 (1992)). Until the Supreme Court’s decision in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 , 43 S.Ct. 158 , 67 L.Ed. 322 (1922), “it was generally thought that the Takings Clause reached only a ‘direct appropriation’ of property or the functional equivalent of a ‘practical ouster of [the owner’s] possession.’ ” Lucas, 505 U.S. at 1014 , 112 S.Ct. 2886 (quoting Transp. Co. v. Chicago, 99 U.S. 635, 642 , 25 L.Ed. 336 (1879); Legal Tender Cases, 79 U.S. (12 Wall.) 457, 551 , 20 L.Ed. 287 (1870)) (alteration in original) (citation omitted). “Beginning with Mahon , ... the Court recognized that government regulation of private prop *375 erty may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster-and that such ‘regulatory takings’ may be compensable under the Fifth Amendment.” Lingle, 544 U.S. at 537 , 125 S.Ct. 2074 ; see also Members of Peanut Quota Holders Ass’n, 421 F.3d at 1330 (“While a taking often occurs as a result of a physical invasion or confiscation, the Supreme Court has long recognized that ‘if a regulation goes too far it will be recognized as a taking.’ ” (quoting Mahon, 260 U.S. at 415 , 43 S.Ct. 158 )).
Regulatory takings are subdivided into two categories: (1) categorical and (2) noneategorical. 21 Huntleigh USA Corp., 525 F.3d at 1378 n. 2. A categorical taking is one in which “all economically viable use, i.e., all economic value, has been taken by the regulatory imposition.” Palm Beach Isles Assocs. v. United States, 231 F.3d 1354 , 1357 (Fed.Cir.2000); see also Lucas, 505 U.S. at 1015 , 112 S.Ct. 2886 (indicating that categorical treatment is appropriate “where regulation denies all economically beneficial or productive use of land”). Thus, “when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.” Lucas, 505 U.S. at 1019 , 112 S.Ct. 2886 . A categorical taking, like a permanent physical invasion of property, is deemed a per se taking under the Fifth Amendment. See Lingle, 544 U.S. at 538 , 125 S.Ct. 2074 ; see also Res. Invs., Inc., 85 Fed.Cl. at 477 (stating that “[gjoverment 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’ ”).
A noneategorical taking “fall[s] short of eliminating all economically beneficial use of property.” Consumers Energy Co. v. United States, 84 Fed.Cl. 152, 156 (2008) (citing Palazzolo, 533 U.S. at 617 , 121 S.Ct. 2448 ). A noneategorical taking is the “consequence of a regulatory imposition that prohibits or restricts only some of the uses that would otherwise be available to the property owner, but leaves the owner -with substantial viable economic use....” Palm Beach Isles Assocs., 231 F.3d at 1357. “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 complex of factors....” Palazzolo, 533 U.S. at 617 , 121 S.Ct. 2448 (citing Penn Cent. Transp. Co., 438 U.S. at 124 , 98 S.Ct. 2646 ). As Justice Brennan explained in Penn Central Transportation Co., the Supreme Court had “been unable to develop any ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government,” 438 U.S. at 124 , 98 S.Ct. 2646 , and instead focused “largely ‘upon the particular circumstances [in that] case,’” id. (quoting United States v. Cent. Eureka Mining Co., 357 U.S. 155, 168 , 78 S.Ct. 1097 , 2 L.Ed.2d 1228 (1958) (alteration in original)). Nevertheless, the Penn Central Transportation Co. Court extrapolated from prior decisions “several factors that have particular significance,” namely: (1) economic impact of the regulation on the plaintiff; (2) extent to which the regulation has interfered with distinct investment-backed expectations; and (3) character of the governmental action. 22 438 U.S. at 124 , 98 S.Ct. 2646 ; see also Lingle, 544 U.S. at 540 , 125 S.Ct. 2074 (stating that the Penn Central Transportation Co. inquiry “turns in large part, albeit not exclusively, upon the magnitude of a regulation’s economic impact and the degree to which it interferes with legitimate property interests”). Such a test for regulatory takings requires a comparison of “the value that has been taken from the property with the value that remains in the property....” Keystone Bituminous Coal *376 Ass’n v. DeBenedictis, 480 U.S. 470, 497 , 107 S.Ct. 1232 , 94 L.Ed.2d 472 (1987). While the Supreme Court’s regulatory takings jurisprudence “cannot be characterized as unified,” courts “aim[] to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.” Lingle, 544 U.S. at 539 , 125 S.Ct. 2074 .
3. The Lucas “Antecedent Inquiry”
A plaintiff must demonstrate title to a property right that has been purportedly taken. Good v. United States, 39 Fed.Cl. 81, 84 (1997). In Lucas , the Supreme Court explained: “Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use interests were not part of his title to begin with.” 505 U.S. at 1027 , 112 S.Ct. 2886 . This approach, the Lucas Court indicated, “accords ... with our ‘takings’ jurisprudence, which has traditionally been guided by the understandings of our citizens regarding the content of, and the State’s power over, the ‘bundle of rights’ that they acquire when they obtain title to property.” Id.
A “property owner necessarily expects the uses of his property to be restricted, from time to time, by various measures newly enacted by the State in legitimate exercise of its police powers[.]” Id.; see also Hendler v. United States, 38 Fed.Cl. 611, 615 (1997) (“Because a property owner does not have a right to use his property in a manner harmful to public health or safety, the government’s exercise of its powers to protect public health or safety does not constitute a compensable taking of any of the owner’s property rights.”), aff'd, 175 F.3d 1374 (Fed.Cir.1999). Moreover, a taking does not occur if the government’s common law nuisance and property principles prohibit the desired land use:
Any limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership. A law or decree with such an effect must, in other words, do no more than duplicate the result that could have been achieved in the courts — by adjacent landowners (or other uniquely affected persons) under the State’s law of private nuisance, or by the State under its complementary power to abate nuisances that affect the public generally. ...
Id. at 1029, 112 S.Ct. 2886 ; accord Severance v. Patterson, — S.W.3d -, -, No. 09-0387, 2010 WL 4371438, at *23 (Tex. Nov.5, 2010) (“Property owners may not use their property in a way that unreasonably interferes with the property rights of others.”). The Lucas Court rejected as inconsistent with the Takings Clause the notion that a landowner’s title “is somehow held subject to the ‘implied limitation’ that the State may subsequently eliminate all economically valuable use....” 505 U.S. at 1028 , 112 S.Ct. 2886 . Moreover, the government bears the burden of “identifying] background principles of nuisance and property law that prohibit” the plaintiffs use of the property. Id. at 1031 , 112 S.Ct. 2886 .
B. Ripeness
“When considering a Fifth Amendment takings claim, the court first must consider whether plaintiffs’ claims have ripened.” Benchmark Res. Corp. v. United States, 74 Fed.Cl. 458, 463 (2006). Where applicable, the ripeness doctrine may constrain a court’s ability to adjudicate a case. See id. (“In holding a claim to be unripe, the court essentially is refusing to exercise jurisdiction over the case.”). “Ripeness is a justiciability doctrine designed ‘to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements....’” Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 807 , 123 S.Ct. 2026 , 155 L.Ed.2d 1017 (2003) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 , 87 S.Ct. 1507 , 18 L.Ed.2d 681 (1967)). The ripeness doctrine is derived from both “Article III limitations on judicial power and from prudential reasons for refus *377 ing to exercise jurisdiction.” 23 Id. at 808, 123 S.Ct. 2026 (citing Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43 , 57 n. 18, 113 S.Ct. 2485 , 125 L.Ed.2d 38 (1993)). Courts, when addressing ripeness, must make a fact-specific determination of “whether the issues are fit for judicial decision” and “whether there is sufficient risk of suffering immediate hardship.” Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573 , 1580-81 (Fed.Cir.1993). “[T]he question of ripeness may be considered on a court’s own motion.” Nat'l Park Hospitality Ass’n, 538 U.S. at 808, 123 S.Ct. 2026 (citing Reno, 509 U.S. at 57 n. 18, 113 S.Ct. 2485 ).
As the Comí; of Federal Claims recognized in McDonald v. United States, a takings cause of action, whether physical or regulatory, “first accrues when ‘all the events which fix the government’s alleged liability have occurred and the plaintiff was or should have been aware of their existence.’” 37 Fed.Cl. 110, 114 (1997) (quoting Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed.Cir.1988)); see also Alliance of Descendants of Tex. Land Grants v. United States, 37 F.3d 1478 , 1481 (Fed.Cir.1994) (indicating that a claim accrues when the government, “by some specific action, took a private property interest for a public use without just compensation”); Goodrich v. United States, 63 Fed.Cl. 477, 480 (2005) (“When a taking is pleaded, a claim accrues when the taking occurs.”). A determination of when a takings claim accrues is governed by an objective standard. Otay Mesa Prop. L.P. v. United States, 86 Fed.Cl. 774, 785 (2009) (citing Fallini v. United States, 56 F.3d 1378 , 1380 (Fed.Cl.1995)), appeal docketed, No.2011-5008 (Fed.Cir. Oct. 13, 2010). With respect to a physical takings claim, “if the United States has entered into possession of the property[,] ... [i]t is that event which gives rise to the claim for compensation and fixes the date as of which the land is to be valued and the Government’s obligation to pay interest accrues.” United States v. Dow, 357 U.S. 17, 22 , 78 S.Ct. 1039 , 2 L.Ed.2d 1109 (1958). However, “[t]here is ... some doubt regarding the date of the accrual of a physical taking claim versus the date at which such a claim becomes ripe for litigation.” Barlow & Haun, Inc. v. United States, 87 Fed.Cl. 428, 435 (2009); see also Caldwell v. United States, 391 F.3d 1226, 1234 (Fed.Cir.2004) (“It is not unusual that the precise nature of the takings claim, whether permanent or temporary, will not be clear at the time it accrues”).
A regulatory takings claim will not accrue until the claim is ripe. Royal Manor, Ltd. v. United States, 69 Fed.Cl. 58, 61 (2005). “A regulatory taking claim is ripe (and thus accrues) when ‘the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question.’ ” Barlow & Haun, Inc., 87 Fed.Cl. at 435 (quoting Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 191 , 105 S.Ct. 3108 , 87 L.Ed.2d 126 (1985)). “When the taking is effected by legislation, the taking accrues on the enactment of the legislation introducing the physical taking.” Kemp, 65 Fed.Cl. at 822 (citing Fallini, 56 F.3d at 1382-83); see also Whitney Benefits, Inc. v. United States, 752 F.2d 1554, 1558 (Fed.Cir.1985) (“The complaint alleges a legislative taking, effective to accrue the claim on the date of the enactment of the statute....”); Entines v. United States, 39 Fed.Cl. 673, 679 (1997) (“When the government takes private property pursuant to legislative directive, any resulting takings claims accrue when the legislation becomes effective”). A takings claim predicated upon an act of Congress accrues on the date of the legislative enactment because “it is fundamental jurisprudence that the [a]ct’s objective meaning and effect were fixed when the [a]ct was adopted. Any later judicial pronouncements simply explain, but do not create, the operative effect.” Cataw *378 ba Indian Tribe of S.C. v. United States, 982 F.2d 1564, 1570 (Fed.Cir.1993).
C. RCFC 12(b)(6) Motion to Dismiss
An RCFC 12(b)(6) motion tests the sufficiency of a complaint. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 , 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007); see also RhinoCorps Ltd. Co. v. United States, 87 Fed.Cl. 481, 492 (2009) (“A motion made under Rule 12(b)(6) challenges the legal theory of the complaint, not the sufficiency of any evidence that might be adduced.”). The purpose of RCFC 12(b)(6) “is to allow the court to eliminate actions that are fatally flawed in their legal premises and destined to fail, and thus to spare litigants the burdens of unnecessary pretrial and trial activity.” Advanced Cardiovascular Sys., Inc. v. SciMed Life Sys., Inc., 988 F.2d 1157, 1160 (Fed.Cir.1993) (citing Neitzke v. Williams, 490 U.S. 319, 326-27 , 109 S.Ct. 1827 , 104 L.Ed.2d 338 (1989)). When considering an RCFC 12(b)(6) motion, the court “must determine ‘whether the claimant is entitled to offer evidence to support the claims,’ not whether the claimant will ultimately prevail.” Chapman Law Firm Co. v. Greenleaf Constr. Co., 490 F.3d 934, 938 (Fed.Cir.2007) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 , 94 S.Ct. 1683 , 40 L.Ed.2d 90 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-19 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982)). A failure to allege a cause of action upon which relief can be granted warrants a judgment on the merits rather than a dismissal for want of jurisdiction. Litecubes, LLC v. N. Light Prods., Inc., 523 F.3d 1353, 1361 (Fed.Cir.2008).
The Supreme Court clarified the degree of specificity with which a plaintiff must plead facts sufficient to survive a Rule 12(b)(6) motion in Bell Atlantic Corp., stating that “a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 550 U.S. at 555 , 127 S.Ct. 1955 (citation & quotation marks omitted). While a complaint need not contain “detailed” factual allegations, those “[fjactual allegations must be enough to raise a right to relief above the speculative level....” 24 Id. In other words, the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570 .
A claim has facial plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949 , 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp., 550 U.S. at 556 , 127 S.Ct. 1955 ). This plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also id. (stating that a complaint must contain “more than an unadorned, the-defendant-unlawfully-harmed-me accusation” (citing Bell Atl. Corp., 550 U.S. at 555 , 127 S.Ct. 1955 )). Neither allegations “that are ‘merely consistent with’ a defendant’s liability,” id. (quoting Bell Atl. Corp., 550 U.S. at 557 , 127 S.Ct. 1955 ), nor “[tjhreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are sufficient, id. (citing Bell Atl. Corp., 550 U.S. at 555 , 127 S.Ct. 1955 ).
The court “must assume all well-pled factual allegations are true and indulge in all reasonable inferences in favor of the nonmovant.” United Pac. Ins. Co. v. United States, 464 F.3d 1325, 1327-28 (Fed.Cir.2006) (citations & quotation marks omitted); accord Sommers Oil Co. v. United States, 241 F.3d 1375, 1378 (Fed.Cir.2001). Courts “generally consider only the allegations contained in the complaint, exhibits attached to the complaint[,] and matters of public record” when deciding a motion to dismiss. Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993). However, materials appearing in the record of the ease may also be taken into account without converting a motion to 'dismiss into one for summary judgment. 5B Charles A Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed.2004); cf. RCFC *379 12(d) (“If, on a motion under RCFC 12(b)(6) ..., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under RCFC 56.”). Courts have “complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion” and rely upon that material. 5C Wright & Miller, supra, at § 1366. Such discretion generally is exercised when the proffered material is “likely to facilitate the disposition of the action.” Id.
D. Motion for Summary Judgment
Plaintiffs filed a cross-motion for partial summary judgment pursuant to RCFC 56. Issues of statutory interpretation and other matters of law may be adjudicated on a motion for summary judgment. Santa Fe Pac. R.R. Co. v. United States, 294 F.3d 1336, 1340 (Fed.Cir.2002). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. RCFC 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986); Sharp v. United States, 580 F.3d 1234, 1237 (Fed.Cir.2009). The moving party, which bears the initial burden of demonstrating the absence of genuine issues of material fact, Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548 , discharges its burden by “pointing out ... that there is an absence of evidence to support the nonmoving party’s case,” A Olympic Forwarder, Inc. v. United States, 33 Fed.Cl. 514, 518 (1995). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986); see also Cloutier v. United States, 19 Cl.Ct. 326, 328 (1990) (“A material fact is one which will make a difference in the result of a case.”), aff'd, 937 F.2d 622 (Fed.Cir.1991). “[Wjhen establishing entitlement to judgment as a matter of law, the movant must present material facts to support the legal elements of its claim.” Liquidating Tr. Ester Duval of El Liquidation, Inc. v. United States, 89 Fed.Cl. 29, 38 (2009). An issue is genuine if it “may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250 , 106 S.Ct. 2505 . The moving party is not required to support its application with affidavits, but instead may rely solely on the pleadings, depositions, answers to interrogatories, and admissions. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548 . The nonmoving party then bears the burden of showing that there are genuine issues of material fact for trial, id., and must come forward with “specific facts showing that there is a genuine issue for trial,” RCFC 56(e).
The court must view inferences to be drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986). If the nonmoving party produces sufficient evidence to raise a genuine issue of fact material to the outcome of the case, then the motion for summary judgment should be denied. Eli Lilly & Co. v. Barr Labs., Inc., 251 F.3d 955 , 971 (Fed.Cir.2001). Even where the facts are not disputed, the moving party still must demonstrate that it is entitled to judgment as a matter of law. Massey v. Del Labs., Inc., 118 F.3d 1568, 1573 (Fed.Cir.1997). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Indus. Co., 475 U.S. at 587 , 106 S.Ct. 1348 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 , 88 S.Ct. 1575 , 20 L.Ed.2d 569 (1968)). Following “adequate time for discovery,” entry of summary judgment is mandated against a party who fails to establish “an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548 .
IV. DISCUSSION
Defendant asserts that plaintiffs fail to allege facts that support a finding that the government effected a physical or regulatory taking of plaintiffs’ property interest. According to defendant, no physical taking has occurred in this case because the United States did not acquire plaintiffs’ airport facilities and lease rights. Moreover, defendant argues, no regulatory taking occurred because the WARA does not limit plaintiffs’ use *380 of the property. In support of its argument, defendant notes that the statute omits any reference to plaintiffs or them property. Plaintiffs counter by arguing that the WARA requires Dallas to acquire all or part of their lease and demolish the six gates Love Terminal Partners constructed at the Lemmon Avenue Terminal. Additionally, plaintiffs argue that the government’s enactment of the WARA effected a per se taking that destroyed all the economically beneficial use of their leased property, including the terminal, and their right to fly commercial passenger flights from their terminal. According to plaintiffs, these allegations state a Fifth Amendment takings claim that survives defendant’s motion.
Plaintiffs further argue that they are entitled to summary judgment because the WARA requires Dallas to demolish passenger gates built by Love Terminal Partners at the Lemmon Avenue Terminal, actions they contend constitute a physical taking. Prior to the enactment of the WARA, Love Terminal Partners possessed the right to exclude Dallas from demolishing its passenger gates. It has been long recognized that the right to sole, exclusive possession, in other words, the right to exclude, is “one of the most valuable characteristics of the bundle of rights commonly called ‘property....’” Mitchell Arms, Inc., 7 F.3d at 215 (quoting Hendler, 952 F.2d at 1374 ). Love Terminal Partners, plaintiffs assert, lost that right when the WARA mandated demolition of its passenger gates as part of the overall plan to reduce the number of available gates at Love Field from thirty-two to twenty and ensure that the Lemmon Avenue Terminal gates could never be used for air passenger service. According to plaintiffs, the WARA’s requirement that the Love Field passenger gates be demolished effected a legislative taking that entitles them to just compensation.
A. Plaintiffs’ Takings Claim Is Ripe
As an initial matter, the court addresses defendant’s argument that plaintiffs’ claim is unripe. Ripeness, of course, is an issue that the court may address sua sponte. Coalition for Common Sense in Gov’t Procurement v. Sec’y of Veterans Affairs, 464 F.3d 1306 , 1316 (Fed.Cir.2006); supra Part III.B. Defendant emphasizes that, at the time plaintiffs filed their complaint,
the Lemmon Avenue Terminal ha[d] not been physically impacted by anyone. Thus, any allegation by Plaintiffs that the possible future demolition of the facility may result in a taking of their property for which they are entitled to compensation fails for lack of ripeness_ To the extent that Plaintiffs are alleging a taking of their property resulting from the possible future destruction of the Lemmon Avenue Terminal, the Court must also dismiss the claim pursuant to RCFC 12(b)(1) for lack of subject matter jurisdiction.
Def.’s Mot. 11 n. 7. Defendant maintains that the mere passage of the WARA effectuated no taking because no physical occupation or intrusion of plaintiffs’ property had occurred. According to defendant, Dallas would need to take specific action that interfered with the property before a taking would occur. As mentioned above, such action occurred with the demolition of the Lem-mon Avenue Terminal gates that began in August 2009 and concluded in September 2010.
Plaintiffs argue that their complaint alleges a legally cognizable legislative taking because enactment of the WARA deprived them of, among other things, the right to exclude, thereby constituting a per se, physical taking. They assert that the date Dallas demolished the Lemmon Avenue Terminal gates is not relevant to the takings analysis because a statute that precludes a property owner of the right to exclude is a per se taking, and, consequently, a legislative taking is ripe on the day legislation containing such a provision becomes law. According to plaintiffs, any question of ripeness in this case is resolved by the Federal Circuit’s decision in Fallini. 25 The court agrees with plaintiffs.
In Fallini, Nevada cattle ranchers alleged that the government effected a taking of their property by requiring them to provide *381 water to wild horses living in the area. 26 56 F.3d at 1379. Although the Fallinis alleged in their complaint that the uncompensated taking commenced in 1971, the Fallinis did not file suit until 1992. 27 Id. at 1381. In support of their contention that their suit was timely filed, the Fallinis argued, among other things, that every drink taken by a wild horse since 1971 “constituted a separate taking.” Id. The Federal Circuit determined that the Fallinis could not overcome the six-year limitations bar set forth in 28 U.S.C. § 2501 . Id. at 1381, 1383.
Analogizing the Fallinis’ argument to a taking of real property, the Federal Circuit explained that when the government enacts legislation requiring a beachfront property landowner to allow others to walk along the beach, thereby creating an easement across the landowner’s property, a separate and distinct taking of property does not occur each time a pedestrian utilizes the easement. Id. at 1382 (citing Nollan, 483 U.S. at 831 , 107 S.Ct. 3141 28 ). The Federal Circuit reasoned that the “only governmental action” that constituted a taking was “the government’s di-. rective forbidding the Fallinis from shooing the horses away from the water that the Fallinis have produced at their developed water sources,” not the recurrence of “every new drink taken by every wild horse.” Id. at 1383. That directive occurred, the Federal Circuit indicated, in 1971 when Congress enacted the Wild Free-Roaming Horses and Burros Act, which the Fallinis themselves identified as the “governmental action that prevented them from fencing the horses away from their water sources....” Id. Because the Fallinis “admit[ted] that they suffered injury from the date of enactment” of the Wild Free-Roaming Horses and Burros Act, the Federal Circuit concluded that, “[f]or purposes of claim accrual, such a taking occurs on the date of enactment of the legislation.” Id. at 1382-83. Although defendant here contends that no physical taking would ever occur if Dallas did not access plaintiffs’ property, Fallini suggests otherwise, instructing that, for purposes of determining when a taking occurred, a court must focus upon the date of “enactment of the statute” and not the individual intrusions upon the property committed thereafter. 29 Id. at 1383; see also id. (noting that the proper focus, for statute of limitations pur *382 poses, was upon the time of the government’s action, not the time of the consequences flowing therefrom (citing Del. State Coll. v. Ricks, 449 U.S. 250, 258 , 101 S.Ct. 498 , 66 L.Ed.2d 431 (1980))).
The Fallini court left open the question of what governmental action would constitute a taking if an intrusion occurred by an agent or instrumentality of the government. Id.; supra note 29. That situation arose in Kemp, which, like Fallini, raised a statute of limitations issue. See 65 Fed.Cl. at 822. Unlike Fallini, Kemp involved actions taken by the National Park Service (“NPS”) to acquire the plaintiffs property following the enactment of a federal statute authorizing the expansion of Rocky Mountain National Park. 30 Id. at 819; see Act of Dee. 22, 1980, Pub.L. No. 96-560, § 111 (a), 94 Stat. 3265 -274 (revising the boundaries of Rocky Mountain National Park). The plaintiff alleged that the government used her property once the Act became law and did so for approximately nineteen years. Kemp, 65 Fed.Cl. at 823; see also id. at 822 (recounting the plaintiffs allegations that, beginning on December 22, 1980, the National Park Service “began to allow ‘the public to traverse and use the land without [her] permission or acquiescence’”). Notwithstanding her allegation that “ ‘[u]pon the effective date of the Act, the United States utilized the property as its own and for public use as part of the [National Park],’ ” the plaintiff did not file suit until after the temporary taking ended. Id. at 823 (alterations in original) (quoting the complaint).
The Kemp court, relying upon Fallini, reiterated that “[w]hen the taking is effected by legislation, the taking accrues on the enactment of the legislation introducing the physical taking.” Id. at 822. It explained: “[T]he taking accrued when the government legislation allowed [Rocky Mountain National Park] to start using the land as its own and deprived [plaintiff] of her right to exclude.” Id. at 824. That right to exclude, the Kemp court reasoned, was extinguished upon the legislative enactment, not on the date that the public began traversing across the property. See id. at 825. Thus, Kemp suggests that the NPS’s activities or encroachments on the property that occurred subsequent to the legislative enactment were irrelevant for the purpose of determining when the plaintiffs claim accrued because “only the original act permitting the public access is considered a compensable taking.” Id. (emphasis added). Accordingly, even if no one entered the plaintiffs property within six years after the Act became law, the triggering action nevertheless remained the legislation’s enactment: “Ms. Kemp’s claim is barred by the statute of limitations because it was not filed within six years of the date the claim first accrued[ ] (December 22, 1980, the date on which the government expanded the boundaries of the National Park and began to use Ms. Kemp’s land)....” Id. at 824; see also Hair v. United States, 52 Fed.Cl. 279, 283 (2002) (concluding that takings claims associated with the San Francisco Peace Treaty, which was ratified by the United States in April 1951 and waived all reparations claims of the Allied powers arising out of any actions taken by Japan during World War II, were untimely because “a taking claim based on a treaty accrues Vhen the taking occurs,’” i.e., when the treaty extinguished the plaintiffs legal rights against the government (quoting Alliance of Descendants of Tex. Land Grants, 37 F.3d at 1482)).
The same principle is evident in other eases. For example, in Whitney Benefits, Inc., the Federal Circuit reversed a United States Claims Court determination that “no taking could have occurred up to the date of hearing and it was then uncertain whether a taking ever would occur” as a result of Congress’s enactment of the Surface Mining Control and Reclamation Act. 752 F.2d at 1554 . It explained: “The complaint alleges a legislative taking, effective to accrue the claim on the date of enactment of the statute, but if a taking occurred on any later date, the court would allow amendment, and the theory of dismissal was and could only be that it had not occurred at all and could not have.” Id. at 1558 (emphasis added). The *383 Federal Circuit made a similar’ determination in Maritrans, Inc., reversing a Court of Federal Claims ruling that enactment of the Oil Pollution Act of 1990 (“OPA90”) did not ripen a takings claim related to seven vessels. 342 F.3d at 1359, 1361 . The Federal Circuit reasoned: “Upon enactment, OPA90 interfered in a ‘clear, concrete fashion’ with Mari-trans’ ‘primary use’ of its tank barges_ Maritrans suffered actual injury upon enactment of OPA90. At that time, the useful lives of its single hull tank barges were shortened from sixty years to between five and twenty-five years.” Id. at 1360-61 . Furthermore, although ripeness was not at issue in Loretto , implicit in the Supreme Court’s decision was the recognition that the plaintiffs cause of action accrued when the New York legislature enacted a regulation preventing landowners from “‘interfering] with the installation of cable television facilities upon his property or premises....’” 458 U.S. at 423 , 102 S.Ct. 3164 (quoting N.Y. Exec. Law § 828 (McKinney Supp.1981-1982)); see also Cienega Gardens v. United States, 265 F.3d 1237, 1244 (Fed.Cir.2001) (indicating that a taking occurs when government action, “although not encroaching upon or occupying private property, still affects and limits its use”).
The government contends that Loretto is distinguishable because “a third party had in fact entered the plaintiffs property and placed cable wires on the structure.” Def.’s Reply 26. Although the telecommunications company “routinely obtained authorization for its installations from property owners” before the New York legislature enacted the regulation at issue in Loretto, 458 U.S. at 423 , 102 S.Ct. 3164 , this fact alone is not dispositive. Whereas the property owners previously negotiated with the telecommunications company for compensation that equaled five percent of the gross revenues realized from the property, the regulation limited the property owners’ ability to “demand payment ... ‘in excess of any amount which the [State Commission on Cable Television] ... by regulation, determine^] to be reasonable.’” Id. (second alteration in original) (quoting N.Y. Exec. Law § 828 ). The “ ‘character of government action’ ” in Loretto , viz., the enactment of a regulation that eviscerated the property owner’s right to exclude the telecommunications company from installing its equipment, was what the Supreme Court determined “so frustrated] property rights that compensation must be paid.” Id. at 426 , 102 S.Ct. 3164 ; see also id. (explaining that the character of the government action is “not only ... an important factor in resolving whether the action works a taking but also is determinative ” (emphasis added)).
A claim accrues when the government, “by some specific action, [takes] a private property interest for a public use without just compensation.” Alliance of Descendants of Tex. Land Grants, 37 F.3d at 1481. Here, plaintiffs allege that their leases allow only a single use of Love Field, namely air transportation, and that the WARA precludes their use of the premises for air transportation purposes. Plaintiffs are correct that they allege in their complaint a legally cognizable legislative taking arising from Congress’s prohibition of the sole economic use of their leasehold property and that the WARA deprived them of the ability to exclude persons on the day it was enacted.
The court determines that plaintiffs’ claim was ripe at the time they filed their complaint. The principles derived from Loretto and discussed in Fallini, Kemp, Mari-trans, Inc., and Whitney Benefits, Inc. indicate that a claim alleging that the WARA effected a taking became ripe on October 13, 2006, the date the legislation became law. 31 To hold otherwise would subject plaintiffs to a “Cateh-22” wherein a cause of action accrues and the statute of limitations begins *384 running, but a claim cannot be filed because it is not ripe. Were the court to adopt defendant’s position, plaintiffs might ultimately find themselves facing a statute of limitations defense that the plaintiffs in Fal-lini and Kemp could not overcome.
Furthermore, the court rejects the govern-' ment’s argument that the holding in Williamson County Regional Planning Commission warrants a finding in this case that plaintiffs’ claim is unripe. In Williamson County Regional Planning Commission, Tennessee law permitted a property owner to bring an inverse condemnation action to obtain just compensation for an alleged taking. 473 U.S. at 194 , 105 S.Ct. 3108 . The respondent, however, did not seek compensation through the procedure provided under state law. Id. Because the respondent failed to utilize that procedure, the Supreme Court determined that the respondent’s claim was not ripe. Id. at 196-97 , 105 S.Ct. 3108 . Specifically, it indicated that no constitutional violation could occur “until just compensation has been denied,” id. at 194 n. 13, 105 S.Ct. 3108 , explaining that “the Constitution does not require pretaking compensation, and is instead satisfied by a reasonable and adequate provision for obtaining compensation after the taking,” id. at 195 , 105 S.Ct. 3108 . In other words, the state action was “not ‘complete’ until the State fail[ed] to provide adequate compensation for the taking.” Id. Until such time as the respondent showed that the state procedure was either unavailable or inadequate, its taking claim was premature. Id. at 196-97 , 105 S.Ct. 3108 .
Here, neither Dallas nor any state legislative body created a mechanism through which plaintiffs could seek compensation for the taking of their property interests. Plaintiffs did not institute suit in state court claiming an inverse condemnation or pursue an alternative remedy under Texas law because they contend that Dallas is acting as an agent of the United States. Indeed, plaintiffs claim that the WARA, rather than a Texas statute, effected a taking of their property, and the WARA sets forth no special procedure for plaintiffs to invoke in order to obtain compensation. Accordingly, plaintiffs have availed themselves of the process provided by the Tucker Act. The Supreme Court has held that “takings claims against the Federal Government are premature until the property owner has availed itself of the process provided by the Tucker Act.” Id. at 195 , 105 S.Ct. 3108 . To determine whether a remedy exists under the Tucker Act for a claim arising out of a taking pursuant to a federal statute, courts must ascertain whether Congress, in the statute in question, withdrew the Tucker Act grant of jurisdiction to entertain a suit founded upon the Constitution. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1017 , 104 S.Ct. 2862 , 81 L.Ed.2d 815 (1984). Defendant does not claim that the WARA in any way affects the Tucker Act, and nothing in the statute or its legislative history indicates that Congress intended to withdraw Tucker Act jurisdiction. See 120 Stat. at 2011-14; see also Ruckelshaus, 467 U.S. at 1017 , 104 S.Ct. 2862 (explaining that a repeal of the Tucker Act’s jurisdiction by implication is disfavored); Acceptance Ins. Cos. v. U.S., 503 F.3d 1328, 1336 (Fed.Cir.2007) (stating that “withdrawal of Tucker Act jurisdiction by implication is disfavored, which means that a court must find that the statute at issue ... reflects an unambiguous congressional intent to displace the Tucker Act’s waiver of sovereign immunity”). Thus, the Supreme Court’s holding in Williamson County Regional Planning Commission that a property owner must first utilize procedures created by the state to seek just compensation as a result of conduct by a state municipality planning commission is inappo-site here.
B. Defendant’s Motion
Having determined that plaintiffs’ claim is ripe, the court turns to defendant’s motion. Defendant argues that no taking in contravention of the Fifth Amendment has occurred because the United States did not acquire any land, airport facilities, or leasehold rights. Defendant also contends that the United States did not order Dallas to acquire plaintiffs’ property interests. Furthermore, defendant argues that the WARA does not contain any regulatory limitations on the use of plaintiffs’ property. Before it addresses the substance of defendant’s argument, the court must determine whether the exhibits appended to the parties’ briefs re *385 quire the court to convert defendant’s motion into one for summary judgment under RCFC 56. See RCFC 12(d).
I. The Parties’ Exhibits Are Not “Matters Outside the Pleadings” That Require Conversion of Defendant’s Motion to a Motion for Summary Judgment
As discussed in Part III.C, supra, the court has discretion to consider materials beyond the pleadings and “is not limited to the four corners of the complaint” when ruling upon an RCFC 12(b)(6) motion. 5B Wright & Miller, supra, at § 1357 (discussing Rule 12(b)(6) of the Federal Rules of Civil Procedure (“FRCP”)). Courts “have allowed consideration of matters incorporated by reference or integral to the claim....” Id.; see also In re Syntex Corp. Secs. Litig., 95 F.3d 922, 926 (9th Cir.1996) (“When deciding a motion to dismiss, a court may consider the complaint and ‘documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading.’” (quoting Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994))). “Where a complaint refers to a document but does not incorporate it, a party may submit a copy of the document to support or oppose a motion to dismiss as long as the document is ‘central’ to the complaint.” P.D. v. Mt. Vernon Cmty. Sch. Corp., No. 1:07-CV-1048-DFH-JMS, 2008 WL 1701877 , at *1 (S.D.Ind. Apr. 10, 2008).
Here, defendant appended to its motion the following documents: the Joint Statement; Senate Report No. 109-317, a Senate Committee on Commerce, Science, and Transportation report; and the declaration of J. Michael Nicely, the manager of the Texas Airport Development Office in Fort Worth for the Federal Aviation Administration (“FAA”). Additionally, defendant appended to its reply brief copies of plaintiffs’ brief filed in the antitrust action before the Northern District of Texas and supplements to the Master Lease. In support of their cross-motion, plaintiffs appended a declaration from Mr. Naul, the Contract, correspondence between plaintiffs and Dallas related to the property encompassed by the Master Lease, a state court final judgment granting Dallas a writ of possession of the premises encompassed by the Master Lease, and the Dallas City Council Resolution.
None of these materials warrants conversion of defendant’s motion into one for summary judgment. First, these materials clarify, rather than add anything new to, the allegations in the complaint. See Song v. City of Elyria, Ohio, 985 F.2d 840, 842 (6th Cir.1993) (rejecting an argument that materials were outside the pleadings on an FRCP 12(b)(6) motion where the documents “did nothing more than verify the complaint” and “added nothing new, but, in effect, reiterated the contents of the complaint itself’). Second, these materials fall within the “narrowly defined category of materials a court can consider without converting a[n FRCP] 12(b)(6) motion to one for summary judgment. This category includes exhibits attached to the complaint, undisputed documents relied upon by the plaintiff, other items appearing in the record of the case, and matters of public record.” Stuler v. United States, No. 07-642, 2008 WL 957009 , at *2 (W.D.Pa. Apr. 8, 2008) (citation omitted). Senate reports, court filings, and resolutions passed by municipalities are public records. See Biomed. Patent Mgmt. Corp. v. Cal., Dep’t of Health Servs., 505 F.3d 1328, 1331 (Fed.Cir.2007) (“[C]ourt filings ... are matters of public record....”); Jones v. Butler, No. 09-03128, 2009 WL 2461885 , at *5 (E.D.Pa. Aug. 11, 2009) (recognizing that a city council resolution is “unquestionably a matter of public record”); L.H. v. Schwarzenegger, 519 F.Supp.2d 1072, 1079 (E.D.Cal.2007) (“[T]he Senate Report is a public record-”). The Joint Statement, which is publicly accessible via Love Field’s Internet website, see “Agreement Reached on Love Field,” at http://www.dallas-lovefield.com/pdf/ Wright_Amend_Agreement061506.pdf (last visited Feb. 11, 2011), as well as Mr. Nicety’s and Mr. Naul’s declarations, are no different. See United States ex rel. Dingle v. BioPort Corp., 270 F.Supp.2d 968, 972 (W.D.Mich.2003) (“Public records and government documents are generally considered ‘not to be subject to reasonable dispute.’ This includes public records and government documents available from reliable sources on the Internet.” (quoting Jackson v. City of Columbus, *386 194 F.3d 737, 745 (6th Cir.1999))). Under Texas law, the Joint Statement is a “local government record,” a “document ... create ed or received by a local government or any of its officers or employees pursuant to law ... in the transaction of public business.” Tex. Loc. Gov’t Code Ann. § 201.003 (West 2008). Local government records are subject to public information access laws. See id. § 201.009(a). “Public information” includes, among other things, “information that is collected, assembled, or maintained ... in connection with the transaction of official business,” id. § 552.002(a)(1), by a “municipal governing body,” id. § 552.003(l)(A)(iii). Additionally, defendant utilizes Mr. Nicety's declaration to indicate that, as of November 18, 2008, the Lemmon Avenue Terminal gates had not been demolished. See Def.’s Mot. Ex. C at 1 (Deel. J. Michael Nicety ¶ 5). Such an eyewitness observation, the court finds, “refleet[s] common knowledge,” Olson v. Ford Motor Co., 481 F.3d 619 , 629 (8th Cir.2007), and courts may, among other things, “take notice of matters of common observation,” N.Y. Indians v. United States, 170 U.S. 1 , 32, 18 S.Ct. 531 , 42 L.Ed. 927 (1898). Furthermore, Mr. Naul’s declaration merely supplements, rather than adds new material to, the complaint. Accordingly, the court’s consideration of these materials does not require conversion of defendant’s motion into one for summary judgment.
2. Plaintiffs Have Identified a Property Interest That Was Allegedly Taken
Under the Federal Circuit’s two-step approach to analyzing takings claims, plaintiffs must first identify the property interest allegedly taken. See Adams v. United States, 391 F.3d 1212, 1218 (Fed.Cir.2004); Ammon, 209 F.3d at 1374 . Plaintiffs allege that Love Terminal Partners subleased nine acres of the area covered by the Master Lease “for the purpose of providing commercial air passenger service at Love Field,” Compl. ¶ 6, and that Virginia Aerospace eventually acquired the Master Lease, “subject to the [Love Terminal Partners] sublease, for the purpose of providing commercial passenger airline service at Love Field, in cooperation with [Love Terminal Partners],” id. ¶ 8; see also Pis.’ Cross-Mot. 12-13 (arguing that the complaint alleges that plaintiffs “own property in the form of their Love Field leases (including the [Lemmon Avenue] Terminal, gates, and the right to fly from these gates)”). Thus, plaintiffs assert, they have identified a property interest for purposes of the Fifth Amendment:
The first step of the inquiry is easily satisfied: the commercial leases, the [Lemmon Avenue] Terminal, gates, and the right to fly are property within the meaning of the Fifth Amendment. [Virginia Aerospace] is the assignee of the original Braniff Airlines 1955 lease, which now covers 26.8 acres, and [Love Terminal Partners] holds a sublease of nine of those acres, on which it has constructed the [Lemmon Avenue] Terminal. Both leases allow use of these airport premises for air transportation purposes only. [Love Terminal Partners] constructs ed the Terminal with six gates in 1999.
Pis.’ Cross-Mot. 13 (footnotes omitted); see also id. at 14 (noting that the complaint alleges that plaintiffs “each held a leasehold interest at Love Field” at the time the WARA was enacted).
As the Federal Circuit observed, the Constitution
neither creates nor defines the scope of property interests compensable under the Fifth Amendment. Instead, “existing rules and understandings” and “background principles” derived from an independent source, such as state, federal, or common law, define the dimensions of the requisite property rights for purposes of establishing a cognizable taking. These existing rules often involve and define “the citizen’s relation to the physical thing, as the right to possess, use and dispose of it.”
Conti, 291 F.3d at 1340 (quoting Lucas, 505 U.S. at 1030 , 112 S.Ct. 2886 ; United States v. Gen. Motors Corp., 323 U.S. 373, 378 , 65 S.Ct. 357 , 89 L.Ed. 311 (1945)) (citation & footnote omitted); accord Acceptance Ins. Cos., 583 F.3d at 857 ; see also Hage v. United States, 35 Fed.Cl. 147, 168 (1996) (“Property rights are generally defined by state law_”). Here, plaintiffs maintain that Love Terminal Partners, at the time the WARA was enacted, possessed the exclusive right to use, rent, alter, renovate, and lease *387 space within the Lemmon Avenue Terminal building. Plaintiffs further argue that Dallas, at no time, had the right to enter onto the property. Plaintiffs further explain that their business plan included expansion of the terminal and related air passenger services beyond the nine acres subleased by Love Terminal Partners as air traffic at Love Field increased.
It is abundantly clear that plaintiffs possess a valid property interest. In Travis Central Appraisal District v. Signature Flight Support Corp., the Court of Appeals of Texas recognized that the ownership interest at issue in that case was “an ownership interest in a leasehold. Because the City [of Austin] own[ed] the improvements but lease[ed] them to appellees, it is perfectly correct to refer to appellees’ ownership interests in the leased facilities and allow them the right to ‘sell’ that leasehold interest.” 32 140 S.W.3d 833, 841 (Tex.App.2004); see also Panola County Appraisal Dist. v. Panola County Fresh Water Supply Dist. No. 1, 69 S.W.3d 278, 283 (Tex.App.2002) (“A leasehold interest is an ownership right in land that belongs to the lessee.”), 284 (“An ownership interest in a leasehold is the legal right to possess that property for a set period of time_”); Def.’s Reply Ex. B at 4 (Master Lease art. II ¶ 1 (providing that Dallas “hereby leases and rents to Lessee for Lessee’s exclusive use, and Lessee hereby agrees to hire and take, ... the Premises”)). As the Court of Appeals of Texas further noted, the ownership of a leasehold interest
has a measurable fair market value because there are people who are willing to purchase and do purchase that right to possess the property under the terms of the lease. Furthermore, the assignee of the leasehold may in turn convey his or her ownership right to another person and obtain the fair market value existing at that time.
Panola County Appraisal Dist., 69 S.W.3d at 284 . See generally Gen. Motors Corp., 323 U.S. at 373 , 65 S.Ct. 357 (recognizing that just compensation was required by the Fifth Amendment in a ease where the federal government deprived a tenant, which held a long-term lease, of occupancy of portions of a leased building); see also U.S. Trust Co. of N.Y., 431 U.S. at 19 n. 16, 97 S.Ct. 1505 (recognizing that “[e]ontract rights are a form of property and as such may be taken for a public purpose provided that just compensation is paid”); Sun Oil Co., 572 F.2d at 818 (stating that “a leasehold interest is property, the taking of which entitles the leaseholder to just compensation for the value thereof’).
Plaintiffs assert that the complaint adequately alleges their ownership of the leasehold, noting that it describes the lease and the property interests acquired by both Love Terminal Partners and Virginia Aerospace. Defendant does not appear to challenge the premise that plaintiffs own a property right in their leases. Rather, it contends that Dallas, not plaintiffs, owns the Lemmon Avenue Terminal and that the government neither acquired nor assumed any rights or responsibilities under plaintiffs’ leases with Dallas. “It is axiomatic that only persons with a valid property interest at the time of the taking are entitled to compensation.” Chancellor Manor v. United States, 331 F.3d 891, 901 (Fed.Cir.2003). Plaintiffs have both identified and alleged possession, through their ownership of their leasehold interests, of “a ‘stick in the bundle of property rights,’” Ammon, 209 F.3d at 1374 , at the time of the purported taking.
3. Plaintiffs Have Alleged Government Appropriation of Their Ownership in the Leaseholds
“If a property right has been established, the court must then determine whether the Government has taken it in part or in whole.” Griffin Broadband Comm’ncs, Inc. v. United States, 79 Fed.Cl. 320, 323 (2007). Defendant, as noted above, claims that no taking *388 has occurred. First, it states that the sine qua non of a physical taking is the requirement that the plaintiff submit to the physical occupation of property and emphasizes that the United States has not entered upon the leasehold property. Next, defendant asserts that the WARA effected no regulatory taking of plaintiffs’ leasehold property because the legislation placed no limit on how plaintiffs could use their property. Third, defendant emphasizes the significance of the absence of any reference to plaintiffs or their leasehold interests in the WARA.
Defendant’s arguments ignore the fact that the Love Terminal Partners and Virginia Aerospace leases permitted use of the premises only for air transportation purposes. Plaintiffs contend that the WARA’s prohibition of such uses and requirement that Dallas acquire the leases and demolish the passenger gates so that the leased premises can never again be used for air transportation purposes clearly establish a legislative taking. Specifically, plaintiffs allege in their complaint that (1) the Master Lease permits the sole use of the Love Field premises for air transportation, (2) the WARA precludes all uses for that purpose, (3) the WARA requires that Dallas acquire plaintiffs’ leases in part or in whole, and (4) Dallas must, pursuant to the WARA, demolish the passenger gates of the Lemmon Avenue Terminal so that those gates can never again be used for air passenger service. Plaintiffs claim that the WARA’s legislative prohibition on the sole economically beneficial use of the premises constitutes a per se taking under Lucas . Additionally, plaintiffs assert a claim for a physical taking because the WARA requires the physical demolition of the passenger gates at the Lemmon Avenue Terminal. Thus, the court determines that plaintiffs sufficiently allege that the government appropriated their ownership in their leaseholds. Next, the court addresses whether plaintiffs have stated a takings claim by addressing their physical and regulatory takings theories.
4. Plaintiffs’ Complaint States a Takings Claim
As explained in Part III.C, supra, a motion made pursuant to RCFC 12(b)(6) “challenges the legal theory of the complaint, not the sufficiency of any evidence that might be adduced.” Advanced Cardiovascular Sys., Inc., 988 F.2d at 1160 . Plaintiffs argue that their complaint sufficiently alleges a claim for relief, asserting that a physical taking occurred because the WARA required the physical demolition of the passenger gates at the Lemmon Avenue Terminal. Alternatively, plaintiffs assert that the WARA effected a regulatory taking on grounds that it legislatively prohibited the sole economically beneficial use of the premises. As the Supreme Court has recognized, “[e]onsider-ation of whether a regulatory taking occurred would not assist in resolving whether a physical taking occurred as well” because neither inquiry encompasses the other. Yee, 503 U.S. at 537 , 112 S.Ct. 1522 . Nevertheless, each inquiry “might be subsidiary to a question embracing both — Was there a taking?” Id. Thus, plaintiffs’ position that the WARA effected a taking in two different ways reflects their advancement of “separate arguments in support of a single claim,” rather than separate claims. Id. at 535 , 112 S.Ct. 1522 ; see also Acceptance Ins. Cos., 583 F.3d at 854 (“A ‘taking’ may occur either by physical invasion or by regulation.” (emphasis added)); cf. Estate of Hage, 82 Fed.Cl. at 211-13 (determining that the government effected both physical and regulatory takings of the plaintiffs’ property).
a. Plaintiffs’ Complaint States a Claim for a Physical Taking
Plaintiffs allege that a physical taking of their leasehold interest occurred when their legal right to exclude was extinguished, asserting that Dallas was acting pursuant to a federal mandate set forth in the WARA and, as such, was an agent of the federal government. See Preseault v. United States, 100 F.3d 1525, 1551 (Fed.Cir.1996) (en banc) (explaining that “when the Federal Government puts into play a series of events which result in a taking of private property, the fact that the Government acts through a state agent does not absolve it from the responsibility, and the consequences, of its actions”). By contrast, defendant maintains that plaintiffs *389 failed to allege that the United States physically invaded or occupied their property. According to defendant, any limitation established by the WARA were directed at Dallas, not plaintiffs.
In support of its position, defendant relies upon Loretto and that decision’s emphasis upon a physical intrusion that, according to defendant, had not occurred in this case at the time plaintiffs filed their complaint. Defendant suggests that Loretto stands for the proposition that a physical talcing is not established until the physical intrusion reaches the level of a permanent physical occupation. According to defendant,
[i]n Loretto , unlike the instant case, a third party had in fact entered the plaintiffs property and placed cable wires on the structure. Plaintiffs must admit that, to the contrary, the City of Dallas ha[d] not demolished the terminal gates on the Lem-mon Avenue facility.... [T]he language of Loretto makes clear that a physical taking is not established until ‘the physical intrusion reaches the extreme form of a permanent physical occupation.’ Here, there [wa]s no physical intrusion, let alone a physical intrusion that represents a permanent physical occupation. 33
Def.’s Mot. 26-27 (footnote added) (citation omitted).
Yet, the Loretto Court addressed whether the New York statute authorizing a telecommunications company to install equipment on private property without interference from the landowners effected the physical taking. That a physical intrusion had already occurred was not relevant to the Loretto Court’s analysis. In its decision, the Supreme Court held that “a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve.” Loretto, 458 U.S. at 426 , 102 S.Ct. 3164 (emphasis added). In so holding, the Supreme Court implicitly recognized that the statutory enactment granting the telecommunications company entry onto the property to install its equipment — and not the actual, physical entry by the telecommunications company — triggered the extinguishment of what it previously termed the property owner’s “ ‘right to exclude,’ ” which is “universally held to be a fundamental element of the property right,” Kaiser Aetna, 444 U.S. at 180 , 100 S.Ct. 383 . Therefore, Loretto suggests that a court’s focus is upon the government’s enactment of legislation that deprives a landowner of one of the sticks in his bundle of rights. In this case, plaintiffs allege that the WARA authorized Dallas to demolish the Lemmon Avenue Terminal gates and precluded them from excluding Dallas from entry onto their property. These allegations are sufficient to state a takings claim. Thus, plaintiffs’ claim is not predicated upon any future entry by Dallas onto the premises.
The Supreme Court’s decision in Nollan does not suggest otherwise. There, the Supreme Court observed that “a ‘permanent physical occupation’ has occurred ... where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.” 483 U.S. at 832 , 107 S.Ct. 3141 . In that case, the plaintiffs leased, with an option to buy, beachfront property that contained a small bungalow that had fallen into disrepair. Id. at 827 , 107 S.Ct. 3141 . Their option to buy “was conditioned on their promise to demolish and replace” the bungalow, actions that could not be accomplished absent a coastal development permit from the California Coastal Commission (“CCC”). Id. at 828 , 107 S.Ct. 3141 . The plaintiffs applied to the CCC for a permit, and the CCC recommended issuance of the permit subject to a condition that the plaintiffs “allow the public an easement to pass across a portion of their property....” Id. Challenging the CCC’s condition, the plaintiffs asserted that it constituted a taking, and they successfully obtained a writ of mandamus from the Ventura County Superior Court directing that the permit condition be *390 stricken. 34 Id. at 829 , 107 S.Ct. 3141 . While the CCC’s appeal to the California Court of Appeal was pending, the plaintiffs tore down the bungalow, built a new house, and purchased the property, actions of which the CCC was not aware. Id.
The taking in Nollan did not occur when any individual entered upon or traversed across the plaintiffs’ property. Rather, it occurred when the CCC conditioned issuance of the permit upon the plaintiffs’ forfeiture of their right to exclude others from passing across their property:
Had California simply required the Nol-lans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to build their house on their agreeing to do so, we have no doubt there would have been a taking.... We have repeatedly held that, as to property reserved by its owner for private use, “the right to exclude [others is] ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.’ ”
Id. at 831 , 107 S.Ct. 3141 (quoting Loretto, 458 U.S. at 433 , 102 S.Ct. 3164 ).
Here, the fact that Congress chose Dallas as its agent to demolish the gates, rather than assign that responsibility to the FAA or any other federal entity, does not relieve defendant of its takings liability. It is well established that the United States may incur takings liability when another entity acts as its agent. See, e.g., Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 22 , 60 S.Ct. 413 , 84 L.Ed. 554 (1940) (“[A]ction which constitutes the taking of property is within [the government’s] constitutional power and there is no ground for holding its agent liable who is simply acting under the authority thus validly conferred. The action of the agent is ‘the act of the government.’ ”) (quoting United States v. Lynah, 188 U.S. 445, 465 , 23 S.Ct. 349 , 47 L.Ed. 539 (1903)); Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1363 (Fed.Cir.2005) (stating that “when separate corporate entities act for the United States, the United States is liable for their takings” and that “when state agencies act as agents of the United States, the United States may incur takings liability”); Rose Acre Farms, Inc. v. United States, 373 F.3d 1177, 1196 (Fed.Cir.2004) (recognizing that state-imposed restrictions upon property may be attributed to the federal government for purposes of a takings analysis where the state officials acted as agents of the federal government or pursuant to federal authority). As the Federal Circuit stated in Pre-seault, where “the Federal Government authorized and controlled the behavior of the State[,] ... the consequences properly fall there.” 100 F.3d at 1531 . It added:
Both the State and the Federal Governments were fully invested in the effort.... It would be absurd to deny the Preseaults their Constitutional rights on the grounds that the State has concluded it was the Federal Government who did it, and the Federal Government has concluded it was the State. In sum, the Government cannot now point its finger at the State and say ‘they did it, not us.’ As in Hendler, when the Federal Government puts into play a series of events which result in a taking of private property, the fact that the Government acts through a state agent does not absolve it from the responsibility, and the consequences, of its actions.
Id. at 1551.
Dallas previously and successfully argued that it was required to demolish the Lemmon Avenue Terminal gates pursuant to the WARA, see Love Terminal Partners, L.P., 256 S.W.3d at 897, thereby effectively asserting that it was acting pursuant to a federal mandate. Here, defendant contends that the WARA imposed no such mandate and that plaintiffs’ dispute rests with Dallas, rather than the federal government. In essence, plaintiffs find themselves in the midst of the same finger-pointing to which the Federal Circuit referred in Preseault .
The ruling in the Northern District of Texas makes clear that Dallas could not institute direct condemnation proceedings and demolish plaintiffs’ gates without the authori *391 ty granted to it under the WARA because such actions would have been anticompetitive in nature and therefore contrary to the Sherman Antitrust Act of 1890. The Northern District of Texas, acknowledging Dallas’s obligations under the WARA, explained that antitrust liability did not attach to Dallas, as well as the co-defendants in that ease, because their “actions ... [we]re compelled by the [WARA], including by the Contract that the [WARA] incorporates. Congress would not have endorsed the Contract and then have subjected defendants to antitrust liability for acting under its aegis.” Love Terminal Partners, L.P., 527 F.Supp.2d at 560. Thus, plaintiffs have sufficiently alleged that the WARA extinguished their right to exclude Dallas, which was acting as an agent of the federal government, from demolishing the Lemmon Avenue Terminal and that, consequently, the federal government effected a taking of their property interests without just compensation in contravention of the Fifth Amendment. Accordingly, plaintiffs state a takings claim based upon their theory that the WARA subjected them to a physical taking of their property.
b. Plaintiffs Are Entitled to Offer Evidence in Support of Their Regulatory Takings Theory
Plaintiffs allege that the WARA, which was “intended to place a limit on commercial passenger service at Love Field by prohibiting the use of the 26.8 acres leased by [plaintiffs] for commercial passenger service,” requires the demolition of “all of the passenger gates at [Love Terminal Partners’] existing terminal building to ensure that that facility (as well as the [Virginia] Aerospace lease) can never again be used for passenger service.” Compl. ¶ 9. Plaintiffs further allege that enactment of the WARA precluded them from utilizing “for air transportation purposes” the Lemmon Avenue Terminal, Virginia Aerospace’s lease, and Love Terminal Partners’ sublease. Id. ¶ 10. In other words, according to plaintiffs, the WARA’s legislative prohibition on the only economically beneficial use of the premises rises to the level of a per se taking under Lucas .
Both the Joint Statement and the Contract reflect the signatories’ intent to reduce “the number of gates available for scheduled passenger air service at [Love Field] ... from the 32 gates envisioned in 2000 to 20 gates.” Def.’s Mot. Ex. A at 1 (Joint Statement ¶ 3). According to defendant, one objective of the WARA was limiting the number of gates operating at Love Field, particularly since the results of an environmental study showed that reducing the number of terminal gates from thirty-two to twenty would be equivalent to the then-existing thirty-two gates given the use of larger airplanes for longer-haul flights. 35 Defendant asserts, however, that the WARA did not prohibit the designation of the Lemmon Avenue Terminal gates as six of the twenty gates that could be used for passenger air service. In fact, defendant theorizes, Dallas could have contracted with plaintiffs to add additional gates at the Lem-mon Avenue Terminal and transfer the entire Love Field airport operations to the Lemmon Avenue Terminal. According to defendant, the only limitation imposed upon Dallas would be that Dallas continue allocating those twenty gates to the airlines operating out of Love Field as of July 11, 2006, in accordance with the Contract. Thus, defendant argues, plaintiffs have no claim for a per se regulatory taking.
Defendant’s theory, however, is unsustainable because it ignores the plain language of the Contract. The Contract, which required Dallas to acquire all or part of plaintiffs’ leases and to demolish the passenger gates at the Lemmon Avenue Terminal, became part of a federal statute, plaintiffs claim, by virtue of its incorporation by reference into the WARA Indeed, plaintiffs rely upon a holding of the Northern District of Texas, which determined that the WARA “plainly and unambiguously incorporate^ all the rights and obligations of the Contract. ... [Section 5(a) ] manifested] Congress’ intent to incorporate into the [WARA] the terms of the Contract executed on July *392 11, 2006...” Love Terminal Partners, L.P., 527 F.Supp.2d at 558-59.
The Love Terminal Partners, L.P. court determined that the WARA
refers without qualification to Dallas’ obligation to act in accordance “with contractual rights and obligations existing as of the effective date of this Act for certificated air carriers providing scheduled passenger service at Love Field on July 11, 2006.” The “contractual rights and obligations” that existed “as of the effective date of’ the Reform Act are those included in the Contract.
... Considering the statute as a whole, the court concludes that the Reform Act unambiguously incorporates the entire Contract.
Accordingly, the court holds that the Reform Act compels [Dallas, Fort Worth, American, Southwest, and the DFW Board] to implement the terms of the Contract.
Id. at 559-60. This court is not bound by the Northern District of Texas’s decision. See AINS, Inc. v. United States, 365 F.3d 1333 , 1336 n. 1 (Fed.Cir.2004) (stating that Court of Federal Claims decisions, “like those of federal district courts, are instructive but not precedential, and do not bind future court rulings”); see also Coltec Indus., Inc. v. United States, 454 F.3d 1340, 1353 (Fed.Cir.2006) (“There can be no question that the Court of Federal Claims is required to follow the precedent of the Supreme Court, our court, and our predecessor court, the Court of Claims.”). Nevertheless, the reasoning set forth by the Love Terminal Partners, L.P. court is persuasive.
More compelling than the ruling in the Northern District of Texas litigation is the WARA’s legislative history, which indicates that the statute “would implement a compromise agreement reached ... on July 11, 2006, regarding air service at Dallas Love Field.” H.R.Rep. No. 109-600, pt. 2, at 3 (emphasis added). Indeed, defendant’s theory that the WARA does not preclude use of the Lemmon Avenue Terminal runs afoul of the Love Field Master Plan, which formed the basis of the Contract into whic

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6661685. Public record. Not legal advice.