Petition for Writ of Certiorari — Persyn v. United States

Suprems

Coat, Ed,

NO. ” 961554 MAR 27 199%

Tir Thr

Urrilt OF |}

In the

Supreme Court of the United States

OCTOBER TERM, 1996

DARSON H. PERSYN, CLOTILDE PERSYN,

FLORENT BAECKE, MILDRED V. BAECKE, ET AL

Petitioners

THE UNITED STATES

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Craig L. Austin

Attorney for Petitioners

300 Convent, Suite 2510

San Antonio, Texas 78205-3789

210/222-2331, Fax: 222-2334

A B Leiter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

r Meay

*~ ViCITA

i

QUESTIONS PRESENTED FOR REVIEW

This application for writ of certiorari presents the

following issues for review:

1. Whether 28 U.S.C. $1500 prohibits jurisdiction in the

Court of Federal Claims because of the pendency of the same

claim against the City of San Antonio.

2. Whether the government’s pleadings and claims of

prior takings of easements invoke the Quiet Title Act, 28

U.S.C. § 2409a and the 12-year statute of limitations therein.

3. Whether this cause should be dismissed or remand-

ed to the District Court.

4. Whether the sole limitations defense available to the

United States is its prior perfection, over a period of 10 years,

of a permanent prescriptive avigation easement under Texas

easement and inverse condemnation law.

5. Whether the physical and regulatory takings were

“progressive” so as to defer the accrual of landowners’ cause

of action.

6. Whether the trial court may disregard or disbelieve

official findings of noise contours and low flights supplied

by and admitted by the government.

7. Whether invidiously discriminatory land use regula-

tions procured by the Air Force from local authorities in ac-

cordance with a mandatory federal regulation requiring such

procural only as to military Accident Potential Zones are at-

tributable to the United States.

ii

PARTIES TO THE PROCEEDING

All Plaintiffs-Petitioners are owners of the tracts of land

shown on Figures 1 and 2, infra., and are listed herein:

DARSON H. PERSYN, CLOTILDE PERSYN, FLORENT

BAECKE MILDRED V. BAECKE, PAUL PERSYN, ERMA

PERSYN, RAUL JIMENEZ, SR., AVIEL L. BROEKHOVE,

JOSIE A. BROEKHOVE, CELESTE PERSYN WORRICK,

Indv. and as Ind. Exec. of Est. of LEONA PERSYN, Dec’d,

RICHARD PERSYN, GABRIEL, THIENPONT, EMMA

PERSYN, MARY ROSENBUSH, MARGARET MILAM,

HORTENSE BROEKHOVE, 4M PROPERTIES, INC.,

SOMERSET ROAD JOINT VENTURE, PHIL M.

BROEKHOVE, EMIEL P. BROEKHOVE, REMI AELVOET,

MARSHALL AELVOET, RICHARD AELVOET, IRMA

PERSYN, ELSIE AELVOET VERELST, ALINE

WAUTERS, RAYMOND WAUTERS, LORRAINE

WAUTERS, GEORGE VERSTUYFT, IRMA VERSTUYFT,

ROBERT VERSTUYFT, RAYMOND VERSTUYFT,

NORMAN VERSTUYFT, MARGARET VERSTUYFT,

ROGER VERSTUYFT, PATRICIA VERSTUYFT, CLARA

VERSCHELDEN, ALENE BUYS, CLARA VERSTUYFT

PERSYN, HENRY VERSTUYFT, JULIANA V.

VERSTUYFT, HOMER VERSTUYFT, YVONNE

VERSTUYFT, A.C. LOPEZ, MARGARET G. BROWN,

HELAMAN R. DURAN, IRENE L. DURAN, HENRY B.

GARCIA, ROSIE R. GARCIA, ELOY CENTENO,

MARGARET THIENPONT, ALINE OYER,

MARIE DECOCK, ROBERT CADENA, JOHN MILLER,

COMCAL GROUP, J.L. GUERRA, HERMINA L. GUERRA,

2595) FIORE ARUN TEE

a

* Seva star

iii

PARTIES TO THE PROCEEDING (continued)

CLOTILDE PERSYN, Ind. Exec. of Est. of

DARSON H. PERSYN, Dec’d., FRANK PERSYN, HENRY

JOE PERSYN, LESLIE ANN PERSYN, LORRAINE

STEUBING, LAURA PERSYN, Successors In Title to

EMMA PERSYN, Dec’d, SOMERSET ROAD JOINT

VENTURE, Acting by and through its members TERRY

BRITTON, MARTIN WEISS, and MICHAEL WEISS,

MARIE AELVOET, Devisee of REMI AELVOET,

RAYMOND WAUTERS, Successor In Title to ALINE

WAUTERS, Dec’d, IRMA VERSTUYFT, Ind. Exec. of Est.

of GEORGE VERSTUYFT, Dec’d, MICHAEL RAYMOND

VERSTUYFT, GARY EDWARD VERSTUYFT, DAVID

ALPHONSE VERSTUYFT, RICHARD JOHN VERSTUYFT

JULIA LOUISE VERSTUYFT, SHIRLEY P. VERSTUYFT,

Successors In Title to RAYMOND VERSTUYFT, Dec’d,

EUNICE VERSTUYFT, Indiv. and as Ind. Exec.of Est. of

ROBERT VERSTUYFT, Dec’d, EDWARD C. VERSTUYFT,

JOHN D. VERSTUYFT, MARIE DURST, MARVIN

VERSTUYFT, SHARON ELAINE EISENHAUER,

MILDRED BAECKE and ALENE BUYS, .\s Successors to

CLARA VERSCHELDEN, Dec‘d, GEORGE BROWN, I,

MARY ALICE PONS, RICHARD BROWN, DANIEL

BROWN, MARGARET ROSE BROWN, Successors In

Title To GEORGE BROWN, Dec’d, Estates of JOE

CENTENO, SR., Dec’d and JESUSA CENTENO, Dec’d,

Their Devisees and Heirs ELOY CENTENO, LILY

CENTENO ALFONSIN, ALICE B. CENTENO LITTLE,

CHARLES SALDANA, CARMEN GARCIA and ROLAND

NAUMANN, Co-Administrators with Wills Annexed, J.L.

GUERRA, JR.., Ind. Exec. of Est. of J.L. GUERRA, SR. Dec’d.,

Pursuant to Supreme Court Rule 29.6, 4M Properties,

Inc., a Texas corporation, states that it has no parent

corporations or subsidiaries.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW...................::000 i

PARTIES TO THE PROCEEDINGG................ccccccsssseesseeee ii

Aes CO COR iii cs iavinansnsrsctisentnideernneacoenienioaiae’ iv

TABLE OF AUTHORITIES CITED...................cccccseseseees vii

Cee CRUE TT waricensitncee he cneiadhrdeisadinnativinvinanaceiannntittbind 1

STATEMENT OF JURISDICTION...............ccccccssessesseeseess 1

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED...............cc:cccccceseeseees 2

STATEMENT OF THE CASE...0.cccccecssscsscscccrsnescovssosesessenees 2

REASONS FOR GRANTING WRIT..............:::cccccceeeeeeeees 12

I. Pendency of Action In District Court

Against Co-condemnor City Precludes

Jurisdiction of Court of Federal Claims;

Remand to District Court is Required...................... 12

A. Causes Against City and United States

BS Ti cnitiaresendinvnstaistasiikeriniiecieriens 12,13

B. Plea In District Court of City “Acting

Under Authority of United States”

Invokes 28 U.S.C. $1500..............ccesscesees

“TO:

RRR er et

Vv

TABLE OF CONTENTS (continued)

C. Jurisdiction Over Claims Against Ci-

ty Was Retained In District Court And

Now Pends In the Fifth Circuit.................... 12,15

D. District Court Has Exclusive Original

Jurisdiction over Prior Easement

Claims Under Quiet Title Act, 28

U.S.C. §2409a, et seg. and 28 U.S.C.

Il. Limitations Defense Requires Federal

Perfection Of Prescriptive Easement Over

A ~eriod of 10 Years Under Texas Easement

And Inverse Condemnation Law.................::000.00 20

III. Undisputed Facts Show a Progressive

Physical Taking Together with Federal And

Municipal Regulatory Takings..............0.cccccceccee 23

A. Land Was Physically Taken By

RENN late R MCA ese ALBEE Melgar ERE 23

B. Regulatory Taking Occurred By Claim-

ed Proclamation of An Easement, By

Deprevation of Federal Funds And By

Federally Procured Municipal

ARERR Re Re aN TT FY eA Se BE 23,24

C. Action Accrued Upon “Stabilization”

RR RETR Ay women HIE Ula) YT ECON ORS 23,24

AAPA EN biichasssinvvsiasuvisconchiniaacionsdbimbusbcaimaianibosiaiel basics 30

vi

TABLE OF CONTENTS (continued)

Page

APPENDICES:

OPINIONS OF THE COURT OF FEDERAL CLAIMS

Order Relative To Jurisdiction (App. A)............. A-1

Order Relative To Summary Judgment

OPINION OF THE COURT OF APPEALS

FOR THE FEDERAL CIRCUIT (App. D)............... A-91

CONSTITUTIONAL PROVISIONS, STATUTES AND

REGULATIONS: :

28 U.S.C. § 1500 (Jurisdiction, Court of Federal

Chaka (Ais TK sicsissii cas scteiihiniositnrtiibiaitaiingateltns A-101

32 CFR, Part 256 (“Air Installation Compatable

Use Zones”) (Department of Defense)

24 CFR, Part 51, Subpart D, § 51.300 and

51.303 (“Siting of HUD Assisted Projects in

Runway Clear Zones at Civil Airports and Clear

Zones and Accident Potential Zones at Military

Airfields”) (Department of Housing and Urban |

Development) CAnp. G)......cccccscesccscssesccsccsseaseees A-104 }

28 U.S.C. § 1346 (Jurisdiction, District Court)

CAR, Qiiniccscnsiaccocknctreataicieadddiadaninneatane cal A-108 |

vii

TABLE OF AUTHORITIES

Cases: Page(s)

Aaron v. United States, 311 F.2d 798, (Ct.Cl. 1963),

OD: Vk RG EG Bai sanesssintinbixerivvinneiiintvced 26,28,29

Applegate v. United States, 25 F.3d 1579, 1580 (Fed.

Ce Ba svn stcentctnehckacncsasnassbinnisredisiehescenciiniininadinnl 25,29

Avery v. United States, 330 F.2d 640, (Ct.Cl. 1964)...26,29

Castro v. United States, 500 F.2d 436, 440, (Ct.Cl.

Creppel v. United States, 41 F.3d 627 (Fed.Cir. 1994)....22

Dico Inc. v. United States, 48 F.3d 1199, 1203-4 (Fed.

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817,

Oe Ee ee a iaincvinhinc dh cpt dieinnissigacaaiscbd dea tncdeninince 21

Eyherabide v. United States, 345 F.2d 565, 567

"De SE ARERR ASRS oa ae Ra ws ree ti, rune ae 24

Griggs v. County of Allegheny, 369 U.S. 82, 87 S.Ct.

531, 532, 8 L.Ed. 2d 916 (1962)...........ccccseessesseeeenerees 23

Hero Lands Co. v. United States, 1 Ct.Cl. 102, aff'd,

727 F.2d 1118 (Fed. Cir. 1983), cert. denied, 446

ce Me Bs: SRDROSDR RRR RRER Ree aEN AS S5 Re Rate URN ROS tere 28

viii

TABLE OF AUTHORITIES (continued)

Page(s)

Kiein v. United States, 152 Ct.Cl. 221 (1961), cert.

denied, 366 U.S. 936, 82 S.Ct. 1661, 6 L.Ed 2d. 847

CP A dicisistvvsssiiidabhinbipeinastnsictacin taniimasidebimnteiinniiin 26,29

Persyn v. United States, 935 F.2d 69 (5th Cir.

FPO Dachevensinsutdsspnsabniininctaseelaiesasliespauiuitamaeniaieeniviatnsies 1,13,16

Persyn v. United States, 33 Fed.Cl. 579 (19985).............006 1

Persyn v. United States, 34 Fed.Cl. 187 (1998).................. 1

Persyn v. United States, 106 F.3d 424 (Fed.Cir. 1996)......1

Portsmouth Harbor Land and Hotel Co. v. United

States, 260 U.S. 327, 43 S.Ct. 185, 67 L.Ed. 387

Eee hctnchiisaaGasnaisbseadiiialonandislibietadiiteccubiatedibahiar Mite. 24

Tarrant County Water Control and Improvement Dist.

No. 1 v. Fowler, 175 S.W.2d 694, 700 (Tex. Civ. App.

Dallas 1943, writ ref’d for want of merit, 142 Tex.

SIG, ATS Be. Fe ee Oe Co iovtseccansassntnssavedevetbbarcesiareinars 21

287 Corporate Center Associates v. Town of

Bridgewater, 101 F.3d 321, 324 (3rd. Cir. 1996).....22,27

United States v. Dickinson, 331 U.S. 745, 67 S.Ct.

1382, 91 L.Ed 336 (1947).................ccccessee 21,25,26,28,29

Waddy v. City of Houston, 834 S.W.2d 97, 102-3

(Tex.App.-Houston [ist Dist.] 1992, writ denied)......... 21

ix

TABLE OF AUTHORITIES (continued)

Page(s)

Constitutional Provisions, Statutes and Regulations

U.S. Const., Amend. 5 (Takings Clause) (App. J.)........ 2,22

28 U.S.C. § 1346(f) (Jurisdiction, District Court)

SIND. Tie Kecininiincecns biseeaehailtsicnaniinlediciitnaitiiandenbsaasinnaveniauusbancudnnielle 2,12

28 U.S.C. §1491(a) (1) (Venue, District

28 U.S.C. § 1500 (Jurisdiction, Court of Federal

NT BI. Taio casc visa ntonassvsnsessocptchvnsagens 1,2,12,14,15,16

28 U.S.C. § 1652 (Rules of Decision Act) (App. D........ 2,21

28 U.S.C. § 2409a et. seq. (Quiet Title Act).......2,12,16,17

24 CFR, Part 61 Subpart B (‘Environmental

Criteria and Standards’’) (Department of Housing

ONG Urban Develowinent)....seccccccsscoscscsscccscsccscssecessevecenes 2

24 CFR, Part 51, Subpart D, § 51.300 and 51.303

(“Siting of HUD Assisted Projects in Runway Clear

Zones at Civil Airports and Clear Zones and Acci-

dent Potential Zones at Military Airfields) (Depart-

ment of Housing and Urban Development)

32 CFR, Part 256 (“Air Installation Compatable

Use Zones’’) (Department of Defense) (App. F).......... 2,4

x

TABLE OF AUTHORITIES (continued)

Page(s)

EG Fis eae cenisivsarticasibeiaseicaanpssiiieinialakteenianiainaiseduaadieendaeioal 18

Other Sources:

“Guidelines for Considering Noise and Land Use,

Planning And Control (Gov. Printing Off. 1980).......6

nn

1

OPINIONS BELOW

At the time of transfer from District Court, appeal was

taken. Persyn v. United States, 935 F.2d 69 (5th Cir. 1991).

Orders have also been reported in this case relative to

partial summary judgment, Persyn v. United States, 33

Fed.Cl. 579 (1995) (Appendix [“App.”’] B), and dismissal on

the merits, Persyn v. United States, 34 Fed.Cl. 187 (1995)

(App. C).

The opinion of the Federal Circuit was unreported. Af-

firmance was noted. Persyn v. United States, 106 F.3d 424

(Fed.Cir. 1996) (App. D).

STATEMENT OF JURISDICTION

This is a case initially brought in 1988-89 in the United

States District Court for the Western District of Texas under

28 U.S.C. §1346 and §1491 against the United States for a

physical taking by overflight in which both the United States

and the City of San Antonio (“City”) were jointly and several-

ly sued for parallel and concurrent physical and regulatory

takings. Over Petitioners’ objection, the District Court

dismissed the City and transferred the claims against the

United States to the Court of Federal Claims. If the Court

of Federal Claims has jurisdiction, it is conferred by 28 U.S.C.

$1491. Upon appeal to the United States Court of Appeals

for the Fifth Circuit, Persyn v. United States, 935 F.2d 69

(1991), the Court held that it had no appellate jurisdiction

because the order dismissing the City lacked finality. Because

of the continuing pendency of the claim against the City, 28

U.S.C. §1500 prohibits the vesting of jurisdiction in the Court

of Federal Claims. If it is determined that the Court of

Federal Claims had subject matter jurisdiction, the Court of

Appeals had jurisdiction to review its orders pursuant to 28

U.S.C. §1295(aX3).

Under 28 U.S.C. § 1254(1), Petitioners seek review of

2

the opinion of the United States Court of Appeals for the

Federal Circuit and its judgment of December 27, 1996. That

judgment affirmed the lower court’s grant of partial summary

judgment and dismissal on the merits.

CONSTITUTIONAL PROVISIONS,

REGULATIONS AND STATUTES:

(In Order of Citation In Remainder of Brief)

32 CFR, Part 256 (Air Installation Compatable Use Zones)

(App. F)

24 CFR, Part 51, Subpart B (Environmental Criteria)

(p. 4 infra)

24 CFR, Part 51, Subpart D (Accident Potential Zones)

(App. G)

28 U.S.C. § 1500 (Jurisdiction, Court of Federal Claims)

(App. E)

28 U.S.C. § 2409a et. seg. (Quiet Title Act), Point ID, infra)

28 U.S.C. § 1346(f (Jurisdiction, District Court) (App. HD

28 U.S.C. § 1652 (Rules of Decision Act) (App. D

U.S. Const. Amend. 5 (Takings Clause) (App. J)

STATEMENT OF THE CASE

Petitioners own 35 tracts of land in the approaches to

Kelly Air Force Base, Texas (KAFB). These approaches are

termed by the Air Force “Accident Potential Zones”

(“APZ’s’’). Claimants’ real estate served runways 15-33 and

14-32 in FYs 1972-73. The tracts to the north of runway 15-33

of KAFB are depicted in Figure 1, infra. Those to the south

are shown in Figure 2, infra. (Large scale ownership maps

of the APZ’s are in evidence as PX 1 and 2).

Prior to 1975, the only evidence presented as to prior

takings is in the government’s responses to discovery. (PX

106). Evidence of the gross number of flights in 1966 also

appeared (Transcript [““Trans.”] 561).

In May 1975, the Air Force published an Air Installation

(Y3N0S) S,ZdWv

Z emma

4

Compatable Use Zone Study (AICUZ) (PX 72), based on data

gathered in FYs 1972-73. Decibel contours (measured in

“Day/Night Average Sound Level [Mathematical],” or

“Ldn,”) were determined and mapped at 65, 70, 75 and 80+

Ldn. For purposes of comparison, the 65 Ldn area for FYs

1972-73 will be quantified as 100%. The AICUZ study took

into account two factors: noise and accident potential hazard.

Figure 3, infra (PX 72, PX 98), shows noise contours from

that study. With one exception, all of Plaintiffs’ land was

within the 60 to 75 Ldn contours. (PX 98). These contours

were of public record in the FHA office in San Antonio (PX

112, Trans. 191-193).

It will be noted that from FY 1955 through FY 1985,

there were two active runways at KAFB, 14-32 and 15-33

(PX 72, PX 98).

The APZ’s for runway 15-33, previously limited by the

65 Ldn contour were expanded by Department of Defense

(“DOD”) regulation 32 CFR, Part 256 “Air Installation Com-

patable Use Zones” in 1977. The expanded APZ’s are shown

on Figure 4, infra (PX 8, PX 98).

The government claims a regulatory taking of a hazard

easement by the promulgation of this regulation. (PX 106,

Trans. 224-225).

On July 12, 1979, the United States Department of

Housing and Urban Development (“HUD”) promulgated 24

‘CFR, Part 51 § 51.103. For purposes of community block

grants of appropriated funds and the financing of new

residential construction, the following standards were

adopted (measured in Ldn):

SITE ACCEPTABILITY STANDARDS (Footnotes omitted)

Day-night average sound Special approvals

level (in decibels) and requirements

ieee

LieeUry, ere

ie fe

Figure 3

1975 AICUZ Study Sound Contours

Figure 4

1981 AICUZ Study Sound Contours

~~

6

Acceptable -Not exceeding 65 db -None

Normally -Above 65 but not ‘Special Approvals

Unacceptable exceeding 75 db -Environmental

Review

-Attenuation

Unacceptable -Above 75 db ‘Special Approvals

-Environmental

Review

-Attenuation

em engerere

According to the AICUZ study published by the Air

Force in November 1981 using FY 1979 data, the 65 Ldn area

had increased by 185%, or to 285% of the 1975 level (PX 8).

As noted, “With the arrival of F-4 Fighter aircraft, the 65-70

Ldn noise level was extended 5.2 miles northward through

Leon Valley city limits and 3.2 miles southwest into Bexar

County.” The sound contours mapped in the 1981 study are

shown on Figure 4, supra (PX 98).

The Environmental Protection Agency and the Depart-

ments of Transportation, HUD and DOD established and

published uniform “Guidelines for Considering Noise And

Land Use, Planning And Control” (Gov. Printing Off. 1980).

They made the following findings:

NOISE ZONE CLASSIFICATION

Noise Noise Noise Descriptor HUD Noise

Zone Exposure DNL Standards

Class Day-Night Average

Sound Level

A Minimal

Exposure Not Exceeding 55

B Moderate Above 55 but

Exposure Not Exceeding 65

“Acceptable”

aa aoc

Above 65

C-1 Not Exceeding 70

—_.._-— OSignificant. “Normally

Exposure Unacceptable

C-2 Above 70 but

Not Exceeding 75

Above 75 but

D-1 Not Exceeding 80

Severe Above 80 but

D-2. Exposure Not Exceeding 85 ‘“Unaccceptable”

D-3 Above 85

Another AICUZ study was carried out for FY 1983. It

once again showed significant expansion of noise levels (PX

113 c & d).

HUD published a new regulation, 24 CFR, Part D,

dated January 6, 1984 (App. G). The regulation is applicable

to the clear zones of civilian airports and to the clear zones

and APZ’s of military airfields. It is not applicable to the ap-

proaches to civilian airports.

Section 51.303 adopted the provisions of the DOD

AICUZ regulation 24 CFR, Part 51, supra. The HUD regula-

tion imposes severe restrictions upon all types of federally

funded, assisted or insured development and limits usages

to those specified by the DOD regulation.

An “Environmental Assessment For Proposed Mission

Changes at Kelly Air Force Base, Texas,” dated January

1984 evaluated the future basing at KAFB of CSA aircraft,

a much larger and noisier jet transport replacing the C-130

turboprop transport (DX 5). Projected sound-contours for FY

1985, reflecting the C5A activation are shown in Figures 5

and 6, infra (PX 113e and 113f). These official Air Force fin-

dings were furnished to Plaintiffs by Defendant as discovery

and were admitted into evidence. (Trans. 249)

8

After the C5A stationing, contour level 80 covered the

majority of Plaintiffs’ land. Contour levels 75-80 covered the

remainder, except for a small sliver of land in the northeast

corner of APZ 2 (North).

As scheduled, the stationing of C5A jet transports at

KAFB began in 1984. Plaintiff Clotilde Persyn (Parcel A)

testified that the aircraft has a unique “. ..whine and it goes

clean through you (Trans. 107-108).” It was impossible to

carry on normal telephone conversations. Television listen-

ing was impaired. Its landing lights “. . lights up your

bedroom at night. Sleeping at night is difficult (Trans.

106-107).”

Plaintiff Amadeo Lopez (Parcel BB) stated that the

flights were so low that he “. . .could see the nuts and bolts

on it right overhead.” His elderly mother was adversely af-

fected, “She cries, sir. She cried.” Persona] or telephone con-

versation was impossible (Trans. 62-66).

“T live under the aircraft and C-5A emits, puts out, a

loud whine and its very deafening to my ears. . .”” was the

testimony of Patricia Verstuyft (Parcel S). Her land was not

suitable for human habitation (Trans. 266).

Aircraft on instrument landing enter APZ 2 (South) at

786.12’ above ground level (AGL) (3° glide slope), enter APZ

1 (South) at 419.26’ AGL and leave APZ 1 (South) at 157.22’

AGL. (PX 8, PX 105, Trans. 456-458). Those approaching from

the north (2-1/2° glide slope) fly at lower levels.

The element of interference with surface usage need

not be further detailed from the testimony of the Plaintiffs.

The trial court itself stated in that respect all that needs to

be said (Trans. 566): |

The court does believe that without significant

noise abatement, much of plaintiffs’ properties are vir-

tully uninhabitable.

a NE TN NNT OT Ne ON

et/9t AVMNNY JO HLUON

“Teel ROOPO TALVG

ie ae se 9 sanbty

$861 - LINN ZNDIV 3OWOs IV oe

A@ G3UVd3aud SHYNOLNOS UP N Lad MWS aiv wih i

ca FUNDA a AUNSOdXd ASION Live

tl aeanans LZdV a a eZZdV¥ >|

\ |

\ mA, Pawns

Yo P's ae

Ne ms aoa £ 3 SZ a .

ie ’ ARS i NY eee

—— int VERT IX 1

0. 4 f , \ be ees ea

. a | c “fe 4

nage & rw of} > . ‘ . ? \e ‘

| ~ a , ry ’ ? ' Py

Ws i ee > f VW ) r iN ; al | ‘ “Y, a ¢ VEN :

-= 9] c Pe

w bs oe rs : at 16 <~S: f

igs rag nt 4 e! ~ ry . H | a JA ° ° |

a we ; we Fe ‘

>) “ *) ot’ i. ae ve!

I ‘ a : Ma fh : bd ’

a : ~~

_— p3 A pM ‘sZ" A oy! "nas ’ 6

u be erty Be

Ae hg

—

£E/Si AVMANNH 40 HLNOS £661 999PO *ALVG

$861 - LINN ZNDIV 3OWOS IV 000z 0001 0

A@ G3UVd3Hd SHNOLNOD UPI N qav X1T1ax G eanbty

133d MI FWOS by

9g ANNDLI de, auUNSOdXG ASION LAVAOATV

Li 2ZdV ies 8 2——$—___—>

gZ* Y~ Wit ae

ey A> WA af .

Ne ,

Np Y : 7

/ ° =,

S \J ra ’ ‘ r ie

; } > ’ —

= ~~ ay

-@

“4

o . '

Sl

10

Runway 14-32 was closed in 1985 (Trans. 463-464). All

traffic was diverted onto runway 15-33 which undoubtedly

contributed to the exceptionally high levels of noise to prevail

in that year.

Between 1984 and 1986, the Air Force conducted a well-

publicized campaign to alert the public to the menance of

noise and crash hazards in the APZ’s (Trans. 116-124,

163-168). It was stipulated that “these meetings did occur,

that the AICUZ studies were handed out, and that the Air

Force did what it was supposed to do, which was make peo-

ple aware, publicize the fact that it was going to happen. . .

and there was newspaper and television coverage of the

events.” (Trans. 166-168). Approximately 22 such meetings

occurred (Trans. 267).

In granting summary judgment that municipal land use

regulations cannot be imputed to the United States, the trial

court noted (App. 7):

In August 1985 the Air Force presented the Mayor,

the City Planner, the City Manager and the City At-

torney of San Antonio with a forma! briefing on the

_ AICUZ study. The Mayor subsequently held public hear-

ings on the Air Force’s recommended zoning. The Air

Force attended these hearings and recommended that

zoning should be changed to conform to the AICUZ con-

cept. On April 17, 1986, the City passsed a zoning or-

dinance that conformed with AICUZ restrictions,

although it did not contain recommended noise attenua-

tion measures.

As this is a bifurcated trial, damages to each tract were

to be established in a subsequent hearing. All that Plaintiffs

had to prove at this phase was that as a consequence of Defen-

dant’s permanent physical intrusions, each of Plaintiffs’

tracts sustained some damage. Testimony to that effect is

in the record (Trans. 283-285).

From 1987 through 1995, with the exception of the

11

transfer of land with pre-existing structures, there were no

sales of land in the 2.5 square miles within the APZ’s. This

is quite remarkable for such a large body of land completely

within the San Antonio city limits. The market was complete-

ly frozen, or, as one witness put it, “dead as a doornail.”

(Trans. 288).

Like a frost-bitten extremity, the extent of damage

could not be fully ascertained until thawed. Two land sales

did finally occur in 1995 within the far north and south ends

of the APZ’s. When paired with pre-taking sales of the same

land, a dramatic loss of value is obvious:

A. In 1984, parcel HH, owned by Plaintiffs Cadena and

Miller, was under valid contract of sale with earnest money

to the Mexican American Unity Council (MAUC) for $1.50

per square foot or $65,340 per acre. In October 1985, because

of the expenses of soundproofing and the legal and political

turmoil over the APZ’s, MAUC declined to consumate the

transaction, as was its right (Trans. 348-352). The land was

foreclosed. It last sold for $6,004.00 per acre in 1995, a loss

in value of 90.7% (Trans. 406). If adjusted for the period of

its dormancy to a 1986 value at 6% per annum, the 1986

value is $3,554.00 per acre or a loss of 94.4%.

B. In 1984, Parcel D was purchased by Plaintiff Raul

Jimenez, Sr. for $7,273.00 per acre. It, too, was forclosed. The

same tract sold in January 1995 for $1,200.00 per acre, a loss

of 83.5%. (Trans. 395-396). If adjusted for the period of its

dormancy to a 1986 value at 6% per annum, the 1986 value

is $710.00 per acre or a loss of 90.2%.

Since 1986, four of Plaintiffs’ 35 parcels have been

foreclosed. Of the remaining 31, 12 have passed by devise

or descent. Short of foreclosure, death, donation, or sale at

donative prices there is no manner in which the landowners

can rid themselves of this worthless real estate.

Other facts will be set forth in the Points to which they

12

relate.

REASONS FOR GRANTING THE WRIT

I.

BECAUSE OF THE PENDENCY IN THE DISTRICT

COURT OF AN ACTION AGAINST A CO-CONDEMNOR,

THE CITY OF SAN ANTONIO, THE COURT OF FEDERAL

CLAIMS DID NOT ACQUIRE SUBJECT MATTER

JURISDICTION; A REMAND TO DISTRICT COURT IS

REQUIRED:

A. PLAINTIFFS’ INDIVISIBLE CAUSE OF

ACTION IN THE DISTRICT COURT WAS

AGAINST THE UNITED STATES AND THE CI-

TY FOR A JOINT TAKING FOR WHICH BOTH

CONDEMNORS ARE LIABLE.

B. THE PROHIBITION OF 28 U.S.C. $1500 AP-

PLIES WHEN PLAINTIFFS PLEAD THAT CITY

WAS “ACTING. .. UNDER THE AUTHORITY OF

THE UNITED STATES. . .”

C. JURISDICTION OVER THE CITY WAS RE-

TAINED IN THE DISTRICT COURT AND NOW

PENDS IN THE FIFTH CIRCUIT.

D. THE DISTRICT COURT HAS EXCLUSIVE

ORIGINAL JURISDICTION OVER ALLEGED

PRIOR TAKINGS BY THE UNITED STATES

UNDER 28 U.S.C. §2409a FT. SEQ. AND 28

U.S.C, § 1346(f).

An understanding of the substantive law of prescrip-

tive easements and of progressive takings is essential to

determination of jurisdictional questions. Points II and III

are thus incorporated herein by reference.

A. PLAINTIFFS‘ INDIVISIBLE CAUSE OF

amas

13

ACTION IN THE DISTRICT COURT WAS

AGAINST THE UNITED STATES AND THE CI-

TY FOR A JOINT TAKING FOR WHICH BOTH

CONDEMNORS ARE LIABLE.

Erroneously, the trial court and Federal Circuit

overlooked the Fifth Circuit’s prior adjudication that the lan-

downers’ cause of action for a joint taking by the United

States and the City of San Antonio is a single cause of ac-

tion which cannot be arbitrarily split into federal and

municipal components. In Persyn v. United States, 935 F.2d

69 (5th Cir. 1991) it held:

For safety purposes, San Antonio requires clear

zones 3000 feet in length and width at the ends of

military airport runways located within its jurisdiction.

In 1986, the Air Force requested the establishment of

two military supplementary overlay zoning districts

around Kelly Air Force Base as an additional safety

precaution. The City passed Ordinance 62739-A creating

these special districts extending beyond the existing

3000 feet clear zones. Zone 1 extended 5000 feet beyond

the clear zone and Zone 2 extended 7000 feet beyond

Zone 1, San Antonio, Tex. Code, § 35-222 (April 17,

1986). The ordinance imposed restrictions on the use of

all iand located within the overlay districts. Two addi-

tional ordinances passed during the next year, 64225

and 64961, refined and amended the use restrictions.

The ordinances and their ultimate effect on property

values near the base are the basis for a portion of the

landowners’ claims of a taking of their property. (935 F.2d

70-71)...

The dismissal is also not appealable under the col-

lateral order doctrine. Although the order finally disposes

of the landowners’ claims against the City, the issue in-

volved is not separate from the claims against the United

States. (Citing authorities) (Emphasis added 935 F.2d

74).

14

Defendant did not file a petition for certiorari in the

United States Supreme Court.

B. THE PROHIBITION OF 28 U.S.C. §1500

APPLIES WHEN PLAINTIFFS PLEAD THAT CITY

WAS “ACTING. .. UNDER THE AUTHORITY OF THE

UNITED STATES. . .”

In the District Court, Plaintiffs alleged in their First

Amended Complaint, p. 3:

11. At all times relevant hereto, the United

States was acting by and through the City and the City

was acting directly or indirectly under the authority of

the United States and for the sole and exclusive benefit

of the United States.

There is no jurisdiction by Petitioners’ consent. Both

the landowners and the government have consistently

asserted the absence of jurisdiction because of 28 U.S.C.

§1500. Landowners timely moved for remand under that

section.

The trial court states that “In July 1992, Plaintiffs fil-

ed their first amended complaint . . .specifically invoking the

jurisdiction of this court (App. 2)” As the Court of Federal

Claims record reveals, quite the opposite is true (First Amend-

ed Complaint, 2-3):

Plea to the Jurisdiction

1. The United States District Court for the

Western District of Texas has subject matter jurisdic-

tion over this case under the statues of the United States,

including 29 U.S.C. §1331. . .

5. Within the meaning of 28 U.S.C. § 1500,

Plaintiffs have pending in the United States District

Court for the Western District of Texas claims against

15

the City of San Antonio, Texas, which municipality was

“acting or professing to act, directly or indirectly under

the authority of the United States” relative to the mat-

ters alleged herein.

Alternative Jurisdiction of Claims Court

6. Subject to Landowners’ Plea to the Jurisdiction

above stated and the overruling thereof by this

Court, Landowners state, in the alternative, the

jurisdiction of the Claims Court under the provisions

of 28 U.S.C. § 1491 (aX1) et seq.

To which the government duly replied in its “Answer

to First Amended Complaint” (p. 1):

Defendant United States answers the complaint of

plaintiffs as follows.

1. The allegations of paragraph 1 are denied...

5. The allegations of paragraph 5 are admitted.

6. The allegations of paragraph 6 are conclusions of

law to which no response is required. To the extent

an answer is required, the allegations of paragraph

6 are denied. (Emphasis added).

The applicability of §1500 is determined by the parties’

pleadings, Dico Inc. v. United States, 48 F.3d 1199, 1203-4

(Fed. Cir. 1995).

C. JURISDICTION OVER THE CITY WAS RETAIN.

ED IN THE DISTRICT COURT AND IS NOW PEN.

DING IN THE FIFTH CIRCUIT.

The trial court’s conclusion that the attempted

dismissal of the City was a “final order” permitting the

vesting of jurisdiction in the Court of Federal Claims (App.

16

3-4) is diametrically contrary to the Fifth Circuit’s adjudica-

tion in Persyn, supra.

Conclusion

We do not have appellate jurisdiction to review the

district court’s order transferring the landowners’ claims

against the United States to the Claims Court. The ap-

peal of the court’s order dismissing the claims against

the City of San Antonio is premature. The appeal from

the latter order must await the decision of the Court of

Claims involving the asserted right to a remand to the

district court of the claim against the United States. Ac-

cording!v, we dismiss the landowners’ appeal of the two

orders o. the district court. (935 F. 2d 74-75).

No authority was cited, nor can any be cited, for the

trial court’s reasoning “. . . Although the district court’s order

transferring the case and dismissing the city was non-final

for appeal purposes, the claim against the city did not remain

behind like so much lost luggage in the district court.’ (App. 4)

If the claim against the City did not “remain behind,”

where did it go?

The answer is that the joint claim against the City was

pending in the District Court until January 24, 1997. On that

date, notice of appeal was given. The claim now has been

docketed and pends as cause No. 97-50108, Persyn v. United

States, in the United States Court of Appeals for the Fifth

Circuit.

D. THE DISTRICT COURT HAS EXCLUSIVE

ORIGINAL JURISDICTION OVER ALLEGED

PRIOR TAKINGS BY THE UNITED STATES

UNDER 28 U.S.C. 2409a ET SEQ. AND 28 U.S.C.

1346(f).

————

17

As is apparent from the previous point, the Court of

Federal Claims is without jurisdiction. The question then

arises: Should this cause be dismissed or remanded?

From the pleadings, discovery and evidence, there is

another separate and distinct reason why it must be remand-

ed. By claiming the prior taking of avigation easements in

Petitioners’ realty, the government has raised questions of

law and fact within the exclusive original jurisdiction of the

District Court under the provisions of the “Quiet Title Act,”

28 U.S.C. § 2409a, et seg.

The statute, enacted by Congress in 1972, provides, in

relevant part:

(b) The United States shall not be disturbed in

possession or control of any real property involved in

any action under this section pending a final judgment

or decree, the conclusion of any appeal therefrom, and

sixty days; and if the final determination shall be

adverse to the United States, the United States never-

theless may retain such possesssion of control of the real

property or of any part thereof as it may elect, upon pay-

ment to the person determined to be entitled thereto of

an amount which upon such election the district court

in the same action shall determine to be just compen-

sation for such possession or control. . .

(e) Ifthe United States disclaims all interest in

the real property or interest therein adverse to the plain-

tiff at any time prior to the actual commencement of the

trial, which disclaimer is confirmed by order of the court,

the jurisdiction of the district court shall cease unless

it has jurisdiction of the civil action or suit on ground

other than and independent of the authority conferred

by section 1346(f) of this title. . .

Thus, the applicable federal statute of limitations for

prior takings in this case is not six years. Congress provided:

18

in §(g):

(g) Any civil action under this section,. . . shall

be barred unless it is commenced within twelve years

of the date upon which it accrued. Such action shall be

deemed to have accrued on the date the plaintiff or his

predecessor in interest knew or should have known of

the claim of the United States. (Emphasis added.)

The burden of proof that the landowners knew or should

have known of the Air Force’s recently asserted claims of

prior takings is upon the government. No such evience was

forthcoming at trial.

No assertion of the existence of prior takings of prescrip-

tive easements by the government was raised in the initial

proceedings in the District Court. The District Court granted

the Defendant’s motion under Rule 12a, F.R.C.P. The govern-

ment was not required to answer.

Prior takings of easements were first asserted in 1992

by the government in the Court of Federal Claims (Answer

to Second Amended Complaint, 3-4):

.. Defendant affirmatively alleges that, although

Air Force planes fly below 500 and 1,000 foot minimum

height restrictions during take-offs and landings at Kelly

AFB, all such flights are within existing avigation

easements held by defendant and do not intrude on any

of the plaintiffs property rights. . .

A set of interrogatories addressed, in relevant part, to

the elements of these “existing avigation easements” was

fruitless. The Air Force refused to answer. Additional inter-

rogtories, more narrowly framed, went unanswered until the

trial court compelled response (Order, filed October 26, 1993).

The gvernment’s response was received in evidence as Plain-

tiffs’ Exhibit 106 (Trans. 224-5).

CS EO EAC hk OR OS abt tea

De Lagi DE Wea NMR >

19

The government was first given the oportunity to

disclaim any “Preexisting easement(s) that Defendant wil]

claim supporting a statute of limitations defense obtained

under Federal law” (Plaintiffs’ Second Request for Admis-

sions to Defendant, pp. 1-2). From January 1, 1942 through

December 31, 1949, the Air Force disclaimed easement ac-

quisition. It refused to disclaim acquisition of easements by

operation of the statute of limitations in each of four separate

periods: 1950-59, 1960-69, 1970-79, and 1980-89. (Defendant’s

Response to Plaintiffs’ Second Request For Admissions, pp.

1-2).

Petitioners propounded their “Plaintiffs’ Second Set of

Interrogatories” (pp. 1-2) addressing ten specific questions

to the elements of “. . each avigation, noise, crash hazard,

or other type of easement claimed by Defendant against

Plaintiffs’ properties. . .” The “Defendant’s Response To

Plaintiffs’ Second Set of Interrogatories” (pp. 2-7) is, to put

it mildly, rambling and vague. Identifiable segments of

claims of prescriptive easements include:

A. Easements acquired “sometime prior to 1917...

from Wright Flyer airplanes. . .” (p. 5).

B. “Increases and expansions” of easements “.. .

since 1917. . .” (p. 5).

C. “...@light pattern configuation parameters of

avigation easements on property in the vacinity of Kelly AFB

including Plaintiffs’ properties . . In approximately

1955 .. .” (pp. 5-6).

D. “The maximum parameters of noise and safety

hazard servitude of the avigation easements over plaintiffs’

properties were reached in 1964. The level of operations, the

noise contours, and the recommendations for land use of af-

fected properties are all contained in the Report dated

November 1993. The Report dated November1993 similar-

ly details the reduced levels of operations, noise, and safety

20

hazards subsequent to 1964.” (p. 6).

E. “The existing usages of the plaintiffs’ properties

which are subordinate to the existing avigation easements

in all of their parameters at any given time are within the

knowledge of plaintiffs.” (p. 6).

The one easement which is identifiable from the

answers with reasonable certainly is a regulatory taking

which the Air Force claims occurred in 1977 (pp. 6-7):

The three safety zones at each end of the runways

of Kelly AFB were established (along with safety zones

adjacent to all other military air fields in the United

States) by notice filed in the Federal Register, 42 Fed.

Reg. 773, on January 4, 1977, and codified in 32 C.F.R.

Part 256. This notice and regulation related to pre-

existing safety hazards connected with military air fields

in general and Kelly AFB in particular.

Subsequently, Respondent moved for summary judg-

ment on the easements claimed to be delineated in the

November 1993 report (Defendant’s Motion for Summary

Judgment, Exhibit W). Summary judgment was denied. (App.

8-11).

Each of these claimed easements, whether prescriptive

or regulatory, impeaches and clouds the landowners’ record

titles. The government refuses to disclaim them. Each is thus

within the exclusive original jurisdiction of the District Court

and may result in the payment of compensation to the

landowners.

Il.

TO ASSERT A PERMANENT AVIGATION EASE-

MENT AGAINST UNDERLYING OWNERS, PERFEC-

TION OF A PRESCRITIVE EASEMENT UNDER

TEXAS LAW OVER A PERIOD OF TEN YEARS IS

REQUIRED.

21

The controlling rule in Texas and many other jurisdic-

tions is concisely summarized in Tarrant County Water Con-

trol and Imp. Dist. No. 1 v. Fowler, 175 S.W.2d 694, 700 (Tex.

Civ. App. - Dallas 1943, writ ref’d for want of merit, 142 Tex.

375, 179 S.W. 2d 250 (1944):

Appellee’s claim would not have been barred short

of the period necessary to acquire lands by adverse

possession, that is, ten years in this state. . . The con-

clusion just announced, in our opinion, is amply sup-

ported; the rule deduced from the weight of applicable

authorities is stated in 18 Am.Jur. Sec. 394, P. 1042,

as follows: “. ..On the other hand, it is held that where

the Constitution requires compensation first to be paid

before an owner’s land is taken, the burden of pro-

secuting his claim for compensation cannot be placed

on the owner prior to the running of the prescriptive

period. .. .”

See also Waddy v. City of Houston, 834 S.W.2d 97 , 102-3

(Tex. App. - Houston [1st Dist.] 1992, writ denied) and

authorities cited therein.

This Court adopted this constitutional precept as to the

inverse federal taking considered in United States v. Dickin-

son, 331 U.S. 745, 67 S.Ct. 1882, 91 L.Ed 336 (1947):

Property is taken in the constitutional sense when

inroads are made upon an owner’s use of it to an extent

that, as between private parties, a servitude has been ac-

quired either by agreement or in course of time. (Em-

phasis added).

Under the authority of Erie R.R. Co. v. Tompkins, 304

U.S. 64, 72-73, 58 S.Ct. 817, 82 L.Ed 1188 (1938) and the

Rules of Decision Act, 28 U.S.C. $1652, the law to apply is

that of Texas.

The Federal] Circuit arbitrarily applies the six year

limitations statute of the Court of Federal Claims. Its holding

and the parallel decisions of the 2nd, 3rd and 7th Circuits are

22

a quagmire of confusion, inconsistency and conflict. As noted

in 287 Corporate Center Associates v. Town of Bridgewater,

101 F.3d 321, 324 (8d Cir. 1996):

2. Fifth Amendment to the United States

Constitution

Associates also brought suit under the Fifth

Amendment. Following Wilson v. Garcia, some Courts

of Appeals, for purposes of consistency, have applied the

personal injury statute of limitations to actions brought

directly under the Constitution, Sec. e.g. Bieneman v.

City of Chicago, 864 F.2d 463, 469-70 (7th Cir. 1988) (ac-

tion brought directly under 5th Amendment), cert.

denied, 490 U.S. 1080, 109 S.Ct. 2099, 2100, 104 L.Ed

2d 661 (1989); Chin v. Bowen, 833 F.2d 21 (2d Cir. 1987)

(action brought directly under 14th Amendment).

Assocites contends, however, that we should ignore

Wilson and instead apply the most analogous state

statute of limitations, N.J. St. Ann. § 2A:14-7, which

provides, “Every action at law for real estate shall be

commenced within 20 years next after the right or title

thereto, or cause of such action shall have accrued.” But

in New Jersey, the most analogous state statute provides

a six year limitations period. See N.J. Stat. Ann. §

2A:14-1. Although the statute does not explicitly

reference inverse condemnation actions, New Jersey

decisional law indicates it is the proper statute of limita-

tions in such cases (Citing authorities). . .

The Supreme Court should use the case at bar to enun-

ciate a single and logical rule of limitations for Fifth Amend-

ment inverse takings.

The trial court erroneously cites from authorities in-

volving only a temporary easement or non-permanent

damages. Creppel v. United States, 41 F.3d 627 (Fed.Cir. 1994)

draws a sharp line between temporary easements and per-

manent takings. A prior temporary taking may be barred

by limitations while a current one is not.

LT ET LT Re em

23

Il

THE FACTS OF THIS CASE SHOW AN INCREMEN.

TAL AND PROGRESSIVE PHYSICAL AN D

REGULATORY TAKING WHICH PRECLUDED THE

ACCRUAL OF PLAINTIFFS’ CAUSE OF ACTION

UNTIL THE TAKING HAD “STABILIZED“:

A. THERE WAS A PHYSICAL TAKING BY NOISE,

CRASH HAZARD & LOW FLIGHT.

B. REGULATORY TAKING OCCURRED BY

DEPRIVATION OF FEDERAL FUNDS AND

FINANCING AND FEDERAL PROCURAL OF

MUNICIPAL LAND RESTRICTIONS.

C. ACCRUAL OF THE CAUSE OF ACTION OCCUR-

RED AT THE TIME OF “STABILIZATION.”

In this case, ever-increasing federal physical intrusions

have been paralleled and compounded by continuously more

stringent federally proclaimed and federally procured regula-

tions. In military terms, this is called a “double envelop-

ment.”

A. THERE WAS A PHYSICAL TAKING BY NOISE,

CRASH HAZARD & LOW FLIGHT.

The leading authority for the taking of an avigation

easement by noise and crash hazard is an opinion of the

Supreme Court of the United States. In Griggs v. County of

Alleghany, 369 U.S. 82, 85, 87 S. Ct. 531, 532, 8 L.Ed.2d 916

(1962). After detailing the evidence of noise, crash hazard,

and low flight, Justice Douglas concluded:

The glide path for the northeast runway is as

necessary for the operation of the airport as a surface

right of way for operation of a bridge, or as is the land

for the operation of a dam (Citing authorities)... Without

the “approach areas,” an airport is indeed not operable.

Respondent in designing it had to acquire some private

property. Our conclusion is that by constitutional stan-

dards it did not acquire enough.

A federally proclaimed Accident Potential Zone is, by

24

definition, an impact zone. In Portsmouth Harbor Land and

Hotel Co. v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed.

387 (1922), the Supreme Court found a taking by the place-

ment of shore batteries to fire across the condemnee’s land.

Compensation has also been mandated for the creation

of a de facto federal impact zone. In Eyherabide v. United

States, 345 F.2d 565, 567 (Ct.Cl. 1965), Plaintiffs’ land was

bounded on three sides by an artillery target area. The Court

held:

The interference with use of possession may be so

substantial and of such a character that it cannot be done

without compensation under the Federal Government’s

regulatory and executive powers. When these factors ex-

ist, a constitutional taking is implied, it is assumed that

the United States has acquired a definite interest in the

property, permanent or temporary, such as a fee title,

an easement, a servitude, or a lease-hold.

As admitted by the Air Force, supra Point ID, and

shown by DX 23b and DX 24b, government aircraft frequent-

ly and regularly fly below legal minimum altitude.

B. REGULATORY TAKING OCCURRED BY

DEPRIVATION OF FEDERAL FUNDS AND

FINANCING AND BY FEDERALLY PROCURED

MUNICIPAL LAND RESTRICTIONS.

As Eyheribide, supra, states, regulatory actions may be

considered along with physical intrusions. In the case at bar,

the Defendant (1) proclaimed the AICUZ regulation in 1977,

which it claims as an easement per se, (2) expanded the

AICUZ regulation by incorporating it into a HUD regula-

tion in 1984 denying federal funds or financing to the APZ’s

and (3) in 1986 procured municipal overlay and zoning or-

dinances as mandated in the AICUZ regulation. (App. F, §

256.4{2)

C. ACCRUAL OF THE CAUSE OF ACTION OC-

CURRED AT THE TIME OF “STABILIZATION.”

—— ee

PO as 5s! hi. » *

Pa ere ee ee eee a —_ _

ieee te See eh ers oc eS

25

The existing law in the Court of Appeals for the Federal

Circuit, and, therefore, in the Court of

prehensively articulated by Applegate v. United States, 25

F.3d 1579, 1580 (Fed. Cir. 1994). Extensive quotation is in

order:

... Because the landowners’ claim did not accrue more

than six years before its filing, this court reverses and

remands for further proceedings. . .

Therefore, this court’s review of the trial court’s

action depends upon when this alleged taking accrued.

The Supreme Court set forth the standard for accrual

in cases alleging takings of a continual nature. United

States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed.

1789 (1947).

On this basis, the Supreme Court clarified: “The

Government. . left the taking to physical events, thereby

putting on the owner the onus of determining the

decisive moment in [an onging] process of acquisition

by the United States when the fact of taking could no

longer be in controversy.” Id. at 748, 67 S.Ct. at 1384.

Under these circumstances, the Supreme Court explain-

ed that the claimant can postpone filing ea suit “until

the [continuing taking] situation becomes stabilized.”

Id. at 749, 67 S.Ct. at 1385. In other words, the Supreme

Court reiterated that the owner may wait until “the con-

sequences of inundation have so manifested themselves

that a final account may be struck.” Id. Moreover,

Dickinson discouraged a strict application of accrual

principles in unique cases involving Fifth Amendment

takings by continuous physical processes. Dickinson, 331

U.S. at 749, 67 S.Ct. at 1385.

This court’s predecessor, the United States Court

of Claims, applied the Dickinson doctrine. See e.g. Castro

v. Unied States, 205 Ct.Cl. 534, 500 F.2d 436, 440 (1974).

The Federal Circuit’s reliance upon Castro v. United

States, supra, is especially significant. The Castro Court held

at 500 F.2d 436:

Federal Claims, is com-

26

The Dickinson rule has been applied by this court

in other situations...

The same rule has been applied in cases involving

avigation easement where the impairment of land use by

overflights was progressive and its frequency and

seriousness were not fully ascertainable until a period

of years had elapsed. Avery v. United States, 330 F.2d

640, 165 Ct. Cl. 357, (1964); Aaron v. United States 311

F.2d 798, 160 Ct. Cl. 295 (1963) and 340 F.2d 655, 167

Ct. Cl. 818 (1964), and Klein v. United States, 152 Ct.

Cl. 221 (1961), cert. denied, 366 U.S. 936, 81 S.Ct. 1661,

6 L.Ed. 2d 847 (1961).

The recent Associates decision, supra, of the Third Cir-

cuit discusses deferred accrual of a cause of action under the

Fifth Amendment:

Associates contends the taking of its property

amounts to a “continuing wrong,” which effectively tolls

the statute of limitations. We have held that under pro-

per circumstances, the “continuing wrong” doctrine may

apply:

In most federal causes of action, when a defendant’s

conduct is part of a continuing practice, an action

is timely so long as the last act evidencing the con-

tinuing practice falls within the limitations

period. . .

Brenner v. Local 514, United Bhd. of Carpenters and

Joiners of Am., 927 F.2d 1283, 1295 (8d Cir. 1991). The

focus is on the defendant’s “affirmative act{s].” Id. at

1296.

The Township has not committed an affirmative

act since 1985. The facts of the alleged taking stabiliz-

ed almost ten years before Associates filed its lawsuit.

Associates is unable to allege facts which might bring

it under the “continuing wrong” doctrine. See United

States v. Dickinson, 331 U.S. 745, 749, 67 S.Ct. 1382,

1385, 91 L.Ed. 1789 (1947) (holding that a landowner

may “postponfe}] suit until the situation becomes

stabilized.’’).

SIOQUINN SAO HUN ZNDIV 62403 JIy [7

JeOA |eOSI4

B86! 9851 251 2861 OBE BLE) B61 ¥Z61 2281

keel —- 59

is 5 Witty & sitaiecrer ben: ppt uiscacity OL <

ee

ee

’ @ | indy Feit 8 widetchcded tet. Si.

oe

| <=

- Log =

: J i

j i

dbchtione ® ihlaedhan see winehiwads: ¢ oP

i

-O6

GsV Alley

LN }UlOd dIJlOSdS Je S}BAS7 SSION

4

27

The following graph, Figure 7, for Point N1 is an ex-

tract from the evidence (PX 104). The other points N2, S1 and

S2 are substantially identical. It is taken from discovery

received from, prepared by, and admitted by the Air Force.

It shows a very steady progression from FY 1975 through

FY 1985, stabilization in 1985 and a decline in FY 1986.

FIGURE 7

It should be noted that Ldn is a logarithmic scale. (PX

8). A sound level of 75 is ten times greater than 65 and 85

is ten times greater than 75. Thus, 85 is 100 times as great

as 65.

28

The noise levels reported for 1980 reflect the introduc-

tion of the noisier F4C fighter aircraft. Those in 1985 show

the escalation in noise from the stationing of the giant C5A

transport. In 1986, the quieter F-16 Fighter began replac-

ing the F4C (DX 6).

Reliance upon Hero Lands Co. v. United States, 1 C1.Ct.

102, aff'd, 727 F.2d 1118 (Fed. Cir. 1983), cert. denied, 446

U.S. 972 (1984) and similar cases (App. 25) is inappropriate

under the facts of this case. Dickinson was neither raised in

these cases nor was it applicable. The Court in Hero found

a flat, continuous, usage over a period of 8 years. In Hero,

the Court notes:

However, the evidence does not establish that the A-7

and A-37, as they passed above Tract 7, were substantially

more disturbing because of noise, etc. than the A-4 and F-8

had been.

The Federal Circuit held in the case at bar (App. D):

Appellants argue that their causes of action ac-

crued weli after the 1982 critical date because noise

levels did not stabilize until 1985. However, the law

is clear that stabilization of the noise level is not

dispositive. Rather, the dispositive issue is when the

noise level reached an intolerable level and resulted

in a taking. We agree with the Court of Federal

Claims that the general principle of Dickinson applies:

“a claim for taking based on continuing acts of

physical invasion does not accrue until the extent of

the invasion and the degree of the interference is

known or should be known.” Persyn II, 34 Fed. Cl.

at 197 (citing Aaron, 311 F.2d at 801). We further

agree with the trial court that “the extent of the in-

vasion and the degree of interference is ascertainable

when the United States begins to operate its aircraft

at low elevation and with such frequency that they

substantially interfere with the use and enjoyment

of the land, with the intent to continue such flights

indefinitely.” Jd. (citing A.J. Hodges, 355 F.2d at 596).

a he ee

29

Noise may become “intolerable” long before it

“stabilizes.” If an extended period is measured from its begin-

ning rather than its end, there is simply no extension. This

reasoning is grounded neither in precedent nor logic.

Applegate and Castro, supra, should be controlling. They

establish an authoritative linkage between the Supreme

Court’s ruling in Dickinson and the Claims Court’s applica-

tion of Dickinson to avigation easements in Avery, Aaron &

Klein, supra. All of these authorities require “stabilization.”

Prior “intolerability” is irrelevant.

If the rationale of the trial and appellate courts is valid,

the landowners would have to have filed at least 3 separate

suits to avoid the six year bar of limitations: (1) after 1977,

when the Air Force claims to have taken an easement by pro-

mulgation of the AICUZ regulation, (2) after 197 9, when noise

levels escalated because of the stationing of the F4C and (3)

the present suit. Multiplication of needless litigation is

precisely what the Dickinson stabilization doctrine is intend-

ed to prevent.

30

CONCLUSION

The landowners, overwhelmingly elderly Belgian-

American farmers and Hispanics, have been ruthlessly,

systematically and slowly stripped of the use and benefit of

their land without compensation. This has been accomplished

by the federal executive powers in Washington with the ac-

tive aid and acquiesence of the municipal government of San

Antonio. To date, the federal judiciary has declined to in-

tervene. The very formidable protections afforded the lan-

downers by the Constitution and common law of Texas have

been pierced. Equally stringent safeguards arising from the

Fifth Amendment and by the enactment by Congress of the

Rules of Decision and Quiet Title Acts have been ignored.

Even the doctrine of progressive takings pronounced by this

Court has been circumvented in a most cursory fashion. On-

ly the Supreme Court can now right this great wrong.

Respectflly submitted,

CRAIG L. AUSTIN

Attorney for Petitioners

300 Convent, Suite 2510

San Antonio, Texas 78205

210/222-2331, FAX 222-2334