# Petition for Writ of Certiorari — Persyn v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1213

## Text

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NO. ” 961554 MAR 27 199%

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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.

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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.’’).

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0507%3A1. Public record. Not legal advice.