COUNSEL:

John G. Layman, Layman & Layman, of Spokane, Washington, argued for plaintiffs-appellants. With him on the brief was David A. Barbe. Of counsel was George M. Ahrend.

Robert H. Oakley, Attorney, Appellate Section, Environment and Natural Resources Division, Department of Justice, of Washington, D.C., argued for defendant-appellee. With him on the brief was Lois J. Schiffer, Assistant Attorney General.

Before MAYER, PLAGER, and RADER, Circuit Judges.

RADER, Circuit Judge.

The owners of forty-six parcels of land surrounding the Naval Air Station at Whidbey Island, Washington, filed this inverse condemnation action against the United States. The owners alleged that the United States, by its frequent and noisy aircraft operations, took avigation easements over their property and otherwise diminished their use and enjoyment of their property without paying just compensation. On the Government's motion, the United States Court of Federal Claims granted summary judgment against three groups of plaintiffs on various grounds. Because factual disputes preclude the entry of summary judgment, this court vacates and remands for further proceedings.

This dispute concerns an aircraft landing strip known as the Outlying Field, Coupeville (OLF Coupeville), which the Navy uses for practice landings. The Navy built the landing strip in 1943 and used it for emergency and practice landings until 1946. The Navy continued to use the landing strip through 1963 when the Navy declared the facility excess and made plans to sell it. In 1967, however, the Navy reactivated the facility to accommodate the increased training and operational demands of the Vietnam War.

Beginning at that time, the Navy used the landing strip for "field carrier landing practice," a training exercise designed to simulate landing on an aircraft carrier at sea. See generally Branning v. United States, 654 F.2d 88, 91 n.3 (Ct. Cl. 1981) (describing similar aircraft landing exercises). The exercise involves groups of up to five aircraft flying in patterns to practice touch-and-go landings. Each aircraft in turn approaches the runway and touches down, but then takes off again without coming to a stop. The aircraft then loops around and prepares for another landing. Each aircraft makes multiple touch-and-go landings before stopping to refuel. Aircraft in these exercises at OLF Coupeville fly at low altitudes over the private property surrounding the landing strip.

Since 1967, the Navy has continuously used OLF Coupeville for field carrier landing practice, but the amount of that use has varied. From 1967 through 1971, the Navy used the landing strip extensively, conducting as many as 39,246 operations in a single year. After the Vietnam War ended, the Navy's use of OLF Coupeville declined, but did not cease. The following undisputed tabulation summarizes the Navy's annual use of OLF Coupeville, with each touch-and-go landing counted as two operations:

1967 1,236	1974 21,180	1981 16,848	1988 30,442
1968 27,130	1975 24,844	1982 14,472	1989 22,596
1969 39,246	1976 17,810	1983 11,782	1990 32,080
1970 37,218	1977 17,748	1984 12,726	1991 27,088
1971 18,392	1978 24,378	1985 13,924
1972 13,572	1979 20,282	1986 22,232
1973 16,764	1980 12,190	1987 30,350

The plaintiffs in this takings case own real property surrounding OLF Coupeville. They filed this action against the United States on April 29, 1992, alleging that the Government took their private property for public use without paying just compensation in violation of the Fifth Amendment. In general, the plaintiffs contend that the noise from aircraft flying over and around their property permanently and substantially interferes with their use and enjoyment of their property.

Before the Court of Federal Claims, the Government sought summary judgment against all plaintiffs on various grounds. After consideration, the trial court granted the Government's motion with respect to three distinct groups of plaintiffs. In reviewing the trial court's judgment, this court also treats each group separately.

With respect to the first group of plaintiffs, comprising six claimants, the Court of Federal Claims found the plaintiffs proffered evidence legally insufficient to support a taking action. According to the court, "[t]he six plaintiffs ... essentially concede in their affidavits that one or more of the necessary elements constituting the taking of an avigation easement have not been satisfied." Order of Court of Federal Claims (July 20, 1995), p. 4. The trial court formulated those necessary elements as follows:

When Government aircraft make regular and frequent flights directly over private land at altitudes of less than 500 feet, [FN 2] and this constitutes a direct, immediate, and substantial interference with the use and enjoyment of the property, the Government takes an avigation easement in the airspace over the property. A.J. Hodges Industries, Inc. v. United States, 174 Ct. Cl. 259, 262, 355 F.2d 592, 594 (1966)....

[FN 2] In United States v. Causby, the [Supreme] Court determined that the airspace, apart from the immediate reaches above the land, is part of the public domain. 328 U.S. 256, 266 (1946). Cases following Causby have concluded that flights above 500 feet in non-congested areas are in the public domain, i.e., in navigable airspace. Stephens v. United States, 11 Cl. Ct. 352, 358-59 (1986) (citations omitted). In congested areas, the navigable airspace begins at 1,000 feet. Id.; see also 14 C.F.R. 91.119 (1994).

With respect to the evidence offered by Dennis and Mary Argent, the only members of the trial courts first group who appeal, the trial court concluded:

Dennis Argent (16) says nothing about the height of the flights and acknowledges that they occur sporadically: [FN 8]

In 1981 the flights were an annoyance but tolerable. Since 1986 the flight numbers and annoyance have dramatically increased. When the jets are engaged in [field carrier landing practice] and using runway 14, they do fly over our house on occasion. However, the overflights are not as significant as the noise caused by the cornering of the jets in their pattern. Pltf's Ex. 5 (D. Argent Affidavit) at 3.

[FN 8] The Government attests that since October 1967 its aircraft seldom, if ever, fly over the property below 500 feet. Dfd's Ex. 11 (Melaas Affidavit) at 13; Dfd's Ex. C (Summary Matrices for Dfd's Exs. A and B).

With respect to the second group -- eleven property owners in an area known as Admiral's Cove -- the Court of Federal Claims found these plaintiffs' claims barred by the six-year statute of limitations. The trial court found that the takings claims for these plaintiffs matured in the 1967-1968 timeframe, when the Navy began frequent and low flights over their properties. The plaintiffs argued that the 1967 easement was a temporary easement for the United States' war in Vietnam. However, the trial court concluded that the plaintiffs' argument ignored twenty years of intervening history during which the Admiral's Cove area lay beneath the final approach or initial takeoff path for all landing exercises at OLF Coupeville. On this basis, the trial court concluded that the 1967-1968 operations created a permanent easement more than six years before the plaintiffs' filing.

The trial court also considered, but rejected, the plaintiffs claim that the United States took additional easements over their properties in 1986 and later years by increasing the number and type of flights flown over their property. Acknowledging that "a second (or new) taking may occur even though the Government has already acquired an easement above a tract of land," the trial court nonetheless rejected the plaintiffs' argument. According to the trial court, the undisputed evidence demonstrated that the increase in operations in 1986 was not a unique event in the twenty-year history of OLF Coupeville up to that time. Rather, the numbers fluctuated over time. The trial court noted that in the years between 1967 and 1985, five years saw flight numbers greater than 1986, the year of the alleged second taking. Further, the trial court rejected the plaintiffs' evidence that the Navy began flying noisier aircraft after 1986.

On these grounds, the trial court found that the statute of limitations for plaintiffs' claims began to run in 1967 and was not later restarted. Because the applicable statute of limitations prevents plaintiffs from asserting causes of action that accrued before April 30, 1986, the trial court found their claims to be time-barred and granted summary judgment in favor of the Government.

With respect to the third group of nine claimants, the Court of Federal Claims applied the rule of United States v. Dow, 357 U.S. 17, 22 (1958), to the effect that a party may not maintain an action for inverse condemnation unless it owned the property at the time of the alleged taking. According to the trial court:

Finally, a number of plaintiffs are not entitled to relief because they did not own property that is the subject of this litigation at the time of the alleged taking (April 30, 1986). The owner at the time the Government takes possession, rather than the owner at an earlier or later date, is the one who has the claim and is to receive payment. Dow, 357 U.S. at 22; see also Martin v. United States, 30 Fed. Cl. 542, 551, affd, 41 F.3d 1519 (Fed. Cir. 1994) (table).

The Court of Federal Claims may grant summary judgment only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." RCFC 56(c). On appeal, this court conducts a "complete and independent review" of the record to determine whether summary judgment is appropriate. Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 799 (Fed. Cir. 1993) (citing Trayco, Inc. v. United States, 994 F.2d 832, 835 (Fed. Cir. 1993)). In conducting this review, this court views the record "in the light most favorable to the party against whom summary judgment was granted." Confederated Tribes of Colville Reservation v. United States, 964 F.2d 1102, 1107 (Fed. Cir. 1992).

For fifty years now, since the Supreme Court decided the seminal case of Causby v. United States, federal courts have repeatedly confirmed that the United States may convert private property to public use by its operation of aircraft. See, e.g., Causby v. United States, 328 U.S. 256, 263 (1946); Griggs v. Allegheny County, 369 U.S. 84, 88 (1962); Brown v. United States, 73 F.3d 1100, 1102 (Fed. Cir. 1996).

Factually, Causby represents what may be viewed as the paradigm of overflight takings cases. In that case, the plaintiffs owned and occupied 2.8 acres of land near a military airport in North Carolina. 328 U.S. at 258. Various United States aircraft -- bombers, transports, and fighters -- frequently passed directly over the property at altitudes as low as 83 feet. Id. at 258-59. These overflights barely missed the tops of trees and structures on the property, and caused noise significant enough to deprive the family of sleep and make the property unsuitable for chicken farming, the plaintiffs previous livelihood. Id. at 259. Crafting a flexible test that balanced the interests of the public against the interests of the private landowners, the Court granted the landowners compensation for their loss to the extent that the overflights were "so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land." 328 U.S. at 261, 263, 266-67.

Key to the Courts reasoning in Causby was the physical interference with the plaintiffs use of their land:

The path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land would limit the utility of the land and cause a diminution in its value.

Although federal courts have, by and large, required the facts of a case to match the Causby paradigm before allowing recovery, nothing in Causby or the intervening precedent limits a takings claim to only those facts. Indeed, overflight takings disputes defy per se rules or classification. Cf. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982). ("[N]o 'set formula' exist[s] to determine, in all cases, whether compensation is constitutionally due for a government restriction of property. Ordinarily, the Court must engage in essentially ad hoc, 'factual inquiries'." (citing Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978))). Rather, precedent requires, consistent with the purpose of the Takings clause, a remedy for government action that singles out a private landowner to bear a disproportionate burden for a public benefit. See Armstrong v. United States, 364 U.S. 40, 49 (1960) ("The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."). Thus, while the facts, reasoning, and rules of Causby have always guided this corner of takings law, they do not imprison it.

This case requires this court to consider the viability of a takings claim based on frequent flights at low altitudes over and around the plaintiffs' property. The Argents allege that these flights are so noisy and so disruptive that they destroy, at least in part, the Argents' ability to use and enjoy their property. Specifically, the Argents allege that the rearward blast of the jets as the Navy planes corner destroys their enjoyment of their property even when the aircraft do not fly directly over their land. According to the Government, however, the Argents cannot base their claim on all the United States flights around OLF Coupeville, but must base their claim solely on those flights passing directly overhead. For reasons discussed below, this court deems the Argents' allegations sufficient to warrant factual consideration of their claim.