# United States **Court of Appeals**  **for the Federal Circuit**

______________________ OTAY MESA PROPERTY, L.P., RANCHO VISTA DEL MAR, OTAY INTERNATIONAL, LLC, OMC PROPERTY, LLC, D & D LANDHOLDINGS, LP,

INTERNATIONAL INDUST RIAL PARK, INC., (also known as Rancho De La Fuente) , Plaintiffs

- Appellants

KYDDLP & RDLFGFT NO. 1, LLC., Plaintiff

v.

UNITED STATES, Defendant

- Cross Appellant

______________________

2013

- 5122, 2014

- 5002

______________________ Appeals from the United States Court of Federal Claims in No s . 06

- CV

- 0167, 06

- CV

- 0877, 06

- CV

- 0876, 06

- CV

- 1670 and 06

- CV

- 1671 , Judge Thomas C. Wheeler.

______________________

Decided: March 6 , 2015

______________________

R OGER J. M ARZULLA , Marzulla Law LLC, Washington, DC, argued for plaintiffs

- appellants. Also represented by N ANCIE G AIL M ARZULLA

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J OHN E MAD A RBAB , Environment and Natural R esources Division, United States Department of Justice, Washington, DC argued for defendant

- cross

- appellant. Also represented by S AM H IRSCH

.

______________________
Before T ARANTO , S CHALL , and C HEN , Circuit Judges.

S CHALL , Circuit Judge

. D ECISION
This is the second time this case has been before us. In Otay Mesa Prop erty , L.P. v. United States , 670 F .3d 1358 (Fed. Cir. 2012) (“ Otay Mesa I ”), we held that the United States was liable to plaintiffs Otay Mesa Property, L.P., Rancho Vista Del Mar, Otay International, LLC, OMC Property, LLC, D & D Landholdings, LP, and Inte rnational Industrial Park, Inc. ( collectively, “Otay Mesa”) for the taking of property owned by them. 1 Specifically, we ruled that the U.S. Border Patrol’s placement of motion sensors on five separate parcels of land owned by Otay Mesa adjacent to the Mexican border in Southern Californi a constituted the taking of permanent easements over the parcels. Id. at 1365. We remanded the case to the United States Court of Federal Claims for a determ ination of the damages to which Otay Mesa was entitled as

a resu lt of the taking. Id. at 1369

– 70

. On remand, the Court of Federal Claims held (1) that Otay Mesa was entitled to no damages for the taking of an easement over land that could be developed for indu strial use ( “ the development property”); (2) that it was

1 In relevant part, the Fifth Amendment requires that the United States pay “just compensation” whenever it takes private property for public use. U.S. Const. amend. V (“[N]or shall private property be taken for public use, without just compensation.”).OTAY MESA PROPERTY , L

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entitled to damages in the amount of $455,520 for the taking of an easement over land that could be used for environmental mitigation purposes (“the mitigation property”); and (3) that interest on the $455,520 da mages award should run from August 28, 2008, the date the court found Otay Mesa became aware of the taking as a result of the filing of a stipulation of liability by the government. Otay Mesa Prop

. , L.P. v. United States , 110 Fed. Cl. 732, 743

– 47 ( 2013) (“ Otay Mesa II ”) ( interest on the damages award was initially deemed to run from October 16, 2008, but the date wa s adjusted following a motion for reconsideration, 111 Fed. Cl. 422, 424 (2013) (“ Reconsideration Decision ”)).
Otay Mesa appeals the decision of the Court of Fede ral Claims denying damages for the taking of an easement over the development property. It also appeals the dec ision of the court to compute interest on the $455,520 damages award from August 28, 2008, rather than from the dates sensor s were first installed on the parcels containing the mitigation property, as stated in the go vernment’s stipulation of liability. For its part, the go vernment cross

- appeals the damages award for the taking of an easement over the mitigation property.

For the reasons set forth below, we affirm the decision of the Court of Federal Claims denying damages for the taking of an easement over the development property. We also affirm the decision of the court awarding Otay Mesa $455,520 in damages for the taking of an easement over the mitigation property. However, we vacate the decision of the court computing interest on the $455,520 damages award from August 28, 2008. As we explain, Otay Mesa is entitled to interest computed from when sensors were first placed on its property . The dates the Border Patrol first placed sensors on Otay Mesa’s prope rty are set forth in the government’s stipulation of liability. We thus affirm

- in

- part, vacate

- in

- part, and remand. On remand, the Court of Federal Claims will determ ine theOTAY MESA PROPERTY , L

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amount of interest to which Otay Mesa is entitled on the $455,520 damages award.

B ACKGROUND
The facts of the case are set forth in Otay Mesa I and in the several decisions of the Court of Federal Claims

. We re cite here the facts pertinent to the issues now before

us.
I. Otay Mesa owns eleven contiguous parcels of largely undeveloped land adjacent to the Mexican border in the Otay Mesa area of San Diego County. Otay Mesa I

, 670 F.3d at 1360. Five of those parcel s, Nos. 1, 3, 4, 5, and 10, are at issue in t his case. Beginning in April 1999 an d continuing through November 2005, the Border Patrol placed a total of fourteen motion sensors on those parcels in order to detect illegal immigrants entering the United Sta tes from Mexico. The motion sensors are approx imately one cubic foot in size and are buried underground, except for a one foot antenna that remains above the surface of the soil. Joint Appendix (“ J.A. ”) 1792 at ¶ 3; see also Otay Mesa II , 110 Fed. Cl. a t 734

. In 2006, Otay Mesa filed suit in the Court of Federal Claims alleging, inter alia , that the installation of the sensors constituted a taking of Otay Mesa’s property, entitling it to “just compensation” under the Fifth Amendment’s Takings Clause. Otay Mesa Prop., L.P. v. United States , 86 Fed. Cl. 774 , 775 (2009) (“ Liability Decision ”). 2 On August 28, 2008, p rior to the trial on liability , the government filed a document in which it

2 From our review of the r ecord

, it appears that

p laintiff KYDDLP & RDLFGFT N o . 1, LLC. , i s not named

as an a ppellant here because the parcel it own s, or at one time owned , No. 9, is no t at issue on appeal

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stipulated that “by virtue of its placement of the 14 se nsors on the five parcels of land, it had taken a property interest in the nature of an easement over the parcel of land on which the sensors have been placed

. ” J.A. 1793 at ¶ 6 ; see also Liability Decision , 86 Fed. Cl. a t 777, 790

– 91. The document stated that th e Border Patrol had installed sensors during the period beginning April 1999 and ending November 2005. The document described the
easement , in relevant part, as: A perpetual and assignable easement to locate, construct, operate, maintain and repair or re place the specified underground seismic intrusion se nsors on the specified parcels, including the right to ingress and egress to each sensor location. The easement shall be deemed to have commenced on the date the sensor is listed as having been i nstalled , and will continue until the sensor is no longer needed or the property is developed. Each sensor is and shall be located so as not to affect the functionality of the property. Should the landowner desire to develop any portion of the subject parcel, th e sensor will be removed or red eployed upon 30 days written notice that a grading permit has been issued by the County of San Di ego permitting development of all or a portion of the property. Upon removal of a sensor, the po rtion of the easement relating to that sensor shall terminate

. J.A. 1794 at ¶ 7; see also Otay Mesa I , 670 F.3d at 1361

– 62

. Based on the government’s stipulation, the Court of Federal Claims held that the government was liable for the physical taking of a temporary easement over the five parcels for the purpose of installing and operating the sensors. The court reserved the determination of dama ges for subsequent proceedings. Otay Mesa I

, 670 F.3d atOTAY MESA PROPERTY , L

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1362

. F ollowing a trial on damages, the court determined that Otay Mesa was entitl ed to compensation in the amount of $3,043,051, plus interest for the taking of the
easement. Id.

II. The government appealed the decision of the Court of Federal Claims. According to the government, the trial court incorrectly ruled that the taking of t he easement was temporary rather than permanent. That ruling, the government contended, led the court to use the fair ma rket rental value method of determining compensation, rather than the before

- and

- after method, which resulted in an erroneous calcu lati on of Otay Mesa’s damages. 3 The government argued that, under the before

- and

- after method, Otay Mesa was entitled to only a nominal award, in view of the court’s finding that the use of the sensors had not resulted in any restriction on the functionality of the property. Id. at 1363. For its part, Otay Mesa cross

appealed the Court of Federal Claims’ decision to limit the scope of the taking to five parcels of land ( Nos. 1, 3, 4, 5, and 10) a nd the time period (April 1999 through November 2005) identifie d in the govern ment’s stipulation

. Id.

In Otay Mesa I , we held that the Border Patrol’s bla nket easement to install, maintain, and service sensors on Otay Mesa’s property constituted a permanent physical taking. Id. at 1365. We thus remanded the case to the

3 As we noted in Otay Mesa I , the usual measure of compensation for a temporary taking is the fair rental value of the property for the period of the taking, wher eas, for a permanent taking, the owner is typically entitled to the diminution in the fair market value of the property. 670 F.3d at 1364. Th e latter measure of compensation is sometimes referred to as the “before

- and

- after” method.OTAY MESA PROPERTY , L

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Court of Federal Claims for a redetermination of dama ges. We stated that, “[o]n remand, the court should dete rmine damages based upon the Border Patrol having taken a permanent blanket easement over Otay Mesa’s prope rty, as set forth in the stipulati on.” Id. at 1368. We agreed with the government that the Court of Federal Claims erred in ruling that the Border Patrol had temporarily taken Otay Mesa’s property. We did not, however, e ndorse the government’s view that Otay Mesa’s damages should be determined based upon a before

- and

- after methodology. Id. at 1369. Rather, we stated: As noted, the government has argued before us that Otay Mesa ’ s damages should be dete rmined based upon a before

- and

- after methodology. While diminution in value is a use ful methodology in many cases, we reiterate that the focus of the damages analysis must always remain on awar ding just compensation for what has been taken. To award just compensation, a court must som etimes deviate from the traditional permanent ta king

- diminution in value and temporary taking

rental value approaches.

Id.
We thus instructed that, on remand, the Court of Federal Claims “will have discretion in identifying a methodology that fulfills the goal of awarding Otay Mesa just compensation.” I d. We emphasized that what was important was for the focus to be on awarding just co mpensation for exactly what had been taken in the case. We identified what had been taken as “a minimally invasive permanent easement to use undeveloped land that is unil aterally terminable by Otay Mesa.” Id. at 1368. Turning to Otay Mes a’s cross

- appeal, we concluded that the Court of Federal Claims had not clearly erred when it limited the scope of the taking to the parcels ofOTAY MESA PROPERTY , L

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land and the period of time identified in th e government’s stipulation. Id. at 1370. Accordingly, w e affirmed

- in

- part and vacated

- in

- part the decision of the Court of Federal Claims. We remanded the case to the court for further proceedings consistent with our opinion. Id.

III.
On remand, the Co urt of Federal Claims approached the damages issue by considering the two types of land that make up parcels 1, 3, 4, 5, and 10. The court dete rmined, and the parties generally agree , that of the 897 acres of land at issue, approximately 278 acres are sui t able for development (the development property), while approximately 619 acres are suitable for environmental mitigation purpos es (the mitigation property). 4 Otay Mesa II , 110 Fed Cl. at 734 , 738 , 740 . The court held that Otay Mesa was entitled to no da mages for the taking of an easement over the development property. Based upon the evidence before it, the court determined that the sensor easement “would have no material effect” on the development property because Otay Mesa could have any

sensors remove d upon thirty days written notice that the

4 In valuing real property, a primary consideration is its “highest and best use”

— i.e., its most profitable use. Some of Otay Mesa’s property’s highest and best use is as mitigation land, which is land that qualifies under federal and state regulations for use by developers to offset development of other environmentally sensitive land. Otay Mesa II , 110 Fed. Cl. at 735

– 36. Because developers may find it difficu lt to locate appropriate mitigation land, landowners can profit from selling certain land that compensates for adverse effects on protected species and habitats. Id. at 736. The balance of Otay Mesa’s property has a highest and best use as land suitable for standard industrial development. Id. at 738.OTAY MESA PROPERTY , L

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property had been approved for development. Id. at 734, 744

. The Court of Federal Claims determined, however, that Otay Mesa was entitled to $455,520 in damages for the taking of an easement over the mitigation p roperty. This figure represented five percent of the $9,110,400 fair market value appraisal for the mitigation property. Id. at 747. Faced, on the one hand, with Otay Mesa’s argument that the placement of the sensors on the mitigation pro perty had reduced the value of the property by forty percent, and on the other, by the government’s contention that the sensor placement had not had any effect on the value of th e property, the court stated:
Despite the Court’ s conclusion that the conflict i ng evidence tilts in Defendant’s favor, the Court is not convinced that a landowner would willingly convey an interest in land to the Government for absolutely no compensation whatsoever, nor that the encumbrance has absolutely no effect on the value of th e subject property.

. . . Here, Plaintiffs undeniably face a risk that their environmentally sensitive property will not be approved for mitig ation use. The Court does not assess this risk to be anywhere near the 40 percent level advocated by [Otay Mesa’ s expert] , but the risk is significant enough that the Court cannot accept the Gover nment’ s position of a zero impact either. For Plai ntiffs to assume this risk without any compensation for the admitted Fifth Amendment taking would leave Plaintiffs in a w orse position than before the taking occurred.

. . . [I] t is plausible that the Go vernment ’ s sensor easement might prevent the use of Plaintiffs ’ property for mitigation purposes. Even if this o utcome never occurs, Plaintiffs’ a ssumption of the risk shou ld be ascribed some va lue.OTAY MESA PROPERTY , L

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Id. at 746

– 47. In its decision, the Court of Federal Claims awarded Otay Mesa interest from October 16, 2008, “the date,” the court stated, “on which [Otay Mesa] became aware of the taking through the Government’s filing of the s tipul ation.” Id. at 747. Otay Mesa moved for reconsideration on the issue of interest

. It argu ed that interest should run from April 1999, when the first sensor was installed on its property, not from the date when the government filed its stipulation of liability in 2008, which, in any event, was August 28, 2008, not October 16, 2008. The court granted the motion for the limited purpose of setting August 28, 2008, as the starting date for the computation of interest. Reconsideration Decision

, 111 Fed. Cl. at 424. In all other respects it denied it. The court acknowl edged “the existence of ample case law holding that interest in a Fifth Amendment taking should run from the date of the taking.” Id. at 423. It determined, though

, that that proposition did not apply in this case. The court pointed out that, in arriving at its $455,520 damages award, it had ascribed a value (five percent) to the risk Otay Mesa assumed in having its property subjected to the gover nment’s easement. Pointing to August 28, 2008, the court stated that, before that date, “only the G overnment knew that the sensors were in use on Otay Mesa’s property.” Id. at 424. The court reasoned, “ [i] f no person or entity outside of the G overnment was aware of the sensors until the disclosure date in 2008, the risk on which the Court’s damages award is based did not exist until 2008.” Id. On July 22, 2013, the Court of Federal Claims entered judgment awarding Otay Mesa damages in the amount of $455,520, with interest computed on that amount from August 28, 2008. Otay Mesa’s current appeal and the government’s cross

- appeal followed . We have jurisdic tion pursuant to 28 U.S.C. § 12 95(a)(3).OTAY MESA PROPERTY , L

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D ISCUSSION Following a damages trial, we review the Court of Fed eral Claims’ legal conclusions de novo and its factual findings for clear error

. Ind. Mich. Power Co. v. United States , 422 F.3d 1369, 1373 (Fed. Cir. 2005) ; Am

. Pelagic Fishing Co. v. United States , 379 F.3d 1363, 1371 (Fed. Cir. 2004)

. “A finding is ‘clearly erroneous’ when al though there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Renda Marine, Inc. v. United States , 509 F.3d 1372, 1378 (Fed. Cir. 2007) (quoting United States v. U.S. Gypsum Co. , 333 U.S. 364, 395 (1948) ). As noted above, Otay Mesa appeals the denial of damages for the taking of a n easement over the develo pment property. The government cross

- appeals the award of damages for the taking of an easement over the mitig ation property

. And Otay Mesa appeals the court’s dec ision not to award interest from the date sensor s w ere first installed on the parcels containing mitigation property

. 5 We f irst address Otay Mesa’s appeal with respect to the development property

. I.

A.

T he Court of Federal Claims found that the “Border Patrol’s sensor easement would have no material effect o n

5 In its motion for reconsideration, Otay Mesa r equested that interest run from the date the first sensor was installed

, in April 1999. Reconsideration Decision

, 111 Fed. Cl. at 424. On appeal, Otay Mesa argues that interest should run from the date a sensor was first installed on each respective parcel containing mitigation property

.OTAY MESA PROPERTY , L

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the developa ble land ” and denied damages for the government’s e asement over that portion of Otay Mesa’s property. Otay Mesa II , 110 F.3d a t 734. While Otay Mesa’s expert witness testified that the easement caused a ten percent diminution in the value of the development property , the court found much of that evidence to be “minimally persuasive

, ” and instead credited the gover nment’s evidence to the contrary

. After weighing the competing evidence , t he court ultimately held that Otay Mesa “failed to prove actual damages with respect to a diminution in value of developable land.” Id.
On appeal, Otay Mesa contends that it met it s burden of showing a fair and reasonable approximation of da mages as to the development property

. See Ark. Game & Fish Comm ’n v. United States , 736 F.3d 1364, 1379 (Fed. Cir. 2013) ; Precision Pine & Timber Inc. v. United States

, 596 F.3d 817, 833 (Fed. Cir. 2010 ). I t argues that all that

was required to prove its damages case wa s “ reasonable certainty, ” not absolute precision

. Otay Mesa s tates that, in addition to i t s diminution in value theory

, it presented evidence showing that other parties , such as utility co mpanies and the Border Patrol itself, paid relatively large sums for easements over the development property in question and other nearby land owned by Otay Mesa

. It points to testimony suggesting that the very existence of the easement could negatively affect the ability to receive project approvals. Otay Mesa argues that the court ignored much of this evidence and, thus, its decision to deny damages was clearly erroneous. I t contends that the court’s holding amounts to a conclusion that Otay Mesa

wou ld have conveyed the easement to the government for no consideration at all.
In response , the government contends that Otay M esa’s evidence was not ignored, but, rather, was considered and found to be insufficient , or was not probative of damages

. The govern ment points out that the Court of Federal Claims disc ounted Otay Mesa’s expert witness’sOTAY MESA PROPERTY , L

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valuation as being premised on faulty assumptions. The government also states that evidence relating to prior
easements over Otay Mesa’s property was not presen ted during the remand trial and that , in any event, those
easements were not probative of damages because they

were not examples of the “minimally invasive” or “unila terally terminable” easements at issue here

. Unlike th e prior easements, the government points out , the sensor easements require the Border Patrol to remove or red eploy the sensors upon thirty days written notice. The government reasons that , b ecause Otay Mesa failed to provide reliable expert witness evidence or to produce any comparable ea se ment sales , the court’s decision to credit the government’s valuation and to deny damag es was not clearly erroneous.

B.

We conclude that the Court of Federal Claims ’ dec ision to deny damages for the easement over 278 acres of development property was n ot clear error . As an initial matter, the fact that a taking occurred does not itself establish what compensation should be awarded

. What is critical in the determin ation of just compensation is not the gain to the government from the taking , but t he
act ual loss to the land owner. U nited S tates ex rel. Tenn

. Valley Auth. v. Powelson , 319 U.S. 266, 281 (1943) ( noting the “well settled rule” that it is “the owner’ s loss, not the tak er’ s gain, which is the measure of compensation for the property taken ”); United States v. Chandler

- Dunbar Water Power Co. , 229 U.S. 53, 80

– 81 (1913) (“[I]n a co ndemnation proceeding, the value of the property to the government for its particular use is not a criterion .”)

. Once a taking has been established, i t is the landowner who bears the burden of proving an actual loss has o ccurred

. Bd. of Cnty. Supervi sors of Prince William Cnty., Va. v. United States , 276 F.3d 1359, 1364 (Fed. Cir. 2002). T o carry its burden, t he landowner must show actual damages “with reasonable certa inly,” which “requiresOTAY MESA PROPERTY , L

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more than a guess, but less than absolute exactness.” Precision Pine , 596 F.3d at 833.
During the trial on remand, Otay Mesa presented just one expert, Randy Tagg

. Mr. Tagg, who is an appraiser, testified as to the damages resulting from the taking of an easement over the development property

. Mr. Tagg ’ s assertion that there was a ten percent diminution in the value of the development property was based on the prior testimony of a witness from the 2009 trial and on the results of a telephonic market sur vey. Otay Mesa II , 110 F.3d at 743. In weighting the credibility of Mr. Tagg’s damages assessment, the Court of Federal Claims found that the prior testimony contained “pervasive general ities” and was based on the “ mistaken assumption” that the easement does not limit the number of sensors

. Id. T he court also found that Mr. Tagg’s telephonic market
survey of land developers was “casual, undocumented, and narrow,” consisting of only seven telephone calls and four re sponses. Id. at 744. Two of the responsive pa rtic ipants , the court noted, refused to provide any estimate of diminution of value , while the other two responses were “minimally persuasive,” as they were also premised on the erroneous assumption that the easement does not limit the number of sensors allowed on the property

. Id

. Mr. Tagg

, the court stated

, “exchanged no written correspon dence with these developers, and his work files [did] not contain any notes of his conversations with them.” Id. at 739

. It was the judgment of the court that , considering foundational flaws of Mr. Tagg’s valuation

, a “ten percent reduction in value [was] dubious.” Id. at 744.
On the other hand, the Court of Federal Claims found the testimony of the government’s expert witness

— who testified that the easement would have no impact on the development property

— to be “much more instructive.” Id. The government’s expert , Stephen Roach, an appraiser in San Diego, based his valuation on the wording of the easement itself. First, Mr. Roach concluded that theOTAY MESA PROPERTY , L

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easement was limited to no more than fourteen sensors. Id. at 740. Second, he found that the language stating that

, “should the landowner desire to develop an y po rtion . . . , the sensor will be removed or redeployed upon 30 days written notice that a grading permit has been issued by the County of San Diego” meant there could be no measurable effect on the suitability of the develop ment property for future dev elopment. Id. That conclusion was buttressed by the prior testimony of Richard Shick, one of the government ’s experts from the 2009 trial. Mr. Shick

, who is project manager for the County of San Diego Department of Public Works, was designated as the mo st knowledgeable in his department on the impact of easement s on the process of receiving grading permit s for the development of land

. Id. His work responsibilities i ncluded issuing grading permits for development of land within the central and southern regions of San Diego County

, where Otay Mesa’s property lies . J.A. 889. H is opinion in 2009 was that the easement would likely not prevent his department from issuing a grading permit, but might result in an “advisory note” on the development plans advis ing the applicant to notify the United States within thirty days of issuance. Otay Mesa II

, 110 F.3d at 737. We agree with the Court of Federal Claims that the government’s position on the develop ment property is much more persuasive than that of Otay M esa

. Otay Mesa presents no persuasive argument why , in view of the language of the stipulation, it was clear error for the court to credit the government’s zero

- damage valua tion over its own clearly flawed ten

- percent

- diminution valu ation. The Court of F ederal Claims properly exercised its judgment in its role as the trier of fact by weighting the credibility of the respective witnesses and their beforeand

- after valuations of the land.
Otay Mesa ’s contention that the Court of Federal Claims ignored rel evant evidence stems from its beliefOTAY MESA PROPERTY , L

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that the trial court was required to construct a damages valuation from evidence presented during the 2009 trial

, despite such evidence never being formally present ed during the remand trial. Although we believe the tr ial court was properly within its discretion in denying da mages based on the evidence presented during the trial on remand, we nevertheless address Otay Mesa ’s argument. Specifically, although Otay Mesa concedes that it was

un able to find any “ comparable ” easements sales , it urges that the Court of Federal Claims should have used prior, tangentially

- related easement sales to create its own valuation of the property

. The prior easements identified by Otay Mesa are easements that it sold for underground pipe lines for sewer, water, gas, and electric ity ; they also

are easements for road s and overhead power lines. While those sales may show that substantial value has been paid for easements over the subject land

, we are unpe rsuaded that the mere existence of easements that are neither “minimally invasive” n or “unilaterally terminable” provide s a basis for determining that the Court of Federal Claims committed clear error in accepting the gover nment’s zero

- damages valuation . Unassisted by expert reports or tri al testimony on how those utility and road easements relate to the permanent sensor easement s at issue here, the court was left to speculate as to how those
easements would factor into a supposedly proper “just compensation” calculation

. The court was not obligated to construct a damages award for Otay Mesa when it ha d substan tial

, credible evidence before it indicating that no actual loss was suffered. Vaizburd v. United States , 384 F.3d 1278, 1284

– 85 (Fed. Cir. 2004) (rejecting the “prop osition that a c ourt may not adopt one party’s credible appraisal over the other party’s less credible appraisal” and holding that the taking “did not diminish the market value of the [landowner’s] property” ).

I n Precision Point

, we concluded that a trial court is
not necessarily stuck with the “ stark choice ” of acceptingOTAY MESA PROPERTY , L

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or rejecting a par ty’s valuation, but it did not foreclose that option

. 596 F.3d at 832. “A s the fact finder in the bench trial, the judge is responsible for deciding what evidence to credit or reject and what result to reach, ” which is precisely what the trial judge did here. Id. at 833. As we explained in Precision Point , while we may know more on an appeal from a bench trial than from a jury trial as a result of a written opinion

, it “does not alte r th [e] judge’s discretion to weigh evidence o r our standard of review.” Id. Similarly, in Yaist v. United States , the
court note d that, where comparable sales data is lacking, it is permissible to fashion a damages award from “other evidence ,” so long a s it is “ premised on a reasonably informed basis. ” 17 Cl. Ct. 246, 257 (1989). Contrary to Otay Mesa ’s contentions, it is doubtful whether the prior easement sales , without more, could have provid ed a “reasonably informed basis” to value a unique sensor easement that is minimally invasive, unilaterally term inable, a nd must also not affect the functionality of the land for development purposes

. Finally, Otay Mesa calls it a “paradox” and “irreco ncilable” that, as a temporary easement, the encumbrance had substantial value

, yet as a permanent easement it was denied damages. But as we explained in Otay Mesa I

, th e prior valuation was based exclusively on the rental value of the property for skydiving and parachute trai ning. 670 F.3d at 1368. Th at rental market methodology

was erroneous

. Id. Indeed, we explicitly instructed the Court of Federal Claims on remand not to “overlook exactly what has been taken by the Border Patrol

— a minimally invasive permanent easement to use undeve loped land that is unilate rally terminable by Otay Mesa.” Id. We reminded the court that, “should Otay Mesa wish to develop any portion of the property, any affected sensor will be removed or redeployed upon 30 days written notice” of a grading permit issuance. Id. at 1369. An d, we gave the court great leeway “to fashion an appropriateOTAY MESA PROPERTY , L

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measure of compensation.” Id. In our view, considering the whole record before the court, it was not clear error to accept the government’s position and to deny damages for the develop ment property

. II.

A.
Following the damages trial on remand, t he Court of Federal Claims rejected the government’s zero

- percent diminution valuation of the mitigation property , as well as O tay Mesa’s forty

- percent

- diminution valuation. Otay Mesa II , 110 Fed. Cl. at 746. The court then exercised its discretion in formulating a damages award that it b elieved accounted for the real, but minimal, risk that the property would be rejected for mitigation use due to the
sensor easement over it

. Id. at 747

. It award ed $455,520 for the taking of a permanent easement over Otay Mesa’s mitigation property

— an award of five percent of the property’s $9,110,400 fair market value. Id.

T he government now cross

- appeals th at award . It a rgues that the damages award is based on clearly erron eous factual findings and that it is inconsistent with other conclu sion s in the Court of Federal Claims’ damages decision

. Specifically, the government contends that the
court found that the easement would not affect the biolo gical resources of the mitigation land. See i d. at 745. In addition, it notes that the court found that

, even after the sensors were placed on its property, Otay Mesa used portions of the property for mitigation purposes. Reco nsideration Decision , 111 Fed. Cl. at 424. I t further points out that evidence was presented during the 2009 trial indicating that the sensors would have no mea surable impact on the use of Otay Mesa’s land for mitigation

purposes. Otay Mesa II

, 110 Fed. Cl. at 73 7

. The go vernment, in other words, argues that there is no credible evidence from which the Court of Federal Claims couldOTAY MESA PROPERTY , L

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conclude that there was a five percent risk that the pro perty would not be approved for mitigation use

. Otay Mesa responds that, even though the Court o f Federal Claims arrived at a damages award that neither party suggested, it was well within its broad discretion to do so . It argues that the court had ample evidence from which it could conclude that Otay Mesa’s land might not be approved for mitigation use. It contends that its appraiser, Mr. Tagg, as well as its other witness es , test ified that there would be a diminution in the value of land as mitigation property as a result of an easement that provides for i nstallation of sensors, as well as for ingress and egress to and from the sensors

. It points, f or exa mple, to its expert on mitigation , James Carter, who test ified that ingress and egress to the sensors, in addition to the redeployment and relocation of t he sensors, would negatively impact the ability to find a management co mpany that would take title to the land. J.A. 681

– 82. It explains that the Court of Federal Claims did not sua sponte fashion an arbitrary “risk” award, as it is characterized by the government, but that the court laid out factual bas e s for awarding a five percent diminution in value due to the identified risk

. B.

We conclude that the Court of Federal Claims prope rly exercised its discretion in shaping a n award that a ccounted for the potential that the mitigation property might not be approved for mitigation use. As noted above,

we explicitly instructed that “on remand the Court of Federal Claims will have discretion in identifying a methodology that fulfills the goal of awarding Otay Mesa just compensation.” Otay Mesa I , 670 F.3d at 1369. During the damages trial o n remand, the court was confronted with conflicting evidence and relatively e xtreme valuations for the mitigation property

— proposals of zero percent or for ty percent diminution in value

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Recognizing that the “Plaintiffs undeniably face a risk that their environmentally sensitive property will not be approved for mitigation use,” but that the risk was not “anywhere near the 40 percent [diminution in value] level advocated by Mr. Tagg,” the court chose its own valuation that captured what it perceived as the risk of a “potential den ial of a mitigation request.” Otay Mesa II

, 110 Fed. Cl. at 734 , 746

. It explained that

, “[e]ven if this outcome never occurs, Plaintiffs’ assumption of the risk should be ascribed some value.” Id. at 746. It found that Otay Mesa would not have willingly assumed that risk for its mitigation property without some, albeit minimal, consi deration. Id. We detect nothing inappropriate with the Court of Federal Claims looking at the evidence as a whole and using its own methodology to calculate a damages award. Contrary to the g overnment’s assertion, the court’s dec ision to ascribe its own va luation to t he damages associa ted with the mitigation land is consistent with both our instruction on remand and our case law. In Precision Pine

, discussed above

, we made clear that a trial court need not accept either party ’s damages position. 596 F.3d at 83 2–3 3. W e explained that it is both correct and i mportant for a trial court to use its flexibility to tailor a fair and reasonable result based on the evi dence it credit s or rejects

. Id. ; see also Seravalli v. United States , 845 F.2d 1571, 1575 (Fed. Cir. 1988) (“[Trial] courts necessarily must have considerable discretion to select the method of valuation that is most appropriate in the light of the facts of the particular case.”)

. Here, where the parties took diverg ent and extreme positions, and the court beli eved that the landowner was in a worse position after the taking, the court had few options in determining a justOTAY MESA PROPERTY , L

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compensation award other than creating its own valu ation. 6
Moreover, the gover nment overlooks that many of the arguments it advances for why it was not clear error for the Court of Federal Claims to deny damages for the easement over the development property likewise apply to the court’s decision to award damages for the easement over the mitigati on property

. When a trial cou rt provides

a damages award that is within the range of credible testimony, it is not an appellate court’s role to reweigh the evidence or second

- guess the finder of fact. E.g.

, Rapid Transit Co. v. United States , 295 F.2d 465, 467 (10th Cir. 1961) ( findi ng that “ [s] ince the award was well within the range of credible testimony this court may not reweigh the evidence or retry the facts ”)

, cert. denied , 369 U.S

. 819. The Court of Federal Claims ’ five

- percent award for the mitigation property

— like its denia l of damages for the development property

— is reasonable on the evidence

. III.

A.
Last, we address Otay Mesa’s appeal with respect to the date from which interest on its damages award should be calculated. Following the trial on remand, the Court of Feder al Claims awarded compound interest from October 16, 2008, the date on which it believed Otay Mesa first became aware of the taking through the government’s stipulation. Otay Mesa II , 110 Fed. Cl. at 747. On reco nsideration, the trial court “acknowledge[d] the existence of

6 To the extent the go vernment conten ds that the court’s methodology is inconsistent with the methodology used in the original damages decision, that decision was based on the notion that the taking was temporary in nature. As discussed above, that methodology was inco rrect and was based on a rental value calculation.OTAY MESA PROPERTY , L

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ample case law holding that interest in a Fifth Amen dment taking should run from the date of the taking, ” but declined to adjust the date beyond granting a change from October to August 2008 , when the government’s stipul at ion was first filed

. Reconsideration Decision , 111 Fed. Cl. at 423. The court believed that “ [i] f no person or entity outside of the G overnment was aware of the sensors until the disclosure date in 2008, the risk on which the Court’s damages award is bas ed did not exist until 2008.” Id.
On appeal, Otay Mesa argues that the case law is u nequivocal that interest must be calculated from the date of the taking. And i t argues that the date of the taking
cannot be disputed, as the government expressly list ed the date s that each sensor was first installed on the subject property in its 2008 stipulation . In response, the government defends th e Court of Federal Claims’ dec ision

. It does so, not by arguing that the case law allows for interest to be computed fr om some other point in time other than the date of the taking , but , rather, by conten ding that

, since no damage occurred before 2008, the court essentially applied an interest rate on zero damages from the date of the taking until the date of the government’s stipulation. It argues that before the stipulation Otay Mesa did not know about the sensors and therefore could not have suffered any damages on which interest could be compounded . Award ing Otay Mesa interest from a dat e prior to the 2008 stipulation, the government contends

, would place it in a better position than if the taking had never occurred.

B.
We hold, as a matter of law , that interest on Otay M esa’s damages award must be calculated from the date

sensor s first e ncumbered Otay Mesa’s property

. T he Supreme Court has long held that “just compensation” includes interest compounded from the date of a taking when payment for the taking does not coincide with theOTAY MESA PROPERTY , L

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taking itself

. Phelps v. United States , 274 U.S. 341, 3 44 (1927); Seaboard Air Line Ry. Co. v. United States , 261 U.S. 299, 306 (1923)

. In Phelps , the Court recognized that the “Plaintiffs’ property was taken before its value was ascertained or paid.” 274 U.S. at 344. It explained that the “[j] udgment in 1926 for the value of the use of the property in 1918 and 1919, without more, [was] not sufficient to constitute just compensation. ” Id. T he Court instructed that the land owner was “entitled to have the full equivalent of the value of such use at the time of the taking paid contemporaneously with the taking.” Id.

Thus , “if disbursement of the award is delayed, the owner is entitled to interest thereon sufficient to ensure that he is placed in as good a position pecuniar il y as he would have occupied if the payment had coincided with the appropriation.” Kirby Forest Indus., Inc. v. United States , 467 U.S. 1, 10 (1984) (citing Phelps , 274 U.S. at 344 and Seaboard , 261 U.S. at 306) . In order for an owner to be placed in “as good a position pecuniarily ,” interest must be added to the damages award in order to compensate for the time value of money and the potential opportuni ty the owner has lost to e arn income on its damages award as a result of the taking. It is now axi omatic that “the Fifth Amendment ’ s reference to ‘just compensation’ entitles the property owner to receive interest from the date of the taking to the date of payment as a part of his just compensation. ” United States v. Thayer

- W. Point Hotel Co. , 329 U.S. 585, 588 (1947 ) ; see also Jacobs v. United States , 290 U.S. 13, 17 (1933) (“[J]ust compensation is comprehensive, and includes all elements, ‘and no specific command to include interest is

necessary when interest is part of such compensation.’”)

. Here, as in Kirby For est , the governmen t stipulated to the precise date of its taking. It conceded in its 2008 stipulation that “by virtue of its placement of the 14 sensors specified above on the listed parcels of land, it has taken a property interest in the nature of an easement .”OTAY MESA PROPERTY , L

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J.A. 179 3 at ¶ 6 (emphasis added). It stipulated that the “easement shall be deemed to have comme nced on the date the sensor is listed as having been installed.” J.A. 1794 at ¶ 7

. The stipulation also enumerates the dates that ea ch sensor was first installed: d ates ranging from April 1999 to November 2005. J.A. 179 3 at ¶ 5

. Because the government’s payment of consideration for its taking
was not paid contemporaneously with the taking, Otay Mesa is now entitled to interest “ sufficient to ensure that [it] is placed in as good a position pecuniar il y as [it] would have occupied if the payment had coincided with the appropriation.” Kirby Forest , 467 U.S. at 10.
We are not persuaded by the Court of Federal Claims ’ and the government’s justifications for why interest should not begin to run until the date of the govern ment’s stipulation. To begin with, delaying the running of inte rest until Otay Mesa supposed ly first knew about the taking would be contrary to the established precedent just discussed. Moreov er , if the government’s easement created a risk that Otay Mesa’s mitigation land might be denied approval for mitig ation use as of 2008 , then the

sensor easement would have also created the same risk when the land was first encumbered

. Otay Mesa’s knowledge of the easement is irrelevant to whether the easement objectively created th at risk. Finally , if interest is not computed from the date of the taking, but instead from the date a landowner is first made aware of the taking, the gover nment is presented with an incentive to delay disclosure of physical invasion for as long as poss ible

. We see no logic in creating such an incentive.

A ccordingly, we vacate the decision of the Court of Federal Claims to award interest from Au gust 28, 2008
, and remand for recalculation of the interest owed to Otay Mesa. As noted, Otay Mesa argue s before us that interest should be calculated based on the different dates that the respective parcels constituting the mitigation proper ty were first encumbered b y a sensor easement. The go v-OTAY MESA PROPERTY , L

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ernment has not propose d a method for calculating inte rest in the event that we rule against it. On remand, after receiving the views of the parties, the Court of Federal Claims will be in a position to formulate a methodology for calculating interest

. C ONCLUSION For the foreg oing reasons, we affirm

- in

- part and v acate

- in

- part the decision of the Court of Federal Claims. The case is remanded to the court for further proceedings consistent with this opinion.

AFFIRMED

- IN

- PART, V ACATE D- IN

- PART, and REMANDED

C OST S Each party shall bear its own costs.