## United States Court of Appeals for the Federal Circuit

05-5039

DON ROGER NORMAN, ROGER WILLIAM NORMAN, and SOUTH MEADOWS PROPERTIES LIMITED PARTNERSHIP, Plaintiffs-Appellants,

v.

UNITED STATES, Defendant-Appellee.

Roger J. Marzulla , Marzulla and Marzulla, of Washington, DC, argued for plaintiffs-appellants. Wi th him on the brief was Nancie G. Marzulla

. John L. Smeltzer , Attorney, Appellate Section, Environment & Natural Resources Division, United States Depa rtment of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Kelly A. Johnson , Acting Assistant Attorney General, and Katherine J. Barton , Attorney. Appealed from: United States Court of Federal Claims Judge Lynn J. Bush

## United States Court of Appeals for the Federal Circuit

05-5039

DON ROGER NORMAN, ROGER WILLIAM NORMAN, and SOUTH MEADOWS PROPERTIES LIMITED PARTNERSHIP, Plaintiffs-Appellants,

v.

UNITED STATES, Defendant-Appellee.

_____________________________

DECIDED: November 18, 2005

_____________________________ Before MICHEL, Chief Judge , BRYSON, and GAJARSA, Circuit Judges

. GAJARSA, Circuit Judge

. Don Norman, Roger Norman, and South Meadows Properties (collectively "appellants" or "the Normans") appeal two decisions of the United States Court of Federal Claims. The first, issued Apr il 17, 2003, dismissed the Normans' illegal exaction claim for lack of jurisdic tion. Norman v. United States , 56 Fed. Cl. 255 (2003) ("Norman I "). The second, issued December 10, 2004, dismissed, after a trial on the merits, the Normans' claim for just com pensation under the Fifth Amendment. Norman v. United States , 63 Fed. Cl. 231 (2004) ("Norman II "). The Court of Federal Claimsissued final judgment on Dece mber 14, 2004, and appellants timely filed a notic e of appeal on January 5, 2005. For the reas ons set forth below, we affirm. I. BACKGROUND The opinion of the C ourt of Federal Claim s described the fact s of this case in exhaustive detail. See Norman II , 63 Fed. Cl. at 234-43. As t he trial judge stated, "[t]he background of this case spans over a dec ade of land acquis i tions, purch ases, sales, development plans, permit applications an d issuanc es, with ev er-changing persons, parties, companies, partnerships and entities involved." Id. at 233. We refer to the trial court’s findings of fact, which appellants do not challenge, and set forth here only thos e facts that are necessary for the resolution of the appeal. The Normans are real estate developers who, in the late 1980s, planned to develop commercial and industrial office space in Reno, Nevada, on a 2425-acr e property previous ly us ed for ranc hing and agri cultural activities (the "Ranch" ) . See id. at 234. In 1986, a c o mpany called Sout hmar k Corporation purchased the Ranch, intending to develop it for commercial an d residential uses. Southmark prepared a "master plan" for the developm ent of the pr operty and submitted it to the Reno Cit y Counc il for approval. On January 30, 1987, t he city council "conditionally approved" the master plan, identifying 41 cond itions that the developer wa s required to satisfy before final approval would issue. One of those c onditions r equired the devel oper to submit to the council "plans approved by the United States Army Corps of Engineers . . . delineating wetlands or any other lands the dev elopment of which were subject to t h e issuance of federal permits." Id.

05-5039 2In June of 1988, the Army Corps of E ngineers (the "Corps") sent a team of wetlands experts to "conduct field wor k necessary to prepare a final wetlands delineation. " Norman II , 63 Fed. Cl. at 235. In the months before th at team arrived, the Normans became interested in purchasing a 470-acre commercial portion of the Ranc h for development as an industrial park, "per the Master Plan" prepar ed by Southmark. Id. The Normans " w ere unw illing, however, to purchas e the 470-acre commercial portion until the Corps completed a final we tlands delineation of the property." Id. On September 12, 1988, the Corps issued a delineation (the " 1988 Delineation"), prepared pursuant to the 1987 v e rsion of the Corps' Wetlands Delineation Ma nual. The 1988 Delineation identified 28 acre s of jurisdictional wetlands on the Ranch property, of which 17 acres were located on the 470-acre parcel desired by the Normans. Following completion of the deli neation, the Normans acquired the property. Id. A t t h e s a m e time, Robert Helms purchased t he 1800-acre "r esidential" portion of the Ranch. The Normans and Helms then entered into an agr eement whereby they agreed to develop their properties consistently with Southmark's Master Plan. The parties do not dispute that the Normans relied upon the 1988 Delineati on in purchasing the 470-acre plot, or that their relianc e was reasonable

. After the 1988 Delineation became public , however, a "storm of controversy" erupted, as a variety of concerned entit ies criticized the delineation. Id. at 237. T h e Corps then "revoked the 1988 wetlands de lineation and conducte d a new delineation under the 1989 version of the Corps' Wetlands Delineation Manual" (the "1991 Delineation"). Id. The new delineation effort began in April of 1991 and ended in October of 1991.

05-5039 3The 1991 Delineation substantially in creased the acreage of jurisdictiona l wetlands on the subject property, identifyi ng 230 acr e s of such wetlands. Of the 230 wetland ac res, 87 acres were on the "commerc ial" portion of the parcel owned by the Normans. This increased the we tlands acreage by 70 acres. See Norman II , 63 Fed. Cl. at 237. The revocation of the 1988 Delineation and the issuanc e of the subsequent 1991 Delineation lie at the heart of appellants' takings claims. The 1991 Delineation allegedly "forced" the owners of the Ranch property to revise their master development plan to account for the newly non- developable acreage. Id. at 238. In 1994, following creation of a new development plan that provided fo r developm ent in three phases, the Normans began purchasing smaller properties adjacent to their 470-acre parcel. Later that year, Helms declared bankruptcy, and they purchased his 180 0-acre parcel from his bankruptcy estate. The Normans then petitioned the City of Reno to re-annex that 1800 acres to the rest of the Ranch property (which had been de- annexed during Helm s' ownership) and sought a master plan amendm ent to permit the 1800-acre parcel to constitute Phase III of their development plan. The city granted c onditional approval in 1995. As of that date, plai ntiffs owned approximately 2 280 acres of property intended for development in the three-phase master pl an. See id. at 238-39.

05-5039 4In 1995, appellants applied to the Corp s for a permit under section 404 of the Clea n Water Act 1 (a "404 Permit") enabling them to impact 15 acres of jurisdictiona l wetlands and other waters of the United Stat es. As mitigation for the proposed impact, "plaintiffs proposed to create additional wetl ands to ensure no net loss of wetlands functions and values." Norman II , 63 Fed. Cl. at 239. The Corps accepted the proposa l and issued the permit. In 1998, appellants s ubmitt ed another 404 Permit applicat ion, this time seeking permission to impact wetlands throughout the 2280-acre development site. See id. at 239. The Corps responded that because appellants' proposed ac tions "would result in signific ant environmental impact s ," the Cor p s would have to prepare an Environmental Impact Statement in complianc e with the National Environm ental Policy Act of 1969, unless appellants provided "a mitigation plan which c l early reduced the project impacts to a less than significant level." Id. The Corps also provided a " m odified development alternative," suggesting a development plan with less s i gnific ant environmental impacts. Id. In July of 1999, appellant s submitted a revised mitigat ion proposal that was, according to the trial court's findings of fact , "a result of a negotiations process between the Corps and plaintiffs," in which "the parti es discuss ed which areas of property on the 2280-acre Development could be utiliz ed as mitigation wetlands." Id. at 239. The

1 Section 404 of the Clean Water Act, codified at 33 U.S.C. § 1344, establish e s a program for the regulatio n of f ill activ i tie s involv ing waters of the Unite d States. The "basic premis e of the program is that no discharge of dredged or fill material" into waters of the United States is "permitted if a practicable alternat ive e x ists that is less damaging" to the environmen t. Environm ental Protection Agency, Section 404 of the Clean Wat e r Act: An Overview , http://www.epa.gov/owow/ wetlands/facts/fact10.html (las t visited November 4, 2005).

05-5039 5resulting plan contem plated that "the area s designated . . . for storm drainage could sufficiently serve as mitigation wetlands due to the hydrology surrounding that area." Id. at 240. Under the modified dev elopment plan, a substantia l por t ion of the mitigation wetlands would be on lands that would not otherwise have been developed in any case. The Corps approved the proposal and, on August 31, 1999, issued the Normans a 404 Permit enabling them to proceed with t heir development plan (the "1999 Permit"). The 1999 Permit enabled ap pellants to fill appr oximately 60 a c res of wetlands; in exchange, it required t hem to create or restore approximately 195 acres of w e tlands as mitigation. In addition, it required them to "[r]ecord[] the formation of a Corps approved funding m e chanism for the long term maint enance of the miti gat ion and preserve areas," and "[r]ecord[] deed restrictions mainta ining all mitigation preservation areas a s wetland pr eserves and wildlif e habitat in perpetuity " (the "Deed of Res t rictions"). Norman II , 63 Fed. Cl. at 240. In order to co mply with the 1999 Permit's requirement that appellants provide a f unding mechanism, appellants elected to transfer title in
220.85 acres 2 to South Meadows Association, a non- profit property owners' association initia lly con t rolled by the Normans. Id. Prior to and following issuance of the 1999 Permit, appellants " c ontinued to sel l the developable parts of the 2280-acre Development to various independent third parties." Id

. at 242. A t the time the 1999 Permit actually issued, appellants owned on ly 716 acres of the original 2280-acre parcel.

2 The Deed of Restrictions, as the tria l court noted, imposed restrictions broader than those stated in the 1999 Per m it itse lf. It called for the setting aside of a total of 235.14 acres of mitigation wetlan ds, while the Permit required only 195. Appellants arrive at the tota l of 220.85 acres t hey allege to hav e been taken by reading the Permit and the Deed together. See Norman II , 63 Fed. Cl. at 241.

05-5039 6The Normans filed t he first lawsuit in this matter in 1995, raising breac h of contract and takings c l aims. The subsequent hi story of the litigati on is le ngthy and is recited in d e tail in Norman II , 63 Fed. Cl. at 242-43. F o r our purposes here, the directly relevant trial court actions occurred beginning in 2003. On April 17 of that year, the Court of Federal Claims issued an opinion dismiss i ng appellants' illegal exaction claim—added in an amended complaint filed in 2001—for lack of jurisdiction. On November 20, 2003, two weeks before trial was scheduled to begin, appellants filed a motion to retroactively amend their complain t a second time to c hange the number of acres allegedly taken to the current 220.85. See Nor m an II , 63 Fed. Cl. at 243. The trial court granted that motion on the first day of tria l. Trial wa s held in December of 2003. Following the conclus i on of trial, appellants filed thei r second amended complaint, subsequent to which the government filed its answer. Following post-trial briefing, the Court of F ederal Clai ms issued an opinion and order denying all of appellants' takings clai ms and ordering the clerk of court to enter judgment against appellants and dismiss their amended compla int with prejudice. The clerk entered final judgment, and appellants timely filed their notic e of appeal. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). II. DISCUSSI ON In their appeal, the Normans challenge t he trial court's rulings on both their takings claims and their illega l exaction claim. This c ourt reviews the trial court's findings of facts under the standard of "clear error." Hendler v. United States , 175 F.3d 1374, 1378 (Fed. Cir. 1999). We review the tria l court's conclus i ons of law, including questions involving jurisdiction, de novo . See McDonnell Douglas Corp. v. United

05-5039 7States , 323 F.3d 1006, 1012 (Fed. Cir. 2003); Casa de Cambio Com d iv v. Unit ed States , 291 F.3d 1356, 1358 (Fed. Cir. 2002).
A. Significanc e of the 1991 Delineat ion We recognize at the outset a fundamental t ension in t he Normans' takings c l aim. The Norm ans place heavy weight on the revocat i on of the 1988 Delineation and subsequent issuance of the 1991 Delineation, arguing repeatedly that this single circumstance renders their takings claim " unique" and "sui gener is." They argue, essentially, that because they bought t he 470-acre parcel in reliance upon the 1988 Delineation, the subsequent and less favorable re-delineati on "culiminated in" a taking of the 220. 85 acres s e t aside nearly a decade later in accordanc e wi th the 1999 Permit. At the same time, appellants expressly discl aim any allegation that the 1999 Permit, of itself, effected a taking: they st ate that they are "not ask[ing] this Court to h o ld that the government's routine requireme nt that a landowner set as ide land as mitigation in exchange for a Section 404 wetland permit"—as occur r ed in the 1999 Permit—"violates the Just Compensation Clause." The primary error they alle ge is that "by limiting its [takings] analysis solely to the permit, the trial court erred in exc l uding thos e very facts (the Corps' mistake and unlawful redelineat ion) that make this case uniquely a taking under the Fifth Amendment." In other words, the Normans want this court to evaluate the entire sequenc e of events from 1988 through 1999 as a single transac tion, in which the mitigation set-aside of 1999 followed ineluctably from the "unprec edented" 1991 Delineation. If we conc lude that those two events were, for purposes of takings analysis, distinct—that the events of 1991 did not, in appellants' words, "directly c ause[] the Normans to lose 220.85 acres of

05-5039 8property in 1999"—then the bulk of their takings claims fa il on that ground alone, because their challenge to the terms of the 1999 Permit is, acco rding to their own argument, based solely upon the role of the 1991 Delineation in im posing thos e terms. We find the Normans' argument unconvinc i ng. The suggestion that Corps action in 1991 "directly" caused the Normans to lose 220.85 acres of property, most of which they did not own until 1994, strains the word "directly" we ll bey ond its breaking point

. The revoc a tion and r e -delineation that preceded the 1999 Perm it by nearly a decade were but t w o of doz ens of factual predicat es leading up to the issuance of the 1999 Permit; others include the vol untary purchase, by appe llant s, of most of the land covered by that permit. That the decision to purchase that additional property may have been influenced, in s m all or la rge degree, by the event s of 19 88-1991 does not render it involuntary. The causal re lationship between the rev o ca tion of the 1988 Delineation and the appellants' alleged los s is simply too attenuated to support the weight the Normans place upon it. Because the Normans have disc laimed any challenge t o the "routine" mitigation requirements of the 1999 Permit except insofar as they resulted from the "uniq ue" 1991 Delineation, we believ e this conc lusion dis p os es of most of their takings c l aims without further analysis. In order to fully respond to the arguments appella nts raise, however , we shall evaluate their clai ms in greater detail. B. Physical Takings Claim In general, this court has analyzed takings claims arising from section 404 permit issues us ing the regulatory takings analys is set forth in Penn Cent ral Transportation Co. v. New Y o rk , 438 U.S. 104 (1978). See, e.g. , Forest Props., Inc. v. United St ates , 177

05-5039 9F.3d 1360, 1364 (Fed. Cir. 1999) (citing cases) . Here, however, the Normans insis t that, by its terms, the 1999 Per m it effected a physic a l taking because it required that they transfer title to the 220.85 acres to a third party. It is axiomatic that "[w]here the government authorizes a physica l occupation of property (or actually takes title) the Takings Clause gener ally requires compens ation." Yee v. City of Escondido , 503 U.S. 519, 522 ( 1992). Here, although the Normans di d transfer title in the wetland acreage to a nonpr ofit association, the record is clear that the title transfer was voluntary, and not a condition required under the 1999 Permit. Accordin g to the parties' joint stipulation, the Normans transferred title in t he wetland acreage t o the South Meadows Association "in order t o comply with Condi t i on 9.a" of the 1999 Permit, which required that the appellants "[r]ecord [] the formation of a Corps approved funding mechanism for the long term maintenance of the mitigation and preserve areas." Neither the 1999 Permit nor the Deed of Restricti ons contained any requirement that title to the affected acreage be transferred; testimony offered at tr ial indic a ted that the funding mechanism requirement may be satisfied by several me thods, and that although convey ance of title to a conservation group or nonprofit was one su ch method, the Corps did not require it. 3

3 Appellants do not s e rious ly disp ute this, re lying instead on a passage in the trial court's opinion that could be read t o suggest that the gov ernment stipulated that the convey ance was required. See Norman II , 63 Fed. Cl. at 247 ("[T]he parties stipulate that the combinatio n of the 1999 Permit and the De ed of Restrictions required plaintiffs to . . . convey title to the wetl ands mitigatio n acres to a non-profit property owners as sociation."). It is cl ear from the trial court's opini on, however, that it in fact regarded t he conv ey ance as voluntary. See id. ("[T]here was no requirem ent that the mitigation and preservation ar eas on the property be convey ed to a third party. The requirement was only that a funding mechanism be in place, but not nec essarily that property be conveyed to a third party."). A re view of the stipulation confir ms that the government stipulated only that the convey ance in fa ct occurred "in order to comply with" the funding requirement —not that the conveyanc e itself was mandatory.

05-5039 10Neither did the Permit "exact" possession of the land. Appella nts argue that "the Normans' loss of exc l usive poss e ssion . . . c onstitutes a categorical taking under the Fifth Amendment," relying for that propos ition on Nollan v. California Coastal Commission , 483 U.S. 825, 831-32 (1987). We note as an initial m a tter that is not at all clear that appellants have, in fact, lost "exclusive posse ssion" of the land at issue. Nollan involved the use of a permit process to exact from a landowner an easement allowing public acc e ss across his land. No such physical intrus ion—by gov ernment or the public —occurred here. Appellants hav e dire cted us to nothing in the 1999 Permit or in the Deed of Restrictions that deprives th e owners of the land of the right to exclude others from the 220.85 acres. To the extent that appellants' claim of loss of possession is predicat ed on the t r ansfer of title, we hav e already concluded t hat that transfer was voluntary and therefore not a proper basis on which to premise a takings claim. Because we conclude that no physica l inv a sion occ u rred here, the Normans' reliance on cases like United Stat es v. Pueblo of Taos , 207 Ct. Cl. 53 (1975), and Yub a Natural Resources, Inc. v. United States , 821 F.2d 638 (Fed. Cir . 1987), is misplaced. Those cas e s inv o lved government surveys and found takings where, for example, the United Stat es misidentified a boundary line and took property actually belonging to a landowner and sold it to a third party. In those cases the survey error led to an actual transfer of property from its rightful owner to another, or to the outr ight physical invasion of the plaintiff's property by the governm ent—events that would constitute classic takings regardless of t he survey error. T hey stand for nothing more expans ive than the obvious principle that the gover nment cannot, by way of a simple survey error, take title

05-5039 11to or physically inv a de private properties in ways that would otherwise be takings, without pay ment of just compensation. They ar e not relevant here. Even if the government's action could r eas onably be characterized as a physical invasion, the Normans' claim for compensati on would fail under the principles set forth by the Supreme Court in Nollan and in Dolan v. City of Tigard , 512 U.S. 374 (1994)

. Those cas e s involved efforts by governm ent authorities to "e xact" from landowners easements across their property in exchange fo r the issuance of otherwis e legitimat e development permits. See No llan , 483 U. S. at 829; Dolan , 512 U.S. at 377. The Supreme Court framed the ques tion at issue as whether, "g iven . . . that requiring uncompensated conv eyance of the easement outright would violate the Fourteenth Amendment," requiring it "to be conveyed as a condit i on for issuing a land- use permit alters the outcome." Nollan , 483 U.S. at 834. The Cour t held that the permit issue did not alter the outcome. Drawing on existing precedent in the land-use regulation area, the Court stated the general rule that a land-use regulat ion "does not effect a taking if it substantially advances legitimat e state interests and does not deny an owner economically viable use of his land." Id. It further provided t hat in order to avoid effecting a taking, there must be a "nex us" between the condition impos ed and the "original purpose" of the r egulation at iss u e. Id. at 837; see als o Dola n , 512 U.S. at 386 (phrasing t he issue as "whether [ an] essentia l nexus exists between the legitimate state interest and the permit condition exacted" by the government) (internal quotations omitted). The condition must be "related both in nature and ex tent to the impact of the proposed development." Dolan , 512 U.S. at 391.

05-5039 12Even if the nexus requ irement of the Nollan and Dolan line of exaction case s were applicable here—and we t h ink it clear t hat it is not—we woul d agree with the trial court's conclusion that an appr opriate nexus exists between the s e t-aside of the 220. 85 acres and the regulat ory purpos e. In the words of the tr ial c ourt, "[t]he public interes t served by r equiring the preservation of wetl ands in exchange for the filling and dredging of other [wet]lands relates directly to the c ondition imp o sed. There is no disconnect." Norman II , 63 Fed. Cl. at 251. C. Categorical Takings Claim A "categorical" taking is a regulatory taking in which government action deprive s the landowner of all beneficial us e of his pr operty, such that the gover nment action is the functional equivalent of a physical invasion. See Lucas v. S.C. Coastal Counc il , 50 5 U.S. 1003 (1992). T he Court of Federal Claims concluded that "there h a s been n o deprivation of all economically viable use" of the 2280-acre parcel as a whole "by virtue of the alleged taking of 220.85 ac res of wetl ands," and that even if "there was absolutely no use" remaining for those acres, "the per centage decrease in viable use" would b e insufficient to constitute a categorical taking. Norman II , 63 Fed. Cl. at 261. Assuming, arguendo , that the Normans intend to challenge the terms of the 1999 Permit des pite their disavowal of such intent, the questi on here is wh ether the 1999 Permit in fact effected a depriv ation of all beneficial use. The case law on categoric al takings, and indeed Lucas itself, is clear that only a co mplete deprivation will constitute a categoric al or " per s e " taking. See, e.g. , Lucas , 505 U.S. at 1019 n.8; Tahoe-Sierra Pres. Cou n cil v. T a h oe Reg'l Planning Agency , 535 U.S. 302, 324, 330 (describing categorical taking as an "extraordinary ci rcumstance" and a "narrow exception" t o

05-5039 13regulatory takings principles). Appellant s' lumping together of their physical and categorical takings claims obsc u res, perhaps willfully, the critical difference between those claims: a phys i cal tak i ng of any portion of priv ate property wil l ordinarily result in compensation, while a regulatory taking bec om es "categorical," and therefore require s compensation, only if the owner is deprived of all benefi cial use of the "parcel as a whole." If the government action does not depr ive the owner of all benefic ial use of the entire relev ant parcel, then no c a tegorical taking can be shown. See T a hoe-Sierra , 535 U.S. at 330-31; Appolo Fu els, Inc. v. United States , 381 F.3d 1338, 1346 (Fed. Cir

. 2004). Here, the trial court identified the " parcel as a whole" as " t he 2280-acre Development," comprising the properties de signated for development in Phases I, II, and III of th e development plan, ex clusive of pr operty c onveyed to the state for rights-ofway. Norman II , 63 Fed. Cl. at 259-61. Its analysis is consistent with our pr ecedent in this area, which states that the critical issue is "the economic expect a tions of the claimant with regard to the property," and t hat "[w]here the devel oper treats legally separate parcels as a single economic unit, together they may c onstitute the relevant parcel." Forest Props., 177 F.3d at 1365 (citing cases) . Here, the record is clear that the appellants themselves regar ded the 2280-acre parcel as a s i ngle economic unit. 4 I n any case, appellants have not c hallenged the trial court's anal y s is of the parcel as a whole. 5 Without an effective challenge to the trial court's identification of the parcel as a

4 In this regard, we note that appe llants' own permit applic ation r e lated to the entire 2280-acre parcel, and not to any subdiv i sion thereof. 5 Appellants devote a few cursory sent ences to disputing the trial court's parcel as a whole analysis, but only in thei r reply brief

. Arguments raised for the first time in a reply brief are not properly before this court. See, e.g. , Novosteel SA v. United

05-5039 14whole, appellants cannot disput e that court's conclusion that the facts here do no t sustain a categorical takings claim. D. Regu latory Takings Claim Having correctly found that there was no c a tegorical t a king of plaintiffs' property, the trial court moved on to "weigh t he three factors of the Penn Central ad hoc analysis to determine whether a regulatory taking" occurred. N o rman II , 63 Fed. Cl. at 261. That analys is requires the court to "balanc e (1) the extent to whic h the regulation has interfered with . . . reasonable investment- backed expectations; (2) the economic impac t of the regulation on the claimant; and (3) the character of the governmental action at issue." Id. (citing Penn Cent. Tra n sp. Co ., 438 U.S. at 124). After undertaking a meticulous analysis of the Penn Central factors as applied to the facts at bar, the trial court concluded that appellant s had "reasonable investmentbacked expectations" with respect to only the four-acre parcel described as "WL 17B," which appellants purchased in 1989 but which was first delineated as wetlands in th e 1991 Delineation. See id. at 267-68. The trial court then conc luded that the economic impact factor weighed against a finding of a taking, becaus e the 1999 Per m it actually increased the economic value of the parc e l as a whole by "all ow[ing] plaintiffs to fill valuable c o mmercial property and dev elop t hat property in exchange for s e tting aside

States , 284 F.3d 1261, 1274 (F ed. Cir. 2002) (" [a] party waives arguments based on what appears in its brief."). Although this prac tice is "not governed by a rigid rule," we will adhere to it except "where circumstances indicate that it would resu lt in bas i cally unfair procedure." Becton Dickinson & Co. v. C.R. Bard, Inc. , 922 F.2d 792, 800 (Fed. Cir. 1990). No such circumstances are pres ented here. Even if appellants' arguments appeared in their primary brief, we would fi nd them unconvincing, as they amount to little more than gener alized dis a greement wit h the trial court's analys is. Appe llants make no effort to provide a s u stained and coherent argument for a different parcel as a whole.

05-5039 15other, less valuable property for mitigation." Id. at 278. Finally, t he trial c o urt analyzed the character of the government action, co ncluding that the issu ance of the 1999 Permit served a "legitimate public welf are obligation"; that appellants were trea ted fairly by the Corps and that the Permit was itself the product of negotiat ions bet ween the Corps and appellants; and that a ppellants were not singled out for disparate treatment. See id. at 282-86. Weighing all these fact ors in light of the facts of the case, the trial court concluded that "no regulator y taking of property . . . occurred," because the Corps' actions "simply did not undul y burden plaintiffs." Id. at 287. The Normans challenge very little of the trial court's Penn Central analysis. Their briefs do not even mention the trial court's extensiv e discussion of the "character of the governmental action" f a ctor. With respect to the other two factors, their rather cursory arguments amount to little more than a reiterati on of the claim, rejected abov e, that the critical causative elem ent at issue here wa s not the 1999 Permit but the events of 1988- 1991. Appellants argue, for example—albeit brie fly—that the trial cour t erred in failing to measure economic impact as of the time of the 1988 Delineation. This position is illogical. The Normans cannot explain why the trial court s hould hav e measured economic impact as of a time when they did not own the great majority of the property allegedly taken. The same is true regarding reasonable investment-backed expectations. The Normans argue that their expect a tion intere st should have been measured as of 1988, when they purchased the init ial 470-acre parcel. We note fi rst that the tria l court did, in fact, measure appellants' expectations with re spect to the 470 acr e s as of the date they purchased that land, and found that the Normans had reas onable investment-backed

05-5039 16expectations in a few of those acres. See Norman II , 63 Fed. Cl. at 266-70. Appellants do not explain on what theory we should measure their expectation as of 1988 wit h respect to acreage they did not own until 1994. It is axiomatic that "'a reasonab le investment-backed expectation' must be more than 'a unilateral expect a tion or an abstract need.'" Ruckelshaus v. Monsanto , 467 U.S. 986, 1005-06 (1984) (quoting Webb's Fabulous Pharmaci es, Inc. v. Beckwith , 449 U.S. 155, 161 (19 80)). As of 1988, the Normans simply c ould not have had any investment-back ed expectation in property in whic h they had not yet invested. In addition, we note that although a taking s claim "is not barred by the mere fact that title was acquired after the effectiv e date of the state- imposed restriction," Palazzolo v. Rhode Island , 533 U.S. 606, 630 (2001), it is particularly difficult to establish a reasonable investment-backed ex pectation in c i rcumstances like thes e. "The purpose of consideration of plaintiffs' investment-backed e x pectations," we hav e held, "is to limit recoveries to property ow ners who can demonstrate that they 'bought their property in reliance on a state of affairs that di d not include the challenged regulatory regime.'" Cien ega G a rdens v. United States , 331 F. 3d 1319, 1345-46 (Fed. Cir. 2003) (quoting Loveladies Ha rbor, Inc. v. United States , 28 F.3d 1171, 1177 (Fed. Cir. 1994)). Here, the Normans were not only c onstructively but also actually aware of the applicable wetland restrictions, and purc hased most of the land with full knowledg e that portions of it were not subject to development. They could not have made those purchases in reliance on a "state of affairs" that did not incl ude those restrictions. We conclude that the trial court correct ly found that the appe llants had reasonab le

05-5039 17investment-backed expectations only with res pect to the four-acre parcel known as "WL
17B." The trial court found that the Normans reasonably relied on the 1988 Delineation when purchasing their original 470-acre par cel. In that delineation, the Corp s designated only 17 acres of the 470-acre par cel as wetlands. The 1991 Delineation identified an additional 70 acres of that parcel as wetla nds. Although as of the time they purchased the 470- acre parcel, the No rmans had reasonable invest ment-backed expectations that they would be able to dev elop those 70 acres, t he effect of the 1991 Delineation was considerably mitigated by the 1999 Permit and relat ed Deed of Restrictions, which r e sulted in the trans fer of 220.85 acres to the South Meadows Association but also resulted in the Normans gaining the right to develop all but a few of the 70 acres designat ed as wetlands in 1991. To be s u re, in order to obtain the right t o develop those acres, appellant s had to agree to set aside additional acreage a s mitigation wetlands. The trial court found, however, that almo st all of the property that either had been designated as wetlands in t he original 1988 Delineation (of which the Normans were fully aware when they pur c hased the 470-acre parcel), or was outside the 470-acre parcel (and thus was purchased by the Normans only after it had alread y been des ignated as wetlands in 1991), or was never intended for development (because it was intended to be used for storm run-off and flood control). Thus, the tria l court found that of the 220.85 acres set aside for mitigation, only 4.07 acres c onstituted property that the appellants intended and reas onably expected to be able to develop. The Normans argue that t hey had reasonable invest m ent-backed expectations with respect to the entire 220.85 acres that we re set aside as mitigation. T h ey do not,

05-5039 18however, specifically challenge the trial court's c haracterization of e a ch of the component s of the 220.85 acres. Neither do they suggest any way in whic h the trial court erred in concluding that the 1991 Deli neatio n, as applied to the 470-acre parcel, had any lingering effects other than with regard to the 4.07-acre parcel as to which the trial court found that the appe llants had a reasonable investm ent-backed expectation. Because the trial court's finding as to t he appellants' reasonabl e invest ment-backed expectations with regard to the 470-acre parcel has not been shown to be erroneous, we uphold the trial c ourt's finding that the Normans' reasonable invest ment-backed expectations were limited to the 4.07-acre plot. In light of the trial court's finding wit h respect to reasonable inv e stment-backed expectations, the Normans' challenge to t he court's regulatory takings analysis is unpersuasive. The appellants claim that t he trial court's impl ementation of Pen n Central 's inherently fact-specific, ad hoc inqui ry was , for lack of a better phrase, insufficiently ad hoc. Decrying t he careful th ree-factored analys is of the tri a l court as inappropriately employing a "rigid set formula ," they argue that in a properly factsensitive a nalysis, the "single fac t " of the Co rps' "ille gal redelin eation" shou ld have bee n "dispos itive of the takings issue," and argue t hat on several occasions the courts have allowed a single extr aordinary fa ct to determine the entire ta kings question. In that regard, we note that on thos e occasions when this court and the Supreme Court have found a single factor dispositiv e of the takings issue, it has been the absence of that factor—not its presence—that pr oved dispositive. See, e.g. , Monsanto , 467 U.S. at 1005 (finding that "the force of the [reasonable expectations factor] is so ov erwhelming

. . . that it disposes of the taking question, " where the plaintiff "could not have had a

05-5039 19reasonable investment-backed expectation" ) ; Golden Pac. Bank Corp. v. United States , 15 F.3d 1066, 1074 (Fed. Cir. 1994) (conclud ing t hat the absence of r easonable investment-backed expectations was dispositive of a takings claim). 6 None of the authorities cited by appellants identifies a compensable taking in a circumstance like this one, in whic h reasonable inv e stment-ba cked expec tations exis ted with respect to a tiny fraction of the allegedly taken property, and the other two Penn Cent ral factors— largely unc hallenged here—wer e resolved decis iv ely against the takings claim. In short, the Normans have provided us no basis on which to reverse the trial court's conclusion that no taking occurred here. E. Illega l Exac tion Cla im On April 17, 2003, the Court of Feder al Claims issued an opinion and order dismissin g appellants' illeg a l e x a c tion claim for lack of jurisdiction. See Norman I , 56 Fed. Cl. at 266-67, 270. Ap pellants' amended complaint clai med, as an alternative to their takings claim, that the 1991 Delineation effected an "exaction" of their property i n violation of Public Law 102-104, whic h "f orbade the expenditure of any funds by the Corps to delineate wetlands under the 1989 Federal Manual." Id. at 266. We note at the outset that both appellants' amended comp laint and their briefs appear to conflate two distinct types of "e xactions." Paragraph 40 of the complain t alleges that "[b]y reason of t he 1999 permit requirement . . . plaintiffs were required to dedicate for public us e in perpetuity 220.85 acres of pl aintiffs' land in violation of Pub. L.

6 The Supreme Court's decis ion in Hodel v. Irving , 481 U.S. 704 (1987), is not to the contrary. In that case, the Court clearly found that two of the three Penn Central fac t ors—economic impact and character of the government's action—weighe d in favor of just compensation, and that in light of the "extraor dinary" nature of the government action, the absence of reasonable invest ment-ba cked expectations did not defeat the takings claim. See Hodel , 481 U.S. at 714.

05-5039 20102-104 and the F i fth Amendm ent to the United States Cons tit u tion." This sentence appears to allege the kind of "exaction" at issue in takings cases like Dolan and Nollan —where the government uses a per mitti ng process to obt ain from a landowner concessions which, if the government acco mplished them directly, would constitute takings. Although such claims are phrased, in part, in terms of "exactions ," they are clearly F i fth Amendm ent takings claims. T hes e claim s were not dismissed by the trial court's order of April 17, 2003, and are discu ssed in the sections on takings above. Paragraph 41 of the amended complaint, however, appears to allege something different. It reads, "[a]s a pr oximate result of the acts of Defendant Unit ed States, plaintiffs also have incurred substantial expens es," inc l uding approximately $2 million in service fees incurred in assist ing the Co rps with its delineation and $1 millio n in construction costs for mitigation projects. The complaint describes these expenses as "illegal exactions." An "illegal exaction," as that term is generally used, involves money that was "improperly paid, exacted, or taken from the claimant in contravention of the Constitution, a statute, or a regulation. " Eastport S.S. Co rp. v. United States , 372 F.2d 1002, 1007 (Ct. Cl. 1967). The cla ssic illegal exaction c l aim is a tax refund s u it alleging that taxes have been improperly collected or withheld by the government. See, e.g. , City of Alexandria v. United States , 737 F.2d 1022, 1028 (Fed. Cir. 1984). An illegal exaction involves a depr ivation of property wit hout due process of law, in v i olation of the Due Process Clause of the Fifth Amendment to the Constitution. See, e.g. , Casa de Cambio Comdiv , 291 F.3d at 1363. Th e Court of Federal Cla ims ordinarily lack s jurisdiction over due process claims under the Tucker Act, 28 U.S.C. §1491, see Murray

05-5039 21v. United States , 817 F.2d 1580, 1582 ( F ed. Cir. 1987) , but has been held to have jurisdiction over ille ga l e x action claims "wh en the e x a c tion is ba sed upon an asserted statutory power." Aer o lineas Argentinas v. United States , 77 F.3d 1564, 1573 (Fed. Cir. 1996); see also East port , 372 F.2d at 1008 (C ourt of Cla ims had jurisdiction over exaction "based upon a power s upposedly conferred by a stat ute"). To invoke Tucker Act jurisdiction over an illegal exaction cl aim, a claimant must demonstrate that the statute or provision causing the exaction it self provides, either expressly or by "necessary implic ation," that "the remedy for its violati on entails a return of money unlawfully exacted." Cyprus Am ax Coal Co. v. United States , 205 F.3d 1369, 137 3 (Fed. Cir. 2000) (concluding that the Tucker Act provided juris d iction ov er an illegal

ex action claim based upon the Ex port Clause of the Constitution because the language of that clause "leads t o t he ineluctable conclusion that the claus e provides a cause of action with a monetary remedy"). The Normans claim that the 1991 Delineati on "exacted" from them their land, in contravention of Public Law 102- 104, which pr ohibited the expenditure of public funds for delineations using the Corps ' 1989 We tland Delineation Manual. T h ey claimed below that "funds were expe nded on delineation of [the disputed property] as late as October 30, 1991, when the Cor p s claims t he 1991 delineation became final." Norman
I , 56 Fed. Cl. at 265. Before this court, they argue that because the 1991 Delineation used the 1989 Manual and expended f unds in doing so, and becaus e the 1991 Delineation led "fores eeably and predictably" to "the loss of the 220.85 ac res," that "exaction" occurred in violation of a f ederal statute and theref ore came within the

05-5039 22subject matter jurisdiction of the Cour t of Federal Claims under Casa de Cambio Comdiv and similar cases. The trial court rejected that argument, concluding that even if the 1991 Delineation violated Public Law 102-104, the Court of F ederal Claims lacked j u risdiction over the supposed exaction because the land was not exacted "due to [a] misapplication of" the statut e as required by Aerolineas , Casa de Cambio Co mdiv and Eastport . See Norman I , 56 Fed. Cl. at 266 (emphasis origina l ). The trial court ruled that "Public Law 102-104 was not the instrument through whic h plaintiffs' property was

ex acted[;] it was mere ly an appr opriations act, and, a s such, plaintiffs cannot maintain an illegal exaction claim based exclusivel y on violation of this act." Id. Appellants argue that "it was precisel y through the Corps' illegal 1991 redelineation of the Normans' property . . . that the Corps gained jurisdiction over an additional 70 acres of wetland and, as the price of allowin g the Normans to regain th e use of that 70 acres, exacted from the Norm ans 220.85 acres of 'mit igation' lands." This is a r e iteration of appellant s' argum ent, rejected above, that the 1991 Delineation somehow itself effected the taking of the 220.85 acr e s set aside in the 1999 Permit. The facts s i mply do not support that contention. Appellants' asserti on that "the loss of the 220.85 acres was the fo reseeable and predictable result of redelineation under the 1989 manual," such that the 220.85 acr e s we re " e xacted as a direct r e sult of the application of" Public La w 104-102, as requir ed for Tuck er Act jurisdiction over exaction claims, strains the meanings of the words "foreseeable," "predict able," and "directly" beyond all recognition. See Cas a de Camb io Comd iv v. United S t ates , 48 Fed. Cl. 137, 145 (2000), aff'd , 291 F.3d 1356 (Fed. Cir. 2002). As we conclud e d in rejecting

05-5039 23appellants' takings claims, the causal c onnection between the 199 1 Delineation and the alleged exaction is simply too attenuated to bear the weight appellants place upon it. This court has addressed this causal attenuation problem in exac tion cases on several occ a sions. W e have held, for exam ple, that "a plaintiff has a claim for an illegal exaction only where the gover nment [action] has direct and substantial im pact on the plaintiff asserting the c l ai m." Cas a de Camb io Comdiv , 291 F.3d at 1364; see also Ont. Power Generation, In c. v. Unit ed States , 369 F.3d 1298, 1303 (Fed. Cir. 2004) ("Th e government is considered to have illegally exac ted money from a plaintiff only where the government's actions . . . have a direct and s ubstantial impact on the plaintiff.") (internal quotations omitted). The No rm ans argue that the 1991 De lineation had a direct or substantial effect on them, but they cannot reasonably maintain that it direc t ly caused the actual " e xaction" alleg ed here, which res u lted from the 1999 Permit. Although these cases inv o lved s o mewhat different factual circu m stances, they are sufficiently analogous to support our decision here. Assuming arguendo t hat illegal exaction pr inciples are ever app licable to ac tions against the United St ates for just compensati on for an alleged taking of r eal property, we agree with the trial court that "misapplication of Public Law No. 02-104 did not directly result in an exaction . . . so as to satisfy the jurisdictional prerequisite for maintaining an illegal exaction c l ai m" under the Tucker Act. Norman I , 53 Fed. Cl. at 266. In addition, we concl ude that Public Law 102-104 does not, by its terms or by necessary implication, provide a cause of action with a monetary remedy for i t s violation. Cf. Cyprus Amax Coal , 205 F.3d at 1373 (concludi ng that the Tucker Act provided jurisdiction o v er an illeg a l e x action claim based upon the Exp o rt Clause of th e

05-5039 24Constitution because the language of that cl ause " l e ads to the ineluctable conclus i on that the clause provides a caus e of action wi th a monet ary remedy"). We affirm the trial court's order dismissing appella nts' illeg a l exaction claim. CONCLUS ION For the reasons set forth in this opinion, we affirm the trial court's judgment in favor of the United States as to the Normans ' takings claims and affirm the trial court's dismissal, for lack of jurisdiction, of the Normans' illegal exaction claim. AFFIRMED No costs.

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