Of the Federal Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 08-2263

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

33.92356 ACRES OF LAND, more or less, situated in Vega Baja,

Commonwealth of Puerto Rico; JOHN DOE 98CV1664;

DEPARTMENT OF THE TREASURY FOR THE COMMONWEALTH OF PUERTO RICO,

Defendants,

JUAN PIZA-BLONDET,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Boudin, Selya, and Dyk, Circuit Judges. *

Paul E. Harrison, with whom Francisco Diez and J. Wayne

Mumphrey were on brief, for appellant.

Aaron P. Avila, Attorney, U.S. Dep’t of Justice, with whom

John C. Cruden, Acting Assistant Attorney General and Jeffrey M.

Tapick, Attorney, U.S. Dep’t of Justice, were on brief, for

appellee.

September 11, 2009
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DYK, Circuit Judge. This case involves a taking by the

United States of 33.92356 acres of land. Juan Piza-Blondet (“the

defendant”), the owner of the property, appeals from the final

judgment of the district court awarding compensation in the amount

of $375,300. The defendant claims that the district court

committed a number of errors in the course of the valuation

proceedings. Because we conclude that the district court did not

err, we affirm.

I.

The approximately 34-acre tract at issue is the site of

a radio beacon used by the Federal Aviation Administration for

aircraft navigation. The 34-acre tract was originally part of

approximately 400 contiguous acres of land owned by the defendant.

The 34 acre portion was leased to the government by the defendant

during the period from 1978 to 1996. In late 1996, a dispute arose

between the government and the defendant over the amount due under

the lease, and the government indicated that it would initiate

condemnation proceedings to acquire the land. In anticipation of

a taking by the government, in 1997 the defendant formally

segregated the 34-acre tract from the 400 acres into a separate

parcel, but the ownership of both the parcel and the 400 acres

remained with the defendant, and the use of the land did not

change. In 1998 the United States initiated a condemnation
The government sought to condemn both a leasehold 1

interest in the land spanning the period from 1996 to 1998 and a

fee simple interest in the land as of the date of the complaint in

condemnation. Only the valuation of the fee simple estate is at

issue in this appeal. 

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proceeding with respect to the 34-acre parcel. In answer to the 1

complaint in condemnation, the defendant conceded the public

purpose of the condemnation and the power of the government to take

the property, disputing only the amount of just compensation.

For environmental reasons, the 34-acre parcel has been,

and continues to be, restrictively zoned “LT-B2” (“B-2”) by the

Puerto Rico Planning Board (“Board”). Because of this zoning, the

uses of the land are restricted primarily to coastal protection,

scientific investigation, passive recreation, fishing and the

construction of fishermen’s piers so long as they do not affect the

surrounding mangroves. These uses are referred to as conservation

and passive recreation. Most other uses of the land are forbidden

without a variance or permit or some such permission from the Board

and other regulatory bodies.

In accordance with 40 U.S.C. § 3114, at the time of the

taking the government deposited $375,300 in the district court’s

registry as estimated just compensation. The government’s estimate

was based on a “highest and best” use of the property of

conservation and passive recreation under the applicable B-2

zoning. The defendant disagreed with the government’s estimate,

and requested a jury trial on the quantum of just compensation
Rule 71.1(h) states, in part, “In an action 2

involving eminent domain under federal law, the court tries all

issues, including compensation, except when compensation must be

determined . . . by a jury when a party demands one within the time

to answer . . . .”

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pursuant to Rule 71.1(h) of the Federal Rules of Civil Procedure.2

In October 1999, both parties filed motions asking the

court to decide the method by which the value of the parcel should

be calculated. The court held an evidentiary hearing and

ultimately issued an order addressing the question:

The government supports the most commonly used

method, known as the “before and after method”

by which the value of the entire parcel is

determined before the expropriation, and then

the remaining parcel is reevaluated after the

condemned portion is removed. Defendant Juan

Pizá-Blondet, owner of the property, wants the

condemned portion, which is at the center of

the larger parcel, valued independently,

because it was segregated on December 26,

1997. We note that Pizá-Blondet segregated

the portion after his dispute with the

government arose over the amount of rent to be

paid.

In order to use the before-and-after method,

[the government] must demonstrate a unity

between the separate parcels . . . .

United States v. 33.92356 Acres, No. 98-1664, dkt. 82, slip op. at

1 (D.P.R. Nov. 22, 2004). The court noted that there was unity of

ownership and contiguity between the parcels, but that there was a

dispute about the unity of use of the parcels. Id. After both

parties provided additional evidence and briefing, the court

concluded that “there is an issue of fact as to the unity of the

highest and best use of the condemned parcel and the remnant, which
A “cuerda” is a traditional Puerto Rican unit of 3

land measurement equal to approximately 0.97 acre. Webster’s Third

New International Dictionary 551 (2002).

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is for the jury to decide. If the jury finds that there is unity

of use, the ‘before and after’ method of valuation will be used.

If the jury finds that the highest and best uses for the parcels

are not the same, the segregated parcel will be evaluated as an

independent parcel.” United States v. 33.92356 Acres, No. 98-1664,

dkt. 113, slip op. at 1 (D.P.R. May 31, 2005).

The defendant retained an expert, Carlos Gaztambide, to

testify as to the value of the land. The expert filed two reports.

The first report estimated “the Market Value of the Fee Simple

Estate” based on highest and best uses for construction of

residences and sand extraction. Neither use was permissible under

the applicable B-2 zoning, absent permission from the Planning

Board.

The first report opined that the 34-acre tract had two

sections of different value, an upland section of about 19 acres

and a lowland section of about 15 acres. The report opined that

the upland section was suited to residential use and sand

extraction, and was therefore worth about $51,500 per acre ($50,000

per cuerda). This value was based on three “comparable land 3

sales,” two of which had already been approved by the Planning

Board for specific residential development projects. However, none

of the three parcels appeared to involve B-2 zoned land. By
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contrast, the expert concluded that the lowland section had a

highest and best use of “conservation or mitigation,” and was

therefore worth about $9,250 per acre (or $9,000 per cuerda). 

Based on these figures, the report claimed a total market value for

the parcel of $1,120,000.

The report also opined that there was a “reasonable

probability that [residential development and sand extraction may

be approved] if adequate protection to or mitigation of the wetland

is provided.” Plaintiff’s Motion in Limine ex. A at 5, United

States v. 33.92356 Acres, No. 98-1664, dkt. 133 (D.P.R. Aug. 14,

2006). For support, the report stated that “B-2 zoning is not an

absolute negation to development” and that “[residential]

subdivisions have been approved . . . in numerous properties that

have this zoning.” Id. The report included aerial photographs,

zoning records, and other documents as support. However, none of

the documentary evidence indicated that the allegedly comparable

property on which residential development or sand removal had been

approved had been zoned B-2. The expert admitted in deposition

that he had not spoken to anyone at the Planning Board about the

34-acre parcel.

The second report was created after the first report as

an “addendum” which estimates the value of the “Fee Simple Estate

of the Sand Deposits in the Subject Property.” This report

estimated the value of the sand deposits by capitalizing the value
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of an estimated income stream from selling the sand, using a 15%

discount rate to determine present value and an estimated cost of

extraction of 20% of the anticipated gross income. By this method,

the expert arrived at a value of the sand of between $3,000,000 and

$6,000,000.

The government filed motions in limine to exclude

Gaztambide’s testimony. The district court referred the motions to

a Magistrate Judge. The Magistrate Judge recommended that the

court grant the motions and exclude the testimony because “many of

[Gaztambide’s] assumptions are either unsupported or contrary to

existing facts.” Report and Recommendation at 10, United States v.

33.92356 Acres, No. 98-1664, dkt. 155 (D.P.R. Apr. 24, 2007). The

Magistrate Judge found that defendant had failed to establish that

the land was improperly zoned B-2 or that a variance would have

been granted: “Gaztambide’s opinion, by itself, fails to establish

a reasonable probability that the Planning Board would either

change the zoning or grant a variance at any time in the near

future.” Id. at 12. Specifically with respect to residential

development, the Magistrate Judge found that “defendant has failed

to document a single instance that supports Mr. Gaztambide’s

assertion that the Puerto Rico Planning Board has ever, or is

likely to, approve residential housing developments on land zoned

B-2.” Id. at 10. Similarly, the Magistrate Judge determined that

Gaztambide’s opinions concerning sand extraction were also
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unsupported and “overly speculative.” Id. at 14. The Magistrate

Judge also noted that the expert was improperly double counting the

value of the sand deposits by first including sand extraction as a

highest and best use increasing the fee simple appraisal of the

land, and second as a separate mineral deposit estate with a value

independent of the rest of the land value. The Magistrate Judge

further criticized the second report for appraising the value of

the sand deposits by lost income, rather than by comparable land

sales. Id. at 20.

Over the defendant’s objection, the court adopted the

Magistrate Judge’s recommendation and excluded Gaztambide’s expert

testimony on the highest and best use of the land, relying on

Federal Rule of Evidence 702. United States v. 33.92356 Acres,

No. 98-1664, dkt. 167, slip op. at 2 (D.P.R. June 13, 2008). The

court concluded that “[t]rial courts thus have a duty to screen

evidence that is based on a speculative use of the property and

exclude it from the jury’s consideration . . . . [T]his court must

decide whether the defendant’s expert testimony satisfies Federal

Rule of Evidence 702’s relevance and reliability standards for its

admissibility.” Id. at 4. The court concluded that those

standards were not satisfied:

[The expert’s] testimony that because part of

the condemned property is incorrectly zoned as

a B-2 district and that therefore residential

development may be allowed there, fails to

establish that there is a reasonable

probability that the zoning regulations would
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change or that the necessary permits would be

granted in the reasonably near

future . . . . [The expert’s] opinion was not

supported by any documentation and [was]

contrary to the existing facts.

Id. at 5–6 (emphasis added). The court scheduled a jury trial for

August 18, 2008. Shortly before the trial was scheduled to occur,

the defendant informed the government that he would introduce

expert opinion testimony from Gaztambide on the value of the land

based on comparable sales, and that the defendant himself would

offer opinion evidence on the value of the land based on “his

business experience.” The court ordered the defendant to show

cause as to why this testimony would be admissible in light of the

prior order.

In response to the show cause order the defendant stated

that Piza-Blondet would testify that the land was worth $143,000

per acre based on highest and best uses of residential development

and sand extraction. This opinion was based on lots that “were

originally zoned B-2 . . . [but] due to a variance which is a

widely used tool/method, in Puerto Rico the zoning was changed from

B-2 to R-1.” Mot. ex. B at 1, United States v. 33.92356 Acres, No.

98-1664, dkt. 177 (D.P.R. Aug. 1, 2008). The defendant did not

clarify what the contents of Gaztambide’s testimony would be. The

government in response pointed out that Piza-Blondet had stipulated

that he “will not offer an opinion of value which differs from that

of his expert witnesses.” Resp. to Mot. at 6, United States v.
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33.92356 Acres, No. 98-1664, dkt. 179 (D.P.R. Aug. 5, 2008). The

government objected to Gaztambide’s testimony because the defendant

had given no “details about [t]his new opinion of value or the

highest and best use upon which this new opinion is based.” Id. at

1.

The court sustained the government’s objection and ruled

that “any opinion of value by any person based on sand extraction

or residential development is EXCLUDED. The only valuation

testimony that may be offered at trial, either by Mr. Piza-Blondet

or his expert, Mr. Carlos E. Gaztambide, is an opinion of value

based on conservation and/or mitigation.” United States v.

33.92356 Acres, No. 98-1664, dkt. 180, slip op. at 1 (D.P.R. Aug.

5, 2008). The court also rejected defendant’s motion to postpone

the trial date, stating that “the non-jury [sic] trial will

commence as previously scheduled on August 18, 2008.” Id. The

defendant made no objections to this order.

The parties then filed a “Stipulation for Consent

Judgment” which stated that, “[b]ecause of the Court’s prior

rulings, including but not limited to [the orders] limiting the

valuation evidence that the Defendant could introduce at trial, the

parties hereby agree that a Final Judgment on compensation [in the

amount of $375,300] should be entered by the Court that preserves

the Defendant’s right of appeal of the Court’s prior rulings.”

United States v. 33.92356 Acres, No. 98–1664, dkt. 191, slip op.
- 11 -

at 1 (D.P.R. Aug. 19, 2008). The stipulation also stated that

“[i]f the Defendant is successful in its appeal, the parties will

revisit the valuation issue, with both parties reserving all rights

to fully litigate the amount of just compensation owed for the

taking of the interests in these consolidated actions.” Id.

II.

In view of the parties’ stipulation, we must determine

whether any of the court’s rulings that were a predicate to the

judgment were erroneous. It is well established that the landowner

has the burden of proving the just compensation owed for the

condemned property. Nat’l R.R. Passenger Corp. v. Certain Temp.

Easements, 357 F.3d 36, 39 (1st Cir. 2004). The defendant contends

that the court erred in excluding Gaztambide’s valuation evidence

based on the residential and sand extraction uses.

Under Rule 702, the opinion testimony of expert witnesses

having “scientific, technical, or other specialized knowledge” is

only permissible if “the testimony is based upon sufficient facts

or data”; “the testimony is the product of reliable principles and

methods”; and “the witness has applied the principles and methods

reliably to the facts of the case.” Fed. R. Civ. P. 702.

Under the Supreme Court’s decision in Daubert v. Merrell

Dow Pharmaceuticals, Inc., the trial judge is charged with a

gatekeeping responsibility over expert testimony: “the trial judge

must ensure that any and all scientific testimony or evidence
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admitted is not only relevant, but reliable.” 509 U.S. 579, 589

(1993). 

In General Electric Co. v. Joiner, the Supreme Court

supplied a further gloss on the standard: 

[N]othing in either Daubert or the Federal

Rules of Evidence requires a district court to

admit opinion evidence which is connected to

existing data only by the ipse dixit of the

expert. A court may conclude that there is

simply too great an analytical gap between the

data and the opinion proffered.” 

522 U.S. 136, 146 (1997). Thus, as this court has stated, “trial

judges may evaluate the data offered to support an expert’s

bottom-line opinions to determine if that data provides adequate

support to mark the expert's testimony as reliable.” Ruiz-Troche

v. Pepsi Cola of P. R. Bottling Co., 161 F.3d 77, 81 (1st Cir.

1998). The standard of review for the exclusion of expert evidence

under Rule 702 is abuse of discretion. Joiner, 522 U.S. at 139.

The valuation standard in condemnation cases is well

established. Land must be valued according to the highest and best

use. Olson v. United States, 292 U.S. 246, 255 (1934); Nat’l R.R.

Passenger Corp., 357 F.3d at 39. However, as noted in Olson,

evidence of the value of land with a specific highest and best use

is only relevant if the use is likely to be reasonably probable “in

the reasonably near future.” 292 U.S. at 255–56. If a claimed use

is prohibited by zoning, the property owner must show that it is

reasonably probable that the relevant restrictions will be removed
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in the reasonably near future. Wolff v. Puerto Rico, 341 F.2d 945,

946–47 (1st Cir. 1965).

The gatekeeping role of the district court is

particularly pronounced in condemnation proceedings under Rule

71.1. While the jury tries issues of valuation, the trial judge

must screen the proffered best and highest uses and “exclude from

jury consideration those which have not been demonstrated to be

practicable and reasonably probable uses.” United States v. 320.0

Acres of Land, 605 F.2d 762, 815 (5th Cir. 1979); see United States

v. Certain Land Situated in Detroit, 450 F.3d 205, 211 (6th Cir.

2006); United States v. 62.50 Acres of Land, 953 F.2d 886, 891 (5th

Cir. 1992); United States v. 341.45 Acres of Land, 633 F.2d 108,

111–112 (8th Cir. 1980); see also United States v. Reynolds, 397

U.S. 14, 19–21 (1970).

The defendant here concedes that, as zoned, the 34 acres

could not legally be used for residential development or sand

extraction without rezoning or some variance or permit by the

Board. As a result, the defendant must show that there is a

reasonable probability that the property would be rezoned or that

a variance could have been obtained in the near future.

The defendant argues that the property was inadvertently

mis-zoned B-2 by the Board, and that the Board would either change
The defendant argues in part that the land must have 4

been mis-zoned because B-2 zoned land is supposed to be covered

with mangroves, while a part of the 34 acres was not covered in

mangroves. However, the zoning regulations state that B-2 zoned

land is “generally covered with mangroves,” not uniformly and

entirely covered with mangroves. App. 107 (certified translation

of P.R. Reg. JP 2498 § 8:01) (emphasis added).

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the zoning or grant a variance. The district court did not abuse 4

its discretion in concluding that there was no evidentiary basis

for this opinion and excluding the testimony.

Gaztambide had not spoken to anyone at the Board or

otherwise offered any support for his opinion that the Board would

approve a rezoning, variance, or permits for residential

development or sand extraction on this land. Nor was there

evidence that such variances had been permitted with respect to

similarly zoned parcels in the past. As the magistrate judge

noted, the expert “has failed to document a single instance [in

which the Board] has ever, or is likely to, approve residential

housing developments on land zoned B-2.” Report and Recommendation

at 10, United States v. 33.92356 Acres, No. 98-1664, dkt. 155

(D.P.R. Apr. 24, 2007). There was no evidence that any of the

parcels that Gaztambide had relied on to show residential

development were or had been zoned B-2. The expert also relied on

applications to obtain permits for residential development on other

parts of the 400 acres which the defendant had filed in 1999.

However, these applications remained pending in 2007, and to this

day there is no evidence that these permits were granted.
The defendant also argues that it was an abuse of 5

discretion to exclude the testimony of the defendant’s expert

because the motion in limine made by the government was not timely.

Assuming that the motion was not timely, the objection was waived

because no timeliness objection was made by the defendant in

opposing the motion. In any event, the court was within its

discretion to consider an untimely motion.

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Similarly, the expert had not reviewed or identified any document

showing that sand extraction was ever permitted in land that is

zoned B-2. In this case the support for the expert’s opinion was

sufficiently sparse that the court did not abuse its discretion in

holding that the expert testimony did not meet the standards of

Rule 702.5

Similarly, the district court did not err in excluding

the defendant’s own testimony as to the residential and sand

extraction uses of the property. Piza-Blondet had previously

stipulated that he would “not offer an opinion of value which

differs from that of his expert witnesses.” The district court was

clearly within its discretion to exclude defendant’s own testimony

when the district court had excluded similar testimony by

defendant’s expert.

III.

The defendant also contends that it was error for the

court to hold that the “before and after” method was appropriate

(if the jury determined that there was unity of use) and to refuse

to exclude the testimony of the government’s expert, Raul Lugo,

utilizing the before and after method.
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The before and after method is used in cases of a partial

taking; the entire parcel is valued before and after the taking of

the condemned portion. Where the condemnation is a partial taking,

the before and after method is generally viewed as the conventional

method for determining just compensation. For example, in a

partial takings case involving an easement, United States v.

Virginia Electric & Power Co., 365 U.S. 624, 632 (1961), the

Supreme Court stated that the trial court “adopted an acceptable

method of appraisal, indeed the conventional method, in valuing

what was acquired by the Government by taking the difference

between the value of the property before and after the Government's

easement was imposed.” In United States v. Grizzard, 219 U.S. 180,

182 (1911), the Supreme Court affirmed a compensation determination

of $1,500 based on finding that “the whole land was worth $3,000

before said taking, and what was left after the taking was worth

$1,500.” See also United States v. 8.41 Acres of Land, 680 F.2d

388, 392 (5th Cir. 1982)(“Federal courts have long held that an

appropriate measure of damages in a partial-taking case is the

difference between the value of the parent tract before the taking

and its value after the taking.”); United States v. 9.20 Acres of

Land, 638 F.2d 1123, 1126–27 (8th Cir. 1981)(“In partial taking

cases, the proper measure of compensation is the difference between

the fair and reasonable market value of the entire ownership

immediately before the taking and the fair and reasonable market
See 4A Nichols, The Law of Eminent Domain § 14.02[4] 6

(rev. 3d ed. 1981)(discussing the effectiveness of the before and

after method in clearly and simply dealing with severance damages

and situations in which no independent market value for the

condemned parcel can be ascertained); see also United States v.

Miller, 317 U.S. 369, 375–76 (1943)(“[A] parcel of land which has

been used and treated as an entity shall be so considered in

assessing compensation for the taking of part or all of it . . . .

If only a portion of a single tract is taken the owner’s

compensation for that taking includes any element of value arising

out of the relation of the part taken to the entire tract . . . On

the other hand, if the taking has in fact benefitted the remainder,

the benefit may be set off against the value of the land taken.”).

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value of what is left immediately after the taking.”); 4A Nichols,

The Law of Eminent Domain § 14.02, 14.31 (rev. 3d ed.

1981)(“Virtually all jurisdictions allow the use of the before and

after methodology, and many of them mandate its use or even its

sole use.”). The before and after method is particularly

advantageous where either it is difficult to value fairly the

condemned tract as a separate parcel or one of the parties contends

that the remainder was harmed or benefitted by the condemnation.6

In this case, the landowner provides no persuasive reason

why the before and after method would be unfair in assessing the

value of the condemned parcel (assuming this is a partial taking).

The landowner argues that, because the alleged parent tract is more

than ten times larger than the condemned tract, a kind of bulk

discount applies to the market value of the parent tract such that

comparable large tract sales would be less per acre than comparable

small tract sales making the before and after method unfair. No

evidence was presented which supported this assumption. The
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district court did not abuse its discretion in permitting the use

of the before and after method in valuing the property, assuming a

partial taking. This is not to say, of course, that the before and

after method is always the best or the only way of appraising a

parcel’s value, but in the circumstances in this case, it is a

permissible way of appraising value.

The defendant argues primarily that the before and after

method was inappropriate because the 34 acres were separated from

the 400 acre tract, and thus a partial taking did not occur. The

defendant is correct that the before and after method used by the

government’s expert would be inappropriate where the parent tract

is a separate parcel from the condemned tract. However, contrary

to the contention of the defendant, the question of whether the

parent tract is a separate parcel or is part of a single parcel

with the condemned tract does not depend only, or even primarily,

on the formal severance of the tract. The district court correctly

ruled that whether this was a partial taking and the identity of

the parent tract depended largely on whether there was unity of use

between the parcels. As this court held in Baejter v. United

States, 143 F.2d 391, 394–95 (1st Cir. 1944), whether the parcels

are a “single tract” for takings purposes “does not depend upon

artificial things like boundaries between tracts . . . whether the

owner acquired his land in one transaction . . . [or] whether

holdings are physically contiguous.” The key question is whether
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the parcels have an “integrated use.” Id. The district court did

not err in determining that the before and after method was

appropriate if there was unity of use.

Defendant also argues here that the district court erred

in submitting the unity of use to the jury. While unity of use is

an issue for the court to decide, see Fed. R. Civ. P. 71.1(h);

Reynolds, 397 U.S. at 19–21, unless some party objects, there is no

ground for overturning a decision by the trial judge to submit the

question to the jury in an advisory capacity. See Fed. R. Civ. P.

39(c). At the time of the ruling here, neither party objected to

the submission of the issue to the jury. As such, the district

court did not err in submitting unity of use to the jury.

IV.

The defendant raises a number of other issues which can

be addressed briefly. The defendant contends that immediately

before the scheduled trial the court unilaterally converted this

case from a jury trial to a bench trial. Although the defendant

was entitled to a jury trial on the issue of quantum, the court did

nothing to deprive the defendant of a jury trial. The order of the

court that mentioned the “non-jury trial” was responding to motions

to postpone the trial date, and in that context it is clear that

the mention of a “non-jury trial” was merely a mistake. Had the

defendant objected, or had he merely called the error to the

court’s attention, it seems clear from the context that the court
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would have permitted the case to proceed as a jury trial. In

summary, the mention in the order of a “non-jury trial” is not

reversible error.

The defendant also asserts that the court abused its

discretion in failing to grant defendant’s motion to continue the

trial to reformulate his own testimony and that of his expert. The

court is given broad discretion to manage scheduling; the defendant

faces a high burden in establishing an abuse of discretion. See

Macaulay v. Anas, 321 F.3d 45, 49 (1st Cir. 2003). In this case

the court did not abuse its discretion in refusing to reschedule

the trial. The case had already been pending for 10 years. The

defendant had already had ample time to develop evidence of value

for conservation and passive recreation uses. Furthermore, the

fact that a number of different judges have presided over this case

does not excuse defendant’s own lack of timely preparation for

trial.

We have considered the defendant’s other contentions and

find that they are without merit.

Affirmed.