Document Type

Case Note


While it is well known that the U.S. Constitution prohibits the government from taking private property for public use without fair compensation, few realize that potential claimants have six years from the date the taking accrues to file a claim for damages. A six-year time limit, even strictly applied, may seem sufficiently lenient on its face. However, in 1994 the U.S. Court of Appeals for the Federal Circuit recently ruled, in interpreting this time limit, that plaintiffs who suffered severe erosion damage from a government channeling and port project constructed in the early 1950s were not barred from filing suit in 1992-over forty years after the erosion began. In Applegate v. United States, the court concluded that the date the governmental act became a permanent taking, or when the taking "accrued," was not the date the government "invaded" the plaintiffs' property, or the date the plaintiffs first noticed property damage. Instead, the court used the date on which the government last pledged to repair the damage to determine whether the plaintiffs met the six-year statute of limitations. Because the government initiated plans to restore the damage as late as 1988, the court found that the statute of limitations had not run in 1992, the year the plaintiffs filed their claim. The Applegate decision, therefore, permits courts to use one governmental act to determine whether the procedural time limit is met, and another to determine the substantive legal issue of whether a taking occurred. In light of the fact that courts must first consider the procedural time limit issue before reaching the merits of a particular claim, the Applegate decision will provide more opportunities to sue the government for a taking. Although it may appear that the Applegate court stretched the six-year statute of limitations beyond its limits, this Note will demonstrate that the court's decision conforms with takings case law and upholds the principles of fairness that underlie statutes of limitations. This Note will also demonstrate that if the court had ruled that the statute of limitations barred the plaintiffs' claim, it would effectively relieve the federal government of its responsibility to repair government-caused damage or to compensate owners for taking their property, not only for the Applegate plaintiffs, but also for most other takings victims as well. Part II of this Note describes the procedure a property owner must follow to sue the government for taking her property, and the additional burdens coastal property owners face when they claim a government act caused flooding or erosion damage. Part III summarizes the Applegate decision. Part IV discusses the conflict between procedural time limits and the long periods that may elapse from the time of the governmental act to the time the act damages the property. Part V also describes methods courts have developed to ensure that time limits do not unjustly prevent a plaintiff from pursuing her claim in court. Part VI concludes that by requiring the government to consider the long-term impact of its acts on private property, the Applegate decision will help to preserve notions of individual justice and responsibility on the part of the government.



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