The Fifth Amendment prohibits the taking of private property for public use without just compensation. Still, Congress, regulatory agencies, and even the Supreme Court have each played their part in making receipt of just compensation practically impossible in certain scenarios.
Ministerio Roca Solida, a Nevada church, is one victim of this injustice. It owns a 40-acre parcel in Nevada’s Amargosa Valley entirely surrounded by a federally managed wildlife refuge. It uses this parcel for religious purposes; until an illegal intervention by the U.S. Fish and Wildlife Department, it performed baptisms in a spring-fed stream on the land.
In 2010, the government rerouted the stream to a higher elevation entirely outside of Roca Solida’s property; later that year, rainfall caused the stream to overflow its channel, flooding Roca Solida’s property and causing damage to its facilities. After making a statutorily mandated claim with the Department of the Interior and receiving no response, Roca Solida filed a lawsuit, seeking various kinds of relief for constitutional violations, the negligent waterway rerouting/flooding, and the taking of its stream.
Courtesy of Congress, Roca Solida was forced to split its claims between two different courts: district courts have exclusive jurisdiction over tort claims against the government, while the Court of Federal Claims has exclusive jurisdiction over monetary claims in excess of $10,000. The Supreme Court addressed the constitutional implications of this jurisdictional arrangement most recently in United States v. Tohono O’Odham Nation (2011), holding that a Civil War-era statute (28 U.S.C. § 1500) bars plaintiffs from pursuing monetary claims in the CFC while any other claims with “substantial overlap in operative facts” are pending in district court. Relying on Tohono, the CFC dismissed Roca Solida’s takings claim. The U.S. Court of Appeals for the Federal Circuit affirmed—though in concurrence, Judge Taranto noted that Tohono’s “application of § 1500 may soon present a substantial constitutional question about whether federal statutes have deprived Roca Solida of a judicial forum to secure just compensation for a taking.”