Footnotes

1125 Hage v. United States, 51 Fed. Cl. 570, 587-88 (Fed. Cl. 2002); see Estate of Hage, 687 F.3d at 1291-92; see also Monongahela Nav. Co. v. United States, 148 U.S. 312, 327 (1893) (“The legislature may determine what . . . property is needed for public purposes[,]” but determining the measure of compensation “is a judicial, and not a legislative, question.”); Hage v. United States, 35 Fed. Cl. 147, 170 (Fed. Cl. 1996) (“[B]ased upon the language and history of the Granger-Thye Act and the Taylor Grazing Act, . . . Congress had no legislative intention of creating a property interest in the permit just as Congress had no legislative intention of creating a property interest in the underlying…

1110 See Section 4.3.3; cf. Olson v. United States, 292 U.S. 246, 256 (1934) (addressing uses made in combination with other lands); United States v.

1104 See United States v. Rands, 389 U.S. 121, 125-26 (1967); Filiaggi, 90 F.3d at 794 & nn.2-3; Miller v. United States, 550 F. Supp. 669, 674 n.3 (Cl. Ct. 1982), aff’d, 714 F.2d 160 (Fed. Cir. 1983) (mem.); see also 33 U.S.C. § 595 (2012) (codifying offset of “special and direct benefits to the remainder” for partial takings “in connection with any improvement of rivers, harbors, canals, or waterways of the United States”); cf. Horne

1120 Granger-Thye Act of 1950, 16 U.S.C. § 580 l (2012) (grazing permits on National Forest System lands, administered by the U.S. Forest Service). 1121 43 U.S.C. § 315b (“issuance of a permit pursuant to [this provision] shall not create any right, title, interest or estate in or to the lands”);Fuller , 409 U.S. at 492-93.

1114 E.g., United States v. Fort Smith River Dev. Corp., 349 F.2d 522, 525-26 (8th Cir. 1965) (reversing award that failed to consider special benefits due to United States’ revetment project that “manifestly” protected remainder land “from further reliction or erosion. That fact alone apparently places [the remainder] in a ‘better position’ because of the taking” and must be considered).1115 H.R. r ep. n o. 91-1665, at 31 (1970) (noting § 595a does not change federal law on offsetting special benefit to remainder “against the just compensation that would otherwise be paid for the real property taken and for damages to remaining real property”);United States v.

1107 In partial acquisitions (Section 4.6), the measure of compensation is normally the difference between the market value of the landowner’s property before and after the government’s acquisition. E.g., United States v. Birnbach, 400 F.2d 378, 382 (8th Cir. 1968). Appraisers therefore apply the before and after valuation method (the Federal Rule), estimating the market value of the larger parcel before the acquisition, and subtracting the market value of the remainder property after acquisition, to determine the difference (diminution) in market value. See Section 4.6.1.1108 Cf. Birnbach, 400 F.2d at 382-83 (holding that in determining damage to remainder property in partial taking affected by navigational servitude, an “important distinction must be made so that the enhancement in value ‘flowing’ from…

1108 Cf. Birnbach, 400 F.2d at 382-83 (holding that in determining damage to remainder property in partial taking affected by navigational servitude, an “important distinction must be made so that the enhancement in value ‘flowing’ from a riparian location may not be recognized when the riparian character of the [remainder] land is destroyed”). While Birnbach predated § 595a, the statute did not change the compensation for damage to remainder property. See Pete, 447 F.2d at 770-71 (discussing Birnbach and § 595a).1109 As discussed in Section 4.6.4.1, the taking plus damages valuation method (the State Rule) is generally improper in valuations for federal acquisition purposes. It cannot be used in federal acquisitions (under § 595a or otherwise) without appropriate legal instructions.…

1105 13.20 Acres of Land in Lincoln, 629 F. Supp. at 247 (citing Rands, 389 U.S. 121).1106 E.g., 13.20 Acres in Lincoln, 629 F. Supp. at 247 (“[Section] 595a will apply to the valuation of the remaining parcels, and severance damages regarding those parcels will not include loss of access to Lake Roosevelt.”). Indeed, the only other cases to directly address valuation issues under § 595a involved total, not partial, acquisitions. Filiaggi, 90 F.3d 790; United States v. 967, 905 Acres of Land in Cook Cty. (Pete), 447 F.2d 764, 771 (8th Cir. 1971); United States v. 71.29 Acres of Land in Catahoula Par., 376 F. Supp. 1221, 1225-26 (W.D. La. 1974); United States v.

1111 See United States v. Va. Elec. & Power Co., 365 U.S. 624, 629-30 (1961) (remanding for determination of “depreciative impact of the [acquisition] upon the nonriparian uses of the property”).1112 United States v. Rands, 389 U.S. 121, 125-26 (1967); United States v. River Rouge Improvement Co., 269 U.S. 411, 417-18 (1926); see 33 U.S.C. § 595 (2012) (mandating that in partial takings in connection with improvement of rivers, harbors, canals or waterways of the United States, award of just compensation “shall take into consideration by way of reducing the amount of compensation or damages any special and direct benefits to the remainder arising from the improvement”); see also United States v. Eastman (Eastman I), 528 F. Supp. 1177, 1179…

1113 River Rouge, 269 U.S. at 417-18. While the remainder property may be subject to the navigational servitude, it is “fundamental error” to “over-emphasi[ze] the contingent character of the rights of the riparian owners.” Id. at 420-21.1114 E.g., United States v. Fort Smith River Dev. Corp., 349 F.2d 522, 525-26 (8th Cir. 1965) (reversing award that failed to consider special benefits due to United States’ revetment project that “manifestly” protected remainder land “from further reliction or erosion. That fact alone apparently places [the remainder] in a ‘better position’ because of the taking” and must be considered).