     In the United States Court of Federal Claims
                                  No. 10-757L
                             (Filed: May 18, 2018)

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GADSDEN INDUSTRIAL PARK, LLC,                      Takings Clause;
                                                   inverse condemnation;
              Plaintiff,                           U.S. Const. amend. V;
                                                   cognizable property
v.                                                 interest;       just
                                                   compensation.
THE UNITED STATES,

              Defendant.

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      Kent E. Baldauf, Jr., Pittsburgh, PA, with whom were Bryan P. Clark,
Anthony W. Brooks, and Edward Levicoff for plaintiff.
      Eric John Singley, United States Department of Justice, Civil Division,
Commercial Litigation Branch, Washington, DC, with whom were Kenneth M.
Dintzer and Margaret J. Jantzen for defendant.


                                   OPINION
BRUGGINK, Judge.
        This is a takings claim brought by Gadsden Industrial Park, LLC.
Plaintiff asserts that the Environmental Protection Agency (“EPA”) took kish1,
slag, and scrap belonging to it. Plaintiff alleges that it purchased the materials
at a bankruptcy auction from a defunct steel mill and that EPA either used the
materials itself or permitted its contractors to remove them despite GIP’s
ownership. Trial was conducted in Birmingham, Alabama, from July 25
through 28, 2017. We hold that EPA’s actions constituted a compensable


1
  Kish is a byproduct of the steel-making process. We defer a more
particularized definition for now, as the meaning is disputed between the
parties.
taking under the Fifth Amendment Takings Clause, although we find that
plaintiff’s proof of the compensation to which it is entitled fails in most
respects.
                              BACKGROUND
       The personal property in which plaintiff claims an interest is kish, slag,
and scrap located on a 761-acre site in Gadsden, Alabama. The site was used
for many years as a steel mill, most recently by Gulf States Steel, which went
into bankruptcy in 1999, leaving all personal and real property at the site to be
disposed of by the Trustee in Bankruptcy.
        A north-south road transects the property. To the west side of this road,
Gulf States Steel housed its steel-making operation, including a coke plant,
blast furnace, and basic oxygen furnace, among other equipment. To the east
side of this road (“Eastern Excluded Property”), there were two settlement
lagoons, landfills, and two large areas where Gulf States Steel deposited
materials generated by steel-making, along with other discarded materials.
The parties referred to these areas where Gulf States Steel deposited steel-
making byproducts, scrap, and trash as the north and south piles.
       When Gulf States Steel operated the mill, it contracted with Heckett, a
metal recovery company, to recover reusable or saleable materials from the
Eastern Excluded Property. Heckett screened material dumped on the Eastern
Excluded Property and returned recovered metals to Gulf States Steel to
recycle into its steel-making process or to sell. Heckett’s operation could not
keep pace with Gulf States Steel’s steel-making, however. Thus, a stockpile
of materials accumulated primarily on the Eastern Excluded Property. There
were two piles of stockpiled material. Each occupied more than ten acres and
contained an estimated total of three to four million cubic yards of material.
Each was more than eighty feet high.
        Gulf States Steel filed a Chapter 11 bankruptcy petition in 1999 that
was converted to Chapter 7 in 2000. It ceased operations in 2000. Heckett’s
metal recovery ceased at the same time. Another metal recovery project
occurred on the property during the course of the bankruptcy proceeding,
however. Ableco Finance LLP (“Ableco”) enforced its senior security
interests and liens and received the necessary authorization to attempt to
collect amounts Gulf States Steel owed it. Ableco held “a first priority and
perfected lien on the kish iron” and chose to contract with Regional Recycling
in November 2001 “to recover and remove kish iron and other ferrous
materials from the slag heaps at the Gulf States Steel facility on a ‘constant
and continuing basis[.]’” Letter from Jeffrey Hermann, Ableco’s Counsel, to
Carrie Casey, GIP (Jan. 31, 2003), Pl.’s Ex. 15 at 3.
                                       2
        When Gulf States Steel filed its bankruptcy petition, a group of former
Gulf States Steel employees worked to secure the plant and catalogue assets.
A Gulf States Steel bondholder formed the Gulf States Reorganization Group
to purchase some of the assets in order to restart part of the plant. An entity
named DoveBid conducted a first auction, selling the blast furnace, railroad
tracks, cranes, and cold finishing mill. The remaining assets were catalogued,
including those that the Gulf States Reorganization Group wanted to buy.
Thereafter, the bankruptcy trustee, James Henderson, filed a motion for an
order to establish bidding procedures for the sale of the remaining Gulf States
Steel assets in July 2002 (“Bidding Motion”). Two instruments described the
property to be sold. The Bidding Motion first generally described the assets:
       Tangible property, including real, personal and mixed property,
       all situated at or adjacent to the site where the debtor [Gulf
       States Steel] formerly conducted its manufacturing operations,
       consisting of approximately 600 acres of real property and the
       improvements thereon, easement rights appurtenant thereto,
       inventory and equipment. The property that is the subject [of]
       this sale is generally described in Exhibit A hereto.
Bidding Motion, Joint Ex. 1 at 1.
       Exhibit A to the Bidding Motion was prepared by Gulf States
Reorganization Group. It included a general description providing that both
real and personal property would be auctioned. The real property included the
Eastern Excluded Property. The personal property for sale included “[a]ll
materials, whether raw minerals or by-products, situated within the boundaries
of the real property being sold, including kish and scrap.” Id. at 6. The
Bidding Motion explained that Gulf States Reorganization Group had offered
to purchase a list of assets detailed in an asset purchase agreement, Exhibit 1
to which included units that the group proposed to purchase:
       ATTACHMENT 5 – INVENTORY
       BY PRODUCTS OF MANUFACTURING INCLUDING BUT
       NOT LIMITED TO KISH AND MISCELLANEOUS OTHER
       MATERIALS AND ASSORTED SCRAP.
Id. at 32.
       The bankruptcy trustee did not sell the assets to Gulf States
Reorganization Group because the presence of other bidders, including Don
Casey, required Mr. Henderson to open bidding to the public. Mr. Casey is the
proprietor of Casey Equipment, a family-owned business based in Pittsburgh,
Pennsylvania, since 1961. Casey Equipment is in the business of buying and
                                      3
selling steel mill equipment and had worked with Gulf States Steel prior to its
bankruptcy. Mr. Casey, on behalf of Casey Equipment, participated in the first
bankruptcy auction. He became aware that Gulf States Reorganization Group
was interested in purchasing the remaining assets in the second auction and
inquired into partnering with the group. Ultimately, Mr. Casey determined that
his best option was to bid on the assets independently. To participate in the
second auction, Mr. Casey formed plaintiff Gadsden Industrial Park, LLC
(“GIP”). GIP was a bidder in the second auction. Carrie Casey, Mr. Casey’s
daughter who worked for Casey Equipment until her retirement in 2016,
represented GIP in the second auction process.
       Attached to the Bidding Motion for the second auction was the asset
purchase agreement and the asset list drafted by Gulf States Reorganization
Group and set out above. GIP did not want to purchase all of those assets.
GIP thus requested a bidding procedure modification to permit competing
bidders to bid on a more limited set of assets. The bankruptcy court granted
the request. During the bidding process, on September 19, 2002, Mr. Casey
emailed Ms. Casey, “[W]e want to buy the rights to mine the slag piles[.]
[D]on’t let me forget[.]” Pl.’s Ex. 5.
       GIP submitted an all-cash bid of $6.3 million for most, but not all, of
the remaining estate assets. The bankruptcy court found that GIP offered the
highest and best bid and directed Mr. Henderson to close the sale to GIP. Mr.
Henderson and GIP executed an asset purchase agreement on September 30,
2002, which was consummated on December 3, 2002. The trustee reported the
sale on December 13, 2002.
        GIP purchased both real property and personalty. The Trustee’s Bill of
Sale and the Trustee in Bankruptcy Deed describe the real property that GIP
purchased as more than 400 acres of land and the buildings on them, but it was
not the entire real property estate. GIP purposely omitted approximately 200
acres, including the Eastern Excluded Property, although, as indicated below,
it purchased personal property present on the excluded acreage. It did this in
order to avoid potential environmental responsibility.
       The personal property GIP purchased is described in part in the
Trustee’s Bill of Sale, which included Exhibit A, the Bidding Motion, with its
general description of personal property: “[a]ll materials, whether raw minerals
or by-products, situated within the boundaries of the real property being sold,
including kish and scrap.” Joint Ex. 19 at 67. Exhibit A, the list of property
units sold, included “Attachment 5 – Inventory:”



                                       4
       BY PRODUCTS OF MANUFACTURING INCLUDING BUT
       NOT LIMITED TO KISH AND MISCELLANEOUS OTHER
       MATERIALS AND ASSORTED SCRAP.
Id. at 117. This material had accumulated on the land that GIP did not buy.
       Exhibit B to the Trustee in Bankruptcy Deed not only carved out the
eastern portion of the site, but it also excluded certain personal property
(“Exclusion List”):
       1. With reference to the property identified in “ATTACHMENT
       5 – INVENTORY,” Purchaser excludes:
       A. All miscellaneous other materials.
       B. All by-products of production other than kish and 420,000
       cubic yards of slag which are located on the Excluded Real
       Property as is described on Exhibit B to the deed from Seller to
       Purchaser of even date herewith, together with a reasonable
       period of time to remove such items.
Id. at 120.
       Ms. Casey wrote the Exclusion List. She testified that the Exclusion
List was the only part of the bankruptcy sale contract that GIP had participated
in writing and that she “cut and pasted” terms in the Exclusion List. Trial
Transcript (“Tr.”) at 105. Ms. Casey did not discuss the reasonable period of
time language with the bankruptcy trustee. She added the reasonable period
of time language because she was in the habit of including such a term in
contracts she was involved in negotiating for Casey Equipment. She did not
know how long GIP would require to retrieve the materials it bought and thus
added language that she believed would secure GIP’s right to access the
Eastern Excluded Property to retrieve the materials.
        Following the bankruptcy sale, GIP began work at the site and became
aware of Regional Recycling’s metal recovery operation on behalf of Ableco.
GIP believed that Ableco had recovered and sold materials GIP purchased.
Thus, on January 2, 2003, GIP wrote a letter to Ableco informing it that GIP
purchased “the kish and scrap metal located at the former Gulf States Steel
site.” Letter from Carrie Casey, GIP, to Jeffrey Hermann, Ableco’s Counsel
(Jan. 2, 2003), Pl.’s Ex. 14 at 1. GIP demanded “restitution in an amount equal
to the value of the assets sold[.]” Id. Ableco responded, contesting any
liability to GIP for the materials recovered and sold, explaining that Regional
Recycling ran its recovery operation until December 2002 “at which time
Ableco terminated the Kish Iron Contract based upon Ableco’s understanding
                                       5
that the Trustee . . . had agreed to transfer to GIP the right to remove kish iron
after the date of the Closing . . . .” Letter from Jeffrey Hermann, Ableco’s
Counsel, to Carrie Casey, GIP (Jan. 31, 2003), Pl.’s Ex. 15 at 3.
       Immediately after the bankruptcy sale, GIP found tenants for some of
the buildings and dismantled others and found purchasers for some of the steel
mill equipment it had purchased. GIP used slag from the Eastern Excluded
Property to fill the below-ground-level voids left after the removal of
equipment. It also sold additional slag. In total, Mr. Casey estimated that GIP
used or sold approximately 15,000 cubic yards of slag, which he estimated was
ten percent of the slag on the Eastern Excluded Property.
        In 2004 and 2005, GIP brought Watkins Metals Co., Inc. (“Watkins”),
on site to recover metal from a pile of slag located in the northwest corner of
the real property that GIP had purchased, not from the piles on the Eastern
Excluded Property. Watkins is located in Birmingham, Alabama, and is in the
business of metal recovery, scrap processing, and recycling. To recover metal
from GIP’s real property, Watkins used separating equipment, weighed the
recoverable metal, and loaded it into railcars for GIP. During the one-year
project, Watkins recovered metal pieces ranging from six inches to four feet
in size. Watkins received $35 per ton of metals retrieved and loaded for its
work recovering the metal, but GIP retained ownership of the metals. GIP
later contracted with Watkins to complete another recovery project near the
middle of GIP’s property from which Watkins recovered items such as steel
beams and metal mixed in with slag.
         After a request from the Alabama Department of Environmental
Management and pursuant to an Action Memorandum relating to potential
Superfund sites, EPA began its first removal action on the site in 2003. EPA
investigated a claim that contaminants were leaching out of the piles and from
nearby lagoons. Barbara Scott, EPA’s on-scene coordinator from 2003 to
2006, determined that the piles as well as the lagoons were causing
environmental problems. Specifically, EPA was concerned that environmental
contaminants associated with the piles and lagoons, such as oil and leachate,
were migrating from the Eastern Excluded Property. Although EPA did
endeavor to remove as much oil as possible, Ms. Scott determined that simply
removing the oil from the lagoons would not be a long-term solution, because
the equipment to maintain the lagoons had deteriorated, and solids within the
lagoons also posed a problem. The EPA’s on-scene coordinator for 2007 and
2008, Randy Nattis, and the remedial project manager, Jordan Garrard, elected
to fill one of the lagoons with on-site slag as a way to reduce contaminated
overflow.

                                        6
       In 2006, MultiServ, a mill service company that is a division of the
Harsco Corporation (“Harsco”), contacted the EPA Remedial Project Manager,
Amy McLaughlin, regarding recovering materials from the piles on the Eastern
Excluded Property. She had reviewed GIP’s bankruptcy sale contract and
informed MultiServ: “It looks like the Gadsden Industrial Park has the mining
rights for the slag at the Gulf States Steel Property. If you are interested in
reclaiming the slag, I suggest contacting Don Casey.” Email from Amy
McLaughlin, Remedial Project Manager, EPA, to Ken Orndoff, Business
Development Manager, MultiServ (Feb. 13, 2006), Pl.’s Ex. 25. MultiServ
subsequently made a proposal to GIP to process the piles, but the two parties
did not move beyond initial discussions.
       In 2007, EPA inquired into ownership of the piles and materials
stockpiled on the Eastern Excluded Property in connection with its efforts to
address environmental concerns. This began a series of communications
between EPA and GIP that fueled confusion regarding what GIP had
purchased from the bankruptcy estate. EPA sent GIP a request for information
through Mike Stevenson, counsel for EPA, under section 104 of the
Comprehensive Environmental Response, Compensation, and Liability Act2
(“CERCLA”). Pl.’s Ex. 37. The request noted that, “GIP purchased what is
now operated as the Gadsden Industrial Park as well as two large slag piles
located on the remaining Gulf States Steel property and that are adjacent to the
waste lagoons and Black Creek.” Id. at 1. EPA asked if Gadsden had
“conducted or arranged for any environmental cleanup or management of
hazardous materials” and whether GIP had taken action to stop or prevent “any
continuing releases of hazardous substances.” Id. at 6.
        Thereafter, a series of emails and meetings follow, some of which we
set out herein. Initially, Mr. Casey responded by email to Mike Stephenson,
EPA counsel, on January 29, 2008, explaining, “In your cover letter it is
mentioned that GIP bought two large slag piles adjacent to the lagoon. My
understanding is Gadsden does not own the two remaining slag piles but does
have the right to mine them.” Pl.’s Ex. 39. He provided details regarding
various aspects of GIP’s operation on the site and closed by writing,
                It is to GIP’s best interest that the GIP property and the
         surrounding estate owned properties be remediated. GIP will
         continue to remediate its property and has already volunteered
         to work with the EPA to discuss ways to more efficiently clean
         up the coke plant area. Outside of the coke plant area, GIP will


2
    42 U.S.C. §§ 9601–9675 (2012).
                                        7
        continue to help the clean up of the estate property by
        continuing to reduce the size of the two slag plies. In addition
        GIP is now studying ways to reduce the very large and very ugly
        Kish piles[.]
Id. at 3.
       On February 4, 2008, Mr. Casey emailed Mr. Stephenson again to
discuss alleged environmental concerns on the Eastern Excluded Property. He
wrote:
        The two big piles are kish or furnace dust which is ferrous oxide
        and is not basic[.] Slag piles are basic with high PH[.] I am not
        sure what slag piles remain or where they are located[.] We
        bought the right to mine 400[,]000 cu ft which we may have
        already used. We used a lot for filling the PM pits and other pits
        around the park. We let the city of Gadsden take truck loads.
        We sold some and gave away truck loads to churches for use on
        their parking lots.
Pl.’s Ex 41.
        Mr. Casey’s communications with GIP’s attorneys at this time recited
that GIP was “presently negotiating a contract for the sale of the kish which is
the name [GIP] uses for the ‘red dirt’ in the landfill and which is ferrous oxide
or rust.” Pl.’s Ex. 45. Mr. Casey noted that “the purchase agreement is clear that
GIP did not buy anything else in the landfill[,] none of the other GSS by
products.” Id.
        Thereafter Mr. Stevenson requested that Mr. Casey meet with EPA to
discuss leachate that was accumulating in a collection ditch bordering the north
and south piles. During a March 4, 2008 meeting, Mr. Casey informed EPA
that GIP had purchased kish and 420,000 cubic yards of slag and had a
reasonable amount of time to remove it. GIP communicated during the
meeting that it was planning to begin recovering metal from the Eastern
Excluded Property in the near future. Mr. Nattis and Mr. Garrard understood
through this meeting that kish was ferrous oxide, which Mr. Casey referred to
as red dirt. In his contemporaneous summary of the meeting, Mr. Casey wrote
that GIP might be able to work with EPA if a reasonable amount of time is
defined as when “the EPA is ready to go to work on the piles.” Pl.’s Ex. 46.
This would give GIP time to remove some Kish and if possibly [sic] some
more slag helping to reduce the sizes of the piles, a win win for both parties[.]”
Id.

                                        8
       Mr. Casey followed up with EPA via email on March 19, 2008,
reminding EPA of GIP’s plans to start removing kish in the near future. Pl.’s
Ex. 51 at 2. In that email, he wrote, “I believe I already answered you
concerning the Kish or red dirt as we call it[.] GIP has not removed any Kish
or red dirt to date. . . . GIP plans to start removal of Kish in the very near
future.” Id. Mr. Casey then provided an explanation regarding GIP’s use of
slag by separating slag into “Arc Furnace Slag” and “Blast Furnace Slag,”
writing that the former has little market value and GIP used it to fill pits or
gave it away to the city or churches, whereas the latter has market value and
GIP had been selling it. Id. Mr. Casey explained that “no records are kept” of
how much slag was taken. Id. These communications are silent regarding
scrap.
        Further dissection of the communications between GIP and EPA
concerning plaintiff’s ownership rights is unnecessary. They can be
summarized as a desultory and imprecise conversation, the substance of which
was that GIP claimed the right to extract kish and slag, and that EPA persisted
in demanding to know of plaintiff’s intentions and plans. Given Mr. Casey’s
imprecise characterizations of what GIP bought, we are not surprised that he
did not itemize scrap. The communications are best seen in the context of
EPA’s concern about environmental issues, and GIP’s lack of precision about
title matters is hardly surprising. The issue of what GIP owned is one of law,
which we explore below.
        At the same time that Mr. Casey was communicating with EPA
regarding what GIP owned and GIP’s own remediation efforts, GIP was
making plans to recover materials from the Eastern Excluded Property and sell
them. GIP negotiated with Metawise Group to purchase C fines, which are
small pieces of ferrous material less than one inch in size, for $4.50 per ton
after loading costs. In 2007, GIP reached out to Watkins to discuss whether
it would be interested in recovering the materials GIP believed to be in the
piles on the Eastern Excluded Property. It proposed the same $35 per ton
agreement as GIP and Watkins had on the previous recovery project. See Pl.’s
Ex. 55. The projects that Watkins had completed on the northwest corner of
GIP’s property had been smaller in scale, but Danny Stevens, Watkins’ owner,
was familiar with the piles on the Eastern Excluded Property. He agreed with
GIP that recyclable material could be extracted.
       Mr. Stevens rejected the $35 per ton proposal, however. Instead, Mr.
Stevens proposed to recover metal at Watkins’ own expense and pay GIP a
commission after the sale of recovered materials. Mr. Stevens explained that
reclaiming materials from the piles on the Eastern Excluded Property would

                                      9
be “a lot more labor intensive and is not as easy to get the iron out as that
northwest corner was.” Tr. 373. Mr. Stevens wrote in his letter to GIP that
Watkins would list the products it hoped to recover and develop a pricing
formula to avoid confusion regarding the amount of commission for each
material. Pl.’s Ex. 55.
       GIP did not accept Watkins’ proposal, so Watkins proposed an
alternative in which GIP would pay Watkins a fee per ton of recovered metal
with GIP retaining ownership of the metal along with responsibility for its sale.
This proposal was memorialized in a draft “Agreement to Process Kish.” Pl.’s
Ex. 71. The agreement recited, “This agreement details the processing of
Kish, more commonly known as Red Dirt which consists of various size
metals. The Kish is located on the landfill East of the Park on property owned
by the defunct Gulf States Steel.” Id. Watkins agreed to provide the
equipment and labor to “separate and screen the Kish in order for [GIP] to
recover and sell the metals in the Kish.” Id. The draft identified six categories
of recoverable materials: four metal sizes ranging from “less than one inch
(fines)” to metals greater than three feet along with two categories of scrap.
Id.
        The proposal involved GIP paying Watkins seventy dollars per gross
ton to screen, separate, and load metals that were more than one inch in size.3
Watkins also proposed to screen, separate, move, and pile the smaller fines at
no cost to GIP. Watkins would obtain an option to purchase separated piles
of fines for ten dollars per ton. Watkins also would obtain the exclusive right
to recover materials from the piles “so long as Watkins reclaims 500 gross tons
of material each month.” Id. The proposal would permit Watkins to withdraw
after a two-week written notice if the quantity of material available for
processing did not allow for profitable operations.
       Mr. Stevens anticipated being able to begin within a month after an
agreement was reached. At trial he described how Watkins would have
performed the work. The basic process for metal recovery was to excavate the
material, pull out the larger pieces of visible metal, and run the smaller
materials over a magnetized conveyor belt that would separate and screen out


3
  Plaintiff’s damages expert, Mark Gleason, incorporated into his analysis an
oral revision to the agreement that Mr. Casey and Mr. Stevens communicated
to him in his preparation: GIP would not have paid Watkins for materials that
GIP ultimately sold for less than $70 per ton. This term does not appear in the
draft agreement, and it also was not referenced in Mr. Casey’s or Mr. Steven’s
testimony. We find that the oral provision was not proven.
                                       10
the metal. The leftover nonmetallic material would be re-piled on the Eastern
Excluded Property. Watkins had bulldozers, magnetic cranes, screens,
magnetic conveyors, and trucks. It had five or six local employees. If it was
necessary to increase the rate of processing the piles, Watkins could bring in
a second set of equipment or purchase additional equipment. Mr. Stevens
expected the job to take ten years or more.
        As GIP and Watkins negotiated their metal recovery agreement, EPA
had tasked an on-site contractor, CMC Inc., with addressing environmental
issues, including how to stop calcium in the slag from precipitating out as
leachate. EPA’s initial plan was to remove slag from the site. EPA also
considered other alternatives to a massive removal of slag. It considered
capping the piles as they stood and simultaneously improving the surrounding
drainage ditches. Mr. Casey testified that GIP had offered to improve these
same ditches at no cost to the government. Another alternative, and the one
EPA ultimately adopted, was to reduce the size of the piles by removing
saleable metal, and then capping what was left of the piles. In order to pursue
the latter alternative, EPA sought bids to perform an investigation into the
feasibility of recovering saleable materials from the piles to offset the cost of
CMC’s remediation work. There was no testimony that EPA employees
believed the materials GIP purchased constituted an environmental hazard. By
this time, EPA officials understood that the metal in the piles had value.
        In April 2008, representatives from MultiServ toured the site.
Afterwards Mr. Nattis informed members of the EPA team via email in May
2008 that he had “a firm very interested in taking ALL the Slag / Kish from the
site for reuse, but [that] is [contingent] on taking all of it, including the before
mentioned Kish.” Pl.’s Ex. 65 at 1. Mr. Nattis noted in this email, however,
that “GIP claims they own the right to ‘some’ of the material (Kish) within the
pile.” Id.
       As a result of EPA’s exploration of a metal recovery operation of its
own, Watkins ultimately declined to enter an agreement with GIP. Mr.
Stevens met with EPA’s on-site coordinator, Mr. Nattis, and through that
meeting understood that EPA was planning to recover the metals in the piles
by hiring its own recycling contractor. Mr. Stevens recalled the meeting
occurring in May or June of 2008. Mr. Nattis’ records indicate that he
interacted with Mr. Stevens on June 4, 2008. As a result of these
communications with EPA, Mr. Stevens believed that, as of June 4, GIP would
not be permitted to perform its own recovery operation. GIP and Watkins thus
did not consummate the draft agreement, and Watkins never began recovery


                                        11
of metals from the piles. Watkins was also among the contractors who
submitted a bid to EPA to conduct EPA’s recovery operation.
        By late June 2008, GIP knew from Mr. Stevens that EPA planned to
hire a recycling contractor and that Watkins did not believe GIP had the
authority to conduct its own recovery operation. Mr. Casey emailed counsel
for EPA on June 29, 2008, stating that GIP had become aware that EPA
intended to recover the metal but that GIP would be contracting with Watkins
to extract the same materials. Mr. Casey again asserted GIP’s right to kish and
requested a meeting with EPA to resolve “any differences between the EPA
and GIP concerning the Kish.” Pl.’s Ex. 82 at 5. Mr. Greg Luetscher, counsel
for EPA, responded via email on June 30, 2008, proposing a conference call
at which the parties would discuss “the nature, extent, and derivation of GIP’s
rights to the kish” and “administrative mechanisms under which persons other
than EPA might typically perform removal work at a Superfund site.” Id. at
4. After Mr. Luetscher’s email, Mr. Casey met with Mr. Nattis in October
2008, and learned from him that EPA did not want GIP to leave hazardous
materials behind after extracting valuable materials. The only hazardous
materials, of course, were associated with the same slag that EPA proposed to
leave on site.
       EPA ultimately chose MultiServ to complete the project. On October
21, 2008, EPA’s contractor CMC entered a “Site Investigation Agreement”
with MultiServ, which provided for a pilot study of the Eastern Excluded
Property to determine whether a metal recovery operation was economically
feasible. The pilot study took place in 2009. During the site investigation,
EPA sent a second Request for Information to GIP in April 2009, inquiring
into what GIP’s interest was in the landfills. GIP’s response claimed that it
had rights to kish and slag, referencing the bankruptcy sale contract.
       Based on its pilot recovery test, MultiServ determined that it was
economically feasible to conduct a full scale metal recovery operation. It
thereafter entered into a “Slag Processing Agreement” with CMC in October
2009, which gave MultiServ the right to mine the north and south piles to
recover metal and other valuable material. MultiServ also had the authority to
market and sell what it recovered. The remaining materials, mainly slag,
would then be capped by CMC. At the time, MultiServ issued a press release
stating that it believed a $50 million recovery was possible.
        Under the agreement, MultiServ would pay CMC fifteen percent of the
gross proceeds MultiServ received from the sale of the recovered materials for
the first twelve calendar months of the agreement and twenty percent of the
gross proceeds in each calendar month thereafter. That payment was expected
                                      12
to relieve EPA from paying for CMC’s remediation activities. CMC
determined the percentage based on the total estimated revenue from
MultiServ’s metal recovery and its estimated cost to complete the capping
process. MultiServ would retain the balance of the proceeds from the sale of
any materials.
       MultiServ’s metal recovery process was basically the same as that
which Watkins anticipated using, although MultiServ apparently began with
more equipment and employees. Larger pieces of metal, such as ingots, slabs,
and I-beams were removed before the other material was processed to capture
smaller pieces of metal. MultiServ sold the ferrous materials on a freight-on-
board basis at Gadsden. To complete the project, MultiServ built a
maintenance facility and a large processing plant near the north pile.
MultiServ had approximately twenty employees working on site when
processing the north pile. When work expanded to the south pile in late 2011,
MultiServ added four hourly equipment operators. It ran two shifts, totaling
sixteen hours of production per day, five days per week. MultiServ processed
450 tons of material per hour at the north pile. Michael Brady, Harsco’s site
manager, testified that such a processing plant would cost approximately
$150,000 per month to rent. MultiServ used a second, lower capacity
processing plant at the south pile.
       MultiServ had help from CMC, which extracted mixed material and
placed it in a location from which it could be loaded for processing. CMC also
moved nonmetallic materials out of the processing zone for storage on site.
Mr. Brady estimated that CMC performed approximately forty percent of the
work.
        MultiServ sold recovered materials beginning in October 2009.
Throughout the course of the project, it processed and sold 245,890 tons of
material, grossing more than $13.5 million of metal-bearing materials. Out of
the $13.5 million in gross sales, MultiServ paid CMC approximately $2.4
million. According to MultiServ’s sales report, it recovered the following
categories of materials: 1” x 0” slag; 3” x 1” slag; A scrap; B scrap; three types
of C fines; C scrap; ingots; manganese scrap; miscellaneous; oversized scrap;
oversized skulls; plate; skulls; slabs; slag “overbur:” small pit scrap; small
skulls; steel fines; steel pit scrap; and wire rope.
       During the course of MultiServ’s work, GIP did not attempt its own
recovery operation. Instead, GIP purchased slag from MultiServ for five to six
dollars per ton, or approximately twelve dollars per cubic yard. The total
volume of slag GIP purchased from MultiServ is not set out in the record.

                                       13
        MultiServ and CMC continued the recovery project through January
2013, when recovery from saleable materials became insufficient to fund
CMC’s remediation work. MultiServ project managers estimated that it had
processed approximately seventy percent of the north pile and twenty percent
of the south pile by the time it ceased working. Peter Mazzarella, who is the
North American sales manager for Harsco Metals & Minerals and who joined
Harsco in 2008, estimated that fifty percent of the piles remained. Neither
CMC nor any other EPA contractor ever capped the piles.
                                  DISCUSSION
       After reviewing the bankruptcy sale contract, we find that GIP
purchased kish, assorted scrap, and 420,000 cubic yards of slag at the
bankruptcy auction. GIP successfully proved that each material was present
on the Eastern Excluded Property and that it was used or sold by EPA. We
hold that EPA’s actions constituted a compensable taking under the Fifth
Amendment Takings Clause. We find, however, that plaintiff’s proof of the
compensation to which it is entitled fails regarding kish and assorted scrap.
We thus award plaintiff compensation for EPA’s taking of 92,500 cubic yards
of slag.
       I. Was There A Taking?
       GIP claims that the government took from it kish, 92,500 cubic yards
of slag, and assorted scrap, all of which it claims to have purchased from the
Trustee in Bankruptcy. The complaint and GIP’s pre-trial materials assert that
the only materials as to which a taking is claimed were those actually used by
EPA and sold by MultiServ. In other words, GIP is not claiming a taking of
all materials in the piles as of a particular date, only those removed by the
government.
       Preliminarily, the government argues that plaintiff did not include
assorted scrap in its taking claim until the post-trial briefing stage and thus any
claim for just compensation for scrap is not properly before the court. We
disagree. GIP pled that EPA took plaintiff’s property purchased at the
bankruptcy sale, a claim which fairly encompasses kish, slag, and assorted
scrap. The original complaint alleges the government took its property on the
Eastern Excluded Property, and specifically mentions kish. Plaintiff’s
amended complaint states that it purchased “kish and other materials.” Pl.’s
Am. Compl. ¶ 12. Even if a claim for assorted scrap had not been pled
specifically before trial, the issue was tried by consent. Rule of United States
Court of Federal Claims 15(b)(2). Both parties’ witnesses testified to the
differences between kish and scrap, whether GIP owned scrap, and whether
EPA took kish, scrap, or both. See, e.g., Tr. 86–88 (C. Casey), 103 (C. Casey),
                                        14
263–70 (D. Casey), 494–97 (Clayman), 618–20 (Garrard), 757–58 (Nattis).
The government did not object to that testimony at trial.
        With respect to slag, as of trial, plaintiff only sought compensation for
92,500 cubic yards of slag that EPA used to fill the lagoon on the Eastern
Excluded Property, and the report of its compensation expert was limited in
that respect. In its post-trial brief, plaintiff adds a separate calculation for slag
it expects to require in the future (113,000 cubic yards), which counsel
estimates to be worth between $1.3 and $6.7 million. Since plaintiff’s
additional damages calculation for slag was introduced post-trial and was not
tried by consent, we decline to consider it. As we explain below, moreover,
the post-trial claim for additional slag raises a more general problem about
how GIP approached its claim.
      There is no question that the materials at issue—kish, slag, and assorted
scrap—may constitute personal property for purposes of a takings claim.
Horne v. Department of Agriculture, 135 S. Ct. 2419, 2425–28 (U.S. 2015).
To decide whether the government owes GIP compensation, we must
determine whether GIP had a cognizable property interest in the materials the
government removed.
        The government contends that GIP purchased a non-exclusive right for
a limited period of time to retrieve only kish, which it characterizes as a
worthless, non-ferrous material, along with 420,000 cubic yards of slag. It
asserts that the valuable ferrous materials EPA’s contractor removed do not
constitute kish, that GIP excluded scrap from the materials it purchased, and
that any right GIP had to retrieve the limited materials it did buy had expired
by the time MultiServ performed its work. Plaintiff responds that kish is a
blast furnace byproduct that does have valuable ferrous content and that it did
not exclude scrap from its purchase. Finally, it contends that its right to
retrieve the materials had not expired when MultiServ was on site. To
determine what GIP purchased, we return to the bankruptcy sale contract.
       The relevant language is found in the Trustee’s Bill of Sale Exhibit A
clause “Attachment 5 – Inventory:” “By products of manufacturing including
but not limited to kish and miscellaneous other materials and assorted scrap.”
Joint Ex. 19 at 117. This provision is then modified by the Exclusion List
written by Ms. Casey:
       1. With reference to the property identified in
       “ATTACHMENT 5 – INVENTORY,” Purchaser excludes:
       A. All miscellaneous other materials.
       B. All by-products of production other than kish and 420,000
                                         15
       cubic yards of slag which are located on the Excluded Real
       Property as is described on Exhibit B to the deed from Seller
       to Purchaser of even date herewith, together with a reasonable
       period of time to remove such items.
Id. at 120.
        The asset purchase agreement attached to the Trustee’s Bill of Sale
states that it “shall be governed by and construed in accordance with the laws
of the State of Alabama[.]” Id. at 75. Alabama applies the general rule of
contract construction that “the intention of the parties controls in construing
a written contract, and the intention of the parties is to be derived from the
contract itself, where the language is plain and unambiguous.” Loerch v. Nat’l
Bank of Commerce of Birmingham, 624 So. 2d 552, 553 (Ala. 1993); see also
Homes of Legend, Inc. v. McCollough, 776 So. 2d 741, 746 (Ala. 2000)
(“[T]he intent of the contracting parties is discerned from the whole of the
contract.”). Moreover, “if there exists inconsistency between two clauses of
a contract which cannot be reconciled, the inconsistency must be resolved in
favor of the prior clause, unless an intention to thereafter qualify is plainly
expressed.” City of Fairhope v. Town of Daphne, 208 So. 2d 917, 924 (Ala.
1968).
       The government reads Attachment 5 to include a single category of
property: byproducts of manufacturing, which include but are not limited to
kish, miscellaneous other materials, and assorted scrap. This interpretation
reads all the words following “including but not limited to” as types of
byproducts. Because GIP excluded “all by-products” except for kish and a
portion of slag, defendant concludes that GIP excluded assorted scrap.
       GIP reads Attachment 5 to include three categories of property:
byproducts of manufacturing, miscellaneous other materials, and assorted
scrap. GIP argues that the Exclusion List excluded miscellaneous other
materials and narrowed byproducts of manufacturing to only kish and 420,000
cubic yards of slag, but did not affect GIP’s purchase of assorted scrap.
       The parties agree that the language of Attachment 5 and the Exclusion
List unambiguously provides that GIP excluded from its purchase any
“miscellaneous other materials.” The instruments also provide that GIP
purchased only two byproducts of manufacturing: “kish” and “420,000 cubic
yards of slag.” The remaining term in Attachment 5 is “assorted scrap.” The
Exclusion List is silent regarding assorted scrap. Given that “assorted scrap”
was first listed in Attachment 5 as purchased property, and GIP did not qualify
its purchase by placing assorted scrap on the Exclusion List, it follows that
GIP purchased “assorted scrap” at the bankruptcy sale. We note as well that
                                      16
the testimony at trial was that scrap is typically a finished product, something
like an I-beam, for example, and not a byproduct intended for discard.
        The structure of GIP’s Exclusion List also contradicts the government’s
construction that kish, miscellaneous materials, and assorted scrap are all
byproducts of manufacturing. Although miscellaneous other materials is listed
after “including but not limited to” in Attachment 5, along with kish and
assorted scrap, the Exclusion List does not treat miscellaneous other materials
as a byproduct. Instead, miscellaneous other materials is a category called out
in its own provision. If all terms following “including but not limited to” were
byproducts, then miscellaneous other materials would have been excluded by
the second sentence of the Exclusion List. Because miscellaneous other
materials was not treated as a byproduct on the Exclusion List, it is not
reasonable to lump the term “assorted scrap” from Attachment 5 into
byproducts. Thus, at the bankruptcy sale, GIP purchased kish, 420,000 cubic
yards of slag, and assorted scrap.
       Even though we find that GIP purchased kish, scrap, and slag,
important questions remain: what are these materials, do they have any value,
and did the government take them from plaintiff?
        The bankruptcy sale contract did not define these terms. Moreover, the
bankruptcy trustee did not communicate with GIP before, during, or after
executing the sale instruments regarding the definition of kish, or the other
materials GIP purchased, slag and assorted scrap. Where the meaning of an
undefined word or phrase must be ascertained, “the court should simply give
the undefined word or phrase the same meaning that a person of ordinary
intelligence would give it.” Twin City Fire Ins. Co. v. Alfa Mut. Ins. Co., 817
So. 2d 687, 692 (Ala. 2001). Additionally, “[p]arties to a contract will not be
imputed with using language that is meaningless or without effect.” Black
Diamond Dev., Inc. v. Thompson, 979 So. 2d 47, 51 (Ala. 2007). Each
material can be defined by drawing on the language of the agreement,
communications between EPA and GIP after the bankruptcy sale, and
testimony from those involved with recovery projects on the Eastern Excluded
Property.
       The most straightforward term to define is “slag.” The language of the
bankruptcy sale contract lists slag as a byproduct of manufacturing. Trial
testimony from those familiar with steel production defined slag as a non-
ferrous material that separates during smelting. E.g., 89–90 (C. Casey),
176–80 (D. Casey), 479–95 (Clayman), 875–76 (Kingham). After being
siphoned away, the slag hardens. It consists primarily of calcium oxide and

                                      17
silicon dioxide, the material that EPA associated with pollution problems on
site.
       According to the Caseys, assorted scrap is metal of various sizes that
may or may not be ferrous, but that can be either recycled into steel
manufacturing or sold for other purposes. It is typically finished steel product,
like an I-beam, a railroad car, or wire, which has been discarded in a finished
form and is thus not a byproduct.
        The parties hotly contest the meaning of “kish.” The bankruptcy
contract describes kish as a byproduct of manufacturing. After GIP’s
purchase, Mr. Casey characterized kish to EPA representatives as red dirt with
fifty percent or more iron content. Similarly, EPA’s on-scene coordinator Mr.
Nattis testified that through meetings with Mr. Casey he understood kish to be
ferrous material with resale value. Mr. Nattis testified that the piles held both
what he perceived as kish and scrap metal.
       Both Ms. Casey and her father testified to their understanding of kish.
Ms. Casey explained that kish is metal siphoned off with slag during steel
manufacturing. Mr. Casey differentiated between ESP kish, which is a fine
metallic that resembles rust or red dirt, and larger chunks of ferrous material
that accumulates in the smelting process and is siphoned off with the slag. He
stated that it was his intent at the time of the purchase to purchase all the
recyclable metals left in the north and south piles, whether they were what he
termed kish or scrap metal.
        The Casey’s use of the term kish is consistent with both the draft
Watkins agreement and the Ableco recovery contract. Prior to the GIP
purchase, the Ableco recovery contract with Regional Recycling, denominated
a “Kish Iron Contract,” provided that Regional Recycling would “recover and
remove kish iron and other ferrous materials from the slag heaps.” Pl.’s Ex.
15 at 3. The draft “Agreement to Process Kish” between GIP and Watkins
defined kish as “more commonly known as Red Dirt which consists of various
size metals.” Pl.’s Ex. 71. Both of these agreements reflect the understanding
that kish is or contains recoverable metal of various sizes.
        Mr. Stevens of Watkins testified as someone familiar with the recovery
process. He viewed kish as a metal that could be recovered from the slag piles
and recycled. He explained that he had heard the term “kish iron” used by Mr.
Casey and others in the metal recovery industry and that he took it to be “steel
and iron” that could be recovered, regardless of its size. Tr. 377. Mr. Stevens
testified that he did not personally use the term “kish,” but that his goal was to
extract and process metals from the pile, whatever the metal was called.

                                       18
        Similarly, Harsco’s sales manager Mr. Mazzarella testified that he
understood kish to be the same thing as kish iron, a byproduct of the blast
furnace process. Kish, he testified, is a grade of iron, but he had never sold it
and did not know if it was in the piles. He explained that MultiServ made no
distinction between kish and other recoverable materials. Instead, MultiServ’s
goal was to extract all metals within the piles. Stevens and Mazzarella thus
indicated that, from the perspective of recycling contractors, “kish” referred
to a metal byproduct of manufacturing; it was just another metal to be
recovered. We note that, consistent with testimony from those familiar with
the metal recycling industry, MultiServ referred to iron byproduct on its sales
report not as kish but as A scrap, B scrap, C scrap, and fines, depending on the
size of the metal recovered.
       Both parties also offered expert testimony on the definition of kish.
Plaintiff’s expert on the meaning of kish within the metal recycling industry
was Charles Brown, who had experience in metal recovery and had worked
with both Gulf States Steel and Regional Recycling. He testified that kish was
a term used in the metal recycling industry. He testified that kish is “iron
containing slag.” Tr. 1195. He explained that the terms kish, kish iron, and
foundry kish were interchangeable as long as the recovered material contained
a minimum percentage of iron. Mr. Brown testified that when recovering kish,
the recovery might include material that was almost 100% iron, which would
be classified as A, B, or C scrap according to its size and iron content (A scrap
being the largest and highest in iron content). He explained that the recycling
would remove ferrous materials of all sizes, but that kish was essentially a
catch-all term for iron mixed with slag.
       Moreover, plaintiff’s expert on the metal recycling market, Gary
Clayman, who is employed by a scrap metal processing company, testified that
kish is a metallic byproduct of the blast furnace operation that is generated
when skimming byproducts out of the iron ore. He defined it as “iron off of
the blast furnace. It comes from an integrated mill that has a blast furnace.
There is no other word for this but kish. US Steel calls it kish.” Tr. 474. He
explained that kish is a chunky material that may be recovered in different
sizes and may be sold under names such as A scrap, 3-foot iron, or blast
furnace iron.
       The only witness on the meaning of kish who testified that it was not
a ferrous byproduct of a blast furnace operation was the government’s expert,
Dr. R. Fruehan. Dr. Fruehan holds a Ph.D. in metallurgical engineering. He
served as a scientist for US Steel and has been a professor at Carnegie Mellon


                                       19
and director of its Center for Iron and Steelmaking Research. Dr. Fruehan
defined kish as graphite flakes without iron content or resale value.
        We do not doubt Dr. Fruehan’s expertise in the craft of steel
manufacturing, but his understanding of the meaning of kish was plainly not
how the Caseys, persons associated with the bankruptcy, other steel companies
or metal recovery companies, and EPA employees used the term. Contracting
parties are entitled to reach their own understanding of the meaning of
technical terms in an industry. That is plainly what happened here. Although
the trustee did not testify as to his understanding of kish, he and those assisting
him in obtaining value from the bankrupt estate clearly were offering for sale
materials that they understood bidders such as GIP were interested in
recycling. There is certainly no evidence offered by the government, which
appears as a third party to the agreement, that there was no meeting of the
minds. In buying kish from the trustee, GIP purchased material that both
parties understood to be a ferrous byproduct of a blast furnace operation in
various sizes that has economic value.
        The government’s final argument regarding GIP’s property interest is
that, according to the reasonable period of time language in the Exclusion List,
GIP only purchased a license to explore the Eastern Excluded Property, which
was too indefinite to enforce or had expired by the time EPA used or sold
materials on the site. We disagree. The Trustee’s Bill of Sale states,
       [The] Trustee does hereby grant, bargain, sell and convey, as is,
       unto Gadsden Industrial Park, LLC, all right, title and interest
       which the bankrupt Debtor had on the date of the
       commencement of the proceedings in bankruptcy on the
       following property referenced in [the Bidding Motion] and more
       particularly described [in the asset purchase agreement] less and
       except those items set forth on an exclusion list, prepared by the
       purchaser . . . to have and to hold all the right, title and interest
       in and to said property unto the said Gadsden Industrial Park,
       LLC, and to its assigns forever.
Joint Ex. 19 at 59 (emphasis omitted). This is not a license. It is an outright
sale of personalty, and it is not shared with anyone else.
       Admittedly, GIP introduced confusion in the contract when it wrote a
provision in the Exclusion List that states,
       All by-products of production other than kish and 420,000 cubic
       yards of slag which are located on the Excluded Real Property
       as is described on Exhibit B to the deed from Seller to Purchaser
                                        20
       of even date herewith, together with a reasonable period of time
       to remove such items.
Joint Ex. 19 at 120 (emphasis added). This is clearly a limitation on what was
not excluded. As a limitation on the excluded materials it would be useless
language. So we can safely presume it is a limitation on plaintiff’s right to
take possession of what it purchased, which is understandable, as the
personalty was located on land GIP did not own. Although the provision is a
limitation on GIP’s time to remove the materials, we find that GIP’s time to
remove its materials had not expired by the time EPA used or sold those
materials and that the government is not the proper party to determine when
GIP’s access to the Eastern Excluded Property ended.
        First, the government contends that the reasonable period of time
language is too indefinite to be enforceable. Defendant cites to cases in which
the Supreme Court of Alabama struck down lease extension provisions in coal-
mining leases that it determined were too indefinite to be enforceable.
Drummond Co., Inc. v. Walter Industries, Inc., 962 So. 2d 753, 758 (Ala.
2006) (lessee under four coal-mining leases brought claims against lessor
based on a will-extend clause that the court found too indefinite to enforce);
Linton Coal Co. v. South Central Resources, Inc., 590 So. 2d 911, 912 (Ala.
1991) (coal-mining lessee’s assignees brought action for specific performance
of a lease after royalty arrearage was paid and the court held that the lease term
was too indefinite to be ascertained). In those cases both parties to the lease
were the parties before the court, disputing the term of the lease. Here, the
owner of the underlying real property is not a party and there is no evidence
that it has challenged GIP’s access to the Eastern Excluded Property. It is
therefore unnecessary for this court to inquire into definiteness of the
reasonable period of time provision’s end date.
        Alternatively, the government maintains that GIP’s time to enter the
Eastern Excluded Property expired either when the bankruptcy estate closed
or within six years of GIP’s purchase. It argues that, because the agreement
that GIP could enter the Eastern Excluded Property to remove its materials was
made between the bankruptcy trustee and GIP, when the bankruptcy estate
closed, GIP’s reasonable period of time ended as well. This is incorrect. The
bankruptcy trustee acts as the representative of the estate in the bankruptcy
process, which includes sales of property to reduce the estate to money. 11
U.S.C. §§ 541(a), 701-704 (2012). When the bankruptcy estate is closed, any
property scheduled but not administered is abandoned to the debtor. Id. §§
554(c), 726(a)(6). Thus, GIP continued to own the materials it had purchased
after the close of the bankruptcy proceeding. The proper party to dispute when

                                       21
GIP’s reasonable time ends is the underlying real property owner, who, as
noted above, did not limit GIP’s access prior to the EPA using or selling
materials from the Eastern Excluded Property. Relatedly, the government
argues that the six years that GIP owned the materials prior to MultiServ’s
recovery operation was a reasonable time to remove the materials. This
expiration argument is an additional red herring: GIP’s reasonable period of
time was not constrained by the government’s perception, as a stranger to the
contract, of when that period ended.
        Finally the government suggests that Mr. Casey’s confused
communications with EPA amounted to abandonment of its property interest.
Under Alabama law, “[a] determination whether certain personalty is
abandoned stems from a consideration of the nature of the particular property,
the intent to abandon, and some external act evidencing this intent.” Milford
v. Tennessee River Pulp & Paper Co., 355 So. 2d 687, 698-90 (Ala. 1978).
Moreover, “ordinarily there exists a presumption that one does not intend to
abandon his property,” but this presumption does not exist “where the article
claimed to have been abandoned is generally considered valueless.” Id. The
government relies on Milford as an example of abandonment, but in that case
“Milford admit[ted] he considered the coal valueless and that all purchasers
had refused future shipments of it.” Id. GIP, on the other hand, assigned value
to the materials at the time of the bankruptcy auction, maintained a right to the
materials as evidenced by its correspondence with Ableco, EPA, and Watkins,
and attempted to recover those materials.
       In sum, we are satisfied that GIP purchased the materials outright and
that GIP was within its reasonable period of time to remove its materials when
EPA used and sold materials from the Eastern Excluded Property.
       Having found that GIP bought kish, 420,000 cubic yards of slag, and
assorted scrap, and was within its reasonable period of time to remove those
materials at the time of MultiServ’s recovery operation, we now turn to
“whether the government action at issue amounted to a compensable taking of
that property interest.” American Pelagic Fishing Co., L.P. v. United States,
379 F.3d 1363, 1372 (Fed. Cir. 2004). A compensable taking may occur when
the government invades or physically appropriates a claimant’s property.
Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1014–15 (1992). EPA does not
dispute that it did not purchase any of the property at issue but nevertheless
used and sold materials from the Eastern Excluded Property.
        As for scrap, MultiServ’s sales report indicates it sold materials
expressly classified as scrap as well as assorted other metals such as plate,
skulls, slabs, or ingots that were not byproducts of steel manufacturing but
                                       22
were metals Gulf States Steel had discarded in the piles. MultiServ’s sales
report does not list materials sold as “kish,” but it does list several materials
such as A scrap, B scrap, C scrap, and fines that overlap with the sizes and
terms used for kish in trial testimony. Plainly EPA took GIP’s scrap and kish.
        Regarding slag, GIP purchased 420,000 cubic yards. EPA contractors
used 92,500 cubic yards during the clean-up of at least one lagoon.
MultiServ’s sales records also reflect that it sold 9392 tons of slag; presumably
some or all of this was purchased by plaintiff, although we do not know the
amount. Although the government hints that, slag being fungible, we cannot
be certain that GIP’s slag was used, we reject that defense. Although Ms.
Casey testified that 420,000 cubic yards was not all the slag on site, the
government offers no evidence as to who owns any slag beyond the 420,000
cubic yards plaintiff purchased, nor of any permission EPA or any other party
obtained to remove slag. We note as well that EPA sculpted the remaining
piles to minimize pollutant runoff in such a way as, for all practical purposes,
to embalm permanently all remaining materials, including slag.
       Thus, GIP demonstrated that EPA used and sold slag, kish, and scrap.
Plainly, by the time MultiServ had concluded its operation, EPA had taken
those quantities of slag and metal that Mr. Gleason attempted to value. That
does not answer the question of when the taking or takings occurred, however.
     The date of asserted taking for kish, scrap, and slag is June 4, 2008. This
is the date on which plaintiff asserts EPA precluded it from beginning its own
recovery operation. We agree that June 4, 2008, can be used as the date of
taking for scrap and kish, because Mr. Casey legitimately concluded at that
time that GIP would be barred from beginning its own recycling operation.
We note, however, that by June 4, 2008, the slag for which plaintiff seeks
compensation had already been taken by EPA. Although plaintiff may have
chosen to propose an earlier date, it is therefore also correct to say that the
taking occurred no later than June 4, 2008. The government does not present
a competing date of taking.
        As discussed earlier, plaintiff’s taking claim is limited to the value of
the material the government took from the Eastern Excluded Property. If
plaintiff had sought compensation for the value of materials in place, it would
have had to present evidence of what a willing buyer would have paid for
those materials immediately before access ended, even though the precise
quantity was unknowable. It chose instead to quantify the volume taken by
limiting its claim to materials actually removed, but then valued those
materials as of June 4, 2008. This is a problem. The price of recycled material
in June 2008 happens to coincide with a relatively brief but significant spike
                                       23
in the price of recycled steel. Even though GIP has limited the quantity taken
by valuing only what MultiServ sold, the abnormal prices in June 2008 make
that date an unfair one for valuation purposes. It would only be a fair date if
plaintiff also had undertaken to prove what a willing buyer would have paid
for the opportunity to recover all the kish and scrap, and 420,000 cubic yards
of slag. But GIP did not undertake that exercise. Although June 2008 is a
legitimate date for asserting that EPA took all of plaintiff’s rights to what it
had purchased, GIP also did not then follow that line of proof by showing what
a willing buyer would have paid as of June 2008, a date for which the evidence
of quantity would be problematic.4 Alternatively, GIP could have claimed a
series of rolling dates of taking for specific quantities, beginning with EPA’s
use of slag before 2008, but then plaintiff would have had to value the taking
on those dates. Once again, something it did not do.
       II. Just Compensation
        When the United States takes private property for public use, it must
pay just compensation, which requires the government to pay the “equivalent
in money of the property taken,” to place the owner in the same pecuniary
position as if the property had not been taken. United States v. Miller, 317
U.S. 369, 370–71 (1943); see also United States v. Reynolds, 397 U.S. 14, 16
(1970). The Supreme Court has emphasized that just compensation cannot be
reduced to a specific formula and that compensation must be based on all
relevant facts. See United States v. Cors, 337 U.S. 325, 332 (1949); see also
Jack Daniel Distillery v. United States, 379 F.2d 569, 574 (Ct. Cl. 1967).
When the government physically appropriates plaintiff’s property, however,
the general rule in measuring compensation is the fair market value of the
property on the date it is appropriated. Kirby Forest Indus., Inc. v. United
States, 467 U.S. 1, 9–10 (1984) (citing United States v. 564.54 Acres of Land,
441 U.S. 506, 511–513 (1979)). “Under this standard, the owner is entitled to
receive ‘what a willing buyer would pay in cash to a willing seller’ at the time
of the taking.” Id. at 511 (quoting United States v. Miller, 317 U.S. 369, 374
(1943)).
      Plaintiff offered two measures of just compensation: lost profits and fair
market value. Because lost profits is not the appropriate measure of just
compensation, United States v. General Motors Corp., 323 U.S. 373, 379
(1945), we set that theory aside and turn to plaintiff’s fair market value



4
 But not impossible, as MultiServ’s site investigation would be available as
some contemporaneous proof of quantity.
                                      24
calculation.5 As mentioned above, Mr. Gleason, determined the fair market
value of the materials as of June 4, 2008.
       Mr. Gleason’s damage claim is calculated based only on materials
recovered and sold by MultiServ, along with 92,500 cubic yards of slag which
EPA used in the lagoons.6 He explained that he was unaware of any reliable
estimate on the volumes of recoverable materials as of the date of taking.
“[Y]ou couldn’t reasonably estimate what’s in these piles or what’s the yield
or recovery in these piles.” Tr. 1265 (Gleason). He therefore did not attempt
to reconstruct what a willing buyer would have paid for materials in the piles
using what was known or knowable at the time. Instead, he attempted to
calculate the fair market value of the materials taken based on a projection
using the earnings or income approach, which projects future earnings from
the property and then discounts those future earnings to a specific point in
time. Once again, however, he did not have actual figures to work with as of
June 2008, other than the general projections by MultiServ. Instead, he used
the actual figure for the volume of materials recovered between 2008 and
2013: 245,890 tons. As to price, he attempted to recreate what those materials
would have been worth in June 2008. Against this calculation, he then applied
his own calculation of avoided costs and discounted the results back to June
2008.
        Because MultiServ’s characterization of the various materials sold did
not line up with the types of items that could be priced from publicly available
records, Mr. Gleason calculated an assumed 2008 price by picking a
comparison metal to the metal that MultiServ sold. To calculate a selling price
for kish and scrap, he drew from a publication of the American Metal Market,
which collects and publishes price lists for various types of metal on a monthly
basis. The comparison metal he chose was “No. 1 heavy metal” or “heavy
melt,” which Mr. Gleason explained was a close equivalent to the “scrap” that
MultiServ sold. He then projected selling prices for A scrap, B scrap,
miscellaneous scrap, small pit scrap, skulls, plate scrap, oversized scrap,
ingots, and manganese.

5
 We note, however, that Mr. Gleason’s lost profit calculation suffers from
many of the same defects discussed below due to the unreliable calculation of
avoided costs.
6
  There was testimony that plaintiff had to buy other slag from MultiServ for
its own use. Unless the purchased amount is included in the 92,500 cubic
yards, the specific quantity of purchased slag does not appear to surface in Mr.
Gleason’s calculations.
                                      25
       The projected selling price was the result of multiplying the average
relationship of MultiServ’s price to the quote price for heavy melt in
Birmingham by the average quoted price for heavy melt in Cleveland in April,
May, and June 2008. Mr. Gleason found that MultiServ sold A scrap at an
average discount of approximately sixty-eight percent of the Birmingham
quoted market price for June 2008 and then multiplied that by the average
Cleveland heavy melt price from April to June 2008 to reach $486.67 per ton.
       Mr. Gleason conceded that $486 per ton was historically a high value
per ton and that the 2008 price spike was relatively short-lived. If the taking
date were set twelve months later, in 2009 when the metal recovery operation
began, for instance, the market price would have fallen much lower. Or if the
taking had been, for example, in the 2000 to 2002 period, the price per ton
would have been approximately $100.
        That calculus accounts for the vast majority of materials. For the C
fines, Mr. Gleason input GIP’s agreement with Metawise Group to purchase
C fines for $4.50 per ton after loading costs. For other materials, he estimated
selling price as of June 2008 to be the actual average selling price reported by
MultiServ. Mr. Gleason concluded that the projected revenue stream as of
June 2008 would have been $19,873,418. We note, by way of comparison,
that MultiServ actually only recovered $13.5 million during the nearly five
years of its recovery efforts.
        For the avoided costs, Mr. Gleason assumed that GIP and Watkins
would have executed their Agreement to Process Kish. He thus applied the
cost structure in that draft agreement: GIP would pay Watkins $70 per ton for
materials recovered in excess of one inch in size (e.g., A scrap). GIP would
not pay Watkins anything for materials less than one inch in size. He also
assumed, based on Mr. Casey’s explanation to him, that he and Mr. Stevens
modified the draft agreement orally so that GIP would not pay Watkins for
recovered materials one inch or larger that sold for less than $70 per ton. In
other words, if material sold for $69 per ton, GIP owed Watkins nothing. He
assumed that materials were loaded as they were processed. Furthermore, the
assumption was made that GIP had no other additional cost than freight
because GIP would use its existing infrastructure. Using those terms, he
determined that the avoided cost based on payments to Watkins was $4.5
million. Mr. Gleason also included a freight adjustment to account for GIP’s
cost to ship the material. He calculated the price to ship to Birmingham or to
Cleveland, since Cleveland was approximately $20 more per ton. Total
avoided costs for payments to Watkins and freight were $4,928,603.


                                      26
       Using these inputs, Mr. Gleason concluded that the projected revenue
for GIP was $19,873,418, avoided costs were $4,928,603, and the total net
$14,944,815 recovered over an approximately 5-year period, from June 2008
to February 2013. To establish the present value of that revenue as of June 4,
2008, Mr. Gleason applied a discounted cash flow analysis. He used a
weighted average cost of capital approach with a twenty-one percent discount
rate. Ultimately, Mr. Gleason found that the fair market value of the metal
taken as of the date of taking, and net of all costs, was either $9,780,560, using
a Birmingham freight adjustment, or $10,446,005, using a Cleveland freight
adjustment.
       Mr. Gleason separately valued the slag used by EPA. Mr. Gleason’s
understanding was that EPA had taken 92,500 cubic yards of slag as part of its
environmental remediation efforts. He applied a conversion from cubic yards
to tons, totaling 137,363 tons. He then applied an estimated price term
between five and six dollars per ton, using the sales price applied when
MultiServ sold slag to GIP, to determine that EPA had taken $755,494 of slag.
        The government challenges several aspects of plaintiff’s fair market
value calculation. The government contends that the relevant question is
“what a would-be miner would have paid Gadsden for the purported right to
dig in the waste piles.” Def.’s Post-Trial Br. at 64, ECF No. 193 (Jan. 5,
2018). In other words, the government argues that plaintiff would only be
owed the equivalent of what a buyer would have paid GIP to explore the piles
for retrievable materials in 2008.
        On Mr. Gleason’s calculations, defendant argues that his analysis is not
based on information known at the time of the taking because it relies on
quantity figures drawn from what MultiServ’s eventually recovered.
Regarding the price term, the government argues that a buyer of the right to
process the piles would not have assumed that the spike in prices
contemporaneous with the time of taking would continue indefinitely. Mr.
Gleason and Mr. Clayman readily acknowledged that scrap iron prices were
high in mid-2008 and that they could have been expected to, and in fact did,
fall throughout the course of MultiServ’s recovery project.
        The government also challenges GIP’s reliance on the unexecuted
Watkins agreement as a basis on which to calculate avoided costs. It was a
draft rather than a contract, and Watkins had not completed recovery work on
these piles in the past. The draft cost structure only guaranteed payment per
ton for material sold in excess of one inch in size and, if the purported oral
modification were taken into account, sold for at least $70 per ton. The
government notes that plaintiff lumped B scrap in with small, less than $70 per
                                       27
ton materials, altering the amount GIP hypothetically would have paid Watkins
by up to $3 million. Even assuming that Watkins would be able to sustain a
recovery project under such terms, the agreement, if it had ever been executed,
also contained a walk-away provision that would allow Watkins to terminate
the contract in its discretion, which presumably it would do if it became
unprofitable.
        We sympathize with Mr. Gleason in putting together a damage
calculation. It would have been difficult to measure with any precision what
was actually recoverable in the piles as of June 2008, either at that time or
subsequently. What is not disputable, however, is that every single witness
involved in processing the piles before, during, and after the bankruptcy sale
agreed that the piles concealed recoverable materials, including EPA, which
was able to persuade MultiServ to undertake an exploratory operation, which
produced favorable enough results for the agency to enter into a sales contract.
At the time, the parties to that arrangement touted the possibility of $50 million
in recoverable metals. We are thus persuaded that a buyer would have paid
something for the opportunity to retrieve the materials from the piles.
Determining what that value would have been, however, is not an exercise Mr.
Gleason undertook.
       We agree with the government that there are a number of problems with
Mr. Gleason’s approach. The government, we believe, is correct that
Gleason’s figures are seriously distorted in at least two ways. First, his
construction of an artificial sales price as of June 2008 for materials sold later
was inappropriate. Although these figures may accurately reflect values as of
the date sold, they do not reflect the reality that a buyer would know that it
would not recover that value instantly; in fact, the recovery operation itself did
not result in sales until 2009. And a buyer also would be presumed to know
that the price in June 2008 was abnormally high. The evidence from Mr.
Clayman and Mr. Gleason was that it was known in the industry that prices
would not remain inflated in the long term, or at least not for a years-long
recovery operation. A purchaser could not rely on receiving those high prices
over the years required to go through the piles. A buyer would discount value
to account for the virtual certainty that prices would decline.
       The second defect in Mr. Gleason’s calculation concerns how he
calculated the costs to retrieve the materials. He based his cost figures on the
assumption that the agreement between plaintiff and Watkins would have been
performed, i.e., that plaintiff would only have to pay $70 per ton for qualifying
materials and that qualifying materials did not include materials sold for less
than $70 per ton. All of the risk in this hypothetical arrangement would have

                                       28
been borne by Watkins, which, in actuality, maintained the right to walk away
from the recovery operation by the terms of the draft agreement. Nevertheless,
building size and price limitations into GIP’s payment obligation results in GIP
paying Watkins, at most, for 64,285 tons of processed material, whereas
MultiServ processed 245,890 tons. Mr. Gleason, in effect, is assuming that
GIP is getting a substantial amount of Watkin’s labor at no cost. Without
crediting the oral addendum, GIP would have paid Watkins an additional $2
to $3 million. Applying the $70 per ton cost to both A scrap and B scrap
uniformly results in $5.6 million avoided costs for those two materials alone.
When the $70 per ton cost is applied to all materials other than C scrap or
fines, the avoided costs before considering freight are at least $7 million.
       We also find that it is not likely that the balance of the draft agreement
would have been performed as written. The draft agreement required Watkins
to process 500 tons per month to maintain exclusivity. MultiServ was able to
process nearly that amount per hour. Thus Mr. Gleason’s reliance on
assumptions drawn from MultiServ’s records are highly questionable. Even
if we assumed Watkins could maintain such an operation, the government
correctly points out that GIP would have experienced other costs. GIP retained
the ownership of the saleable materials, meaning it would have had to market
and sell those materials in addition to the possibility of paying for loading the
materials as well as supervising the Watkins operation. GIP may have worked
within its existing infrastructure to sell the materials, but like any other
business, there would be some costs associated with marketing and delivering
the materials.
        The government’s expert on damages, Steven Dowd, did not place an
estimate on those costs, but he aptly observed that “to assume that there’s no
cost to that of any type, zero, I think is unreasonable.” Tr. 1677. EPA had two
contractors handling the materials pre- and post-processing that, at its height,
involved two processing plants and nearly two dozen employees just to assist
in MultiServ’s processing. This is not including what the remediation
contractor, CMC, was doing to facilitate the MultiServ recovery operation.
Despite CMC’s help, MultiServ terminated the recovery operation because it
was no longer profitable. See Pl.’s Ex. 195.
         Ultimately, plaintiff asks the court to accept that a hypothetical buyer
would have projected that the piles held at least 245,890 tons of material and
that the buyer would incur substantially less costs than that actually incurred
by MultiServ and CMC. We find these assumptions unsupportable. Although
a trial judge “may award damages, even if he does not fully credit that party’s
methodology,” Precision Pine & Timber, Inc. v. United States, 596 F.3d 817,

                                       29
833 (Fed. Cir. 2010), we are not given sufficient reliable proof of what a
willing buyer would have paid for the scrap and kish.
        We have a different view of the slag EPA actually used. GIP purchased
420,000 cubic yards of slag. Mr. Casey estimated at trial that GIP had used
15,000 cubic yards, prior to EPA’s use of slag for environmental clean-up.7
Thus, GIP had not used all the slag it had purchased before EPA took 92,500
cubic yards, or 137,363 tons, for environmental clean-up. Mr. Gleason valued
the 92,500 cubic yards of slag at $755,494, using the five to six dollars per ton
rate at which MultiServ actually sold slag to GIP. In the case of the slag, we
know both what GIP owned and what EPA took, and plaintiff presented a
credible valuation of the taking. Thus, we award plaintiff $755,494 for the
taking of its slag.
       III. Prejudgment Interest
        In addition to the value of the property taken, just compensation
includes interest from the date of the taking to the date of payment in order to
place plaintiff in “as good a position pecuniarily as he would have occupied
if the payment had coincided with the appropriation.” Kirby Forest Indus.,
Inc., 467 U.S. at 10–11. GIP did not present a calculation of interest at trial,
and the government did not argue for a particular rate of interest. This court,
however, consistently has employed the rate set forth in the Declaration of
Takings Act (“DTA”), 40 U.S.C. § 3116 (2012), as the proper interest rate in
a takings claim. See, e.g., Waverley View Investors, LLC v. United States, No.
15-371L, 2018 WL 1193439, *3–*4 (Mar. 8, 2018); Textainer Equip. Mgmt.
Ltd. v. United States, 99 Fed. Cl. 211, 223 (2011); Vaizburd v. United States,
67 Fed. Cl. 499, 504 (2005). Thus, we find that plaintiff is entitled to interest
at the DTA rate from the date of the taking, June 4, 2008, to the date of
payment.
                               CONCLUSION
       In sum, we hold that EPA’s actions constituted a taking compensable
under the Fifth Amendment Takings Clause and hold that GIP is entitled to
just compensation in the amount of $755,494, together with interest calculated


7
 We recognize that this is inconsistent with some of his email correspondence
with EPA in 2008, in which he speculates that GIP may have used up all its
allotment. We find Mr. Casey to be a credible witness, however, and rely on
his trial testimony. GIP did not do any recovery operations on the Eastern
Excluded Property and, in any event, kept no records to support the email
estimate.
                                       30
from June 4, 2008, to the date of payment in accordance with 40 U.S.C. §
3116. The Clerk is directed to enter judgment for plaintiff.


                                             s/Eric G. Bruggink
                                             Eric G. Bruggink
                                             Senior Judge




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