  United States Court of Appeals
      for the Federal Circuit
                ______________________

RICHARD LEWIS KATZIN, ESTATE OF ANNETTE
KATZIN, ESTATE OF MARY BETH KATZIN-SIMON,
           ROSEMARIE KJELDSEN,
              Plaintiffs-Appellees

                           v.

                  UNITED STATES,
                 Defendant-Appellant
                ______________________

                      2016-2636
                ______________________

    Appeal from the United States Court of Federal
Claims in No. 1:12-cv-00384-CFL, Judge Charles F.
Lettow.
               ______________________

              Decided: November 19, 2018
                ______________________

   ROBERTO EDUARDO BERRIOS FALCON, Berrios Falcon,
LLC, San Juan, PR, argued for plaintiffs-appellees.

    MICHAEL THOMAS GRAY, Environment and Natural
Resources Division, United States Department of Justice,
Jacksonville, FL, argued for defendant-appellant. Also
represented by JEFFREY H. WOOD, Washington, DC.
                ______________________
2                                    KATZIN v. UNITED STATES




    Before PROST, Chief Judge, NEWMAN and LINN, Circuit
                          Judges.
      Opinion for the court filed by Circuit Judge LINN.
     Dissenting opinion filed by Circuit Judge NEWMAN.
LINN, Circuit Judge.
    The United States appeals from a final decision after
trial by the Court of Federal Claims (“Claims Court”),
holding that the government effected a physical taking of
a ten-acre peninsula on the island of Culebra in Puerto
Rico, when the U.S. Fish and Wildlife Service (“F&WS”)
faxed its claim of ownership to a gun mount located on the
peninsula to a potential purchaser. Katzin v. United
States, 127 Fed. Cl. 440 (2016) (“Katzin II”); see also
Katzin v. United States, 120 Fed. Cl. 199 (2015) (“Katzin
I”) (denying summary judgment to the United States).
Because the fax was not a physical taking of Appellees’
land, we reverse.
                       I. BACKGROUND
                          A. Facts
    The Claims Court admirably described the history of
the disputed parcel. Katzin II, 127 Fed. Cl. at 446–57.
We report only that portion of the history relevant to our
decision.
     Culebra is the largest in a group of islands just east of
Puerto Rico. Prior to 1898, Culebra belonged to the
Kingdom of Spain. In 1887, Spain initiated a survey
(“1887 Survey”), the resulting map of which is reproduced
below in Figure 1, dividing the property into privately
owned parcels. The peninsula in the eastern section of
Parcel 24 roughly represents the land at issue in this
litigation. Under Spanish law at that time, the “maritime
terrestrial zone” surrounding the island—“the area of the
coasts or seashore . . . that is washed by the sea in its ebb
and flow, where the tide is perceptible, or the highest
4                                      KATZIN v. UNITED STATES




scribes the plot as “bounded to the North by [property
owned by] Mr. Antonio Lugo and the sea on a tip of land;
to the East by the sea; and to the South and West by the
main property from which it is segregated.” Katzin II,
127 Fed. Cl. at 449–50. This description placed the trans-
ferred plot within former Parcel 25 on the 1887 Survey.
Id. at 449. Also on June 29, the same owners and the
Navy signed an “Agreement of Sale,” describing the metes
of the property in the same way, but indicating its loca-
tion as within “Plot Number 24, Official Chart of Culebra,
U.S.W.I.” Id. at 450. The Navy traces the location of the
gun mount to this Agreement of Sale, and has consistent-
ly referred to the location of the transferred plot as within
former Parcel 24. Id. at 457. The dispute in this case
revolves around the location and ownership of this trans-
ferred plot. Hereinafter, we refer to this uncertainly
located plot as the gun mount site.

   After several conveyances, Plaintiffs Dr. and Mrs.
Katzin became owners of an undivided 50 percent interest




                    Figure 2 — Navy Map 323

in Parcel 4, which roughly corresponds to Parcel 24 on the
1887 Survey, and Plaintiff Rose Marie Kjeldsen Winters
became the owner of the remaining 50 percent. Id.
KATZIN v. UNITED STATES                                  5



    In 1972, the General Services Administration (“GSA”)
took control of Navy lands on Culebra. GSA transferred
the land to the F&WS, using Navy Map No. 323. See
Figure 2. Navy Map No. 323 showed an overlay of the
1887 Survey with highlights showing Navy ownership of a
coastal strip around the southern and eastern coast of the
island, and a gun mount location on the southern end of
the peninsula. Id. at 463. The F&WS published notice in
the Federal Register that it would prepare a Draft Envi-
ronmental Impact Statement on the transfer of lands
from the Navy to the F&WS, as well as a Final Environ-
mental Impact Statement. Intent to Prepare an Envt’l
Impact Statement on the Proposed Disposition and Ad-
ministration of Lands on the Islands of Culebra and
Culebrita, 45 Fed. Reg. 16,358-01 (Fish & Wildlife Serv.
(Mar. 13, 1980)); Availability of Final Envt’l Impact
Statement, 46 Fed. Reg. 50,421-01 (Fish & Wildlife Serv.
(Oct. 13, 1981)); Record of Decision on Proposed Disposi-
tion and Administration of Lands Declared Excess by U.S.
Navy on the Islands of Culebra and Culebrita in Puerto
Rico, 47 Fed. Reg. 11,114-02 (Fish & Wildlife Serv. (Mar.
15, 1982)). According to the Claims Court, the Draft and
Final Environmental Impact Statements included a map
of the property to be transferred, including Tracts 1e (the
coastal strip) and 1f (the gun mount on the northeastern
side of the peninsula). Katzin II, 127 Fed. Cl. at 463–64.

    In 1985, the F&WS surveyed the eastern coast of Cu-
lebra. The survey labels several points on the boundaries




                Figure 3 — 1985 F&WS Survey Plat
6                                        KATZIN v. UNITED STATES




of the F&WS property and includes labels for Tract 1f and
1e. See Figure 3. The survey plat shows Tract 1f bounded
by points 606, 607, 609, 610, and 611. Id. at 464–65. The
F&WS placed signs at some of the points on the plat that
prohibited entry. See Figure 4. In 2012 and 2013, a
F&WS representative located a marker at point 606, and
other markers were found at points 600, 601, 602, 603,
605, 612, 613, 614, 617, and 619.




                  Figure 4 — F&WS sign




    In 1987, Edward Borges, the attorney representing
the Katzins’ neighbor Culebra Enterprises Corporation,
wrote to the F&WS seeking resolution of boundary uncer-
tainties between the maritime-terrestrial zone and Cule-
bra Enterprises’ land. Specifically, Borges explained that
the boundary lines defined in the 1985 F&WS survey at
some points did not secure all the sensitive wetlands for
the F&WS and in other spots encroached beyond the high-
water mark of the ocean and encroached on land that
Culebra Enterprises claimed as its own. Id. at 465.
KATZIN v. UNITED STATES                                     9



the peninsula, and described as “an old gun mount site
purchased by the Navy in 1903 from Escolastico Mulero.”
J. App’x at 3115, 3117; see Figure 6.
     On June 28, 2006, Ms. Motta communicated to Plain-
tiffs that Mr. Klaber would not buy Parcel 4. Thereafter,
several potential buyers refused to buy the property.
                   B. Procedural History
    Plaintiffs brought suit in the Claims Court against
the United States, alleging that the Beasley fax effected a
physical taking of the 10.01-acre peninsula in Parcel 24.
Katzin II, 127 Fed. Cl. at 445. After trial, the Claims
Court held that Plaintiffs’ takings claim was not beyond
the statute of limitations because it did not accrue at any
time prior to the Beasley fax in 2006. This was so, the
Claims Court held, because even though Plaintiffs or their
predecessors in interest “knew or had reason to know of
the government’s claims to the maritime zone and the
former gun mount site prior to the contract with Mr.
Klaber,” the “disputes over ownership rights prior to June
2006 were never refined to the point of interfering with
plaintiffs’ use and enjoyment.” Id. at 473–74. The Claims
Court explained that the “only evidence” of government
interference was the placement of survey markers and
wildlife refuge signs on the property, but the court found
that those markers and signs “could have related to the
maritime zone, which plaintiffs concede the government
controls,” and therefore did not interfere with Plaintiffs’
property. Id. at 474 n.17. Separately, the Claims Court
also held that Plaintiffs’ title to Parcel 4 included title to
the 10.01-acre peninsula, and that the government’s 2.25-
acre gun mount was not located on the peninsula. Id. at
476–79.
    Finally, the Claims Court concluded that the Beasley
fax effected a non-possessory physical taking of the entire
10                                  KATZIN v. UNITED STATES




10.01-acre peninsula. 1 The Claims Court understood
that, in the case of a non-possessory taking, “governmen-
tal action can effect a taking when it prohibits or prevents
a landowner from exercising his or her property rights
because of a governmental claim of ownership of those
rights.” Id. at 479. The Claims Court reasoned that the
government “appropriated plaintiffs’ property rights such
that they were not able to sell the parcel free of the gov-
ernment’s claims,” and that this was a physical taking
requiring just compensation for the appropriation of the
10.01-acre peninsula. Id. at 482. The Claims Court set
the value of all of Parcel 4 at $4 million, based on Mr.
Klaber’s contract value, and awarded a fraction of that
value corresponding to the acreage of the peninsula, to
arrive at a reasonable compensation amount of
$610,962.97 plus interest. Id. at 483.
                      II. DISCUSSION
                  A. Standard of Review
    We review a final decision of the Claims Court by ex-
amining legal conclusions de novo and factual findings for
clear error. Bass Enters. Prod. Co. v. United States, 381
F.3d 1360, 1365 (Fed. Cir. 2004). Whether a Fifth
Amendment taking has occurred is a question of law,
based on factual determinations. Id.



     1   The Claims Court explained that the govern-
ment’s actions with respect to the gun mount site impli-
cated the entire 10.01-acre peninsula because the
inconsistency of the government’s position of where the
gun mount was located on the peninsula required the
court to “accept—as the plaintiffs and any prudent buyer
would have to do—that the relevant governmental action
is a claim of ownership, and thereby a permanent taking,
of the entire 10.01-acre peninsula.” Katzin II, 127 Fed.
Cl. at 481.
KATZIN v. UNITED STATES                                    11



    A claim under the Tucker Act, 28 U.S.C. § 1491, in the
Claims Court must be brought “within six years after
such claim first accrues.” 28 U.S.C. § 2501. We review
whether a claim is barred by the statute of limitations de
novo, and, as usual, review underlying fact-findings for
clear error. Brown v. United States, 195 F.3d 1334, 1337
(Fed. Cir. 1999).
    A physical takings claim accrues when the scope of
what is taken is fixed, see Samish Indian Nation v. United
States, 419 F.3d 1355, 1369 (Fed. Cir. 2005)(quoting
Martinez v, United States, 333 F.3d 1295, 1303 (Fed. Cir.
2003) (en banc)) (stating that a claim under § 2501 ac-
crues “when all events have occurred to fix the Govern-
ment’s alleged liability, entitling the claimant to demand
payment and sue here for his money”), and the plaintiff
knew or should have known of the acts that fixed the
government’s alleged liability, Hopland Band of Pomo
Indians v. United States, 855 F.2d 1573, 1577 (Fed. Cir.
1988). The Tucker Act statute of limitations is jurisdic-
tional; we must therefore determine whether Plaintiffs’
claims are timely before proceeding to the merits of the
takings claim. John R. Sand & Gravel Co. v. United
States, 552 U.S. 130, 136 (2008). Because the Tucker
Act’s statute of limitations is jurisdictional, the plaintiffs
bear the burden of proving that their claims are not time-
barred. Mildenberger v. United States, 643 F.3d 938, 944–
45 (Fed. Cir. 2011); Alder Terrace, Inc. v. United States,
161 F.3d 1372, 1377 (Fed. Cir. 1998).
                          B. Merits
    This case presents three distinct issues: (1) whether
the Claims Court erred in holding that Plaintiffs’ takings
claim was not jurisdictionally time-barred; (2) whether
the Claims Court erred in holding that the communica-
tion from the F&WS to Mr. Klaber’s representative was a
physical taking of the 10.01-acre peninsula; and (3)
whether the Claims Court clearly erred in holding that
12                                  KATZIN v. UNITED STATES




Plaintiffs had proven their ownership interest in the
peninsula here at issue. We address the first two issues
below.
                 1. Statute of Limitations
     The Claims Court concluded that nothing prior to the
2006 Beasley fax began the clock for Plaintiffs’ takings
claim because the property dispute about the gun mount
was “never refined to the point of interfering with plain-
tiffs’ use and enjoyment” of the allegedly taken land.
Katzin II, 127 Fed. Cl. at 473–74.
    The government contends that if any physical taking
occurred, it was when the F&WS placed physical signs on
the peninsula demarcating the government’s ownership
claim. The 1985 Survey plat shows Tract 1f as an en-
closed polygon, defined by plot markers 606, 607, 609,
610, and 611. See Figure 3. Marker 606 was found in the
location corresponding to its location on the plat, but none
of the other markers allegedly defining the polygon were
found. The government argues that there is no evidence
that the remaining markers were not also placed on the
property according to the locations indicated on the 1985
Survey plat, and that the markers’ express prohibition of
access constituted an interference with Plaintiffs’ proper-
ty with respect to Tract 1f. The government argues that
Plaintiffs knew of the markers, as evidenced by Dr. Kat-
zin’s reference to the marker numbers in his 1987 corre-
spondence with the F&WS. From Dr. Katzin’s knowledge,
the government concludes that the markers cannot be
interpreted as anything other than a physical encroach-
ment of both the gun mount and the maritime zone, and
that therefore Plaintiffs’ takings claim is time-barred.
The government further argues that Navy Map No. 323,
the “official map for the transfer” of lands on Culebra
from the Navy to F&WS, showed a government-owned
gun mount, and that communications between govern-
KATZIN v. UNITED STATES                                  13



ment branches also showed the gun mount as government
property.
    Plaintiffs respond that their takings claim did not ac-
crue in 1987 for two reasons. First, Dr. Katzin claims
that he did not have notice of the government’s defined
assertion of title to the polygonal gun mount site in 1987.
He asserts that the only map then in his possession, Navy
Map No. 323, showed the gun mount site within the
maritime-terrestrial zone, and not as a discrete plot
within Plaintiffs’ property. Second, Plaintiffs argue that
the only point of contention between the parties in 1987
was over the extent of the maritime-terrestrial zone, as
shown by the lack of any discussion of a gun mount site in
the 1987 correspondence and the 1995 Agreement of
Exchange.
     The 1987 placement of the signs and correspondence
did not start the running of the statute of limitations. We
see no error in the Claims Court’s finding that the sign at
point 606 and others along the coast could have related to
the maritime zone. Even assuming that all the numbered
markers were placed according to the 1985 F&WS survey,
those markers would not necessarily restrict Plaintiffs’
access to the polygonal gun mount site. Because the
markers generally follow the coastline and thus reasona-
bly relate to the maritime zone, there is no indication that
the government interfered with Plaintiffs’ access or en-
joyment of the land identified as the gun mount site in the
F&WS’s email to Mr. Klaber’s attorney. The government
does not dispute that if the markers relate to the mari-
time zone, then they did not start the clock on the statute
of limitations.
    The 1987 correspondences between Dr. Katzin and
the F&WS alone, or in combination with the physical
signs, also did not effect a taking. The 1987 correspond-
ences were clearly focused on resolving the boundaries of
the maritime-terrestrial zone. Dr. Katzin’s letter to the
14                                  KATZIN v. UNITED STATES




F&WS states that “our boundary situation has many
similarities to that of Culebra Enterprises and I would
like to explore with you the possibilities of a similar
solution.” J. App’x 2936. The Culebra Enterprises solu-
tion only addressed the maritime zone boundary: the goal
was to redraw the maritime zone boundaries so that the
protected wetlands would all belong to the F&WS, and
lands beyond the maritime zone would belong to Culebra
Enterprises. Neither the Culebra Enterprises corre-
spondence nor Dr. Katzin’s correspondences with the
F&WS addressed the gun mount site or any other non-
coastal land.
    Even if Plaintiffs “knew or had reason to know of the
government’s claims to the maritime zone and the former
gun mount site prior to the contract with Mr. Klaber,”
Katzin II, 127 Fed. Cl. at 473 (citing Dr. Katzin’s 1987
correspondences with the F&WS)(emphasis added), 2 both
parties agree that a mere government assertion of owner-
ship does not constitute a taking. Br. of Appellant at 41–
42 and n.3; Br. of Appellee at 43 (citing Katzin I, 120 Fed.
Cl. at 214 (citing Cent. Pines Land Co. v. United States,
107 Fed. Cl. 310, 325 (2010)). It logically follows that the
government’s internal documents here also do not consti-
tute a taking, as they do not do anything other than
confirm the government’s assertion of ownership.
   Finally, we note that the scope and location of      the
government’s alleged taking was not fixed in 1987 as    the
mostly square northerly gun mount site shown in         the
F&WS’s email to Mr. Klaber’s attorney in 2006. To       the


     2  The government reasons that Dr. Katzin knew of
the government’s assertion of ownership because: Dr,
Katzin’s letter to the F&WS references the marker num-
bers from the 1985 Survey, and that that survey shows a
horizontal line between points 606 and 611, defining the
polygonal gun-mount site allegedly taken.
KATZIN v. UNITED STATES                                 15



contrary, Navy Map No. 323 showed a gun mount site
within the maritime-terrestrial zone, and the 1985 Survey
showed a polygonal gun mount site labeled “Tract 1f”
defined by the F&WS signs. Neither of those documents
clearly corresponds to Plaintiffs’ current takings claim.
    We therefore conclude that Plaintiffs’ takings claim as
to the square northerly gun mount site shown in the 2006
email is not precluded by the Tucker Act’s statute of
limitations.
                   2. Physical Taking
    We turn now to the Claims Court’s determination that
a physical taking of the entire 10.01-acre peninsula
occurred when F&WS sent the Beasley fax to Mr. Klaber’s
attorney detailing the government’s assertions of owner-
ship.
    The Claims Court recognized that the fax was not a
physical occupation of plaintiffs’ property. Katzin II, 127
Fed. Cl. at 480. Nevertheless, the Claims Court explained
that a non-possessory “physical” taking occurs when
governmental action “prohibits or prevents a landowner
from exercising his or her property rights because of a
governmental claim of ownership of those rights.” Id. at
479. The Claims Court concluded that the Beasley fax did
just that: “the government has made a claim of ownership
to part of plaintiff’s property, and it has communicated
that claim to prospective purchasers of plaintiffs’ land,
which actions plaintiffs claim have prevented them from
exercising their right to sell Parcel 4.” Id. at 480. The
Claims Court therefore concluded that the Beasley fax
was a physical taking requiring just compensation. Id. at
482.
    A physical taking is a specialized type of governmen-
tal action that requires compensation per se, and we draw
a bright line between the analysis applicable to alleged
physical takings and that applicable to regulatory tak-
16                                   KATZIN v. UNITED STATES




ings. See Tahoe-Sierra Preserv. Council, Inc. v. Tahoe
Reg’l Planning Agency, 535 U.S. 302, 323–24 (2002) (“For
the same reason that we do not ask whether a physical
appropriation advances a substantial government interest
or whether it deprives the owner of all economically
valuable use, we do not apply our precedent from the
physical takings context to regulatory takings claims.”).
“A physical taking generally occurs when the government
directly appropriates private property or engages in the
functional equivalent of a ‘practical ouster of [the owner’s]
possession.’” Washoe Cty., Nev. v. United States, 319 F.3d
1320, 1326 (Fed. Cir. 2003) (quoting Lucas v. S.C. Coastal
Council, 505 U.S. 1003, 1014 (1992) (brackets added in
Lucas).
    In addition, two categories of regulatory actions will
generally be deemed to be per se takings: where the
government action requires “an owner to suffer a perma-
nent physical invasion of her property” and where gov-
ernment “regulation[s] completely deprive[] an owner of
all economically beneficial use of her property.” Casitas
Mun. Water Dist. v. United States, 543 F.3d 1276, 1289
(2008) (internal citations and quotation marks omitted).
A permanent physical invasion “is perhaps the most
serious form of invasion of an owner’s property interests,”
and is usually such “an obvious fact that [it] will rarely be
subject to dispute.” Loretto v. Teleprompter Manhattan
CATV Corp., 458 U.S. 419, 435, 437 (1982). The depriva-
tion of all economically beneficial use of property via
regulation is a “rare” and “extraordinary circumstance.”
Lucas, 505 U.S. at 1017–18. 3



     3  We discuss per se regulatory takings in part be-
cause the Claims Court relied heavily on Yuba Goldfields,
which we have categorized as a regulatory takings case,
Dimare Fresh, Inc. v. United States, 808 F.3d 1301, 1309
(Fed. Cir. 2015), and because Judge Newman’s Dissent
KATZIN v. UNITED STATES                                 17



    “Outside these two relatively narrow categories . . .
regulatory takings challenges are governed by the stand-
ards set forth in Penn Central Transp. Co. v. New York
City, 438 U.S. 104 (1978).” Lingle v. Chevron U.S.A. Inc.,
544 U.S. 528, 538 (2005); see also Casitas, 543 F.3d at
1289. The parties in this case have not asked us to ana-
lyze this claim under the Penn Central framework.
    Plaintiffs argue that the Claims Court was correct
that the Beasley fax “in fact appropriate[d] plaintiffs’
property rights” because Plaintiffs “could not offer unfet-
tered title to potential buyers” due to the government’s
claims. Katzin II, 127 Fed. Cl. at 481. According to
Plaintiffs, this constitutes a non-possessory physical
taking within the scope of Yuba Goldfields, Inc. v. United
States, 723 F.2d 884 (Fed. Cir. 1983). Plaintiffs also
argue that the Claims Court determination that the fax
rendered the property inalienable is supported by the
record.
    We hold that the government’s mere sharing of infor-
mation about its claim of ownership to real property with
a third party does not constitute a physical taking (or a
per se regulatory taking) of that property. The Claims
Court erroneously explained that government action
categorically effects a taking when it “prohibits or pre-
vents a landowner from exercising his or her property
rights because of a government claim of ownership of
those rights.” See Katzin II, 127 Fed. Cl. at 479. This
broad standard is contrary to the circumscribed role that
the Supreme Court assigned to per se takings, as de-
scribed above.




premises its holding of a per se taking because of the loss
of “all economically beneficial uses” of the property,
Dissent at 9 (citing Lucas, 505 U.S. at 1017), which is a
per se regulatory analysis.
18                                  KATZIN v. UNITED STATES




     The Beasley fax does not constitute a physical taking
or a per se regulatory taking under Supreme Court prece-
dent. By sending the Beasley fax, the government did
not: physically occupy some part of Plaintiffs’ property,
require Plaintiffs to suffer a permanent physical invasion,
directly appropriate Plaintiffs’ property, effect the func-
tional equivalent of an ouster of Plaintiffs’ possession, or
deprive Plaintiffs of all economically beneficial use of
Plaintiffs’ property. Indeed, the Beasley fax did nothing
more than disseminate information about the govern-
ment’s property claims to Mr. Klaber and other potential
buyers; it did not actually change any rights in any part of
Parcel 4. At most, the Beasley fax disseminated infor-
mation about the government’s claims, and the market
incorporated that information into its valuation of the
property. This lowering of the market value is a far cry
from a total deprivation of all economically beneficial use
of Parcel 4. The lowering of the market value without a
legal restraint on alienability generally does not consti-
tute a physical or per se regulatory taking’. Cf. Dimare
Fresh, 808 F.3d at 1310 (“The fact that the market choos-
es to incorporate all available information, without more,
cannot form the basis of a regulatory takings claim.”); id.
at 1311 (“Unlike A&D Auto Sales and Yuba, in the case
before us, there is not a prohibition or any coercive gov-
ernment action restricting the Tomato Producers from
selling, disposing, or using their produce however they
desire. What Tomato Producers effectively request is for
this court to find that government action devoid of coer-
cion, legal threat, regulatory restriction, or any binding
obligation may effect a regulatory taking. We will not.”);
Kirby Forest Indus., Inc. v. United States, 467 U.S. 1, 15
(1984) (“[I]mpairment of the market value of real property
incident to otherwise legitimate government action ordi-
narily does not result in a taking. At least in the absence
of an interference with an owner’s legal right to dispose of
his land, even a substantial reduction of the attractive-
ness of the property to potential purchasers does not
KATZIN v. UNITED STATES                                    19



entitle the owner to compensation under the Fifth
Amendment.” (footnote and citations omitted)) 4.
    Plaintiffs’ and the Claims Court’s reliance on Yuba
Goldfields, 723 F.2d 884, is also misplaced. In Yuba
Goldfields, plaintiff Yuba Goldfields owned the right to
dredge for minerals located on property owned by the
United States. 723 F.2d at 885. In 1975, the government
told Yuba that it had no more rights to the minerals on
the property, that Yuba would be held accountable for all
minerals extracted, and that the United States would
enforce its property rights against Yuba. Id. at 885–86.
We held that Yuba could argue that the government took
its property, without testing the government’s resolve by
renewing its activities and thereby being physically
restrained. Id. at 887–88. Yuba Goldfields cannot sup-
port the Claims Court’s holding in this case for a number
of reasons.     That case held, in relevant part, that
“[n]either physical invasion nor physical restraint consti-
tutes a sine qua non of a constitutionally controlled tak-



    4   The Dissent states that Kirby Forest “stands for
the opposite proposition,” Dissent at 9–10, but the Su-
preme Court there found no taking prior to the condemna-
tion, noting that “The Government never forbade
petitioner to cut the trees on the land or to develop the
tract in some other way.” 467 U.S. at 15. Moreover, the
Court explained that the Government did not “abridge
petitioner’s right to sell the land . . . . [This is true even
though it] is certainly possible, as petitioner contends,
that the initiation of condemnation proceedings, publi-
cized by the filing of a notice of lis pendens, reduced the
price that the land would have fetched.” Id. Similarly,
here, the Government did not actually restrict Plaintiffs’
rights to make use of the property, and the potential
reduction in market price from the Government’s claims
does not constitute a physical or per se regulatory taking.
20                                 KATZIN v. UNITED STATES




ing.” 723 F.3d at 887. First, to support that holding, this
court cited to Penn Central, which set out the scheme for
regulatory, not physical, takings. See Dimare Fresh, 808
F.3d at 1309 (characterizing Yuba Goldfields as discuss-
ing a regulatory takings claims). As the Supreme Court
explained in Tahoe-Sierra, precedent from one form of
taking cannot support the other. 535 U.S. at 323. Moreo-
ver, and importantly, Yuba Goldfields never went so far
as to say that any interference with property interests
arising out of a government claim of ownership was a per
se taking. The government there did not merely claim
ownership of the minerals—it explicitly prohibited Yuba
from making any use of the property (i.e. extracting the
minerals), and threatened prosecution if Yuba, in fact,
made use of the property.
    The Beasley fax amounts to neither a prohibition on
access nor a threat of enforcement. The fax did not pro-
hibit Plaintiffs from taking any action with respect to the
gun mount or the peninsula. The Beasley fax merely
reasserted claims of ownership that the government had
been making for decades. The fax did not amount to a
physical taking.
    The Dissent insists that the government deprived
Plaintiffs of “all economically beneficial uses” of the
property “based on the government’s assertions of owner-
ship.” Dissent at 9, 11. The government, however, has
been asserting its ownership of a gun mount on the pen-
insula since at least the 1980s, and, as the Claims Court
found, Dr. Katzin knew of the government’s claims of
ownership since at least 1987. The only government
action Plaintiffs allege gave rise to a physical taking is
the Beasley fax. But the Dissent does not, and cannot,
explain how the Beasley fax constitutes a physical taking
under the Supreme Court’s and our precedent, or how the
Beasley fax itself—rather than the government’s earlier
assertions of ownership—deprived Plaintiffs of all eco-
nomically viable use of their property.
KATZIN v. UNITED STATES                                  21



                          CONCLUSION
     Because the Beasley fax was not a physical taking, we
reverse. As the Dissent correctly points out, the heart of
this dispute is the title to the gun mount site. However,
even if Plaintiffs were to establish title to the peninsula,
because the Beasley fax was not a physical taking, Plain-
tiff is not entitled to just compensation under a physical
takings theory. We therefore need not and do not address
the government’s additional arguments that Plaintiffs did
not prove ownership of the peninsula or that the Beasley
fax did not in fact render Parcel 4 inalienable.
    We note that this dispute spans over a hundred years
of surveys, assertions, and communications, and we
encourage both parties to seek clarity over the property in
question through settlement or other available avenues of
resolution.
                       REVERSED
                            COSTS
   No costs.
  United States Court of Appeals
      for the Federal Circuit
                 ______________________

RICHARD LEWIS KATZIN, ESTATE OF ANNETTE
KATZIN, ESTATE OF MARY BETH KATZIN-SIMON,
           ROSEMARIE KJELDSEN,
              Plaintiffs-Appellees

                            v.

                   UNITED STATES,
                  Defendant-Appellant
                 ______________________

                       2016-2636
                 ______________________

    Appeal from the United States Court of Federal
Claims in No. 1:12-cv-00384-CFL, Judge Charles F.
Lettow.
               ______________________
NEWMAN, Circuit Judge, dissenting.
    I respectfully dissent. The Court of Federal Claims
(“CFC”), on exhaustive analysis, traced title to the Katzin
and Winters (“Katzin”) property back to the Spanish
ownership of Puerto Rico. 1 The court inspected the deeds
recorded in the Registry of Property of Puerto Rico, re-
ceived testimony from experts, and in a full and lengthy
opinion with maps and other documentary detail, found
that the Katzins’ “title to Parcel 4 includes title to the


   1   Katzin v. United States, 127 Fed. Cl. 440 (2016)
(“CFC Op.”).
2                                    KATZIN v. UNITED STATES




peninsula, subject to the maritime terrestrial zone and
rescue easement that all parties concede are controlled by
the government.” CFC Op. at 478. With this confirmation
of the Katzins’ title to land over which the government
asserts ownership, the takings inquiry was resolved in
favor of the Katzins. CFC Op. at 484.
    The United States appeals this decision, but my col-
leagues decline appellate review of the Court of Federal
Claims’ findings of title and ownership. Resolution of the
takings claim requires resolution of ownership of the land.
Despite the Katzins’ registered deed, the United States
asserts that the government, not the Katzins, owns the
entirety of the 10.01 acre peninsula, as well as the gov-
ernment’s undisputed ownership of a 2.25 acre gun mount
site at an unknown location. The government has so
advised potential purchasers and has eliminated all
possibility of sale of the land. That is what this case is
about, for the right to sell one’s property is a fundamental
tenet of ownership.
    The Court of Federal Claims applied classical takings
analysis: “This court has developed a two-step approach to
takings claims. ‘First, a court determines whether the
plaintiff possesses a valid interest in the property affected
by the governmental action, i.e., whether the plaintiff
possessed a “stick in the bundle of property rights.”’”
Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343
(Fed. Cir. 2002) (quoting Karuk Tribe of Cal. v. Ammon,
209 F.3d 1366, 1374 (Fed. Cir. 2000)). Then, after resolv-
ing ownership of the property and finding for the plaintiff,
“the court proceeds to the second step, determining
‘whether the governmental action at issue constituted a
taking of that “stick.”’” Id. (quoting Karuk Tribe, 209 F.3d
at 1374).
    In adjudicating the Katzins’ takings claim, the Court
of Federal Claims reviewed the history of Parcel 4 and the
10.01 acre peninsula located therein—from initial disposi-
KATZIN v. UNITED STATES                                   3



tion by Spain through subdivisions and transfers, the
creation of a maritime terrestrial zone and related ease-
ment, and the 1903 purchase by the United States of a
2.25 acre gun mount site. Again, “as a threshold matter,
the court must determine whether the claimant has
established a property interest for purposes of the Fifth
Amendment.” Huntleigh USA Corp. v. United States, 525
F.3d 1370, 1377 (Fed. Cir. 2008). Ownership is an essen-
tial predicate to a takings claim and requires decision.
    The court today holds that the actions of the United
States are not a taking, and declines to review the deci-
sion of the Court of Federal Claims concerning ownership
of the 10.01 acre peninsula, stating that “because the
Beasley fax was not a physical taking,” it is unnecessary
to address title. Maj. Op. at 21. However, the Beasley fax
is the foundation of the takings issue. On the letterhead
of the Fish & Wildlife Service Division of Realty, with the
caption “Title of piece of land in Punta del Viento, Cule-
bra, Puerto Rico,” Mr. Beasley, on behalf of the Service,
wrote to the contracted purchaser of the Katzins’ proper-
ty, with maps and documents “showing the lots and the
maritime zone now owned by the F&WS.” J.A. 3115,
3114–21.
     The Beasley fax contained a “tracing of the 1887 map
with F&WS parcel numbers added,” and the 1982 Federal
Register notices regarding land transfers. However, Mr.
Beasley also stated that he “did not find the letter of
transmittal” showing transfer of ownership to Fish &
Wildlife. J.A 3115. Review of the language of the Beasley
fax shows the uncertainty and partial information that
the government injected into the Katzins’ property and
title.
     My colleagues “encourage both parties to seek clarity
over the property in question through settlement or other
available avenues of resolution.” Maj. Op. at 21. Howev-
er, the existence of this lawsuit demonstrates the absence
4                                   KATZIN v. UNITED STATES




of settlement or other avenues of resolution. The judicial
obligation is to “adjudicat[e] actual and concrete disputes,
the resolutions of which have direct consequences on the
parties involved.” Genesis Healthcare Corp. v. Symczyk,
569 U.S. 66, 71 (2013).
   The resolution of dispute as to ownership is essential to
determining whether there was a taking under the Fifth
Amendment.       My colleagues disregard precedent by
stating they “need not and do not address” the question of
title. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404
(1821) (Marshall, C.J.) (“The judiciary cannot, as the
legislature may, avoid a measure because it approaches
the confines of the constitution.”).
    The Katzins’ ownership comports with the ev-
    idence
     The Court of Federal Claims conducted a nine day
trial in Puerto Rico and on the mainland, and determined
the title and ownership of the tracts at issue. The court
found that, for the 10.01 acre peninsula on the eastern
side of Parcel 4, the Katzins own this tract in fee simple
“through a chain of title extending back to the late 1800s.”
CFC Op. at 476. The court reviewed the recorded deeds,
received expert testimony on Puerto Rican property law
and procedure, heard the government’s criticisms of
various maps and surveys, and found that the “property
registry contains no indication whatsoever that the gov-
ernment, or any other owner for that matter, separately
acquired title to the peninsula such that it was segregated
from the remainder of the property.” Id. at 477. The
court found that the Katzins’ “title to Parcel 4 includes
title to the peninsula, subject to the maritime terrestrial
zone and rescue easement that all parties concede are
controlled by the government.” Id. at 478.
    The Court of Federal Claims also considered the issue
concerning the 2.25-acre gun mount site purchased by the
Navy in 1903, of which the unmarked location was a
KATZIN v. UNITED STATES                                    5



subject of controversy at trial. 2 On reviewing the 1903
deed and agreement of sale, the court found that the tract
was located on “[f]ormer Lot 25 (now Parcel 5) [which] is
located north of Parcel 4, placing the 2.25 acre tract well
outside of the plaintiffs’ current property.” CFC Op. at
478 (citation to record omitted).
    The government argued that there was a discrepancy
between the agreement of sale of the gun mount site,
signed the day after the deed was executed, and the
deed’s description of the tract. The government argued
that the agreement of sale should control over the deed.
The Court of Federal Claims reviewed all the documents
including naval records relating to the gun mount, re-
ceived expert testimony, and rejected the government’s
argument, based on: (1) the presumptions due a recorded
deed under Puerto Rican real property law; (2) the “execu-
tory, i.e. taking effect at a future time” language of the
agreement of sale; and (3) general inconsistency and
insufficiency of the evidence regarding the agreement of
sale. Id. at 478–79. Discussing the naval records, the
court found that “[t]hese documents, however, are not
proof of the tract’s location,” but rather, “[a]t most, these
records demonstrate that Navy personnel, and later [Fish
& Wildlife] personnel, thought the 2.25–acre tract was
located on or near the peninsula.” Id. at 479. The court
concluded that because “no physical indicia exist” of the
gun mount, “the government’s claim to ownership of part
of Parcel 4 as a site for a gun mount must fail.” Id.
    I do not share my colleagues’ view that adjudication of
these foundational questions should be set aside, and the


    2   The panel majority errs in stating that the “title
to the gun mount site” is “the heart of this dispute.” Maj.
Op. at 21. Title to the gun mount site was resolved in
1903 by deed and contract. Neither the Katzins nor the
government challenged this title.
6                                   KATZIN v. UNITED STATES




parties returned to their prior stand-off whereby the
property ownership continues to be disputed and thus
cannot be sold by the registered deeded owner.
    Resolution of disputed title is predicate to a
    takings claim
    It is established that “in the case of a takings claim,
the Court of Federal Claims has jurisdiction to determine
the existence of property rights as a threshold inquiry in
any takings case.” Petro-Hunt, L.L.C. v. United States,
862 F.3d 1370, 1379 (Fed. Cir. 2017). In Bourgeois v.
United States the Court of Claims discussed the alterna-
tive availability of the Quiet Title Act, and wrote:
    This court is not denied jurisdiction now, simply
    because there is a quiet title issue involved in de-
    termining entitlement to just compensation vel
    non. As the Supreme Court stated in Malone v.
    Bowdoin [369 U.S. 643, 647 n.8 (1962)], the Court
    of Claims is an appropriate forum where plaintiff
    can try title by seeking just compensation for the
    taking of land by the United States.
545 F.2d 727, 729 n.1 (Ct. Cl. 1976).
     When title is disputed as to property purportedly
taken, and the remedy sought is just compensation, the
Court of Federal Claims has authority to decide title. The
government argues that allowing the Katzins to litigate
title here is “an obvious end-run around the Quiet Title
Act.” Gov’t Br. 46–47. Precedent is contrary. See, e.g.,
Malone, 369 U.S. at 647 n.8 (“Unlike the situation in
[United States v. Lee, 106 U.S. 196 (1882)], there has been
at all relevant times a tribunal where the respondents
could seek just compensation for the taking of their land
by the United States. That tribunal is the Court of
Claims.”); Gila Gin Co. v. United States, 231 Ct. Cl. 1001,
1002 (1982) (“[T]he jurisdiction of the district courts over
quiet title actions under 28 U.S.C. § 2409a does not
KATZIN v. UNITED STATES                                   7



preclude us from determining actions for just compensa-
tion even though the existence of a taking vel non depends
upon whether the government had title to the property it
allegedly took.”).
     The Supreme Court described the Court of Claims as
a tribunal where sovereign immunity does not bar action
against the United States. Malone, 369 U.S. at 647 n.8.
In Yaist v. United States, 656 F.2d 616, 620 (Ct. Cl. 1981),
where both the plaintiff and the government claimed title
to a parcel of land in the Florida Everglades, the Court of
Claims reiterated that “the plaintiff could appropriately
try title in a just compensation suit, because the Quiet
Title Act specifically excepted actions that could be
brought under 28 U.S.C. § 1491.” Id.; see also Carlson v.
United States, 208 Ct. Cl. 1022, 1023 (1976) (“[T]he Su-
preme Court has recognized, albeit in a footnote, the
Court of Claims as an appropriate tribunal where plain-
tiffs could try title by seeking just compensation for the
taking of their land by the United States.”).
    The Court of Federal Claims, as the trial court succes-
sor to the Court of Claims, has been faithful to this re-
sponsibility. See Dwen v. United States, 62 Fed. Cl. 76, 81
(2004) (“It is now well-established that the court has
jurisdiction to make independent factual determinations
of a claimant’s specific property interest as a matter of
course in adjudicating takings claims.”) (collecting cases).
    The Katzins have not simply requested a declaration
of their title as against the United States; their claim is
for just compensation for the taking of their property by
the United States. Precedent is clear that title may be
determined as part of a just compensation claim. As
stated in Gila Gin Co.:
   Yaist and Bourgeois unequivocally hold that if a
   suit involving a dispute over title seeks just com-
   pensation for the government’s taking (as distin-
   guished from return of the property), this court
8                                    KATZIN v. UNITED STATES




    has jurisdiction. This is true even if the same suit
    could have been brought, and the same relief ob-
    tained, in the district court under the Quiet Title
    Act.
231 Ct. Cl. at 1003 (citation omitted). And in Petro-Hunt,
the Federal Circuit rejected the argument that “accrual of
[the plaintiff’s] permanent takings claim should have
been suspended until resolution of the Quiet Title Action
[in the district court].” 862 F.3d at 1379. Precedent is
unequivocal on this point.
    The Court of Federal Claims fulfilled its responsibility
in determining the Katzins’ property rights. It now falls
upon the Federal Circuit to decide the appeal. See Sprint
Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) (“Federal
courts, it was early and famously said, have ‘no more
right to decline the exercise of jurisdiction which is given,
than to usurp that which is not given.’” (quoting Cohens v.
Virginia, 19 U.S. at 404)).
    Clouding of title, blocking of conveyance, and
    destruction of economic value constitute a
    taking of property
    The Court of Federal Claims found that the 10.01 acre
peninsula had been taken by the United States. The
panel majority now reverses that ruling, holds that the
government’s “claims of ownership” were “not a physical
taking,” and that there is no judicial redress although the
government’s actions to block sale have removed all
economic value from the property. Maj. Op. at 20–21. It
is not disputed that the Katzins have been unable to sell
the property. The Court of Federal Claims found that the
“evidence of unsalability has not been contravened by the
government,” and that the “evidence in the record shows
that after Mr. Beasley sent the facsimile of June 22, 2006,
the plaintiffs lost a prospective buyer in Mr. Klaber, and
have since been unable to sell the land.” CFC Op. at 482.
As the majority recognizes, “several potential buyers
KATZIN v. UNITED STATES                                    9



refused to buy the property” in view of the government’s
ownership claim. Maj. Op. at 9.
    The “right to convey hearkens back to the Statute of
Quia Emptores in the year 1290, and the right to alienate
one’s property has been accepted as an incident of an
estate in fee simple ever since.” Chianese v. Culley, 397
F. Supp. 1344, 1345 (S.D. Fla. 1975). “[F]or what is the
land but the profits thereof[?]” Lucas v. S.C. Coastal
Council, 505 U.S. 1003, 1017 (1992) (quoting 1 E. Coke,
Institutes, ch. 1, § 1 (1st Am. ed. 1812)).
    The purpose of this Fifth Amendment provision is to
“secure compensation in the event of otherwise proper
interference amounting to a taking.” Lingle v. Chevron
U.S.A. Inc., 544 U.S. 528, 537 (2005). “As its text makes
plain, the Takings Clause ‘does not prohibit the taking of
private property, but instead places a condition on the
exercise of that power’”; that condition is the payment of
just compensation. Id. at 536 (quoting First English
Evangelical Lutheran Church of Glendale v. County of Los
Angeles, 482 U.S. 304, 314 (1987)). While precedent
recognizes that incidental changes in general law can
diminish land value without creating a taking, justiciable
distinction arises “where the government has deprived a
landowner of all economically beneficial uses.” Lucas, 505
U.S. at 1018.
     The panel majority writes that “[a]t most, the Beasley
fax disseminated information about the government’s
claims, and the market incorporated that information into
its valuation of the property.” Maj. Op. at 18. Indeed so,
for thereafter the Katzins have been unable to sell their
property. CFC Op. at 481–82. The Court of Federal
Claims found that the “evidence of unsalability has not
been contravened by the government.” CFC Op. at 482.
My colleagues assign no error to that finding.
   A case upon which my colleagues rely, Kirby Forest
Industries, Inc. v. United States, 467 U.S. 1 (1984), stands
10                                   KATZIN v. UNITED STATES




for the opposite proposition than that for which it is cited.
The Court in Kirby Forest stated:
     We have frequently recognized that a radical cur-
     tailment of a landowner’s freedom to make use of
     or ability to derive income from his land may give
     rise to a taking within the meaning of the Fifth
     Amendment, even if the Government has not
     physically intruded upon the premises or acquired
     a legal interest in the property.
Id. at 14. The Court expressly left open the question of
“whether abrogation of an owner’s right to sell real prop-
erty, combined with a sufficiently substantial diminution
of its utility to the owner, would give rise to a taking,” id.
at 15 n.25, while recognizing that where there is “an
interference with an owner’s legal right to dispose of his
land” there can be a taking. Id. at 15. 3 The Court of
Federal Claims found that the government wholly frus-


     3   The majority proposes that Kirby Forest supports
its position, Maj. Op. at 19 n.4. To the contrary. In Kirby
Forest the entitlement to just compensation was undis-
puted, and the major question was “the date on which the
taking, in a ‘straight-condemnation’ proceeding, should be
deemed to occur and the constitutional obligation of the
United States to pay interest on the adjudicated value of
the property.” 467 U.S. at 9. Kirby Forest Industries had
agreed with the United States that the timberland would
become part of a national forest preserve and had volun-
tarily ceased logging. Id. at 6. After price negotiations
failed, price was decided in a condemnation proceeding.
Id. at 7–8 (awarding “compensation in the amount of
$2,331,202” and “interest at a rate of six percent”). The
Court then resolved when interest started to accrue. The
government did not dispute title, as it does here. Kirby
Forest provides no support for the majority’s ruling herein
that no taking occurred.
KATZIN v. UNITED STATES                                   11



trated the Katzins’ ability to sell their property. CFC Op.
at 482. My colleagues recognize as much. See Maj. Op.
at 8–9 (“Mr. Beasley replied by faxing several documents .
. . . On June 28, 2006, Ms. Motta communicated to Plain-
tiffs that Mr. Klaber would not buy Parcel 4. Thereafter,
several potential buyers refused to buy the property.”).
    The Court of Federal Claims found that “[t]here is no
indication from the record of trial that, absent court
intervention, the government intends to renounce its
claim of ownership to a part of plaintiffs’ property, or that
it has done so at the time of this writing.” Id. at 481.
This position is not softened by the government on appeal.
The Court of Federal Claims correctly determined that
the government’s actions constitute a taking of the Kat-
zins’ real property, based on the government’s assertion of
ownership and the effect on alienation of the property. Id.
Now before us on appeal, “a federal court’s ‘obligation’ to
hear and decide” cases within its jurisdiction “is ‘virtually
unflagging.’” Sprint, 571 U.S. at 77 (quoting Colorado
River Water Conservation Dist. v. United States, 424 U.S.
800, 817 (1976)). This obligation is not met by an optimis-
tic hope of “settlement or other available avenues.” Maj.
Op. at 21.
                          CONCLUSION
    I do not discern reversible error in the decision of the
Court of Federal Claims, or any basis for declining to
review that court’s findings of title and ownership. From
my colleagues’ contrary rulings, I respectfully dissent.
