                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                                            No. 04-35131
                v.
                                              D.C. Nos.
191.07 ACRES OF LAND,
                         Defendant,       CV-98-00072-JKS
                                           CV-98-00098-JKS
               and
                                              OPINION
MILAN MARTINEK,
             Defendant-Appellant.
                                       
       Appeal from the United States District Court
                for the District of Alaska
    James K. Singleton, Chief District Judge, Presiding

                  Argued and Submitted
          February 9, 2006—Seattle, Washington

                     Filed April 4, 2007

         Before: Jerome Farris, Edward Leavy, and
            Pamela Ann Rymer, Circuit Judges.

                  Opinion by Judge Farris;
                  Dissent by Judge Leavy




                            3857
3860             UNITED STATES v. MARTINEK


                       COUNSEL

Lawrence V. Albert, Esq., Anchorage, Alaska, for the appel-
lant.

Kelly A. Johnson and Katherine W. Hazard, U.S. Department
of Justice, Washington, DC, for the appellee.
                  UNITED STATES v. MARTINEK                3861
                          OPINION

FARRIS, Circuit Judge:

   Milan Martinek appeals the district court’s award of
$339,850 in compensation for the taking by the United States
of his unpatented gold-mining claims in Denali National Park
and Preserve. He argues that the district court erred when it
determined that he was not entitled to a trial by jury of just
compensation for his claims, when it selected a valuation
method different from those proposed by the parties, and
when it set the rate of prejudgment interest. We affirm.

                    I.   BACKGROUND

   In 1986 Martinek was devised eleven unpatented gold-
mining claims comprising 191.07 acres within what is now
Denali Park, Alaska. In 1980 Congress expanded Denali
Park’s boundaries to encompass the eleven claims, which
thereby came under the National Park Service’s surface man-
agement jurisdiction pursuant to the Mining in the Parks Act,
16 U.S.C. § 1901 et seq. In 1985 the United States District
Court for the District of Alaska entered an injunction against
the Park Service in a separate case that halted all mining oper-
ations in Denali Park until the Park Service completed an
Environmental Impact Statement (EIS). See N. Ala. Envtl.
Ctr. v. Hodel, 803 F.2d 466 (9th Cir. 1986). The injunction
was lifted in 1991 after the Park Service issued the EIS. See
N. Ala. Envtl. Ctr. v. Lujan, 961 F.2d 886 (9th Cir. 1992).

  The Park Service also formulated a plan for acquiring the
mining claims in Denali Park, see 16 U.S.C. § 410hh-1(3)(b),
and submitted to Congress the plan and an accompanying
report that recommended acquiring the mining claims over a
phased, four-year period but gave no indication when this
period would begin.

  On March 10, 1998, the United States brought this condem-
nation action pursuant to 40 U.S.C. § 3113 (formerly 40
3862               UNITED STATES v. MARTINEK
U.S.C. § 257), with the filing of a declaration of taking of
Martinek’s mining claims and a deposit of funds pursuant to
the Declaration of Taking Act, 40 U.S.C. §§ 3114-15 (for-
merly 40 U.S.C. §§ 258a-e). Martinek answered the com-
plaint, asserting that the effective date of taking was June 1,
1987 and requesting a jury trial on the issue of just compensa-
tion under Federal Rule of Civil Procedure 71A. On April 2,
1998 Martinek filed a separate inverse condemnation action
against the United States, alleging that the mining claims were
subjected to a regulatory taking on June 1, 1987. The district
court consolidated the government’s direct condemnation
action and Martinek’s inverse condemnation action.

   On January 25, 2000, the district court entered an order
holding that Martinek had only one claim for just compensa-
tion but that he could argue the nature of the taking at trial.
The parties were to litigate when the taking occurred, which
would determine the date that interest on Martinek’s just com-
pensation would begin and whether the government acquired
Martinek’s interests by straight or inverse condemnation.

   On February 4, 2000 Martinek and the government stipu-
lated “that the dates of taking to be used for determining the
amount of just compensation that the United States is to pay
for the taking of all the mining claims at issue . . . [in the con-
solidated cases] . . . shall be January 31, 1992 [for the Little
Audrey and Alder Claims], and the date of taking for the Yel-
low Pup [Claims] . . . shall be September 8, 1995.” Both dates
were prior to the government’s declaration of taking. The dis-
trict court subsequently denied Martinek’s demand for a jury
trial. It held that since the parties had stipulated to a taking
date earlier than the declaration of taking, the taking was
accomplished through inverse condemnation and therefore
Martinek was not entitled to a trial by jury.

   In January 2003, the parties agreed to waive a bench trial
on the issue of just compensation and to submit the case on
the written record. Both parties used the discounted cash flow
                  UNITED STATES v. MARTINEK                3863
method to derive their fair market value estimates, but the dis-
trict court rejected this method and concluded that the esti-
mated royalty income approach was the appropriate measure
of fair market value.

   The court relied on the evidence provided by the parties’
experts to calculate a fair market value of $339,850. After
briefing by the parties on the question of the appropriate rate
of interest, the court concluded that the rate of interest owed
to Martinek on the deficiency in the government’s deposit and
the judgment was the rate established in the Declaration of
Taking Act, 40 U.S.C. § 3116. The parties stipulated that
the interest owed as of June 30, 2004 was $218,929.93. The
district court then entered an amended final judgment award-
ing Martinek $558,779.93 ($339,850 in principal and
$218,929.93 in prejudgment interest).

         II.   ENTITLEMENT TO A JURY TRIAL

A.   Appellate Jurisdiction

   The government argues that Martinek waived his right to
appeal the question of his right to a jury trial by failing to
timely seek an interlocutory appeal of the issue and by stipu-
lating to submit the case on written evidence without specifi-
cally reserving the issue.

   Failure to pursue an opportunity for interlocutory appeal
normally does not constitute a waiver. See Nat’l Union Elec.
Corp. v. Wilson, 434 F.2d 986, 988 (6th Cir. 1970); 9 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Proce-
dure § 2322 (1982) (“Although it is possible to get intermedi-
ate review of a denial of jury trial by the devices just
mentioned [including interlocutory appeal and mandamus],
the party who wishes a jury is not required to proceed in this
fashion. Alternatively, the party may have review of the
denial of a jury on an appeal from the final judgment.” (foot-
notes omitted)). In the absence of any indication that Martinek
3864               UNITED STATES v. MARTINEK
affirmatively waived his rights to a post-judgment appeal of
this issue, his failure to timely pursue an interlocutory appeal
did not waive his right to appeal the question of his right to
a jury trial.

   [1] In White v. McGinnis, 903 F.2d 699, 703 (9th Cir. 1990)
(en banc), we held that “knowing participation in a bench trial
without objection is sufficient to constitute a jury waiver.”
However, we have declined to expand White “to find a waiver
of a right to a jury trial where a plaintiff actively contests the
district court’s decision to refuse the demand.” United States
v. Cal. Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1380
(9th Cir. 1997). A “continuing objection” is sufficient to pre-
serve the right to a jury trial, notwithstanding a party’s assent
to a pretrial order for a bench trial. See United States v. Nord-
brock, 941 F.2d 947, 949-50 (9th Cir. 1991).

   [2] Although Mobile Home and Nordbrock arise in the con-
text of Federal Rules of Civil Procedure 38 and 39 rather than
in the Rule 71A context, the waiver principles are analogous.
Martinek’s stipulation did not waive his appeal rights, particu-
larly given the saving clause in the stipulation and the fact
that the district court did not interpret the stipulation as a
waiver of Martinek’s request for a jury trial. We therefore
have appellate jurisdiction.

B.     The District Court’s Selection of a Fact Finder

  We review de novo Martinek’s entitlement to a jury trial.
See KLK, 35 F.3d at 455.

  [3] Of the three statutory methods available to the United
States for acquiring private land for public use through direct
condemnation, Kirby Forest Inds., Inc. v. United States, 467
U.S. 1, 4 (1984), the Park Service used the “expeditious pro-
cedure” prescribed by 40 U.S.C. § 3114 to acquire Martinek’s
mining claims. Under § 3114, title and right to possession vest
immediately in the United States upon the government’s filing
                      UNITED STATES v. MARTINEK                        3865
of a declaration of taking and depositing an amount of money
equal to the estimated value of the land. Id. at 4-5. The exact
value of the land acquired is determined through subsequent
judicial proceedings.

    [4] The form of proceedings in a direct condemnation
action is governed by Rule 71A. Of particular relevance here
is Rule 71A(h): “[i]f the action involves the exercise of the
power of eminent domain under the law of the United States
. . . any party may have a trial by jury of the issue of just com-
pensation by filing a demand therefor within the time allowed
for answer.”

   [5] Where the United States does not acquire privately
owned land statutorily but instead physically enters into pos-
session or institutes regulations that restrict the land’s use, the
owner has a right to bring an “inverse condemnation” action
to recover the value of the land. Kirby Forest, 467 U.S. at 4-
5. “Such a suit is ‘inverse’ because it is brought by the
affected owner, not by the condemnor. The owner’s right to
bring such a suit derives from the self-executing character of
the constitutional provision with respect to condemnation.”
Id. at 5 n.6 (citations and quotations omitted). Express consent
by the United States to a jury trial in direct condemnation pro-
ceedings does not extend to inverse condemnation actions
brought under the MPA; compensation is instead determined
by a trial to the court. KLK, 35 F.3d at 457.

   [6] Though the parties stipulated to a date of taking for
each claim, they did not expressly state whether the condem-
nation was direct or inverse. Nevertheless, the stipulated sin-
gle date of taking answers that question. The parties stipulated
that the taking occurred before the declaration of taking was
filed by the government on March 10, 1998.1 Prior to that
  1
   The dissent suggests a bifurcated approach. However, the parties
expressly stipulated to a single taking. Additionally, the cases cited by the
dissent to support bifurcation address situations where discrete property
3866                  UNITED STATES v. MARTINEK
date, any taking necessarily resulted from government restric-
tions on Martinek’s ability to mine his claims and is properly
assessed as part of his inverse condemnation action. The just
compensation issue is therefore part of the inverse condemna-
tion action and Martinek had no right to a jury trial.

   We recognize that in some circumstances courts may fix
the date of a direct taking prior to the date of the govern-
ment’s filing of a declaration of taking. See United States v.
Dow, 357 U.S. 17 (1958); United States v. Herrero, 416 F.2d
945 (9th Cir. 1969). For example, where the government
assumes physical possession of land prior to instituting con-
demnation proceedings, the district court may fix the date of
taking as the date of physical possession. See, e.g., Herrero,
416 F.2d at 947. However, that is not the case here, and Mar-
tinek provides no persuasive explanation as to why the district
court should have applied a direct condemnation approach to
a taking that Martinek stipulated occurred prior to the filing
of the declaration of taking.

III.   VALUATION METHOD AND RATE OF INTEREST

   [7] The district court erred by applying a valuation method
to which no one testified and which lacks a basis in the
record. However, the compensation awarded on the district
court’s theory was higher than it would have been if the dis-
trict court had accepted Martinek’s approach. The error was
harmless. Cf. United States v. Block, 160 F.2d 604, 607 (9th
Cir. 1947) (no error in admitting valuation from later date
where no prejudice to appellants); see also FED. R. CIV. P. 61
(instructing courts to “disregard any error or defect in the pro-
ceedings which does not affect the substantial rights of the
parties”).

interests were at issue. See, e.g., United States v. 45.50 Acres of Land, 634
F.2d 405, 407 (8th Cir. 1980). Here, the property interests at issue in the
direct condemnation and inverse condemnation actions are identical; only
the process for obtaining relief distinguishes the actions.
                     UNITED STATES v. MARTINEK                       3867
   [8] Martinek’s expert determined what the value of the
claims would be if the court’s preliminary, core findings of
fact (which with few exceptions became its final findings)
were applied in the discounted cash flow calculation. Even
allowing for the few changes in the factual findings between
the district court’s preliminary and final decisions, the dis-
counted cash flow method applied to the court’s undisputed
fact findings would yield a value slightly lower than that cal-
culated by the court using the royalty rate. The error in choos-
ing a valuation methodology is therefore harmless.

   The error does not become harmful on account of the fact
that the court cited to general reference materials and treatises
in its order. Cf. Verizon Commc’ns, Inc. v. FCC, 535 U.S.
467, 476, 484-87 (2002) (citing telecommunications trea-
tises); Quinn v. Robinson, 783 F.2d 776, 792-96 (9th Cir.
1986) (citing literature and treatises on the political offense
exception to extradition). Nor does it offend Federal Rule of
Evidence 605 to do so. The district court did not rely on facts
outside the record, in contrast to cases to which Martinek
points. Cf. United States v. Bonas, 344 F.3d 945, 948-49 (9th
Cir. 2003); Lillie v. United States, 953 F.2d 1188, 1190-92
(10th Cir. 1992); United States v. Lewis, 833 F.2d 1380,
1385-86 (9th Cir. 1987).

   Martinek fails to identify the evidence he contends that the
district court improperly admitted under the scope of the proj-
ect rule, and he does not demonstrate any harm from the
admission of such evidence.2 As Martinek acknowledges, a
highest and best use determination is subject to pre-existing
restrictions on land use on the date of valuation. See Palaz-
zolo v. Rhode Island, 533 U.S. 606, 625 (2001).
  2
   In his reply brief, Martinek identifies for the first time specific evi-
dence that he contends was improperly admitted and relied upon by the
government and the district court in reaching their valuation conclusions.
We decline to consider these arguments. See Bazuaye v. I.N.S., 79 F.3d
118, 120 (1996) (“Issues raised for the first time in the reply brief are
waived.”).
3868              UNITED STATES v. MARTINEK
   [9] Selection of the statutory rate of interest is a factual
issue and we will not disturb it in the absence of clear error.
See United States v. 429.59 Acres of Land, 612 F.2d 459, 464
(9th Cir. 1980). The district court’s selection, after it consid-
ered alternative investments and rejected one as too risky,
accords with Ninth Circuit precedent, id. at 465, and the pru-
dent investor standard as established by the Third Restatement
of Trusts. See RESTATEMENT (THIRD) OF TRUSTS § 227 (1992).
The district court did not commit clear error.

                     IV.   CONCLUSION

   The stipulated dates of taking are prior to the filing of the
declaration of taking. The district court correctly concluded
that the issue of just compensation was part of the inverse
condemnation action and Martinek had no right to a jury trial.
The district court did not commit reversible error for any of
the other reasons asserted by Martinek.

  AFFIRMED.



LEAVY, Circuit Judge, dissenting:

   I respectfully dissent from Part II.B of the majority opinion
which concludes that Martinek has no right to a jury trial of
the issue of just compensation for the property interest taken
by the United States through filing of the Declaration of Tak-
ing. In this case, there were two takings: one by inverse con-
demnation through government regulation which began on the
date stipulated by the parties and ended when the government
filed its Declaration of Taking; and the other by direct con-
demnation which occurred when the government filed its
Declaration of Taking. When Martinek filed his inverse con-
demnation action in the district court he owned no interest in
the mining claims. They had already been taken by the filing
of government’s Declaration of Taking. Martinek had a right
                  UNITED STATES v. MARTINEK               3869
to a jury trial of just compensation for the property interest
taken when the United States filed its complaint and Declara-
tion of Taking. He did not forfeit that right by bringing an
inverse condemnation action asserting that, in addition to the
taking which occurred when the government filed its Declara-
tion of Taking, the government had also previously taken his
mining claims through regulation.

   The following additional background facts are important to
resolution of this issue. After the National Park Service (NPS)
had completed and submitted to Congress its plan for acquisi-
tion of the mining claims in Denali Park, it was by no means
clear when the claims would be acquired or whether, in the
meantime, mining operations would be permitted in the park.
In a 1990 communication with mining claim owners, NPS
stated:

    Our expectation is that given adequate Congressional
    funding the acquisition of all mining claims will be
    accomplished over the next 10-15 years . . . . Pend-
    ing acquisition, the National Park Service will
    receive and process [mining] plans of operations.
    Plans of operations that fully meet the requirements
    of the National Park Service Mining in Parks regula-
    tions (36 CFR 9A) and would have no significant
    adverse impacts on park resources could be
    approved.

   Thus, in 1991, Martinek brought an inverse condemnation
action against the United States in the Court of Federal
Claims asserting that the NPS regulations had effected a tak-
ing of his mining claims. Martinek subsequently agreed to
dismissal of his action so long as the government brought a
direct condemnation action in district court. On March 10,
1998, the United States brought this condemnation action in
the district court pursuant to 40 U.S.C. § 3113 (formerly codi-
fied at 40 U.S.C. § 257), with the filing of a Declaration of
Taking of Martinek’s mining claims and a deposit of funds
3870                 UNITED STATES v. MARTINEK
pursuant to the Declaration of Taking Act, 40 U.S.C. §§ 3114-
15 (formerly 40 U.S.C. §§ 258a-e). Pursuant to the parties’
agreement, the Court of Federal Claims dismissed Martinek’s
inverse condemnation action.

   When Martinek filed his second inverse condemnation
action against the United States in the district court, alleging
that the mining claims had been the subject of a regulatory
taking before the United States filed its Declaration of Taking,
the district court only had jurisdiction over Martinek’s action
under a provision of the Mining in the Parks Act, 16 U.S.C.
§ 1910, which provides that holders of mining claims in
National Parks may bring actions in the United States district
court to recover just compensation for the federal govern-
ment’s taking of their claims. Before the enactment of § 1910,
an inverse condemnation action for any amount over $10,000
could be brought only in the Court of Federal Claims, pursu-
ant to the Tucker Act, 28 U.S.C. §§ 1346, 1491.

   Thus, uniquely at issue in this appeal is the interplay
between a direct condemnation action initiated by the United
States to acquire mining claims and an inverse condemnation
action brought by the claim holder in the same court concern-
ing an earlier and temporary regulatory taking of the same
property interest. Martinek asserts that, because the United
States initiated a direct condemnation action, he is entitled to
a jury determination of just compensation. With respect to the
property right that vested in the United States upon the filing
of the Declaration of Taking, he is correct.

  The United States generally has available two statutory
methods of acquiring private land for public use. Kirby Forest
Inds., Inc. v. United States, 467 U.S. 1, 4 (1984).1 The first
  1
    A third method is when, “Congress occasionally . . . enacts a statute
appropriating the property immediately by a ‘legislative taking’ and set-
ting up a special procedure for ascertaining, after the appropriation, the
compensation, due to the owners.” Id. at 5.
                   UNITED STATES v. MARTINEK                  3871
condemnation method is prescribed in 40 U.S.C. § 3113, and
does not give the government immediate title to the property,
but

    give[s] the Government an option to buy the prop-
    erty at the adjudicated price. If the Government
    wishes to exercises that option, it tenders payment to
    the private owner, whereupon title and right to pos-
    session vest in the United States. If the Government
    decides not to exercise the option, it can move for
    dismissal of the condemnation action.

Id. (citations omitted).

   A second method, the one used by the NPS to acquire Mar-
tinek’s mining claims, is the “more expeditious procedure”
prescribed by 40 U.S.C. § 3114. Under this statute, title and
right to possession vest immediately in the United States upon
the government’s filing of a “Declaration of Taking” and
depositing an amount of money equal to the estimated value
of the land. Id. at 4-5. The exact value of the land is deter-
mined through subsequent judicial proceedings.

  The statute governing a direct condemnation action, 40
U.S.C. § 3114(b), provides:

    Vesting of title.— On filing the declaration of tak-
    ing and depositing in the court, to the use of the per-
    sons entitled to the compensation, the amount of the
    estimated compensation stated in the declaration—

      (1) title to the estate or interest specified in the
    declaration vests in the Government;

       (2) the land is condemned and taken for the use of
    the Government; and

      (3) the right to just compensation for the land
    vests in the persons entitled to the compensation.
3872              UNITED STATES v. MARTINEK
40 U.S.C. § 3114(b).

   The form of proceedings in the statutory direct condemna-
tion action is governed by Fed. R. Civ. P. 71A. Of particular
relevance here is Rule 71A(h) which provides: “[i]f the action
involves the exercise of the power of eminent domain under
the law of the United States . . . any party may have a trial by
jury of the issue of just compensation by filing a demand
therefor within the time allowed for answer.” Fed. R. Civ. P.
71A(h).

   When it filed its Declaration of Taking and deposited the
funds into the court registry, the United States immediately
became the owner of the mining claims and Martinek had
only a vested right to just compensation. 40 U.S.C.
§ 3114(b)(1) & (3). At that moment, Martinek had a right to
a jury trial of just compensation for the property interest
taken. Fed. R. Civ. P. 71A(h). In addition, after the United
States filed its Declaration of Taking, the action could not be
dismissed. See Fed. R. Civ. P. 71A(I)(3); Kirby, 467 U.S. at
12 n.18.

  A property owner cannot file a counterclaim in a direct
condemnation action. United States v. 40.60 Acres, 483 F.2d
927 n.1 (9th Cir. 1973). Thus Martinek’s only remedy for the
earlier regulatory taking of his mining claims was through an
inverse condemnation action, discussed below.

   Where the United States does not acquire privately owned
land through one of the statutory methods, but instead appro-
priates private land by physically entering onto possession or
regulation which restrict its use, the owner has a right to bring
an “inverse condemnation” action to recover the value of the
land. Id. As noted by the Court in Kirby, “[s]uch a suit is
‘inverse’ because it is brought by the affected owner, not by
the condemnor. The owner’s right to bring such a suit derives
from the self-executing character of the constitutional provi-
                   UNITED STATES v. MARTINEK                 3873
sion with respect to condemnation.” Id. at n.6 (citations and
quotations omitted).

   A regulatory taking may be temporary in nature and still
trigger the Just Compensation Clause, imposing a duty on the
government to make payment for the temporary taking. First
English Evangelical Lutheran Church of Glendale v. County
of Los Angeles, California, 482 U.S. 304, 317-18 (1987).
“The Court has recognized in more than one case that the
government may elect to abandon its intrusion or discontinue
regulations.” Id. at 317. Abandonment “results in an alteration
in the property interest taken — from full ownership to one
of temporary use and occupation. In such cases compensation
would be measured by the principles normally governing the
taking of a right to use property temporarily.” United States
v. Dow, 357 U.S. 17, 26 (1958).

  This express consent by the United States to a jury trial in
a direct condemnation action does not extend to inverse con-
demnation actions brought under the MPA. KLK, Inc. v. U.S.
Dept. of Interior, 35 F.3d 455, 457 (9th Cir. 1994). Thus,
Martinek has a right to a jury trial in the government’s direct
condemnation action but not in his inverse condemnation
action.

   Martinek asserts that he did not lose his right to a jury trial
by stipulating that the government took his property through
regulation at a date prior to its filing of the Declaration of
Taking. The district court determined that the effect of the
parties’ stipulation was to convert the consolidated actions
into a single, inverse condemnation action where Martinek
had no right to a jury trial. However, while the parties may
stipulate to facts, and we should give the stipulation its
intended effect, “our ultimate decision concerning the legal
effect of those admitted facts is not and could not be con-
trolled by the parties’ stipulation.” Lorentsen v. Hood, 223
F.3d 950, 955 (9th Cir. 2000).
3874              UNITED STATES v. MARTINEK
   The parties’ stipulation could not backdate the taking that
occurred when the United States filed its complaint and Dec-
laration of Taking. The legal effect of the filing of the Decla-
ration of Taking was to vest immediate title in the United
States as of March 10, 1998. Under the unique direct condem-
nation procedure, “[t]he nature and extent of the property
interest to be acquired is discretionary with those authorized
officials within the executive branch and may not be
increased or decreased by the courts.” United States v. 40.6
Acres of Land, 483 F.2d 927 (9th Cir. 1973). We cannot alter
the property interest acquired. The parties certainly are with-
out power to do so by stipulation. Therefore, the legal effect
of the stipulation was to establish a second, temporary, taking
through inverse condemnation beginning on the stipulated
dates and ending on March 10, 1998.

   Where, as in this case, the landowner asserts that an addi-
tional property interest has been taken, the proper course is to
recognize that “two separate takings are involved.” United
States v. 45.50 Acres of Land, 634 F.2d 405, 407 (8th Cir.
1980) (landowner claimed that additional land had also been
taken by the government). In one taking, the direct condemna-
tion by the government, Martinek has a right to a jury trial.
In the other, his inverse condemnation action, he does not.
Absent the jurisdictional grant in § 1910 to the district court
to hear Martinek’s inverse condemnation case, this is pre-
cisely what would have occurred. Martinek would have had
a jury trial of just compensation in the direct condemnation
action in the district court and the Court of Federal Claims
would have determined just compensation for the loss of the
use of the claims because of the earlier regulatory taking with-
out a jury in the inverse condemnation case.

   The Fifth Circuit’s decision in United States v. 101.88
Acres of Land, 616 F.2d 762 (5th Cir. 1980) provides addi-
tional support for this bifurcated approach. When considering
an analogous situation where the landowner sought damages
in a condemnation proceeding for the Government’s use of
                  UNITED STATES v. MARTINEK                3875
lands contiguous to those condemned, the Fifth Circuit held
that the landowner had to seek compensation “in a separate
proceeding.” Id. at 770. When ruling, the Fifth Circuit was
aware that its determination affected the landowner’s “right to
a jury trial concerning compensation” for the contiguous
lands. Id. at 766; see also United States v. 21.54 Acres of
Land, 491 F.2d 301, 304 (4th Cir. 1973) (“if, ultimately, it is
determined that the government has taken more than it has
formally condemned and paid for, the landowner may recover
under the Tucker Act for the additional take.”).

   Martinek has a right to a jury trial of just compensation for
the property interest taken when the United States filed its
Declaration of Taking. He neither lost nor expanded that right
to a jury trial by seeking compensation for the government’s
temporary taking of the same property through regulation in
his inverse condemnation action.
