Case: 18-2132   Document: 69    Page: 1     Filed: 04/22/2020




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

        GADSDEN INDUSTRIAL PARK, LLC,
               Plaintiff-Appellant

                           v.

                   UNITED STATES,
                Defendant-Cross-Appellant
                 ______________________

                  2018-2132, 2018-2147
                 ______________________

     Appeals from the United States Court of Federal
 Claims in No. 1:10-cv-00757-EGB, Senior Judge Eric G.
 Bruggink.
                 ______________________

                 Decided: April 22, 2020
                 ______________________

     EDWARD LEVICOFF, The Levicoff Law Firm, PC,
 Pittsburgh, PA,   argued  for    plaintiff-appellant.

     KENNETH DINTZER, Commercial Litigation Branch,
 Civil Division, United States Department of Justice,
 Washington, DC, argued for defendant-cross-appellant.
 Also represented by ERIC JOHN SINGLEY, JOSEPH H. HUNT,
 ROBERT EDWARD KIRSCHMAN, JR., FRANKLIN E. WHITE, JR.
                 ______________________

   Before WALLACH, TARANTO, and STOLL, Circuit Judges.
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 2              GADSDEN INDUSTRIAL PARK, LLC v. UNITED STATES




 STOLL, Circuit Judge.
     This appeal and cross-appeal concern an alleged taking
 by the U.S. Environmental Protection Agency (EPA) from
 Gadsden Industrial Park (GIP) of certain steelmaking
 material located on a parcel of real property in Gadsden,
 Alabama. GIP appeals the trial court’s just compensation
 awards, arguing that they should be increased. The
 Government appeals the trial court’s conclusion that GIP
 had a cognizable property interest in certain material the
 EPA recovered from the parcel. For the reasons set forth
 below, we affirm-in-part, reverse-in-part, and vacate-in-
 part.
                         BACKGROUND
      This case involves GIP’s takings claim for “slag,”
 “kish,” and “scrap.” The parties do not dispute the trial
 court’s definitions of these terms. Slag, a byproduct of steel
 manufacturing, is “a non-ferrous material that separates
 during smelting.” Gadsden Indus. Park, LLC v. United
 States, 138 Fed. Cl. 79, 92 (2018) (Decision). Kish is “a
 ferrous byproduct of a blast furnace operation in various
 sizes that has economic value.” Id. at 94. Scrap refers to
 “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 . . .
 and is thus not a byproduct.” Id. at 92.
                                I
     In 2002, GIP purchased certain real and personal
 property at an auction of a steel mill’s bankruptcy estate,
 as reflected in the bankruptcy trustee’s Bill of Sale. GIP
 specifically omitted some real property from the purchase,
 including a parcel known as the “Eastern Excluded
 Property.” GIP did, however, purchase certain personal
 property located on the Eastern Excluded Property.
 Alabama law governs the contract covering GIP’s asset
 purchase.
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 GADSDEN INDUSTRIAL PARK, LLC v. UNITED STATES             3



     Relevant to this appeal, the Eastern Excluded Property
 contains two large piles of material, comprising, among
 other things, large quantities of slag, kish, and scrap. At
 the time of GIP’s purchase, each pile occupied more than
 ten acres of land, contained an estimated three to four
 million cubic yards of material, and was more than eighty
 feet high. J.A. 3091 ¶ 4. Each pile was a state-licensed
 industrial landfill. Transcript of Proceedings at 209:10–
 210:13, Gadsden Indus. Park, LLC v. United States,
 No. 10-757 (Fed. Cl. June 26, 2017), ECF No. 169; 1
 J.A. 3091 ¶¶ 2–4, 3106.
     The bankruptcy trustee identified the assets for sale in
 the auction as “[a]ll materials, whether raw materials or
 by-products, situated within the boundaries of the real
 property being sold, including kish and scrap.” 2 J.A. 2586.
 The identified assets included “inventory,” which itself
 included “by[-]products of manufacturing including but not
 limited to kish and miscellaneous other materials and
 assorted scrap.” J.A. 2612. Prior to making its purchase,
 GIP drafted a “Purchaser’s Itemization of Excluded Items



    1   The Court of Federal Claims held a seven-day trial
 in two waves, first from June 26–29, 2017 and then from
 July 26–28, 2017. The transcript of the trial proceedings is
 consecutively paginated across seven volumes, with each
 day corresponding to a separate volume. Transcript of
 Proceedings, Gadsden Indus. Park, LLC v. United States,
 No. 10-757 (Fed. Cl. June 26–29, 2017 & July 26–28, 2017),
 ECF Nos. 169, 171, 173, 175, 178, 180, 182. We hereinafter
 refer to trial testimony by citing the transcript page or
 pages where it appears using “Trial Tr.”
     2 “[T]he real property being sold” refers to all of the

 real property of the steel mill’s bankruptcy estate offered
 for sale to the highest bidder in the bankruptcy auction.
 See J.A. 2581, 2586, 3092 ¶¶ 5–9, 3173 ¶¶ 5–6, 3180–89
 ¶¶ 1,10, 13, 20, 26, 31, 32A.
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 4              GADSDEN INDUSTRIAL PARK, LLC v. UNITED STATES




 from Sale.” J.A. 2639. Relevant here, GIP excluded certain
 items from “inventory”:
     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. (emphasis added).
     In 2003, the EPA began investigating claims of
 contaminants leaching from the piles on the Eastern
 Excluded Property. Over the course of several years, the
 EPA determined that contaminants from the piles were
 migrating from the Eastern Excluded Property and began
 communicating with GIP regarding ownership and
 environmental remediation issues. At the same time, GIP
 began discussing with Watkins Metal Co. the separation of
 recoverable metals from the Eastern Excluded Property.
 GIP and Watkins drafted, but did not consummate, an
 “Agreement to Process Kish,” which provided that for $70
 per ton of output, Watkins would “separate and screen the
 Kish in order for [GIP] to reclaim and sell the metals in the
 Kish.” J.A. 2861 ¶¶ 3, 5. Under the non-finalized
 agreement, Watkins would have had an exclusive right to
 separate recoverable metals from the piles so long as
 Watkins reclaimed 500 tons of metal per month, in addition
 to the right to withdraw from the agreement should
 recovery become unprofitable. J.A. 2862 ¶ 12.
     In October 2008, the EPA decided to remediate the
 environmental problems on the Eastern Excluded Property
 by having contractors reduce the size of the piles through
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 GADSDEN INDUSTRIAL PARK, LLC v. UNITED STATES               5



 recovery and sale of saleable material from the piles. Once
 the contractors had extracted saleable material, the EPA
 planned to cap what was left of the piles. 3 From
 October 2009 to February 2013, contractors recovered
 material from the piles, selling 245,890 tons of material for
 about $13.5 million. J.A. 3093–94 ¶¶ 15–16. The EPA and
 its contractors also recovered and used 92,500 cubic yards
 of slag onsite for environmental remediation.          Trial
 Tr. 1367:5–8.
     Mr. Casey, the owner of GIP, testified at trial that prior
 to the start of the EPA’s recovery operation, GIP had
 removed about 15,000 cubic yards of its allotment of slag,
 using some, selling some, and giving some away. Trial
 Tr. 206:17–207:9. As of March 2008, GIP had not removed
 any kish from the Eastern Excluded Property.
     In 2013, the project became unprofitable, and the EPA
 shut it down. At that point, the EPA contractors had
 processed approximately 50% of the material in the piles.
 Ultimately, the EPA contractors spent $14.5 million on the
 recovery operation, about a million more than income from
 sales. Trial Tr. 1242:18–1243:6. The EPA never capped
 the piles. Instead, the EPA “compacted the materials to
 minimize leachate,” leaving further remediation to state
 environmental authorities. J.A. 3086. GIP did not attempt
 its own recovery operation during the EPA’s remediation
 project.
                               II
     GIP sued the Government in the United States Court
 of Federal Claims, alleging a Fifth Amendment takings



     3 Capping each pile would involve regrading it to
 allow placement of a clay cap over the entire pile to stop
 hazardous leachate from seeping from the pile. See Trial
 Tr. 640:25–642:25.
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 6              GADSDEN INDUSTRIAL PARK, LLC v. UNITED STATES




 claim for the slag, kish, and scrap 4 recovered from the
 Eastern Excluded Property by the EPA. At trial, GIP
 sought damages of $755,494 for 92,500 cubic yards of slag.
 Applying a fair market value theory, Mr. Gleason, GIP’s
 damages expert, calculated just compensation for the kish
 and scrap taken by the EPA at around either $9.8 million
 or $10.4 million, depending on the geographic market used
 in the calculation. 5 Trial Tr. 1277:10–18.
     Mr. Gleason valued the kish and scrap taken by
 estimating their net present value as of June 4, 2008, the
 date GIP alleges the takings occurred. 6        See Trial
 Tr. 1225:19–1226:7, 1260:24–1261:20. Two elements of
 Mr. Gleason’s damages calculation are relevant here:



     4   The Government contends that GIP “did not allege a
 taking of ‘scrap’—as distinct from the alleged takings of
 ‘kish’ and slag’—until it filed its post-trial brief.” Appellee’s
 Br. 61–62. The Court of Federal Claims considered the
 Government’s position and concluded that GIP’s takings
 claim for scrap was tried by consent. While we see no error
 in the trial court’s conclusion, we need not reach this issue
 because we affirm the trial court’s award of no damages as
 discussed below.
     5 Mr. Gleason also offered a lost profits damages

 theory, which the trial court rejected as “not the
 appropriate measure of just compensation.” Decision,
 138 Fed. Cl. at 97 (citing United States v. Gen. Motors
 Corp., 323 U.S. 373, 379 (1945)). Addressing the merits,
 the trial court found that “Mr. Gleason’s lost profit
 calculation suffers from many of the same defects
 discussed” with respect to his fair market value calculation
 “due to the unreliable calculation of avoided costs.” Id.
 at 97 n.5. Our discussion of avoided costs applies equally
 to both of Mr. Gleason’s damages theories.
     6 The Government did not offer a competing date of

 taking at trial.
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 GADSDEN INDUSTRIAL PARK, LLC v. UNITED STATES             7



 revenue and costs. To calculate revenue, Mr. Gleason
 approximated a June 2008 price for the kish and scrap and
 applied that price to the actual volume of material
 recovered by the EPA contractors. Trial Tr. 1262:7–
 1263:10. Mr. Gleason also estimated GIP’s avoided costs—
 the costs GIP hypothetically would have incurred by
 partnering with Watkins to conduct its own recovery
 operation. See Trial Tr. 1230:4–14, 1242:12–17, 1330:7–
 1331:17. To get a net present value of the kish and scrap
 as of June 4, 2008, Mr. Gleason subtracted avoided costs
 from revenue and applied a discount rate to that number.
 See Trial Tr. 1259:18–1262:15, 1276:4–1277:14.
     To approximate the June 2008 price, Mr. Gleason used
 an industry publication to relate the contractors’ sales
 price to the market price of a comparison metal over the
 course of the EPA’s remediation project.         See Trial
 Tr. 1267:3–1268:11, 1270:11–1271:15. Mr. Gleason then
 applied that relationship to the average market price of the
 comparison metal from April 2008 to June 2008, which
 yielded a price of $483 per ton. Id.; Trial Tr. 1262:20–
 1263:12.     At trial, Mr. Gleason conceded that his
 approximated June 2008 price was “historically . . . a very
 high price” that lasted only “[f]ive or six months” before
 taking a dive. Trial Tr. 1262:20–1264:6, 1265:19–1266:3.
 Overall, Mr. Gleason projected the revenue from a
 June 2008 sale of kish and scrap to be $19,873,418,
 significantly more than the EPA contractors’ $13.5 million
 in revenue. Trial Tr. 1273:17–21; J.A. 3094 ¶ 16.
     To determine GIP’s avoided costs, Mr. Gleason
 assumed that GIP would have consummated its agreement
 with Watkins to process kish for $70 per ton. Trial
 Tr. 1239:24–1240:23. He further relied on a purported oral
 modification to the agreement under which GIP would not
 pay Watkins anything for recovered material that GIP sold
 for less than $70 per ton. Trial Tr. 1247:14–1248:18.
 Because GIP already employed sales and administrative
 personnel, Mr. Gleason assumed that GIP would incur no
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 8              GADSDEN INDUSTRIAL PARK, LLC v. UNITED STATES




 additional administrative, sales, or overhead costs as a
 result of partnering with Watkins. Trial Tr. 1257:12–
 1258:3. He also assumed that the sales price of the
 recovered materials would include freight.            Trial
 Tr. 1256:22–1257:3. Mr. Gleason concluded that GIP’s
 avoided costs were about $4.9 million. Trial Tr. 1258:4–6.
      The Government argued that Mr. Gleason’s fair
 market valuation suffered from at least two flaws. First,
 the Government asserted that Mr. Gleason’s use of the
 historically high June 2008 sales price for all material was
 improper because the material was sold over a longer
 period of time, during which a purchaser would have
 expected the price to fall. Second, the Government
 maintained that Mr. Gleason’s reliance on the Watkins
 agreement to calculate avoided costs was unfounded due to
 critical distinctions between Watkins and the EPA
 contractors. For example, the evidence did not suggest that
 Watkins had a similar processing capacity as the EPA
 contractors, and Watkins had the right to walk away from
 the project if it became unprofitable.
     Following a seven-day trial, the Court of Federal
 Claims concluded that “GIP purchased kish, assorted
 scrap, and 420,000 cubic yards of slag at the bankruptcy
 auction,” that “each material was present on the Eastern
 Excluded Property[,] and that it was used or sold by EPA.”
 Decision, 138 Fed. Cl. at 90. Additionally, the trial court
 held that the EPA’s remediation project effected a
 compensable taking of GIP’s slag, scrap, and kish. Id.
 Accordingly, the trial court awarded GIP $755,494 for the
 EPA’s taking of 92,500 cubic yards of slag. Id. at 100.
     Regarding the scrap and kish, however, the Court of
 Federal Claims found that GIP had failed to provide
 “sufficient reliable proof of what a willing buyer would have
 paid for the scrap and kish.” Id. First, the trial court
 agreed with the Government that Mr. Gleason’s
 “construction of an artificial sales price as of June 2008 for
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 GADSDEN INDUSTRIAL PARK, LLC v. UNITED STATES            9



 materials sold later was inappropriate,” because a buyer
 would know that it would not instantly recover the value of
 the materials sold and “would be presumed to know that
 the price in June 2008 was abnormally high.” Id. at 99.
 Second, the trial court deemed Mr. Gleason’s avoided costs
 calculations flawed at least because they assumed that all
 of the risk in GIP’s hypothetical recovery project “would
 have been borne by Watkins, which, in actuality,
 maintained the right to walk away from the recovery
 operation by the terms of the draft agreement.” Id. The
 trial court further criticized GIP’s avoided costs
 calculation, characterizing assumptions drawn from the
 EPA contractors’ records as “highly questionable,” due to
 differences in the EPA contractors’ processing capacity and
 the capacity required of Watkins to maintain exclusivity.
 Id. at 99–100. The trial court also concluded that GIP
 would have experienced other costs unaccounted for by
 Mr. Gleason. Id. Unable to calculate just compensation
 with reasonable certainty, the trial court awarded GIP zero
 damages for the EPA’s taking of GIP’s kish and scrap. See
 id. at 100.
    The Government and GIP appeal. We have jurisdiction
 pursuant to 28 U.S.C. § 1295(a)(3).
                        DISCUSSION
     The Government asserts that the Court of Federal
 Claims erred in concluding that the EPA took GIP’s slag.
 For its part, GIP contends that the trial court should have
 awarded just compensation for 405,000 cubic yards of slag
 rather than only 92,500 cubic yards of slag. GIP further
 argues that the trial court erred by awarding GIP no just
 compensation for its kish and scrap after concluding that
 the kish and scrap had value and that the EPA had taken
 them.     We address these arguments in turn, first
 considering the parties’ arguments with respect to slag,
 and then turning to their arguments regarding kish and
 scrap.
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 10             GADSDEN INDUSTRIAL PARK, LLC v. UNITED STATES




     We review the Court of Federal Claims’ legal
 conclusions de novo and its fact findings for clear error.
 Holland v. United States, 621 F.3d 1366, 1374 (Fed. Cir.
 2010) (citing Cal. Fed. Bank, FSB v. United States,
 245 F.3d 1342, 1346 (Fed. Cir. 2001)). A fact finding is
 “clearly erroneous” when “the reviewing court on the entire
 evidence is left with the definite and firm conviction that a
 mistake has been committed.” Am. Pelagic Fishing
 Co. v. United States, 379 F.3d 1363, 1371 (Fed. Cir. 2004)
 (quoting Glendale Fed. Bank, FSB v. United States,
 239 F.3d 1374, 1379 (Fed. Cir. 2001)).
                               I
      The Government asserts that the trial court erred in
 holding that GIP had proven the requisite property
 interest to establish a takings claim for slag. “Whether a
 taking under the Fifth Amendment has occurred is a
 question     of   law    with     factual   underpinnings.”
 Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir. 2009)
 (citing Alves v. United States, 133 F.3d 1454, 1456
 (Fed. Cir. 1998)). The plaintiff in a takings case bears the
 burden to demonstrate a protectable property interest. See
 Palmyra Pac. Seafoods, L.L.C. v. United States, 561 F.3d
 1361, 1364–65 (Fed. Cir. 2009).
      According to the Government, the Court of Federal
 Claims erred when it concluded “that the Government took
 [GIP’s] slag—as differentiated from the tons of slag that
 remain on th[e] property.” Cross-Appellant’s Br. 32. GIP
 does not dispute that following completion of the EPA’s
 remediation project, slag remains on the Eastern Excluded
 Property. Instead, GIP responds that the presence of slag
 is “irrelevant to whether a taking occurred,” because the
 EPA “embalm[ed] permanently” all remaining materials at
 the conclusion of its remediation project, thereby
 preventing GIP from recovering its full allotment of slag.
 Appellant’s Resp. Br. 32, 35 (quoting Decision, 138 Fed. Cl.
 at 96).      Accordingly, GIP seeks increased just
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 GADSDEN INDUSTRIAL PARK, LLC v. UNITED STATES             11



 compensation to account for 405,000 cubic yards of slag—
 the amount remaining in GIP’s allotment when the EPA’s
 remediation project began.       We agree with the
 Government.
     GIP has not demonstrated that the EPA’s presence and
 operations on the Eastern Excluded Property intruded on
 any of GIP’s property rights to slag. GIP specifically
 excluded from its purchase “[a]ll by-products of production
 other than kish and 420,000 cubic yards of slag.” J.A. 2639.
 As a matter of law, the Exclusion List that GIP itself
 drafted conveyed title to GIP in 420,000 undifferentiated
 cubic yards of slag on the Eastern Excluded Property. See
 Wheeler v. First Ala. Bank of Birmingham, 364 So. 2d
 1190, 1194 (Ala. 1978) (“The construction of a written
 document is a function of the court. If the document is
 unambiguous, its construction and legal effect is a question
 of law.” (citations omitted)). As GIP concedes, slag is
 fungible, and the Bill of Sale included no limitations that
 would restrict GIP’s 420,000 cubic yards of slag to any
 particular subset of the whole of the slag on the Eastern
 Excluded Property. Appellant’s Resp. Br. 24. Nothing in
 the Bill of Sale granted GIP first rights to mine slag from
 the piles, the right to exclude others from the Eastern
 Excluded Property, or any other property right that the
 EPA could take by merely temporarily excluding GIP from
 the Eastern Excluded Property. Indeed, GIP repudiates
 any notion that the Bill of Sale granted it the right to mine
 the piles, id. at 1–3, and GIP specifically excluded the
 Eastern Excluded Property parcel from its purchase of real
 property, J.A. 3092 ¶ 8. GIP was entitled to no more than
 420,000 cubic yards of slag, and the evidence
 overwhelmingly indicates that even after the EPA’s
 remediation project, sufficient slag remained on the
 Eastern Excluded Property for GIP to recover its full
 allotment.     See Trial Tr. 545:3–24, 1365:12–1366:1;
 J.A. 3091 ¶ 4.
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 12             GADSDEN INDUSTRIAL PARK, LLC v. UNITED STATES




      GIP argues that the EPA prevented it from recovering
 its full allotment of slag because, as the trial court found,
 the EPA “embalm[ed] permanently” all material remaining
 in the Eastern Excluded Property piles after concluding its
 recovery operation. Appellant’s Resp. Br. 35 (quoting
 Decision, 138 Fed. Cl. at 96). On this record, however, the
 trial court’s finding is clearly erroneous.
     The Court of Federal Claims did not cite any evidence
 to support its finding that the remaining material was
 “embalm[ed] permanently.” Id. Indeed, the trial court
 elsewhere noted that the EPA had not capped 7 the piles
 after concluding its recovery operation. Id. at 90. Nor did
 GIP cite any evidence to support the trial court’s finding
 that materials were “embalm[ed] permanently.” During
 oral argument, counsel for GIP pointed to Mr. Casey’s
 testimony that when the EPA contractors left the site, the
 slag on the Eastern Excluded Property was “mixed with
 trash and therefore is unusable.” Oral Arg. at 5:03–37,
 30:44–31:01 (citing J.A. 265–66). In the same discussion,
 however, Mr. Casey admitted that at the time of purchase,
 the piles were “industrial landfills” into which the
 bankrupt steel mill had deposited “about ten different
 types of trash.” Trial Tr. 209:20–210:13. He further
 testified that during the EPA’s recovery operation, the EPA
 “took the slag and put it over with the trash that they
 weren’t using from the north and south pile.”            Id.
 Therefore, the trial court’s finding that the slag was
 unusable after the EPA’s remediation project is belied by
 the record.



      7 During oral        argument,   counsel   for  GIP
 acknowledged that the EPA never capped the piles. Oral
 Arg. at 6:50–7:18, http://oralarguments.cafc.uscourts.gov
 /default.aspx?fl=2018-2132.mp3. Counsel interpreted the
 trial court’s use of the phrase “embalm[ed]” to mean that
 the material was “unusable.” Id.
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 GADSDEN INDUSTRIAL PARK, LLC v. UNITED STATES               13



      GIP’s argument that the finding was supported by the
 trial judge’s firsthand observations during a site visit is
 easily disposed of. Appellant’s Resp. Br. 7, 35. The trial
 court’s opinion does not mention any site visit, let alone
 rely on a site visit to support its finding that materials were
 “embalm[ed] permanently.” The only discussions of a site
 visit during trial do not mention “embalmed” material and
 instead support the notion that recoverable material
 remains on the Eastern Excluded Property. See, e.g., Trial
 Tr. 1092:24–1093:4 (trial judge noting “[t]he piles have
 been gone through since [the EPA contractors] left, and yet
 what’s left seems to be a lot of ferrous kind of material
 that’s magnetic”); Trial Tr. 1170:24–1173:15 (noting site
 visit observation of leachate on the south Eastern Excluded
 Property pile, and trial judge’s observation that the EPA’s
 leftover material on a third pile was still adhering to a
 magnet).
     Additional witness testimony further supports the
 notion that after the conclusion of the EPA’s remediation
 project, the Eastern Excluded Property piles contained
 recoverable material.     For example, Mr. Brady, who
 worked on the Eastern Excluded Property piles as a site
 manager for an EPA contractor, testified that he was sure
 that metal and a significant amount of slag remain in the
 piles following the conclusion of the EPA’s remediation
 project, and that he did not know of anything that would
 prevent a party “willing to make the investment” from
 “mining the rest of the material” in the piles. Trial
 Tr. 1008:9–22.    And a project manager for an EPA
 contractor who worked on the Eastern Excluded Property
 when the EPA began winding down its recovery operation
 testified that at the end of the project, the EPA “just
 ensur[ed] that the piles were rounded and that runoff
 would go into the ditch.” Trial Tr. 894:1–12. We find no
 record support for the trial court’s finding that material
 was “embalm[ed] permanently” at the conclusion of the
 EPA’s project.
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 14             GADSDEN INDUSTRIAL PARK, LLC v. UNITED STATES




     Because GIP has no claim to any particular subset of
 slag on the Eastern Excluded Property and the trial court
 erred in finding that the EPA somehow prevented GIP
 from recovering its full allotment of slag, GIP cannot
 establish a cognizable property interest in the slag that the
 EPA recovered. Accordingly, we vacate the trial court’s
 award of damages for 92,500 cubic yards of slag.
                               II
     Regarding kish and scrap, GIP argues that the trial
 court “was duty-bound to fashion an appropriate damage
 award,” and “had no discretion to award zero damages as
 just compensation” after it found that the kish and scrap
 the EPA recovered had value. 8 Appellant’s Br. 38–40. But
 “[o]nce a taking has been established, it is the
 [property ]owner who bears the burden of proving an actual
 loss has occurred.” Otay Mesa Prop., L.P. v. United States,
 779 F.3d 1315, 1323 (Fed. Cir. 2015) (citing Bd. of Cnty.
 Supervisors of Prince William Cnty. v. United States,
 276 F.3d 1359, 1364 (Fed. Cir. 2002)). “To carry its burden,
 the [property ]owner must show actual damages ‘with
 reasonable certain[t]y,’ which ‘requires more than a guess,
 but less than absolute exactness.’” Id. (quoting Precision
 Pine & Timber, Inc. v. United States, 596 F.3d 817, 833
 (Fed. Cir. 2010)). We hold that the trial court in a takings
 case is not obligated to fashion its own award when a
 plaintiff has not provided evidence sufficient to determine
 just compensation with reasonable certainty.
    We find no takings cases—nor does GIP cite any—
 supporting the notion that the trial court must fashion its



      8 We agree with the trial court that GIP had a
 cognizable property interest in all of the kish and scrap on
 the Eastern Excluded Property. The Bill of Sale did not
 limit the amounts of kish and scrap that GIP purchased.
 J.A. 2586, 2612, 2639.
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 GADSDEN INDUSTRIAL PARK, LLC v. UNITED STATES             15



 own award in the absence of evidence sufficient to
 determine an appropriate measure of just compensation
 with reasonable certainty. The cases identified by GIP
 merely stand for the proposition that the trial court has the
 discretion to make its own findings on damages rather than
 adopting in full either party’s damages theory.
      GIP relies on Whitney Benefits, which cites Almota
 Farmers for the proposition that “[w]hen private property
 is taken for a public purpose, the Constitution requires the
 taker to pay the owner ‘just compensation’ and imposes on
 the court the duty of determining what compensation is
 just.” Whitney Benefits, Inc. v. United States, 18 Cl. Ct.
 394, 407 (1989) (emphasis added) (citing Almota Farmers
 Elevator & Warehouse Co. v. United States, 409 U.S. 470
 (1973)); see also Appellant’s Br. 25. As an initial matter,
 we note that as a decision from the Claims Court, Whitney
 Benefits is not binding authority on this court. See K-Con,
 Inc. v. Sec’y of Army, 908 F.3d 719, 726 (Fed. Cir. 2018).
 Additionally, Whitney Benefits did not address a situation
 where the plaintiff had failed to prove just compensation
 with reasonable certainty. Rather, the trial court in
 Whitney Benefits largely adopted the plaintiffs’ just
 compensation calculation, making modifications as it
 deemed appropriate based on extensive evidence from both
 parties regarding valuation of the subject property. 18 Cl.
 Ct. at 407–16. Similarly, Almota Farmers does not obligate
 a trial court to calculate just compensation. Rather,
 Almota Farmers merely holds that, for just compensation
 purposes, improvements to leasehold property should be
 assessed at their fair market value in place on the
 leasehold property over their useful life, without regard to
 the remaining term of the lease. 409 U.S. at 473. Nothing
 in Almota Farmers suggests that the plaintiff did not
 present sufficient evidence to allow the trial court to
 determine just compensation with reasonable certainty.
    GIP’s reliance on Otay Mesa for the same proposition is
 similarly unavailing. In Otay Mesa, we affirmed the Court
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 16             GADSDEN INDUSTRIAL PARK, LLC v. UNITED STATES




 of Federal Claims’ independent formulation of a just
 compensation award when it “was confronted with
 conflicting evidence and relatively extreme valuations”
 from the plaintiff and the Government. 779 F.3d at 1326.
 “We detect[ed] nothing inappropriate with the Court of
 Federal Claims looking at the evidence as a whole and
 using its own methodology to calculate a damages award.”
 Id. We further noted “that it is both correct and important
 for a trial court to use its flexibility to tailor a fair and
 reasonable result based on the evidence it credits or rejects.”
 Id. (emphasis added) (citing Precision Pine, 596 F.3d at
 832–33). GIP correctly notes that, in endorsing the trial
 court’s use of its own methodology to determine just
 compensation, we stated: “the [trial] court had few options
 in determining a just compensation award other than
 creating its own valuation.” Id. But we did not hold that
 the trial court must fashion its own award; rather, we held
 that it may do so. Moreover, the Otay Mesa trial court had
 sufficient record evidence to fashion an award that was
 “within the range of credible testimony” and “reasonable on
 the evidence.” Id. at 1327. Contrary to GIP’s suggestion,
 Otay Mesa did not hold that a trial court must fashion its
 own just compensation award when not presented with
 sufficient evidence to do so with reasonable certainty.
     Consistent with these principles, the Court of Federal
 Claims in this case acknowledged that it “may award
 damages, even if [it] does not fully credit [a] party’s
 methodology.” Decision, 138 Fed. Cl. at 100 (quoting
 Precision Pine, 596 F.3d at 833). It found, however, that it
 was “not given sufficient reliable proof of what a willing
 buyer would have paid for the scrap and kish” to
 independently determine a damages award. Id. On this
 record, the trial court did not err.
     The trial court found Mr. Gleason’s calculations
 unreliable due to his reliance on what it deemed ill-founded
 assumptions to calculate avoided costs and his use of an
 inflated June 2008 sales price to calculate revenues for
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 GADSDEN INDUSTRIAL PARK, LLC v. UNITED STATES            17



 material sold later. We cannot say that the Court of
 Federal Claims erred in these findings. On this record, a
 reasonable fact finder may well have been able to
 approximate the revenues from sales of kish and scrap
 using a more accurate methodology not presented by
 Mr. Gleason. But there is little in the record to allow any
 calculation with reasonable certainty of GIP’s avoided
 costs, a critical component of the just compensation
 calculation under both a fair market value theory and a lost
 profits theory.
     The only evidence GIP offered to prove just
 compensation was Mr. Gleason’s testimony regarding his
 calculations based on the non-finalized Watkins
 agreement. The record also contained evidence of the EPA
 contractors’ recovery costs. It was not unreasonable for the
 trial court to conclude that neither provided sufficient
 evidence to calculate just compensation with reasonable
 certainty.
     The trial court reasonably found that certain
 assumptions underlying Mr. Gleason’s avoided costs
 calculations rendered them unreliable. By crediting the
 oral addendum to the Watkins agreement, Mr. Gleason
 assumed Watkins would willingly provide GIP with free
 labor to recover any material from the piles which GIP
 could not sell for a profit. The trial court did not err in
 finding this assumption unreasonable. Mr. Gleason also
 assumed that Watkins would process the same amount of
 material at the same capacity as the EPA contractors
 regardless of market prices. Mr. Gleason thus essentially
 discarded the provision allowing Watkins to walk away if
 the agreement became unprofitable, thereby shifting all
 the risk of a drop in prices to Watkins while assuming
 Watkins would complete the contract. Trial Tr. 1247:14–
 1248:18, 1330:7–18. The trial court did not err in finding
 this second assumption unreasonable.
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 18             GADSDEN INDUSTRIAL PARK, LLC v. UNITED STATES




     Further undermining Mr. Gleason’s avoided costs
 calculations, the evidence does not support the notion that
 Watkins had the same capacity to process material as the
 EPA contractors. Watkins thought it would take at least
 ten years to process the piles, while the EPA contractors
 processed half the piles in approximately four years. Trial
 Tr. 384:8–13, 545:3–18; J.A. 3094 ¶ 16. And if Watkins
 processed the minimum tonnage required under the
 Watkins agreement, it would take Watkins around forty
 years to process the same amount of material that the EPA
 contractors processed in approximately four years. Trial
 Tr. 1312:1–14. Mr. Gleason acknowledged that if it took
 Watkins longer to process the piles, there would be a longer
 period of discounting for his fair market valuation,
 resulting in reduced value for the same volume of material.
 See Trial Tr. 1353:8–1354:17. Nonetheless, Mr. Gleason
 assumed that Watkins would follow the same material
 processing schedule as the EPA contractors, at around a
 third of their costs. Trial Tr. 1247:14–1248:18, 1258:4–6,
 1330:7–18. The trial court did not err in finding this
 assumption unreasonable.
     Mr. Gleason also did not account for additional costs
 GIP would have incurred had it run its own recovery
 project, such as those associated with supervising the
 Watkins operation and loading, marketing, and selling
 recovered material. Trial Tr. 1257:12–1258:3, 1349:19–
 1350:16. The trial court did not err in noting this
 deficiency.
     With respect to evidence of the EPA contractors’ costs,
 even GIP concedes that they are not an appropriate proxy
 to assess GIP’s avoided costs. Mr. Gleason testified that
 the EPA and GIP ran “two totally different operations” on
 the Eastern Excluded Property with “different activities,
 different goals, [and] objectives,” and “that account for
 different costs.” Trial Tr. 1299:20–1300:9. It was therefore
 reasonable for the trial court to conclude that neither the
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 GADSDEN INDUSTRIAL PARK, LLC v. UNITED STATES            19



 Watkins agreement nor the EPA contractors’ costs
 provided competent evidence of GIP’s avoided costs.
     As the Court of Federal Claims recognized,
 Mr. Gleason’s calculations arbitrarily lowered GIP’s
 avoided costs at every turn. At a minimum, Mr. Gleason’s
 unreliable calculations left open too many variables for the
 trial court to resolve on its own with reasonable certainty
 based on the evidence available. Left without competent
 evidence relating to a critical component of the damages
 calculation, the trial court did not err in determining that
 that it could not independently fashion a just compensation
 award. We therefore affirm the trial court’s award of zero
 damages for the Government’s taking of kish and scrap.
                        CONCLUSION
     We have considered the parties’ remaining arguments
 and do not find them persuasive. For the foregoing
 reasons, we reverse the Court of Federal Claims’ decision
 that GIP had a cognizable property interest in the slag
 recovered by the EPA, vacate the trial court’s award of just
 compensation for 92,500 cubic yards of slag, and affirm the
 trial court’s award of zero just compensation for kish and
 scrap.
   AFFIRMED-IN-PART, REVERSED-IN-PART, AND
              VACATED-IN-PART
                           COSTS
     No costs.
