Casa de Cambio Comdiv S.A., de C.V. v. United States, 291 F.3d 1356, 1361 (Fed. Cir. 2002). At the same time, we have held that there is no potential taking when the government is alleged to have had only mere awareness of the actions of the third party, see, e.g., Shewfelt v. United States, 104 F.3d 1333, 1337 (Fed. Cir. 1997); or the government is alleged to have only engaged in "friendly persuasion" with respect to that activity, see, e.g., Langenegger v. United States, 756 F.2d 1565, 1572 (Fed. Cir. 1985); or the third party has exercised its own discretion, see, e.g., Erosion Victims of Lake Superior Regulation v. United States, 833 F.2d 297, 300-01 (Fed. Cir. 1987). To be sure, not every requirement by the United States that a third party take action that adversely affects the economic interests of another entity implicates the Takings Clause, or requires that the private party actions be treated as equivalent to government action.
In each case in which we have applied the YMCA standard, we held that the government's involvement was not sufficiently "direct and substantial" to constitute a taking. See Shewfelt v. United States, 104 F.3d 1333, 1337 (Fed. Cir. 1997) (although county may have improperly taken title to property and United States government was aware of potential taking when it acquired property through purchase from county, acts of the county were not attributable to the United States, and the United States was not obligated to compensate owner); Erosion Victims of Lake Superior Regulation v. United States, 833 F.2d 297, 301 (Fed. Cir. 1987) (no "direct and substantial involvement" by the United States where international organization exercised its own discretion to raise water levels of lake causing damage to landowners' property); Langenegger v. United States, 756 F.2d 1565, 1572 (Fed. Cir. 1985) (where actual expropriation by foreign sovereign occurred, there was no Fifth Amendment taking by United States even though the United States engaged in "friendly" persuasion of the foreign sovereign to engage in the expropriation), cert. denied, 474 U.S. 824, 106 S.Ct. 78, 88 L.Ed.2d 64, (1985); see also Griggs v. Allegheny County, 369 U.S. 84, 89, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962) (county government, not federal government, was liable for taking of air easement over claimant's property for use by county airport, even though airport was funded in part by a federal grant based on compliance with federal regulations). Finally, in B G Enterprises, Ltd. v. United States, 220 F.3d 1318 (Fed. Cir. 2000), cert. denied, 531 U.S. 114
In the present case, also, the United States is not liable for a taking based on its persuasion of the county to obtain the property from the state for resale to the Navy. See also Erosion Victims of Lake Superior Regulation v. United States, 833 F.2d 297 (Fed. Cir. 1987) (government's successful request to international joint commission to raise water levels of Lake Superior did not constitute "direct and substantial" United States involvement in commission's decision that constituted taking by the United States, because United States did not have "pervasive influence" over commission). There have been a few instances in which the United States' endeavors to persuade another entity to take particular action have been held "sufficiently direct and substantial" to make the United States liable for a taking.
Rather, it merely enjoyed a nebulous improvement in relations with another sovereign. Judged by the Langenegger two-part standard, the nature of the acts of the United States and the level of benefits it accrued do not rise to the level of a "substantial and direct" involvement in the appropriation of United's lease by the Navajos. Under these circumstances, the United States is not responsible for the acts of the Tribe, and thus, there is no taking of United's property by the United States. Accord Erosion Victims of Lake Superior Regulation v. United States, 833 F.2d 297 (Fed. Cir. 1987) (no "direct or substantial involvement" under Langenegger test by United States where international organization exercised own discretion in action which injured landowners). II [56] No Regulatory Taking
Neither PASNY nor Ontario Hydro can unilaterally make decisions regarding the levels and flows of the Niagara River. Federal courts have repeatedly recognized the IJC's authority over United States-Canadian boundary waters. See, e.g., Erosion Victims of Lake Superior Regulation v. United States, 833 F.2d 297, 300 (Fed. Cir. 1987) ("[T]he United States agreed in the Boundary Waters Treaty that the IJC, not the United States, would have the final say over the use of boundary waters. . . ."); Miller, 583 F.2d at 860 ("[The IJC] has the authority to approve or prohibit and to regulate the obstruction or diversion of certain waters, and the United States and Canada agree not to allow construction of such projects without IJC approval."); Soucheray, 483 F. Supp. at 355 ("By signing the Treaty of 1909, the United States gave up any control over the diversion, obstruction and use of boundary waters [to the IJC].").
A takings claim will survive a motion to dismiss if the action that is the subject of the complaint is attributable to the United States. See May v. United States, 80 Fed. Cl. 442, 445 (2008) (citing Erosion Victims of Lake Superior Regulation v. United States, 833 F.2d 297, 301 (Fed. Cir. 1987)), aff'd, 293 Fed. Appx. 775 (Fed. Cir. 2008); see also Arkansas Fish and Game Comm'n v. United States, 87 Fed. Cl. 594, 615 (2009) (To win a takings claim on the merits, plaintiff must prove that the government's actions were the "direct and proximate cause" of the harms to its property interest.). The United States can be held liable for a Fifth Amendment taking if there is "physical invasion of or physical damage to a claimant's property by the United States or its authorized agents, . . . [or if] its own regulatory activity is so extensive or intrusive as to amount to a taking under the general principle of [Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)]."
{¶ 19} “For a takings claim to prevail against a motion to dismiss in this court, the action complained of must be attributable to [a government entity].” May v. United States (2008), 80 Fed.Cl. 442, 445, citing Erosion Victims of Lake Superior Regulation v. United States (Fed.Cir.1987), 833 F.2d 297, 301. In the context of the regulatory-taking jurisprudence, whether a regulation constitutes a taking depends in large part upon the degree to which the regulation burdens private property. Generally speaking, the more severe the burden that the regulation imposes upon private property, the more likely it is that the regulation constitutes a compensable taking.