{¶94} "The reasonable, investment-backed expectation analysis is designed to account for property owners' expectation that the regulatory regime in existence at the time of their acquisition will remain in place, and that new, more restrictive legislation or regulations will not be adopted." Love Terminal Partners, LP. v. United States, 889 F.3d 1331, 1345 (Fed.Cir.2018). As the Supreme Court of Ohio observed in Mertz, 2020-Ohio-5482, "[t]he Federal Circuit has developed three factors to guide a court when conducting that inquiry: '(1) whether the plaintiff operated in a "highly regulated industry"; (2) whether the plaintiff was aware of the problem that spawned the regulation at the time it purchased the allegedly taken property; and (3) whether the plaintiff could have "reasonably anticipated" the possibility of such regulation in light of the "regulatory environment" at the time of purchase.'" Id. at ¶ 64, quoting Appolo Fuels, Inc. v. United States, 381 F.3d 1338, 1349 (Fed.Cir.2004), quoting Commonwealth Edison Co. v. United States, 271 F.3d 1327, 1348 (Fed.Cir.2001).

Cox v. Tennessee Valley Auth., 989 F.2d 499 (6th Cir. 1993) (table); accord Esplanade Props., LLC v. City of Seattle, 307 F.3d 978, 984 (9th Cir. 2002) ("[U]nder both federal and state law a plaintiff must make a showing of causation between the government action and the alleged deprivation."); Love Terminal Partners, L.P. v. United States, 889 F.3d 1331, 1343 (Fed. Cir. 2018). In the context of permitting, "because it is the permit denial that can effect a regulatory taking, this court must examine the effect of that denial on plaintiffs' property interests."

For the purposes of determining the economic impact of a regulation, investment-backed expectations are evaluated at the time that the owner purchased the property. Love Terminal Partners, L.P. v. United States, 889 F.3d 1331, 1345 (Fed. Cir. 2018). Thus, “‘what is relevant and important in judging reasonable expectations' is ‘the regulatory environment at the time of the acquisition of the property.'”

See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (citing United States v. Gen. Motors Corp., 323 U.S. 373 (1945)); see also Sharifi v. United States, 987 F.3d 1063, 1068 (Fed. Cir. 2021) ("To claim a Fifth Amendment taking, a plaintiff must show a 'cognizable property interest.'" (quoting Alimanestianu v. United States, 888 F.3d 1374, 1380 (Fed. Cir. 2018), cert. denied, 139 S.Ct. 1164 (2019)); Love Terminal Partners, L.P. v. United States, 889 F.3d 1331, 1339 (Fed. Cir. 2018) ("As a threshold matter, 'the existence of a valid property interest is necessary in all takings claims.'" (quoting Wyatt v. United States, 271 F.3d 1090, 1097 (Fed. Cir. 2001)), cert. denied, 139 S.Ct. 2744 (2019); Welty v. United States, 926 F.3d 1319, 1323-24 (Fed. Cir. 2019) ("To maintain a cognizable claim for a Fifth Amendment taking, a plaintiff must establish that he possessed an enforceable property right." (citing Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1014-19 (1992))); Reid v. United States, 143 Fed.Cl. 661, 668 (2019) (finding that "[i]n takings matters, a protectable property interest must be a 'legally-recognized property interest such as one in real estate, personal property, or intellectual property'" (quoting Adams v. United States, 391 F.3d 1212, 1224 (Fed. Cir. 2004))); Piszel v. United States, 833 F.3d 1366, 1374 (Fed. Cir. 2016), cert. denied, 138 S.C

{¶ 64} "The reasonable, investment-backed expectation analysis is designed to account for property owners' expectation that the regulatory regime in existence at the time of their acquisition will remain in place, and that new, more restrictive legislation or regulations will not be adopted." Love Terminal Partners, L.P. v. United States , 889 F.3d 1331, 1345 (Fed.Cir.2018). The Federal Circuit has developed three factors to guide a court when conducting that inquiry: "(1) whether the plaintiff operated in a ‘highly regulated industry’; (2) whether the plaintiff was aware of the problem that spawned the regulation at the time it purchased the allegedly taken property; and (3) whether the plaintiff could have ‘reasonably anticipated’ the possibility of such regulation in light of the ‘regulatory environment’ at the time of purchase."

See id. at 634 ("What is relevant and important in judging reasonable expectations is the regulatory environment at the time of the acquisition of the property." (quoting Love Terminal Partners, L.P. v. United States, 889 F.3d 1331, 1345 (Fed. Cir. 2018)) (cleaned up)). Because Saddle Mountain has not offered evidence of "economic impact" or "distinct investment-backed expectations," it cannot establish a Penn Central taking.

This court reviews the Court of Federal Claims's legal conclusions de novo and its factual findings for clear error. Love Terminal Partners, L.P. v. United States, 889 F.3d 1331, 1340 (Fed. Cir. 2018). III

"We review the Court of Federal Claims' legal conclusions de novo and its factual findings for clear error." Caquelin III , 959 F.3d at 1366 (citing Love Terminal Partners, L.P. v. United States , 889 F.3d 1331, 1340 (Fed. Cir. 2018) ). "Whether a taking has occurred is a question of law based on factual underpinnings."

U.S. Const. amend. V. There is no compensable taking when the alleged economic impact of the government action has not resulted in a diminution in value. See A & D Auto Sales, 748 F.3d at 1157 (collecting cases); see also LoveTerminal Partners, L.P. v. United States, 889 F.3d 1331, 1342 (Fed. Cir. 2018); Cienega Gardens v. United States, 331 F.3d 1319, 1340 (Fed. Cir. 2003). "It is the property owner who bears the burden of proving an actual loss has occurred"; the property owner must "show actual damages 'with reasonable certain[t]y,' which 'requires more than a guess, but less than absolute exactness.'" Gadsden, 956 F.3d at 1371 (quoting Otay Mesa Prop., L.P. v. United States, 779 F.3d 1315, 1323 (Fed. Cir. 2015)) (cleaned up).

We review the Court of Federal Claims’ legal conclusions de novo and its factual findings for clear error. Love Terminal Partners, L.P. v. United States , 889 F.3d 1331, 1340 (Fed. Cir. 2018). II