United States of America, Plaintiff, v. Royal N. Hardage; United States Pollution Control;oklahoma National Stockyards Company; Dal-worth,industries; Double Eagle; Samuel Bishkin, Doing Businessas Eltex Chemical; L & S Bearing Company; Kerr-mcgeecorporation; Cato Oil; Ppg Industries; the Firestone Tireand Rubber Company; Foster Feed & Seed Co.; Texaco, Inc.;powell Sanitation Service, Inc., Defendants,andhardage Steering Committee; Advance Chemical Distribution,inc.; Allied-signal, Inc.; at & T Technologies, Inc;ashland Oil, Inc.; Atlantic Richfield Company; Borg-warnercorporation; Exxon Corporation; Gencorp, Inc.; Bull Hninformation Systems, Inc.; Maremont Corporation;mcdonnell-douglas Corporation; Mobil Chemical Company;nalco Chemical Company; Oklahoma Gas & Electric Company;the Oklahoma Publishing Company; Rockwell Internationalcorporation; Texas Instruments, Incorporated; Uniroyal,inc.; Uop, Inc.; Westinghouse Electric Corporation;weyerhaeuser Company; Diffee Motor Company; Fruehaufcorporation, Fruehauf Division; Fruehauf Corporation, Doingbusiness As Hobbs Trailer; Mcalester Public Schools; Bobmcbroom, Doing Business As American Furniture Stripping,individually; Sooner Ford Truck Sales, Inc.; Farmers Homeadministration, Defendants-third-party-plaintiffs-appellees, v. Joc Oil, Exploration; A.h. Belo, Doing Business As Dallasmorning News; Acme Fence & Iron Co.; Alamo Group Texas,inc.; Aar Oklahoma, Inc.; Aircraftsman, Inc.; Agnew Autoparts; American National Can Corporation; Anadite, Inc.;arrow Tank Trucks; Aztec Manufacturing; Arrow Industries;aviall of Texas, Inc; Basf; Betz Laboratories, Inc.;blanks Engraving; Beazers Materials; Blackwell Zinccompany, Inc.; Broadway Machine & Motor Supply, Inc.; Thebucket Shop, Inc.; Charles Machine Works, Inc.; Containersupply Inc.; Carnation Company; Container Corp. Ofamerica; Continental Can Company, Inc.; Cook Paint &varnish Co.; Ctu of Delaware; Country Home Meat Company;dart Industries; Delta Faucet Company; Del Paintcorporation; Dixico, Inc.; Downtown Airpark, Inc.; Drilexsystems, Inc.; Dubois Chemicals, Inc.; Dresser Industries,inc.; Drillers Engine & Supply, Inc.; Fisher Controls;gaf; Ec Industries; Fred Jones Manufacturing Company;general Dynamics; General Motors Corporation; Gliddencompany; Scm Corporation; Groendyke Transport, Inc.;general Electric Company; Goodyear Tire and Rubber, Inc.;h.w. Allen; Hudiberg Chevrolet; Ingersoll-rand Oilfieldproducts Company; Hinderliter Tool; Johnson Controls,inc.; Johnson & Johnson Medical, Inc.; Orthopharmaceutical Corp.; Johnson-johnson Hospital; Surgikos,inc.; Kelly Moore Paint; Kerr Glass Manufacturing;jones-blair Co.; Laidlaw Waste; W.j. Lamberton; Mastermotor Rebuilders, Inc.; Fixture Morris Co.; Madix; Georgemckiddie, Doing Business As Capitol Greese Co.; Motorolla;northrop Worldwide Aircraft, Doing Business As Earl D.mills; Packaging Corporation of America; Parker-hannifincorp.; O'brien Corporation; Printpack, Inc.; Proctor &gamble Manufacturing Co.; Quebecor Printing; Maxwellcommunication; Riverside Press; Reliance Universal, Inc.;rotex Corporation; Sherwin Williams Company; Starmanufacturing; Sermatech; Southwest Electric Company;stearns & Foster Bedding; Susan Crane; Sublett &associates, Inc.; Teccor Electronics, Inc.; Trw, Inc.;turbodel; United Plating Works, Inc.; Valley Steelproducts Company; Unit Parts Company; United States Brasscorporation; Van Der Horst Usa; Waste Management Ofoklahoma; Western Uniform & Towel Service; Zoeconcorporation; Xerox; Magnetic Peripherals, Inc;consolidated Clean; Abco, Inc.; Advance Packaging, Inc.;amedco Steel Inc.; American Trailers; Anthes Inc., Doingbusiness As Anthes Hi-reach; Arthur G. Mcgee & Company; B& J Tank Truck Service, Inc.; B.w. Solutions, Inc.; Bacontransport Company, Inc.; Beauty Craft Vanities; Blackwellindustrial; Paul Boone, Formerly Doing Business As Lawtonplating Co., Individually; C & H Services, Inc.; Cmicorporation; Central Oklahoma Equipment Corporation;cimarron Aircraft Corporation; Cimarron Manufacturingcompany; Cliftco, Inc.; Day International Corporation;d-mac L, 996 F.2d 312 (10th Cir. 1993)

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

This appeal arises from continuing litigation involving the Hardage Superfund Site, a federally controlled Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) site near Criner, Oklahoma. See 42 U.S.C. §§ 9601-9675. In 1986 the government filed suit against various parties to require them to clean up the Hardage site. The Hardage Steering Committee (HSC) was ordered to implement the cleanup. The district court also determined it necessary for the safe and efficient implementation of the cleanup that HSC acquire the right to use specified property surrounding the Hardage site, denominated as the "institutional controls boundary." For background information, see United States v. Hardage, 982 F.2d 1436 (10th Cir. 1992).

Third-party defendants William C. Whitehead and Ilene J. Whitehead are the owners of forty acres included in the Hardage site's institutional controls boundary. They appeal from an order entered by the district court on March 8, 1993, granting HSC access to those forty acres of their dairy farm, permitting HSC to erect a security fence around the property, and imposing restrictive covenants on the property. The restrictions prohibit the Whiteheads from using the forty acres for its customary use: to grow feed for the Whiteheads' dairy cattle. The Whiteheads seek a stay of the March 8 order pending appeal. Before we can address the merits of the stay motion, we must consider whether we have jurisdiction over this appeal.

The district court's order did not end the litigation on the merits. This action is pending in the district court to resolve the amount of compensation due to the Whiteheads for the use of their forty acres to implement the CERCLA cleanup. Therefore, 28 U.S.C. § 1291 does not confer jurisdiction on this court. Desktop Direct, Inc. v. Digital Equip. Corp., No. 93-4024, slip op. at 3, 1993 WL 156793 at * 1 (10th Cir. May 17, 1993) ("A final decision is 'a decision by the district court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment' " (quoting Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 497 (1989))).

Neither party claims this court has jurisdiction pursuant to 28 U.S.C. § 1292(b). Rather, both parties argue jurisdiction is granted by 28 U.S.C. § 1292(a) (1) because the district court's order is injunctive in nature, enjoining the Whiteheads from using their land for various purposes, and permitting HSC to enter the land. HSC argues that an order of possession should be immediately appealable, thereby avoiding any waste of time to ascertain the amount of compensation due to the Whiteheads should the district court's March 8 order be reversed on appeal. Even though neither party challenges this court's jurisdiction, "we have a duty to inquire into our own jurisdiction." McGeorge v. Continental Airlines, Inc., 871 F.2d 952, 953 (10th Cir. 1989).

We do not agree that the district court's order is injunctive in nature. The order was one for condemnation because it deprived the Whiteheads of all economically beneficial uses of the subject forty acres. Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2895 (1992) (" [W]hen the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.").

Apparently the restrictive covenants will be lifted when the CERCLA cleanup has concluded. The temporary nature of HSC's use of the property does not disqualify the district court's action as a condemnation order. A regulatory taking need not permanently deprive the owner of the use of his property to qualify as a taking, and the landowner must be compensated for the value of the use of the land for the duration of the taking. First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 318 (1987). " ' [T]emporary' takings which ... deny a landowner all use of his property, are not different in kind from permanent takings...." Id. at 318. Therefore, we determine the Whiteheads have suffered a "temporary taking" for which there is no dispute that they are to be compensated.

Because we conclude the district court's order was not an injunction, it is not appealable under § 1292(a) (1). "Forcing parties to go through what may turn out to be a wasted trial is just one of the inevitable costs of the final judgment rule." Desktop Direct, Inc., slip op. at 10, 1993 WL 156793 at * 5. We decline to expand federal jurisdiction over interlocutory appeals absent congressional authority, an explicit constitutional guarantee, or a compelling public policy rationale. Id. slip op. at 6, 10, 1993 WL 156793 at * 3, 5.

The district court's order is not a final judgment. Therefore, we hold that we do not have jurisdiction over this appeal, and the motion for stay must be denied.

APPEAL DISMISSED. The mandate shall issue forthwith.