ELR Citation: ELR 20838
No(s). 87-2397 (5th Cir. Mar 28, 1988)

The court holds that the Corps of Engineers' decision to deny a dredge and fill permit under §404 of the Federal Water Pollution Control Act was not arbitrary and capricious. The district court properly found that he Corps' decision was not in retaliation for plaintiff's constitutionally protected speech in his role as president of a local environmental group and that there was no evidence to indicate that he was treated differently from other similarly situated land owners. The court holds that plaintiff's claim that the permit denial constituted an unlawful taking of his property is within the sole jurisdiction of the Claims Court since the claim exceeded $10,000. The court holds that the district court's denial of plaintiff's demand for a jury trial for his Bivens action alleging that the Corps violated his First and Fifth Amendment rights was harmless error since there was no evidence to support these claims.

Counsel for Plaintiff-Appellant
James D. Cupples
1101 Heights Blvd., Houston TX 77008
(713) 996-8675

Counsel for Defendant-Appellee
Dirk D. Snel
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4400

Before BROWN, JOHNSON and HIGGINBOTHAM, Circuit Judges.