ELR Citation: ELR 20300
No(s). 98-897 L (Fed. Cl. Dec 1, 2000)

The court denies the federal government's motion for summary judgment in a case where a farmer alleged that the government took his property without just compensation by ordering the farmer to cease operation of a drainage system and restore his property to its prior condition as wetlands. The court first holds that the farmer is unable to demonstrate that there was an insufficiency in the character of the government's actions. The government has a legitimate public welfare obligation to preserve our nation's wetlands, and the government's actions in this case were implemented to protect the farmer's wetlands. The court then holds that it cannot determine the economic impact of the government's actions because the parcel of land affected by the government's actions is at issue. The government argues that the 30 acres of wetlands at issue is merely a small part of the farmer's 600-acre farming operation, and that the 600-acre parcel is the relevant parcel. However, the farmer contends that the 80-acre parcel on which the 30 acres of wetlands is found is the relevant parcel. As the number of acres the farmer owns is in dispute, the court cannot determine the economic impact of a taking of the farmer's land. In addition, although the government argues that the farmer has many remaining uses of the land and that there are valuable economic rights in the property as a whole, the court cannot determine if economic value remains in the land without further evidence of the value of the land. Neither party presented any appraisal reports and there is no evidence that the wetland acres are proportionally more valuable than the remainder of the property. The court next holds that the farmer is not able to demonstrate that he had reasonable investment-backed expectations in the development of the land at issue. When the farmer acquired his land, he knew of the wetland character of the property. The farmer also had notice that wetlands on his property might be regulated due to the passage of the Clean Water Act (CWA) as well as by judicial decisions that explained the scope of the waters of the United States regulated under the CWA. Therefore, by failing to promptly apply for a CWA §404 permit to fill wetlands on his property, the farmer knowingly took a risk that environmental regulations would become more stringent.

Counsel for Plaintiff
Henry Ingram
Resource Law Partners
Grant Bldg., Ste. 730, Pittsburgh PA 15219
(412) 281-5019

Counsel for Defendant
Susan V. Cook
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000