ELR Citation: ELR 21477
No(s). 90-1151 (Fed. Cir. Jul 12, 1991)

The court holds that the Columbia River Gorge National Scenic Area Act does not provide a waiver of sovereign immunity to authorize a multimillion dollar claim in U.S. district court against the U.S. Secretary of Agriculture for the alleged taking of a lumber company's water rights. After passage of the Gorge Act, the U.S. Forest Service informed the lumber company that the company's proposed hydroelectric power project fell within the Act's proscriptions. The company filed suit in U.S. district court, alleging a taking of property under the Fifth Amendment, and the case was twice transferred to the U.S. Claims Court on the basis of its exclusive jurisdiction under the Tucker Act to adjudicate takings claims against the United States. On review of the transfer orders, the Federal Circuit holds that no district court jurisdiction exists under either the Gorge Act or 28 U.S.C. §1131, the general federal question jurisdiction statute, over the company's claim for compensation. The court holds that the Act cannot be interpreted to provide a waiver of sovereign immunity by which Congress consented to suit in the U.S. district court against the Secretary for just compensation resulting from an alleged inverse condemnation of water rights. The court holds that the company's claim for just compensation is not a citizen suit to compel compliance with a nondiscretionary duty assigned to the Secretary by the Gorge Act. Compliance with the Act would require only an order directing the Secretary to promulgate regulations covering that situation; an order to compel compliance with a nondiscretionary duty to promulgate regulations concerning the possibility of takings would not require the district court to determine and award the amount of just compensation that the company requests. The court observes that the plaintiff inappropriately attempts to wedge a Fifth Amendment takings claim for just compensation into a civil action to compel compliance with the Act. The court also holds sua sponte that U.S. district court jurisdiction does not exist under 28 U.S.C. §1331. The court concludes that the takings clause in the Fifth Amendment is self-executing, and to bring a takings claim in the district court exceeding $10,000 would be implicitly repealing the Little Tucker Act. Finally, the court affirms the district court's order transferring the case to the Claims Court.

Counsel for Plaintiff-Appellant
Michael E. Haglund
Haglund & Kirtley
1 Main Pl., 101 S.W. Main, Ste. 700, Portland OR 97204
(503) 225-0777

Counsel for Defendants-Appellees
Jeffrey P. Kehne
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Charles H. Turner, U.S. Attorney; Thomas C. Lee, Ass't U.S. Attorney
620 S.W. Main St., Portland OR 97205
(503) 326-2101

Before NIES, Chief Judge, MILLER, Senior Circuit Judge and ARCHER, Circuit Judge.