ELR Citation: ELR 20463
No(s). 93-20-P-C (D. Me. Jul 22, 1993)

The court holds that a U.S. Army Corps of Engineers' (the Corps') order requiring plaintiffs to remove certain pilings from their wharf is not a taking of private property in violation of the Fifth Amendment of the U.S. Constitution. The Corps issued plaintiffs a nationwide permit to operate and maintain a wharf in navigable waters. Six years later, the Corps suspended the permit, and later reinstated it on the condition that plaintiffs remove 20 feet of float from their wharf to accommodate a private wharf to be built by another individual. The court first holds that the nationwide permit does not confer property rights on the plaintiffs, but that a constructive easement in the submerged land beneath the wharf granted by Maine constitutes property for purposes of claiming an unconstitutional taking. The court holds that the Corps' order is both enforceable and unreviewable. The Corps has discretionary authority to modify, suspend, or revoke permits for any factor in the public interest, and in its notice of permit revocation to the plaintiffs, the Corps specifically noted that the revocation was in the public interest. The court next holds that while Maine may assign property rights to submerged lands, these rights remain subject to the federal government's control for purposes of navigation and commerce pursuant to the Commerce Clause of the U.S. Constitution. Because the plaintiffs' constructive easement in the land beneath their wharf has always been held subject to the federal government's control, the court holds that the Corps' order is not a compensable taking.

Counsel for Plaintiffs
Mark Furey
Thompson, McNaboe, Ashley & Bull
85 Exchange St., P.O. Box 447, Portland ME 04112
(207) 774-7600

Counsel for Defendants
David Collins, Ass't U.S. Attorney
U.S. Attorney's Office
100 Middle St. Plaza
E. Tower, 6th Fl., Portland ME 04101
(207) 780-3257

Joshua Levin
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000