ELR Citation: ELR 20814
No(s). 553-89L (Cl. Ct. Nov 30, 1990)

The court holds that a failure by the U.S. Army Corps of Engineers to identify which portion of a tract of land in Louisiana required a dredge and fill permit under §404 of the Federal Water Pollution Control Act (FWPCA) and a delay of almost 16 months in issuing dredge and fill permits to the tract's owners were not takings without just compensation in violation of the Fifth Amendment to the U.S. Constitution. The court first holds that the landowners were not entitled to rely on pre-1975 law or government assurances made in 1974 when they began clearing and filling the tract in 1984. Plaintiffs should have ascertained for themselves whether their development activities in 1984 comported with federal laws and regulations in effect in 1984. The court next holds that the Corps' failure to identify which of the 112 acres were wetlands, for which the plaintiffs required an FWPCA §404 permit to conduct filling, did not constitute a permanent taking without just compensation. The plaintiffs cannot reasonably contend that they have been denied economically viable use of their land, since the Corps granted their permit requests and they have been free to develop and sell their land for residential and commercial purposes. The court further holds that the Corps' delay of almost 16 months in granting the plaintiffs' permits does not constitute a temporary taking without just compensation. The materials before the court do not indicate that 16 months to process the permits rises to the level of extraordinary delay. Mitigation negotiations between the parties consumed at least 10 of the 16 months, and almost five months elapsed between the time the Corps issued a cease and desist order for plaintiffs' filling activities and the time the plaintiffs were advised to submit their permit application. Further, the record does not support a finding that the Corps acted in bad faith at any point in its dealings with the plaintiffs.

Counsel for Plaintiffs
Michael F. Little
Little, Metzger & Lamz
3421 N. Causeway Blvd., Ste. 700, Metairie LA 70002
(504) 831-2447

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