ELR Citation: ELR 21201
No(s). 266-82L (Cl. Ct. Jul 23, 1990)

The court rules that the Army Corps of Engineers' denial of a dredge and fill permit under §404 of the Federal Water Pollution Control Act (FWPCA) is an unconstitutional taking and warrants just compensation under the Fifth Amendment to the U.S. Constitution. The Corps denied a request from a large-scale miner of limestone to fill wetlands purchased before enactment of the Corps' §404 dredge and fill permit program. The court holds that, but for the wetlands restrictions, the plaintiff had a legitimate interest to use its property for mining, and the takings claim is not barred by the Fifth Amendment nuisance exemption. The plaintiff's proposed activities would have been physically possible and financially feasible. However, the court concludes that in the absence of a fill permit, no market exists among knowledgeable investors, and the property is without an economically viable use. Further, the only potential buyer is a governmental unit, and the only remaining value is nominal. Thus, based on the difference between the value of the property before the taking and its value after permit denial, the court holds that the drastic impact on plaintiff's property amounts to a taking compensable at fair market value plus interest.

[Prior decisions in this case are published at 15 ELR 20626 and 16 ELR 20671.]

Counsel for Plaintiff
John A. DeVault, C. Warren Tripp, Jane A. Lester, John Tolson
Bedell, Dittmar, DeVault & Pillans
The Bedell Bldg., 101 E. Adams St., Jacksonville FL 32202
(904) 353-0211

Counsel for Defendant
Fred R. Disheroon, David Kaplan
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000