ELR Citation: ELR 20170
No(s). 05-674 (W.D. Mich. Jul 29, 2009)

The Federal Circuit upheld the dismissal of a local fish and wildlife commission's Fifth Amendment taking claim based on the United States' construction and operation of a navigation project on the Red River in Louisiana. The government's power to regulate navigation under the Commerce Clause confers upon the United States a "dominant servitude" on navigable waters. Any interest that arises from access to, and use of, navigable waters falls within the government's dominant servitude, and any private interest is subservient to that servitude. Here, the commission's property interest—the ability to draw down water in order to control unwanted aquatic weed growth—arises from access to and use of navigable waters. This interest is therefore subservient to the federal government's navigational servitude and, thus, is not compensable under the Fifth Amendment.

[A prior decision in this litigation can be found at 36 ELR 20082]