ELR Citation: ELR 20239
No(s). 05-5039 (Fed. Cir. Nov 18, 2005)

The court upholds the dismissal of real estate developers' illegal exaction and Fifth Amendment compensation claims. The developers relied on the U.S. Army Corps of Engineers' (the Corps') 1988 wetlands delineation in purchasing the 470-acre plot at issue. Due to public controversy, however, the delineation was revised in 1991, substantially increasing the acreage of jurisdictional wetlands on the subject property. In 1999, the Corps issued the developers a Clean Water Act §404 permit allowing them to fill approximately 60 acres of wetlands. In exchange, it required the developers to create or restore approximately 195 acres of wetlands as mitigation and to transfer title in 220.85 acres of the property to a nonprofit property owners' association. The developers then filed suit, arguing that because they bought the 470-acre parcel in reliance upon the 1988 delineation, the subsequent and less favorable re-delineation "culiminated in" a taking of the 220.85 acres set aside nearly a decade later in accordance with the 1999 §404 permit. Yet the causal relationship between the revocation of the 1988 delineation and their alleged loss is simply too attenuated to support the weight the developers place upon it. Moreover, the developers provided no basis on which to reverse the trial court's conclusion that no physical, categorical, or regulatory taking occurred. Likewise, the trial court properly found that it lacked jurisdiction over the developer's illegal exaction claim.

[A prior decision in this litigation is digested at 34 ELR 20157.]