ELR Citation: ELR 20185
No(s). 91-1474 (Fed. Cl. Nov 19, 1993)

The court holds that a developer of a Louisiana tourist resort did not have a sufficient compensable property interest to bring a taking claim against the U.S. Army Corps of Engineers (Corps) for its denial of the developer's Federal Water Pollution Control Act §404 dredge and fill permit application. The Corps denied the developer's application because the Corps and the developer could not agree on adequate mitigation to fully compensate for the values and functions of those special aquatic sites that would be adversely affected by the developer's proposed project. Bifurcating its discussion to accommodate the distinction between that 50.9 acres, of the total 59-acre project, of the developer's land that lay below the mean high watermark and the remaining acres that lay above the mark, the court first holds that as to the land below the mark, the developer lacks a compensable interest sufficient to support its taking claim. The land below the mark is navigable waters of the United States and is subject to applicable state and federal regulation. Louisiana regulations require riparian landowners seeking to reclaim lands lost through erosion to apply for a coastal use permit from the state's Department of Natural Resources. The developer had obtained the appropriate permit, but it expired and was not renewed. At the time of the alleged taking, however, the permit to reclaim the submerged land, which was required for the project, was invalid. By not renewing the permit, the developer had no compensable interest in the land below the mean high watermark and could not proceed with its taking claim as to this land.

Addressing that portion of land above the mean high watermark, the court holds that there was no taking because neither the regulation nor the permit denial flatly prohibited development of the land. The permit denial was premised on the failure to agree on the amount of mitigation required, not the need to mitigate. The developer was not deprived of all economically beneficial or productive use of its land. Moreover, the government had assisted the developer in the regulatory process by providing alternatives that would advance the developer's proposal for productive use of its land.

Counsel for Plaintiff
Lawrence D. Weidman
Weidman & Weidman
P.O. Box 30648, New Orleans LA 70190
(504) 581-6180

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