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Walcek v. United States

Citation: 33 ELR 20045
No. No. 01-5108, 303 F.3d 1349/(Fed. Cir., 09/11/2002)

The court affirms a Court of Federal Claims' determination that the U.S. Army Corps of Engineers (the Corps) did not take developers' property when it denied them a Clean Water Act §404 permit to develop their entire property. After several failed attempts to develop the property, the developers sought a §404 permit from the Corps. The Corps originally denied the developers' application and proposed alternatives. Instead of implementing the alternatives, the developers filed suit alleging a taking. While the suit was pending the Corps issued the developers a §404 permit allowing limited property development. The Court of Federal Claims then held that the Corps' actions resulted in neither a categorical taking nor a regulatory taking. The developers appealed. The court first holds that the Court of Federal Claims did not err in determining that the parcel of land to be considered under its takings analysis was all of the 13.2 acres of wetlands on the property and not just the 11 acres of wetlands that the Corps would not allow to be developed. The developers raised the argument that the 11-acre parcel was the relevant parcel for the first time on appeal. Consequently, the Court of Federal Claims properly refused to consider the argument. Moreover, the court holds that the Court of Federal Claims did not err in applying the Penn Central factors and determining that a taking did not occur. The Court of Federal Claims properly analyzed the §404 permit's impact with respect to the entire 14.5-acre property and did not improperly base its analysis on the 13.2 acres of wetlands alone. According to U.S. Supreme Court precedent, the relevant parcel for a takings analysis is the parcel as a whole. Likewise, the court holds that the Court of Federal Claims committed no error in declining to adjust the value of the property for inflation before determining whether the Corps' permit would allow the developers to realize a profit from developing the property.

Counsel for Plaintiffs
James S. Burling
Pacific Legal Foundation
2151 River Plaza Dr., Ste. 305, Sacramento CA 95833
(916) 641-8888

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