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United States v. 0.21 Acres

Citation: 12 ELR 20327
No. Nos. 77-393-Civ-CA, -2776-Civ-CA, (S.D. Fla., 05/15/1981)

In a pre-trial ruling, the district court determines that environmental laws and regulations enacted prior to the filing of a notice of condemnation are relevant to a determination of the highest and most profitable use of defendants' condemned land. Defendants are the owners of property located in Ochopee, Florida that was included in the acquisition program for the creation of the Big Cypress National Preserve, which was established by Congress on October 11, 1974. After defendants rejected plaintiff's offer to purchase the property at its appraised value, plaintiff initiated court proceedings and subsequently filed a declaration of taking for defendants' property on October 28, 1978. Initially, the court rejects defendants' contention that the date of the announcement of the Big Cypress National Preserve is the critical date in ascertaining the extent of the environmental restrictions with which the property is burdened, and rules that any environmental laws and regulations enacted prior to the filing of the notice of condemnation must be considered by the court in its determination of the highest and best use of the condemned property. Because prospective uses of which the property is allegedly capable are speculative due to regulatory restrictions, just compensation must be determined in light of applicable environmental regulations that were promulgated prior to the filing of the notice of condemnation.The court rejects as unripe for review defendants' contention that restrictions on the use of their property amount to a taking of private property. In addition, the court rejects defendants' argument that plaintiff must prove that the proposed uses to which defendants would put their property are not in the public interest and thus not cognizable in a condemnation proceeding. Plaintiff need only show that defendants' property is within the ambit of the applicable regulations. Turning to the proper application of environmental laws and regulations, the court concludes that, prior to discharging dredged or fill material into portions of their property, defendants would be required to obtain a permit from the Army Corps of Engineers pursuant to § 404 of the Federal Water Pollution Control Act (FWPCA) since federal jurisdiction under § 404 has existed since October 18, 1972 and since the relevant portions of defendants' property constitute wetlands. Furthermore, defendants' property is subject to the restrictions imposed under § 10 of the Rivers and Harbors Act of 1899 since Snook Canal, located on defendants' property, is a navigable waterway of the United States and since federal jurisdiction to regulate activities concerning the canal has existed since 1899. Finally, the court rejects defendants' contention that plaintiff is estopped from asserting the application of the permit requirements in the subsequent condemnation proceedings. The Army Corps of Engineers' determinations regarding federal regulatory jurisdiction under the FWPCA and the Rivers and Harbors Act are actions arising out of the exercise of the federal government's sovereign powers and thus cannot be frustrated under the doctrine of estoppel.

Counsel for Plaintiff
Arnold M. Weiner, Ass't U.S. Attorney
155 S. Miami Ave., Miami FL 33130
(305) 350-4573

Counsel for Defendants
William Moore
Brigham, Reynolds, Byrne & Moore
Suite 1000-D, 2699 S. Bayshore Dr., Miami FL 33133
(305) 858-2400