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Bayou Des Familles Dev. Corp. v. United States

Citation: 28 ELR 20422
No. 96-5086, 130 F.3d 1034/(Fed. Cir., 12/08/1997)

The court holds that a real estate developer, who alleges that the U.S. Army Corps of Engineers' denial of a permit to build a levee effected a taking in violation of the Fifth Amendment, failed to file suit within the statute-of-limitations period. The court first holds that under the circumstances presented, the developer's filing of its takings claim in 1991 was beyond the permissible period of the statute of limitations. The court finds that the Corps' 1979 denial of the developer's permit could be considered a final decision for ripeness purposes. At that point, the elements of a regulatory taking appear to have existed. The court next finds that even if the 1979 permit denial did not suffice for finality purposes, a district court's 1982 decision that was made in response to the developer's initial challenge to the permit denial left no doubt about the legally binding nature of the government's action. The court rejects the developer's argument that its takings claim did not ripen until 1986, when the Corps granted a permit to the local municipality for a hurricane levee on an alignment that differed substantially from the developer's original plan. The developer based this argument on the claim that because throughout the period of negotiations between the municipality and the Corps there was a possibility that a hurricane levee would be built on the developer's original alignment, its land was not rendered worthless until the matter was finally resolved. However, the district court instructed the developer in its 1982 decision to seek its takings remedy in the Court of Federal Claims under the Tucker Act. The developer was not necessarily wrong in choosing to seek a solution to its problem by negotiation over the placement of the proposed hurricane levee, rather than through further litigation with the Corps over the denial of the permit for the original levee. However, this choice did not somehow postpone the developer's obligation under the law to bring its takings claim in a timely manner. The court notes that this case differs from those in which an initial permit denial may be overcome by variances or appeals to higher administrative authorities. The developer's wetlands had no economic value for development purposes once the Corps denied the permit. In addition, the Corps' denial was final both because no administrative appeal mechanism was provided under its regulations, and because the denial was based on an unchanging fact — the inclusion of the developer's lands as part of a national park protection zone. Therefore, the lower court properly gave judgment to the government.

[Decisions related to this litigation are published at 5 ELR 20239 and 13 ELR 20055. Briefs and Pleadings in a related litigation are available at ELR BRIEFS & PLEADS. 65254.]

Counsel for Plaintiffs
David C. Loeb, Jack E. Morris
Molaison, Price & Loeb
3445 N. Causeway Blvd., Metairie LA 70004
(504) 832-2001

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

Before Newman and Mayer, JJ.