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Brace v. United States

Citation: 32 ELR 20499
No. No. 98-897 L, 51 Fed. Cl. 649/(Fed. Cl., 02/11/2002) Aff'd

The court denies the government's motion for summary judgment in a case brought by an individual alleging that the government effectively took the individual's property without just compensation when it ordered the individual to cease maintenance and operation of a drainage system on his property and to restore portions of the property to their prior condition as wetlands. The court holds that the absence of a factual record combined with recent developments in takings jurisprudence does not support allowing the government's motion for summary judgment. It is unclear from the record whether a nexus exists between 30 acres of the individual's property and an interstate waterway. Should the facts indicate that the 30 acres are not connected to an interstate waterway in any manner, then the U.S. Supreme Court's ruling in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 121 S. Ct. 675, 31 ELR 20382 (2001), renders the issue of whether a taking occurred moot because the Court ruled in that case that the U.S. Army Corps of Engineers no longer has authority to regulate isolated ponds and wetlands not connected to interstate commerce. Additionally, the size of the parcel as a whole remains in dispute. This factual dispute is relevant in establishing what the parcel as a whole is for the purpose of determining the economic impact of the regulation on the individual.

[A prior decision in this litigation is published at 31 ELR 20300.]

Counsel for Plaintiff
Henry Ingram
Resource Law Partners
330 Grant St., Pittsburgh PA 15219
(412) 281-5000

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

Tidwell, J.