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Bailey v. United States

Citation: 17 ELR 20501
No. No. 85-3147, 647 F. Supp. 44/(D. Idaho, 10/16/1987)

The court holds that the Corps of Engineers' wetlands determination for 50 acres of plaintiffs' land that were saturated as a result of the construction of a dam was not arbitrary and capricious. The court initially observes that Corps' wetlands determinations are evaluated under the Administrative Procedure Act's arbitrary and capricious standard. The court holds that the Corps' wetlands determination for plaintiffs' land was not arbitrary and capricious. Although a portion of the land was not saturated at the surface, the the soil supports wetland vegetation under normal circumstances. That the wetlands were formed as the result of a higher water table created by the construction of a dam does not negate the Corps' assertion of regulatory jurisdiction, since the Corps' jurisdiction is determined by whether the site is presently wetlands, not by how it became wetlands. The court holds that the Corps' participation in the county zoning commission's proceedings to determine whether plaintiffs' land could be zoned for residential purposes did not violate plaintiff's Fifth Amendment right to due process, since the Corps' participation neither deprived plaintiffs of notice or opportunity to be heard nor precluded the commission from acting independently. Finally, the court holds that the Corps' assertion of jurisdiction does not constitute a taking under the Fifth Amendment. Under the Supreme Court's decision in United States v. Riverside Bayview Homes, 16 ELR 20086, a court can consider the taking question only if plaintiffs apply for and are denied a dredge and fill permit under § 404 of the Federal Water Pollution Control Act.

Counsel for Plaintiffs
D. Blair Clark, Thomas C. Frost
Ringert, Clark, Harrington, Reid, Christenson & Kaufman
599 W. Bannock St., Boise ID 83702
(208) 342-4591

Counsel for Defendants
Bonnie A. Sullivan, Beth S. Ginsburg
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000