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Allain Lebreton Co. v. Department of the Army

Citation: 12 ELR 20605
No. No. 80-3451, 670 F.2d 43/17 ERC 1169/(5th Cir., 03/11/1982)

The court rejects the appellant's takings claim based on a Corps of Engineers decision to locate a flood control levee so as to leave appellant's wetlands property in its natural state. The refusal to place the levee so as to enclose appellant's property, although foreclosing drainage and development of the land, was not a taking and did not present a justiciable controversy. The court adds that the Federal Torts Claims Act does not apply and that the Corps did not abuse its discretion in determining where the levee would be best located in light of legislative policies favoring wetlands protection and mitigation of harmful effects on wildlife.

Counsel for Plaintiff (Appellant)
Alex P. Allain
Allain & Allain
P.O. Box 329, Jeanerett LA 70544
(318) 276-5513

J. Francois Allain
Chaffe, McCall, Phillips, Toler & Sarpy
1500 First Nat'l Bank of Commerce Bldg., New Orleans LA 70112
(504) 568-1320

Counsel for Defendant (Appellee)
Marc J. Yellin, Ass't U.S. Attorney
500 Camp St., Hale Boggs Fed. Bldg., New Orleans LA 70130
(504) 589-2921

Thomas L. Riesenberg, Anthony C. Liotta, Anne S. Almy
Land and Natural Resources Division
Department of Justice, Washington DC20530
(202) 633-4519

Before CLARK, Chief Judge, REAVLEY and RANDALL, Circuit Judges.