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Jentgen v. United States

Citation: 11 ELR 20910
No. No. 415-77, 657 F.2d 1210/16 ERC 1474/228 Ct. Cl. 527, (Ct. Cl., 08/19/1981)

The Court of Claims rules that the Army Corps of Engineers' denial of plaintiff's applications for dredge and fill permits for a planned residential community near the Everglades National Park does not constitute a taking of property under the Fifth Amendment. In 1971 plaintiff acquired about 100 acres of undeveloped land containing large mangrove wetland areas in addition to 20 upland acres. He unsuccessfully sought dredge and fill permits in 1973 under § 10 of the Rivers and Harbors Act and in 1975 under § 404 of the Federal Water Pollution Control Act. The court rejects plaintiff's contention that, as a result of post hoc government regulation during the early 1970s, he has been deprived of the economically viable use of his property. In addition to 20 acres for which plaintiff was offered permits, the tract contains 20 upland acres which can be developed without Corps permits. As the Court of Claims explained in its concurrent decision in Deltona Corp. v. United States, 11 ELR 20905, a mere diminution in property value does not establish a taking.

The full text of this opinion is available from ELR (7 pp. $1.50, ELR Order No. C-1254).

Counsel for Plaintiff
Thomas C. Henry, Carl L. Shipley
Shipley, Smoak & Akerman
1108 Nat'l Press Bldg., Washington DC 20045
(202) 783-1647

Counsel for Defendant
Fred R. Disheroon; Carol E. Dinkins, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2307

Kunzig, J., jobined by Friedman and Skelton, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]