Laney v. United States
Citation: 11 ELR 20910
No. No. 130-80L, 661 F.2d 145/228 Ct. Cl. 519, (Ct. Cl., 08/19/1981)
Reversing the trial division's grant of summary judgment, the Court of Claims rules that the Army Corps of Engineers' denial of a permit to construct a pier on a private island may constitute a taking under the Fifth Amendment. Plaintiff, owner of a 160-acre island in the Florida Keys, sought a dredge and fill permit to construct a pier in connection with his proposed use of the island as a primate breeding research facility. Although construction of the pier itself would not be adverse to the public interest, the Corps denied the permit to prevent any alteration or destruction of the island from plaintiff's proposed use. As in the Deltona, 11 ELR 20905, and Jentgen, 11 ELR 20910, cases, decided concurrently, the court rejects the proposition that a mere diminution in value of the property, i.e., a frustration of the "highest and best use," establishes a taking. The present record, however, does not rule out the possibility that the Corps intends to preclude all upland development on the island, depriving plaintiff of any remunerative use. To clarify this factual issue, the court remands the case to the trial division for further proceedings.
Counsel for Plaintiff
Carl. L. Shipley
Shipley, Smoak & Akerman
1108 Nat'l Press Bldg., Washington DC 20045
Counsel for Defendant
Gary W. Wilburn
Land and Natural Resources Division
Department of Justice, Washington DC 20530
Before NICHOLS, KUNZIG and SMITH, Judges.