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Cristina Inv. Corp. v. United States

Citation: 28 ELR 21040
No. 95-128L, 40 Fed. Cl. 571/(Fed. Cl., 02/25/1998)

The court holds that a developer's takings claim against the United States is barred by 28 U.S.C. § 2501's six-year statute of limitations. Two developers claim that the U.S. Army Corps of Engineers' denial of a permit application to construct a levee, and the Corps' subsequent selection of an alternate levee alignment that effectively proscribed the development of their wetland property, resulted in a taking. The court first rejects the developers' argument that the stabilization principle announced in United States v. Dickinson, 331 U.S. 745 (1947), which provides that a government taking of land that occurs by a continuing process of physical events postpones the accrual of that claim until those events have stabilized, should be applied to their takings claim. The source of the developers' entire claim is premised upon the denial of a government permit to construct a private levee. This was a single event. The developers' invitation to extend the principle announced in Dickinson to embrace a continuing process of legal or political events has been rejected by the Federal Circuit. The proper analytical framework to be applied to a takings claim that, as here, challenges a permit denial is the ripeness doctrine.

The court next holds that the pursuit of administrative or other potential remedies directed at overturning the Corps' denial did not prevent the accrual of the developers' takings claim. A property owner is not required to exhaust remedies directed at reversing the government denial in order to bring a takings claim. All that is necessary to ripen a federal takings claim of this kind is a final decision from the government on the proposed use. Challenges to a government denial on its merits do not bear upon whether the takings claim is ripe for adjudication because the success of such challenges would not afford the developers the relief of just compensation they seek. The court further holds that the Corps' denial of the permit was a final denial, and the developers' takings claim accrued on that date. While neither the Federal Water Pollution Control Act nor its regulations limit the Corps' discretion to consider a different permit application for a less intensive proposal after an initial denial, such reapplication would have been futile. The Corps' denial addressed the merits of the proposal and rejected the proposal on ecological grounds. Further, the Corps' denial was based upon an unchanging fact that the wetlands at issue were within a protected zone, and, therefore, no permit would have been granted for a project that would facilitate their development. The court finally holds that because one of the developers did not purchase its interest in the wetland property until after the takings claim accrued, its claim fails. Only the owner of the property at the time of the alleged taking may assert a takings claim.

[A decision related to this litigation is published at 28 ELR 20422.]

Counsel for Plaintiffs
Robert E. Arceneaux
Barham & Arceneaux
Poydras Ctr.
650 Poydras St., Ste. 2700, New Orleans LA 70130
(504) 525-4400

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