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Robbins v. United States

Citation: 28 ELR 21077
No. 96-779L, 40 Fed. Cl. 381/46 ERC 1505/(Fed. Cl., 02/20/1998)

The court holds that a U.S. Army Corps of Engineers' determination that landowners' property comprised jurisdictional wetlands, which resulted in the recision of a private contract for the sale of the property, did not constitute a compensable taking. The court first holds that the cancellation of the contract was a private action. In no manner did the Corps preclude the sale of the landowners' property; the parties to the contract caused the cancellation. Although the wetlands determination may have frustrated the land sale contract, it is well-settled that government action that merely frustrates expectations under a contract does not constitute a taking. The court also rejects the landowners' argument regarding the taking of the commercial value of the property. The fact that the wetlands determination may have prompted the recision of the contract, or precluded a future contract is not material. The Corps has jurisdiction to issue a permit to fill jurisdictional wetlands pursuant to Federal Water Pollution Control Act (FWPCA) § 404. And the mere assertion of regulatory jurisdiction by a governmental body does not constitute a taking. Moreover, the wetlands determination does not preclude the sale or development of the property; it merely precludes development without a permit. In this case, the landowners never applied for an FWPCA § 404 permit. The court then holds that the disputed issue of the amount to which the property's value diminished is not material because the purported economic impact was not caused by government action. Furthermore, mere diminution in a property's value is insufficient to demonstrate a taking. Likewise, an inability to maximize profits is insufficient to establish the deprivation of all economically beneficial or productive use of the property. The court further holds that the landowners may not establish that their investment-backed expectations in the property were reasonable simply because they lacked the knowledge that their land comprised jurisdictional wetlands. The court also holds that the landowners' claim is ripe for review, because the landowners' takings claim allegedly resulted from the wetlands determination.

Counsel for Plaintiffs
Paul J. Harris
Harris & Bush
U.S. Rte. 219, 250 S., Elkins WV 26241
(304) 636-1111

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