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Lake Berryessa Tenants' Council v. United States

ELR Citation: 9 ELR 20030
Nos. No. 76-1630, 588 F.2d 267/12 ERC 1585/(9th Cir., 11/30/1978)

The Ninth Circuit affirms a lower court's judgment that a Bureau of Reclamation order requiring the removal of certain privately owned docks and houseboats from a federally created and owned lake did not constitute a taking of property without just compensation. The docks and houseboats have been allowed on the lake only at the sufferance of the United States, and plaintiffs thus have no legally cognizable right or interest for which compensation can be sought. The court rules that the government's failure to take any action before 1975 concerning the removal of floating structures from the lake did not estop the government from issuing the present removal order. Nor was there any evidence that the government's action was arbitrary or contrary to the Reclamation Development Act or the Property Clause of the Constitution. The district court was also correct in concluding that the shift in responsibility for management of the lake from Napa County to the United States and the adoption of new policies requiring the removal of floating structures and restricting the use of houseboats were not major federal actions requiring the preparation of an environmental impact statement under the National Environmental Policy Act.

Counsel for Plaintiffs-Appellants
Peter E. Tiernan, Frank T. Nicolotti
74 Harold Ave., San Jose CA 95117
(408) 248-3747

Counsel for Defendants-Appellees
Larry A. Boggs
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2753

Before BROWNING and ANDERSON, Circuit Judges, and WATERS,* District Judge.