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Good v. United States

ELR Citation: 30 ELR 20102
Nos. No. 97-5138, 189 F.3d 1355/49 ERC 1149/(Fed. Cir., 08/31/1999)

The court holds that the U.S. Army Corps of Engineers' denial of a property owner's permit application to dredge and fill wetlands on his property in the Florida keys was not a taking. The court first holds that the U.S. Supreme Court did not hold in Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 22 ELR 21104 (1992), that the denial of all economically beneficial or productive use of land eliminates the requirement that landowners have reasonable, investment-backed expectations of developing their property. In Lucas, there was no question of whether the plaintiff satisfied that criterion. The court next holds that the property owner lacked a reasonable, investment-backed expectation that he would obtain the regulatory approval needed to develop the property at issue. At the time the property owner purchased the property, he acknowledged both the necessity and the difficulty of obtaining regulatory approval. Further, the property owner waited seven years, while regulations became more stringent, before applying for such approval. Moreover, in light of the growing consciousness of and sensitivity toward environmental issues, the property owner must also have been aware that standards could change to his detriment.

Counsel for Plaintiff
Richard R. Nageotte
Nageotte, Nageotte & Nageotte
Aquia Professional Village
385 Garrisonville Rd., Ste. 201, Stafford VA 22554
(540) 659-5050

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

Before Newman and Gajarsa JJ.