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Tabb Lakes, Inc. v. United States

ELR Citation: 24 ELR 20169
Nos. No. 93-5029, 10 F.3d 796/38 ERC 1179/(Fed. Cir., 11/24/1993) Aff'd

The court holds that the U.S. Army Corps of Engineers (Corps) did not effect a temporary taking of a developer's property that requires compensation under the Fifth Amendment of the U.S. Constitution by ordering the developer to cease and desist from filling wetlands without a Federal Water Pollution Control Act (FWPCA) §404 permit. Approximately 38 acres of the developer's 167 acres of land contained wetlands, and after the developer began construction, the Corps ordered the developer to cease and desist from filling any wetlands until it obtained a §404 permit. Following subsequent litigation, which held that the Corps' assertion of jurisdiction was procedurally defective, the developer proceeded to fill the wetlands, and later sought to recover just compensation from the Corps for the alleged temporary taking of its property in which wetlands were located. First the court holds that the order did not effect a taking. Although the order effectively stopped the company's development activities at the site, it left open the option of development after obtaining a permit. Moreover, the FWPCA permit process is a preliminary regulatory activity that, under established case law, does not effect a taking in the constitutional sense. Next, the court rejects the developer's argument that compensation for a taking must be paid where a mistake is made in the Corps' permit process. The Corps' mistake in exercising jurisdiction, as held in Tabb Lakes, Ltd. v. United States, 20 ELR 20008 (4th Cir. 1989), may give rise to a due process claim, but it does not give rise to a taking claim. The Corps' assertion of jurisdiction respecting the wetlands was within its authority and cannot be considered ultra vires. Finally, the court holds that the developer is not entitled to compensation for any alleged unreasonable delay caused by the Corps' order, because the order was not a taking when it was issued, and subsequent events, such as diminution in value, do not change the order's nontaking character.

[The lower court's decision is published at 23 ELR 20104. Prior decisions regarding the Corps' jurisdiction are published at 19 ELR 20672 and 20 ELR 20008.]

Counsel for Plaintiff
Richard R. Nageotte
385 Garrisonville Rd., Ste. 201, Stafford VA 22554
(703) 659-5050

Counsel for Defendant
David C. Shilton, Dirk D. Snel
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Smith and Michel.