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Cooley v. United States

ELR Citation: 30 ELR 20543
Nos. No. 93-413L, 46 Fed. Cl. 538/(Fed. Cl., 04/28/2000)

The court holds that the U.S. Army Corps of Engineers' denial of landowners' Clean Water Act §404 permit application effected a permanent taking of their property in violation of the Fifth Amendment. The court first holds that the landowners' claim is ripe. Even if more information were offered by the landowners, they could not have received a permit because the Corps' denial was a decision on the merits. Moreover, although the Corps later changed its mind and offered the landowners a permit one day before trial was to begin, the regulations mandate that a decision on the merits is a final decision. The court also holds that the landowners owned the land continuously. The quitclaim deed transferring the landowners' property interest, which was returned to them five days later, was intended as collateral for a loan. In addition, the landowners' "contract for deed," which is the functional equivalent of a mortgage, constituted ownership of land for purposes of the landowners' takings claim.

The court next holds that the Corps' denial constitutes a permanent taking. Although the Corps offered the landowners a permit after its denial, the Corps may not by ipse dixit declare that a permanent taking is now temporary. Further, the permit offered to the landowners was an invalid provisional permit. Consequently, no permits were granted and no rescission of the taking was effected. Last, the court holds that the landowners are entitled to just compensation for the permanent taking of their property, which the court found to have a fair market value of $2,065,200.42.

Counsel for Plaintiff
Jerry Stouck
Spriggs & Hollingsworth
1350 I St. NW, 9th Fl., Washington DC 20005
(202) 898-5800

Counsel for Defendant
Thomas L. Halkowski, Susan V. Cook
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000