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Pax Christi Memorial Gardens, Inc. v. United States

Citation: 32 ELR 20640
No. No. 00-717L, 52 Fed. Cl. 318/(Fed. Cl., 04/11/2002)

The court holds that cemetery owners' takings claims arising from their failure to obtain a Clean Water Act (CWA) §404 permit from the U.S. Army Corps of Engineers are not ripe for review. In 1983, the property owners applied for a CWA §404 permit to dredge and fill 50 acres of the property, which the Corps denied. In 1995, the owners applied for another CWA §404 permit to do essentially the same thing for which they had been denied a permit in 1983. The Corps informed the owners that the application was incomplete, but nothing was done until 1997 when the owners submitted a new application. The Corps issued a public notice and request for public comment on the owners' application, to which it received many comments. These were forwarded to the owners, along with a request for additional information. Because the owners failed to formally respond or request additional time to respond by the 30-day deadline, the Corps withdrew the application. The owners then filed the instant action.

The court holds that because the Corps' decision to withdraw the owners' permit application was not a final decision on the merits of the application, the takings claims are not ripe for review. U.S. Supreme Court and Federal Circuit precedent state that a withdrawal of a §404 permit for lack of necessary information is not a final decision for ripeness purposes. It is clear that the Corps' withdrawal of the owners' 1995 permit application was not a final decision on the merits of the application, but simply a postponement of a final decision until all of the necessary information is submitted. Additionally, in its letter to the owners withdrawing the application, the Corps did not effectively deny the owners' permit application or clearly demonstrate the futility of completing the process. When the letter is read in context, it is clear that the Corps did not finally reject the proposed project or indicate that it would not consider other less damaging on-site alternatives. Taken as a whole, the Corps' request for information, together with the public notice comments, suggest that a more modest permit application might well be accepted.

The full text of this decision is available from ELR (19 pp., ELR Order No. L-503).

Counsel for Plaintiffs
Todd R. Wiener
Law Offices of Todd R. Wiener
227 W. Monroe St., Chicago IL 60606
(312) 984-7719

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