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Kentucky ex rel. Dep't for Natural Resources & Envtl. Protection v. Stephens

Citation: 6 ELR 20772
No. No. 75-1050, 539 S.W.2d 303/(Ky., 07/02/1976)

The court upholds the consitutionality of the Kentucky Wild Rivers Act, but rules that when Kentucky seeks to prohibit activities in areas covered by the Act, a taking of property occurs for which compensation must be paid. The Wild Rivers Act designates eight streams, including the subject Columbia River, as being in the Wild Rivers system but fails to describe accurately the boundaries of the areas to be protected. The court holds that the Act is enabling rather than self-executing so that subsequent actions must be taken to put its directions into force. The court rejects plaintiffs' claim that the Act is a valid exercise of the state police powers, for which compensation need not be paid for interference with the use of property, because the Act itself directs that a landowner may not be deprived of his property without just compensation. When the Department for Natural Resources and Environmental Protection establishes the boundaries of the protected area, a compensable taking occurs. The concurrence contends that the state has the right to "freeze" the use of the wild river areas without requiring compensation, but believes the United States Supreme Court would view this as a taking without due process. The dissent argues that a compensable taking occurred when the Wild Rivers Act became effective because, notwithstanding the failure to delineate the protected areas, the landowner was actually restricted in the use and enjoyment of his property.

Counsel for Appellants
Robert F. Stephens, Attorney General
Department of Law
State Capitol
Frankfort KY 40601
(502) 564-7600

R. Lee Armbruster Special Asst. Attorney General
George L. Seay, Jr.
Department for Natural Resources and Environmental Protection
Capital Plaza Tower
Frankfort KY 40601
(502) 564-3350

Counsel for Appellees
Homer W. Ramsey
Bank Bldg.
Whitley City KY 42653
(606) 376-5931

J. B. Johnson, Sr.
Johnson, Teague & Cox
Maiden Drug Bldg.
Williamsburg KY 40769
(606) 549-3585

Counsel for Amicus Curiae Morris Stephens and Tombstone Junction Enterprises
A. Robert Doll
Ronald D. Ray
Greenebaum, Doll, Matthews & Bonne
3300 First National Tower
Louisville KY 40202
(502) 589-4200

Lively M. Wilson
Winfrey P. Blackburn, Jr.
Stites, McElwain & Fowler
34th Floor, First National Tower
Louisville KY 40202
(502) 589-3920

Counsel for Amicus Curiae Citizens League to Protect the Surface Rights, Inc.
J. T. Begley
Appalachian Research and Defense Fund of Kentucky, Inc.
630 Maxwelton Court
Lexington KY 40508
(606) 257-2771

Sternberg, J. for the court; concurrence by Palmore, J., joined by Reed, C.J. and Stephenson, J.; dissent by Jones, J.

All concur, except JONES, J., who dissents.