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Sharp Land Co. v. United States

ELR Citation: 27 ELR 21039
Nos. 96-30-B, 956 F. Supp. 691/(M.D. La., 07/12/1996)

The court dismisses landowners' claims under the U.S. Constitution, state tort law, and federal law arising from the U.S. Army Corps of Engineers' (the Corps') and the U.S. Environmental Protection Agency's (EPA's) issuance of orders requiring them to stop harvesting timber on their property. The Corps determined that the landowners were harvesting timber on wetlands and issued a cease-and-desist order. EPA later issued the landowners administrative orders requiring them to restore the wetlands, to apply to the Corps for after-the-fact Federal Water Pollution Control Act (FWPCA) §404 permits for the prior harvesting, and to apply for new §404 permits before engaging in any additional harvesting. The court holds that it lacks jurisdiction to review the issuance of the agency orders because the FWPCA does not allow for preenforcement review of FWPCA orders. The court next dismisses the landowners' takings claim without prejudice, because no regulatory taking can occur until they apply for and are denied their permits. The court also dismisses the landowners' state-law claims of defamation and contract interference, because the U.S. waiver of sovereign immunity in the Federal Tort Claims Act (FTCA) specifically excludes such claims. The court also dismisses any tort claims brought against the Corps and EPA that are not excluded from the FTCA, because the landowners have failed to exhaust administrative remedies properly. And the court dismisses the landowners' claims that by interfering with the landowners' attempt to buy and sell property, the Corps, EPA, and agency officials have taken a property right that belongs to the landowners and denied them due process of law. Contract interference generally does not give rise to a taking.

Counsel for Plaintiffs
Claire P. Sharp
Legal Department
Sharp Land Company
228 St. Charles Ave., Ste. 622, Metairie LA 70130
(504) 599-2184

Counsel for Defendants
James L. Nelson, Ass't U.S. Attorney
U.S. Attorney's Office
777 Florida St., Rm. 208, Baton Rouge LA 70801
(504) 389-0443