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Bailey v. Corps of Eng'rs

ELR Citation: 33 ELR 20118
Nos. No. 02-639 (RHK/RLE), (D. Minn., 11/21/2002)

The court dismisses a landowner's takings claims against the U.S. Army Corps of Engineers (the Corps) and Minnesota state agencies for rejecting his proposed wetland replacement plan and ordering him to remove an access road on the property and to restore the wetlands on his lots. The landowner built an access road on his property in conjunction with his plan to develop a residential development. He then applied for an after-the-fact permit from the Corps and submitted a wetland replacement plan to the state pursuant to state law. The various agencies then learned that the land contained more wetlands than initially thought, and the Corps denied the landowner's permit and ordered him to remove the access road. The state rejected his proposed wetland replacement plan, revoked its Clean Water Act §401 certification to the Corps that the project could be achieved consistent with the state's water quality standards, and ordered the landowner to restore the wetlands on his property. The landowner then filed suit. The court first holds that sovereign immunity precludes the court from deciding the landowner's challenge to the Corps' restoration order. The Administrative Procedure Act does not provide for judicial review of the restoration order, therefore, sovereign immunity has not been waived. Similarly, the court holds that it lacks subject matter jurisdiction to consider the landowner's claim that the Corps violated Executive Order No. 12630, which requires governmental agencies to prepare a takings implication assessment for its actions. No right of action exists to enforce the order. In addition, the court holds that the Eleventh Amendment bars the landowner's claims regarding the state agencies' certification decision and restoration order because the state agency defendants did not waive their Eleventh Amendment immunity from suit in federal court. The court also rejects the landowner's alternative argument that the state agencies' actions constitute a taking without just compensation. Until the landowner seeks relief in a state court inverse condemnation action and relief is denied, his claim is not ripe. Lastly, the court holds that res judicata bars the landowner's claims that he detrimentally relied on statements made by a county about the access road.

Counsel for Plaintiff
Alan B. Fish
Law Offices of Alan B. Fish
109 Second St. NE, Roseau MN 56751
(218) 463-2088

Counsel for Defendants
Joshua Levin
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000