Lachney v. United States

No. 84-1379 (Fed. Cir. February 1, 1985)

The court holds that the passage of two years between application for and issuance of a Federal Water Pollution Control Act permit did not work a taking of plaintiff's property.

[The court has not approved this opinion for publication, and therefore it may not be cited as precedent to the court.]

[A related opinion appears at 13 ELR 20629.]

Counsel for Appellant
William L. Want
1511 K St. NW, Washington DC 20005
(202) 783-1887

Counsel for Appellee
Fred R. Disheroon
Department of Justice
Land and Natural Resources Division, Washington DC 20530
(202) 724-7361

Before Skelton and Kashiwa, JJ.

[15 ELR 20327]

Markey, J.:

Decision

The decision of the United States Claims Court, granting the United States' motion for summary judgment against Aylwyn L. Lachney (Lachney), is affirmed.

Opinion

We affirm dismissal of Lachney's complaint. Mere passage of time during the administrative process for issuance of a permit under the Clean Water Act, 33 U.S.C. § 1341 et seq. (Act), does not constitute an event upon which a taking suit under the Fifth Amendment may be maintained.

Lachney's allegation that "delay" of some two years was arbitrary and unreasonable does not, in itself, constitute a "genuine issue of material fact" sufficient to preclude a grant of summary judgment in this case. The period separating the Environmental Protection Agency's prohibition of further clearing and issuance of a permit conforming to the Act's requirements, and all events that transpired during that period, were clearly reflected on the record and were not in dispute between the parties. Cf. Skaw v. United States, 740 F.2d 941 (Fed. Cir. 1984). The Act permits "citizens suits" in the district court to compel agency action, but Lachney filed no such suit. The Claims Court's rejection of Lachney's conclusory assertions respecting "delay" is thoroughly supported by the record.

We likewise find no support for Lachney's argument that the Claims Court failed to correctly apply the "law of the case" in granting [15 ELR 20328] summary judgment. An earlier refusal to grant a motion to dismiss on the pleadings [13 ELR 20629], because allegations then at hand raised material fact issues, does not preclude later summary judgment following discovery, particularly when the later motion is accompanied by affidavits, deposition testimony, and proposed findings equivalent to stipulations. The "adverse inference" drawn by the Claims Court from Lachney's failure to clear unburdened areas cannot, even if erroneous, convert the present complaint about administrative delay into one for a taking under the Fifth Amendment.

Lachney's contrivance of an alleged "philosophical majority view" of the Supreme Court is without merit. His treatment of Deltona Corp v. United States, 657 F.2d 1191 [11 ELR 20905] (Ct. Cl. 1981), cert. denied, 455 U.S. 1017 (1982), and Jentgen v. United States, 657 F.2d 12 [11 ELR 20910] (Ct. Cl. 1981) is unpersuasive. Those cases are binding precedent on this court. South Corp. v. United States, 690 F.2d 1368 (Fed. Cir. 1982). The assertion of an "independent" basis for Claims Court jurisdiction under the Tucker Act, 28 U.S.C. § 1491, cannot withstand analysis. Lachney's remaining contentions have been fully considered and found without merit.