Anchor Pointe Boat-A-Minium Ass'n, Inc. v. Meinke, BOAT-A-MINIUM

• Decision Date: 28 October 1988
• Docket Number: BOAT-A-MINIUM,87-3427,Nos. 87-3343,s. 87-3343
• Citation: 860 F.2d 215
• Parties: ANCHOR POINTEASSOCIATION, INC., Plaintiff-Appellant, v. Vern MEINKE, Meinke Marina West, and the United States of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 215

860 F.2d 215

ANCHOR POINTE BOAT-A-MINIUM ASSOCIATION, INC., Plaintiff-Appellant, v. Vern MEINKE, Meinke Marina West, and the United States of America, Defendants-Appellees.

Nos. 87-3343, 87-3427.

United States Court of Appeals Sixth Circuit.

Argued May 5, 1988.

Decided Oct. 28, 1988.

Robert N. Dunn, Robert G. Lahiff (argued), Foster, Meadows & Ballard, P.C., Detroit, Mich., Fred E. Henning, Duffey & Henning, Toledo, Ohio, for plaintiff-appellant.

Paul Wingart, Neipp & Wingart, Toledo, Ohio, Gene W. Graves (argued), Oak Harbor, Ohio, for Vern Meinke, Meinke Marina West.

Thomas A. Karol, Asst. U.S. Atty., Toledo, Ohio, for the U.S.

Patrick J. Foley, Asst. U.S. Atty., Toledo, Ohio, for defendant-appellee.

Before KRUPANSKY and NELSON, Circuit Judges, and TODD, District Judge. ^*

KRUPANSKY, Circuit Judge.

Plaintiff-appellant Anchor Pointe Boat-A-Minium (Anchor Pointe), a marine condominium association organized under the laws of Ohio, appealed from the district court's entry of summary judgment in favor of defendants-appellees United States of America (government), Vern Meinke, and Meinke Marina West (Meinke Marina) in this action commenced to review the Army Corps of Engineers' (ACE) issuance of a permit allowing Meinke Marina to remove a dike giving its patrons access to Lake Erie through Anchor Pointe Channel. The record disclosed the following facts.

The land upon which Anchor Pointe is now located was, before the 1950's, nonnavigable farm and swamp land situated in Lucas County, Ohio on the southern shore of Lake Erie. In the 1950's, the land was excavated to produce boat slips as well as Anchor Pointe Channel which flows in a northerly direction into Lake Erie and provides access to the dock area. Prior to its excavation, the eastern boundary of the property was the western bank of Cooley Canal, a navigable waterway that also flows in a northerly direction into Lake Erie. Anchor Pointe Channel and Cooley Canal are parallel waterways separated by man-made dikes.

Lucas County (County) owns the property abutting Anchor Pointe's southern border, i.e., inland. The County has operated a public boat ramp on its land with access to the ramp through Anchor Pointe Channel pursuant to an easement from Anchor Pointe. Immediately south, i.e., inland, of the county's public boat ramp is a parcel of farm land which is bounded by Cooley Canal on the eastern border. Meinke Marina adjoins the southern border of this parcel of farm land and is also bounded by Cooley Canal on the east.

On May 18, 1983, Meinke Marina filed an application with ACE for a permit to enlarge its facility by expanding to the north, i.e., on the farm land situated between Meinke Marina and the public boat ramp. As part of its expansion plan, it sought permission to dredge Cooley Canal and to remove a section of the dike separating Cooley Canal and Anchor Pointe Channel to permit access to its marina through Anchor Pointe Channel.

Anchor Pointe opposed the permit application asserting that Anchor Pointe Channel was private property, that increased boat traffic would erode its banks and that boats moored at Anchor Pointe would be damaged by wakes from additional boat traffic. Following a hearing, ACE approved Meinke Marina's permit application subject to its promise to post peak ingress and egress periods.

On June 29, 1984, Anchor Pointe commenced the present action in the United States District Court for the Northern District of Ohio claiming federal jurisdiction pursuant to the Administrative Procedure Act, 5 U.S.C. Sec. 701 et seq., the Federal Tort Claims Act, 28 U.S.C. Sec. 1346, and the Rivers and Harbors Act, 33 U.S.C. Sec. 401 et seq. The only two claims asserted in the original and first amended complaint ¹ were incorporated in paragraphs 21 and 22:

21. This proposed expansion will increase safety hazards to boaters in general and in particular to patrons of plaintiff, Anchor Pointe Boat-A-Minium, may result in shoreline erosion and amounts to a taking of plaintiff's, Anchor Pointe Boat-A-Minium, private property without compensation.

22. The U.S. Army Corps of Engineers' grant of a permit to defendant, Meinke Marina West, was arbitrary and capricious.

Anchor Pointe sought equitable relief in the form of an order permanently enjoining Meinke Marina from removing the dike and a "mandatory writ" ordering ACE to revoke the permit. Alternatively, Anchor Pointe sought an order requiring ACE to issue a permit for the construction of a dike, at Meinke Marina's expense, separating the two waterways and a permanent injunction prohibiting Meinke Marina patrons from using Anchor Pointe Channel.

On January 16, 1987, Anchor Pointe filed a motion for leave to file a second amended complaint seeking damages in excess of $10,000 for the alleged taking of its property. On March 11, 1987, the district court granted leave to file the second amended complaint and granted summary judgment in favor of the government. The court concluded that ACE's issuance of the permit was neither arbitrary nor capricious under the Administrative Procedure Act, 5 U.S.C. Sec. 706, and that it did not confiscate Anchor Pointe's property without just compensation within the meaning of the Fifth Amendment. On April 6, 1987, the court dismissed without prejudice the claims against the remaining defendants, Vern Meinke and Meinke Marina, to allow Anchor Pointe to appeal the summary judgment order of March 11, 1987.

On April 8, 1987, Anchor Pointe belatedly filed a second amended complaint seeking damages against the government, Vern Meinke and Meinke Marina for the taking of its property and demanding all previously requested equitable relief. On April 10, 1987, Anchor Pointe filed a timely notice of appeal regarding the district court's March 11, 1987 order granting summary judgment in favor of the government and the April 6, 1987 order dismissing the remaining defendants. Thereafter, upon Anchor Pointe's request, the second amended complaint was formally dismissed by the district court on April 29, 1987, and Anchor Pointe timely appealed from that order, which appeal was consolidated with the April 10, 1987 appeal.

On appeal, Anchor Pointe argued only that the granting of the permit by the ACE amounted to a taking of its property without just compensation within the meaning of the Fifth Amendment. ² In response, the government has contended that the district court was without jurisdiction to address Anchor Pointe's original and first amended complaint because Anchor Pointe only sought equitable relief. In addition, the government urged that Anchor Pointe's second amended complaint did not confer jurisdiction upon the district court because the Tucker Act, 28 U.S.C. Sec. 1491, vests exclusive jurisdiction with the U.S. Court of Claims for actions seeking damages in excess of $10,000. For the reasons stated below, this court concludes that the government's position is well taken.

In its original and first amended complaint, Anchor Pointe sought only equitable relief based upon the taking of property without just compensation under the Fifth Amendment. Because the Fifth Amendment merely requires the party be compensated for the taking of private property, the district court was not empowered to award equitable relief. Williamson Co. Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194, 105 S.Ct. 3108, 3120, 87 L.Ed.2d 126 (1985). Congress has only consented, pursuant to the Tucker Act, to suits brought for monetary relief against the United States as a result of the taking of private property.

Equitable relief is not available to enjoin an alleged taking of...