Banks v. U.S., 01-5150.
| Citation | 314 F.3d 1304 |
| Decision Date | 02 January 2003 |
| Docket Number | No. 01-5175.,No. 01-5170.,No. 01-5156.,No. 01-5153.,No. 01-5177.,No. 01-5178.,No. 01-5150.,No. 01-5163.,No. 01-5154.,No. 01-5169.,No. 01-5185.,No. 01-5152.,No. 01-5157.,No. 01-5171.,No. 01-5165.,No. 01-5168.,No. 01-5184.,No. 01-5167.,No. 01-5164.,No. 01-5160.,No. 01-5176.,No. 01-5172.,No. 01-5182.,No. 01-5173.,No. 01-5166.,No. 01-5159.,No. 01-5179.,No. 01-5162.,No. 01-5151.,No. 01-5180.,No. 01-5183.,No. 01-5174.,No. 01-5161.,No. 01-5155.,No. 01-5158.,No. 01-5181.,01-5150.,01-5151.,01-5152.,01-5153.,01-5154.,01-5155.,01-5156.,01-5157.,01-5158.,01-5159.,01-5160.,01-5161.,01-5162.,01-5163.,01-5164.,01-5165.,01-5166.,01-5167.,01-5168.,01-5169.,01-5170.,01-5171.,01-5172.,01-5173.,01-5174.,01-5175.,01-5176.,01-5177.,01-5178.,01-5179.,01-5180.,01-5181.,01-5182.,01-5183.,01-5184.,01-5185. |
| Parties | John H. BANKS, Mary E. Banks, Robert Cunat, June M. Cunat, Ehret Michigan Trust, Greenbriar Development, George J. Gregule, Jr., Robert J. Kane, Patricia A. Kane, Frank F. Lahr, Charlotte D. Lahr, Notre Dame Path Association, Thelma McKay Trust, Robert F. Pancoast, Pamela S. Pancoast, Dorothy A. Renner, Yolanda P. Stevens, Marcia A. Wineberg, Richard Neuser, Donald R. Chapman, Gail L. Chapman, Frank J. Bunker, MD, L. Richard Marzke, Nancy A. Marzke, Gregory R. Bovee, Candace C. Bovee, J. Thomas Conklin Trust, James W. Errant and Elizabeth S. Errant Trust, Marc Del Mariani, Mary Del Mariani, Richard R. Carter, M. Lynn Carter, Michael R. Anderson, Janice Anderson, Carolynne K. Morvis Trust, Donald D. Miller, Judith E. Miller, Ruth C. Cosgrove Trust, Country, L.L.C., Leonard J. Smith, Herzl Ragins, MD, Roger B. Wilschke, Ann C. Wilschke, Kent Werger, Margaret Werger, Michael S. Walsh, Kay F. Varga aka Kay F. Smith, Victoria L. Jackson, Hyun S. Jyung Trust, Robert D. Melcher, and Maria Melcher, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals for the Federal Circuit |
John B. Ehret, of Olympia Fields, Illinois, argued for plaintiffs-appellants.
Jeffrey Bossert Clark, Attorney, Environment & Natural Resources Division, Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Thomas L. Sansonetti, Assistant Attorney General; Alan Brenner, and Kathryn E. Kovacs, Attorneys. L. Anthony Pellegrino, Assistant Counsel for Litigation, Army Corps of Engineers, Washington, DC. Of counsel was Sandra Slack Glover, Attorney, Environment & Natural Resources Division, Department of Justice, Washington, DC.
Before MAYER, Chief Judge, RADER, and LINN, Circuit Judges.
John H. and Mary E. Banks, along with thirty-five other plaintiffs, seek review of final decisions of the United States Court of Federal Claims dismissing their individual complaints as barred by the statute of limitations. See Banks et al. v. United States, 49 Fed.Cl. 806 (2001). Because the plaintiffs' claims did not accrue more than six years before their filings, this court reverses and remands for further proceedings.
The thirty-six plaintiffs own property in Michigan along a four and one-half mile stretch of the eastern shoreline of Lake Michigan south of St. Joseph Harbor. On July 9, 1999, sixteen original plaintiffs, invoking jurisdiction under the Tucker Act, 28 U.S.C. § 1491, brought claims "based on the prohibition of the Fifth Amendment of the United States Constitution against taking of private property without just compensation." After the denial of class certification, additional plaintiffs were named and each of the thirty-six plaintiffs filed complaints in the Court of Federal Claims.
Plaintiffs allege that the defendant, through the Army Corps of Engineers ("Corps"), constructed and maintained jetties at the St. Joseph Harbor that have interfered with the natural littoral flow of sand and river sediment and caused damage to the lakebed, resulting in "a gradual and continued taking of their property without just compensation, and such taking is continuing intermittently without permanent stabilization." Plaintiffs complain that the construction and maintenance of the jetties have altered the supply of sand to the lakebed and interrupted the natural flow of sand from the north, resulting in a deficit of sand on the plaintiffs' property. Plaintiffs further complain that the dredging and barging of river and littoral sand has permanently removed sand from the littoral ecology and resulted in the downcutting of the shoreline south of the St. Joseph Harbor at a rate of about two feet per year.
The Corps activities impacting the St. Joseph Harbor and shoreline began in the 1830s. Banks, 49 Fed.Cl. at 817. The Corps completed the construction of the St. Joseph Harbor jetties in 1903. Between 1950 and 1989, the Corps installed sandtight steel sheet piling to the jetties. The parties agree that erosion of the shorelines on the Great Lakes occurs naturally and is further exacerbated by the harbor jetties. Id. Specifically, the presence of the harbor jetties in St. Joseph Harbor "significantly increased the annual rate of shoreline erosion," which, without human intervention, occurs naturally at a rate of approximately one foot per year. Id. at 815-16, 818. The Corps has "acknowledged the longstanding and significant exacerbation of erosion caused by its harbor jetties" since at least the mid-1970s. Id. at 817.
In an effort to address the additional erosion caused by the jetties, the Corps proposed to mitigate the erosion pursuant to Section 111 of the River and Harbor Act of 1968, 90 Pub.L. No. 90-483, § 111, 82 Stat. 731, 735 (1970). Section 111 authorizes the Secretary of the Army "to investigate, study, and construct projects for the prevention or mitigation of shore damages attributable to Federal navigation works." The Corps outlined its proposal in its Final Environmental Statement on the Mitigation of Shore Damage Attributed to the Federal Navigation Structures at St. Joseph Harbor, Michigan, dated November, 1974 ("Proposal"). The Corps' plan The Proposal included the provision of feeder beaches "to nourish the areas suffering shore damage" in coordination with the annual dredging program.
The Corps' mitigation efforts involved more than fifteen years of beach nourishment with fine sand. Banks, 49 Fed.Cl. at 818. When the Corps determined that fine sand did not fulfill the role of coarser sediment, which has a longer retention time on the beach, the Corps deposited coarse material on the St. Joseph shoreline on five different occasions between 1986 and 1993 to better protect the underlying glacial till from erosion. Id. at 819. The mitigation efforts were expanded to placing barge-loads of large rocks into the lake in 1995. Id.
The evidence before the Court of Federal Claims included three technical reports issued by the Corps on the progress of the Corps' mitigation efforts in St. Joseph, which collectively indicate that the erosion was permanent and irreversible. The first of three technical reports, a June 1996 Technical Report on the Geologic Effects on Behavior of Beach Fill and Shoreline Stability for Southeast Lake Michigan ("1996 Report"), however, expressed some uncertainty as to the impact of the beach nourishment program at St. Joseph. The 1996 Report stated that the mitigation program
A July 1997 Technical Report on the Effectiveness of Beach Nourishment on Cohesive Shores, St. Joseph, Lake Michigan ("1997 Report") acknowledged the irretrievable nature of the erosion while noting positive changes in the amount of sand in three zones south of St. Joseph. The 1997 Report noted "that the beach nourishment has been successful in maintaining the profile volumes in all three zones: beach/nearshore bar, offshore bar, and offshore." Specifically with regard to the period between 1964 and 1991, the 1997 Report noted that the "trend for this period suggested that the Section 111 Program was successful in mitigating the lake bed lowering rates" for at least some of the sectors south of the harbor. A January 2000 FY-1999 Annual Report on the Section 111 Beach Nourishment Monitoring Program ("1999 Report") emphasized the irreversible and potentially permanent nature of the erosion.
The defendant moved to dismiss for lack of jurisdiction, alleging that any takings occurred more than six years prior to plaintiffs' complaints, and the plaintiffs' complaints, therefore, were untimely under the statute of limitations of 28 U.S.C. § 2501. The plaintiff landowners argued that their cause of action for a continuing taking did not accrue until the late 1990s, when they learned that the observed shoreline erosion was permanent and irreversible. Banks, 49 Fed. Cl. at 812. The Court of Federal Claims granted the motion to dismiss, finding that plaintiffs' claims arose no later than 1989 — the date the Corps completed the steel sheet piling of the jetties. Id. at 815, 824-25.
Plaintiffs appealed. This court has exclusive appellate jurisdiction. 28 U.S.C. § 1295(a)(3) (2000).
This court reviews de novo decisions of the Court of Federal Claims on matters of law and reviews for clear error findings of fact. Yancey v. United States, 915 F.2d 1534, 1537 (Fed.Cir.1990). Therefore, this court reviews the Court of Federal Claims' decision to dismiss de novo while its jurisdictional findings of fact are reviewed for clear error. See Applegate v. United States, 25 F.3d...
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