Jentgen v. United States

• Citation: 657 F.2d 1210
• Decision Date: 19 August 1981
• Docket Number: No. 415-77.,415-77.
• Parties: James J. JENTGEN, Trustee v. The UNITED STATES.
• Court: Court of Federal Claims

657 F.2d 1210

James J. JENTGEN, Trustee v. The UNITED STATES.

No. 415-77.

United States Court of Claims.

August 19, 1981.

Thomas C. Henry, Washington, D. C., for plaintiff; Carl L. Shipley, Washington, D. C., attorney of record. Shipley, Smoak & Akerman, Washington, D. C., of counsel.

Fred R. Disheroon, Washington, D. C., with whom was Asst. Atty. Gen., Carol E. Dinkins, Washington, D. C., for defendant; Elizabeth Stein and Hubert M. Crean, Washington, D. C., of counsel.

Before FRIEDMAN, Chief Judge, SKELTON, Senior Judge, and KUNZIG, Judge.

OPINION

KUNZIG, Judge:

In this case, plaintiff contends that he has suffered an uncompensated taking as the consequence of federal regulation affecting his development of a planned residential community near the Everglades.¹ The statutes in question — § 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403, and § 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1344 — and implementing regulations thereunder, prohibit, inter alia, obstructions, dredging and filling in navigable waters without the authorization of the Army Corps of Engineers. The latter, stressing environmental factors, has thus far refused to grant plaintiff the permits for which he has applied. We hold that while plaintiff may indeed have sustained some economic loss, the loss is not such as to constitute a taking under the circumstances herein.

I

Plaintiff, Jentgen, in 1971 purchased for $150,000 a 101.8 acre tract located within the city limits of Everglades City, Florida, in an area neighboring the Everglades National Park.² Jentgen planned to develop there a water-oriented residential community. The property, completely undeveloped, lay astride the mean high water mark and contained large areas of dense mangrove vegetation, including wetlands. The project would necessitate considerable earth-moving, dredging and filling, and the erection of a dock and marina.

As of 1971, the purchase date, these proposed activities were subject to § 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403 (1976) (Rivers and Harbors Act), which requires a permit from the Army Corps of Engineers to the extent that "any obstruction" is created in the "navigable waters of the United States." The Corps defines "navigable waters of the United States" to encompass tidal waters shoreward to the mean high water mark and/or waters suitable for use in commercial navigation. See 33 C.F.R. § 322.2(a) (1980).

In 1972, Congress enacted § 404 of the Federal Water Pollution Control Act Amendments, 33 U.S.C. § 1344 (1976) (FWPCA), which prohibits the "discharge of dredged or fill material ... into navigable waters" without a permit from the Army Corps of Engineers. The most significant feature of the new statute for the case at bar was the extension of Corps jurisdiction from "navigable waters of the United States" to "navigable waters." It is now well settled that Congress, in adopting the latter term, "asserted federal jurisdiction over the nation's waters to the maximum extent permissible under the Commerce Clause." Natural Resources Defense Council, Inc. v. Callaway, 392 F.Supp. 685, 686 (D.D.C.1975). Notably, both the Corps and the courts have interpreted "navigable waters" to include "adjacent wetlands." See 33 C.F.R. § 323.2 (1980); United States v. Holland, 373 F.Supp. 665, 673-674 (M.D.Fla.1974).

The implication for Jentgen was that, as of 1972, a greater proportion of his property fell within the regulatory jurisdiction of the Corps than had previously been the case and the areas subject to the need for a permit had been widened.

Until 1968, the Corps' sole criterion in granting permits within its jurisdiction was the likely adverse impact upon commercial navigation. However, on December 18, 1968, in response to a growing national concern for environmental values and related federal legislation, the Corps stiffened its requirements, adding the following relevant considerations: fish and wildlife; conservation; pollution; aesthetics; ecology; and the general public interest.

On April 4, 1974, the Corps published further revised regulations so as to:

1) incorporate new permit programs under section 404 of the FWPCA 2) incorporate the requirements of new federal legislation by adding to the factors to be weighed in the so-called "public interest review," including: economics; historic values; flood damage prevention; land-use classification; recreation; water supply and water quality;

3) inaugurate a full-fledged wetlands policy to protect wetlands subject to the Corps' jurisdiction from unnecessary destruction.

See 42 Fed.Reg. 37122-37164 (1977); 33 C.F.R. §§ 320.1-329.16 (1980). These stiffening requirements are the main source of the difficulties which have brought Jentgen before this court.

In 1973, plaintiff applied for a permit under § 10 of the Rivers and Harbors Act and in 1975 applied for the requisite permit under § 404 of the FWPCA. The applications related to approximately 80 acres of the Jentgen tract; the remaining 20 acres are uplands and can be developed without dredging and filling and, consequently, without the need for Corps authorization. Of the 80 acres covered by the applications, 60 were proposed for development and 20 were to be preserved in the natural state. On July 5, 1977, Jentgen was informed that his applications had been denied as "not in the public interest." The Corps especially stressed the "direct adverse physical impact" upon the mangrove wetlands located on Jentgen's property. Of crucial importance, however, Jentgen was offered modified permits which would have allowed for development of over 20 of the 80 acres covered by the applications, but the permits were declined. At no time has Jentgen sought judicial review of the permit denials. Instead, Jentgen filed suit in this court on August 9, 1977, seeking "just compensation" under the Fifth Amendment for the alleged taking of his property as the consequence of the Government's refusal to allow him to go forward with his original plans. He seeks approximately $6,000,000. Under the specific facts of this case, and the tests enunciated by the courts, we hold that there has been no taking in this case.

II

It is well established as a matter of law that government regulation can effect a Fifth Amendment taking. See, e. g., Penn Central Transp. Co. v. New York City, 438 U.S. 104, 123, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978) (no taking found on the specific facts of that case); Benenson v. United States, 212 Ct.Cl. 375, 388, 390, 548 F.2d 939, 947, 948 (1977) (taking found). The rationale, as stated by Justice Brennan, is that "police power regulations such as zoning ordinances and other land-use restrictions can destroy the use and enjoyment of property in order to promote the public good just as effectively as formal condemnation or physical invasion of property." San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 652, 101 S.Ct. 1287, 1304, 67 L.Ed.2d 551 (1981) (Brennan, J., dissenting).³ While, "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law," Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S.Ct. 158, 159, 67 L.Ed. 322 (1922), the principle generally applied is that "if regulation goes too far it will be recognized as a taking," id. at 415, 43 S.Ct. at 160; see San Diego Gas, supra, 450 U.S. at 649, 101 S.Ct. at 1302.

"The determination that governmental action constitutes a taking is, in essence, a determination that the public at large, rather than a single owner, must bear the burden of an exercise of state power in the public interest." Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980). It is frequently stated that the question whether a particular restriction effects a taking depends largely upon the particular circumstances of the case. See, e. g., Penn Central Transp. Co., supra, 438 U.S. at 124, 98 S.Ct. at 2659. Generally speaking, the Just Compensation Clause preserves governmental power to regulate subject to the dictates of "justice and fairness." Andrus v. Allard, 444 U.S. 51, 61, 65, 100 S.Ct. 318, 324, 326, 62 L.Ed.2d 210 (1979).

While "the economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations," Penn Central Transp. Co., supra, the decisions of the Supreme Court "uniformly reject the proposition that diminution in property value, standing alone, can establish a `taking.'" Id. at 131, 98 S.Ct. at 2662, citing, Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926) (75% diminution in value caused by zoning law); Hadachek v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915) (87.5% diminution in value). Similarly, the Court has branded as fallacious the "contention that a `taking' must be found to have occurred whenever the land-use restriction may be characterized as imposing a `servitude' on the claimant's parcel." Penn Central Transp. Co., supra, 438 U.S. at 130 n.27, 98 S.Ct. at 2662 n.27. Instead, "the `taking' issue in these contexts is resolved by focusing on the uses the regulations permit." Id. at 131, 98 S.Ct. at 2662. In one of its most recent pronouncements, the Court crystallized its thinking as follows: "The application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests ... or denies an owner economically viable use of his land...." Agins, supra, 447 U.S. at 260, 100 S.Ct. at 2141, accord, Hodel v....