Mildenberger v. Locke

• Decision Date: 30 June 2011
• Docket Number: No. 2010–5084.,2010–5084.
• Parties: John R. MILDENBERGER, Michele C. Ruth, Robert O. Baratta, Carol A. Baratta, Joseph K. Henderson, Patricia T. Henderson, Charles C. Crispin, Julie D. Crispin, William E. Guy, Jr., Stella S. Guy, James J. Harter, Patricia C. Harter, Floyd D. Jordan, Marjorie N. Jordan, Charles V. Locke, Vera A. Locke, Ann S. Macmillan, Paul Pare, Robert H. Pare, Jr., Eryn T. Pare, John F. Patteson, Robert Pearson, Frederick Rutzke, Kimberly Rutzke, Brian Schmidt, Deborah Schmidt, Mark S. Beatty, Athol Doyle Cloud, Jr., Patricia P. Cloud, Mark R. Connell, Philip Tafoya, and Geraldine Tafoya, Plaintiffs–Appellants,v.UNITED STATES, Defendant–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

643 F.3d 938

John R. MILDENBERGER, Michele C. Ruth, Robert O. Baratta, Carol A. Baratta, Joseph K. Henderson, Patricia T. Henderson, Charles C. Crispin, Julie D. Crispin, William E. Guy, Jr., Stella S. Guy, James J. Harter, Patricia C. Harter, Floyd D. Jordan, Marjorie N. Jordan, Charles

v. Locke, Vera A. Locke, Ann S. Macmillan, Paul Pare, Robert H. Pare, Jr., Eryn T. Pare, John F. Patteson, Robert Pearson, Frederick Rutzke, Kimberly Rutzke, Brian Schmidt, Deborah Schmidt, Mark S. Beatty, Athol Doyle Cloud, Jr., Patricia P. Cloud, Mark R. Connell, Philip Tafoya, and Geraldine Tafoya, Plaintiffs–Appellants,

v.UNITED STATES, Defendant–Appellee.

No. 2010–5084.

United States Court of Appeals, Federal Circuit.

June 30, 2011.

Roger J. Marzulla, Marzulla Law, of Washington, DC, argued for plaintiffs-appellants. With him on the brief was Nancie G. Marzulla.Katherine J. Barton, Attorney, Appellate Section, Environment & Natural Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were Robert Dreher, Acting Assistant Attorney General, and Justin R. Pidot, Attorney.Keith W. Rizzardi, South Florida Water Management District, of West Palm Beach, Florida, for amicus curiae South Florida Water Management District.Before BRYSON, GAJARSA, and LINN, Circuit Judges.GAJARSA, Circuit Judge.

The issue before this court concerns the determination of when a takings claim accrues. Appellants John R. Mildenberger, et al. (collectively, “Claimants”) sued the United States (“Government”) in the United States Court of Federal Claims seeking compensation for the alleged taking of their riparian and upland property rights. Because Claimants' alleged takings claims are barred by the statute of limitations in 28 U.S.C. § 2501 and Claimants failed to establish that Florida law recognizes compensable property interests in the riparian rights they allege were injured by the Government, we affirm the Court of Federal Claims' dismissal of their claims.

Background

I.

Since the late 1800s, the State of Florida and the United States Army Corps of Engineers (“Corps”) have constructed a system of canals, levees, and storage areas to control the water levels of Lake Okeechobee. In 1948, Congress authorized the Central and South Florida Project (“C & SF Project”) to aid flood control, water conservation, prevention of saltwater intrusion, fish and wildlife preservation, and navigation. Flood Control Act of June 30, 1948, ch. 771, § 203, 62 Stat. 1175. The C & SF Project extends from Orlando, Florida to the Everglades and includes the Okeechobee Waterway. The Okeechobee Waterway connects the Atlantic Ocean and Gulf of Mexico via Lake Okeechobee, the St. Lucie River, and the St. Lucie Canal.

Although the St. Lucie River was originally a freshwater stream unconnected to the ocean, in 1892, private interests constructed a navigable passage linking it to the Atlantic Ocean. The mixing of the saline ocean water with the fresh river water made the St. Lucie River brackish and created an environment suitable for certain types of marine life. In 1924, to connect the St. Lucie River to Lake Okeechobee, the State of Florida built the St. Lucie Canal. As part of the C & SF Project, the St. Lucie Canal's depth and discharge capacity were increased to improve control over the water level in Lake Okeechobee. H.R. Doc. No. 643, 80th Cong.2d Sess. at 36–37 (1948).

The Corps manages the level of Lake Okeechobee to meet its navigational, flood control, and other objectives. The Corps manages the lake's water levels in accordance with a regulation schedule, which is an official management policy that dictates when water is released from the lake based on the current water level and time of year. When significant rainfall is anticipated, the Corps makes low-level releases from the lake pursuant to a “temporary planned deviation” from the regulation schedule. Supplemental Appendix (“S.A.”) 138. Releasing water from the lake increases outflow to connected canals and waterways, including the St. Lucie Canal.

The St. Lucie Canal and St. Lucie River also receive water from other watersheds and canals that are not part of the C & SF Project. The water entering the St. Lucie River from both the C & SF Project and other sources is polluted by sediments and excess nutrients, such as phosphorus and nitrogen, that interfere with the St. Lucie ecosystem. Plans for restoring the balance of the ecosystem acknowledge that sediment, phosphorous, and nitrogen also enter the St. Lucie River from multiple sources.

In 1952, a local news organization reported that water released from Lake Okeechobee into the St. Lucie Canal had caused “irreparable damage.” S.A. 294. Additionally, a Corps report regarding the St. Lucie Canal from 1957 noted:

Local interests have contended for many years that the release of lake-regulation discharges through the St. Lucie Canal causes serious damage to fishing and boating in the St. Lucie estuary.... [T]he turbid fresh-water discharges replace the brackish water in the river and cause many fish to leave the area; that marine life unable to leave is killed by the fresh water; and that sediment carried by the releases is deposited in the estuary....

Past studies of the sedimentation problem in [the] St. Lucie Canal have concluded that (1) the release of turbid fresh water through the canal seriously affects sport fishing and other recreational activities in the Stuart area; (2) during long discharge periods the salt water in the St. Lucie River is almost completely replaced by fresh water; (3) the releases carry fine sands, fragments of shell, and organic material into the St. Lucie estuary, much of which is deposited in the Palm City shoal; (4) an insignificant amount of sediment enters the estuary from uncontrolled drainage points and from the natural watershed of [the] St. Lucie River and its North and South Forks; (5) bank caving has contributed materially to the sediment load; and (6) in the mixing zone of fresh and salt water, the colloidal matter carried by the fresh water precipitates into a dark gray flocculent which settles to the bottom in places where there are low current velocities and little turbulence, and after reaching the bottom compacts gradually into a sticky clay deposit that resists subsequent removal by currents and turbulence more effectively than do sand, shell, or noncolloidal silts.

S.A. 233–40.

In 1970, a Wall Street Journal editorial noted that “the once-clear St. Lucie is black with mud, and Corps officials in Florida admit their agency is largely to blame. Nearly all the fish are gone. Gone, too, are most of the oysters, clams, pelicans, ospreys and wild ducks.” S.A. 297. That year, an internal memorandum prepared by Colonel A.S. Fullerton of the Corps noted that the discharges through the St. Lucie Canal “erode the canal banks, fill the estuary with shoals, discolor the water, deny boating in the estuary, and drive out the fish.” Id.

From 2004 through 2006, Lake Okeechobee experienced long periods of high water levels, stressing the dike around the lake and prompting the Corps to release high volumes of water into the St. Lucie Canal. In 2004, state environmental officials warned people not to swim or fish in the St. Lucie River because of high bacteria levels. In 2005, due to algal blooms, the Martin County Department of Health banned swimming, fishing, and other contact with the St. Lucie River. The discharge of water from the lake reduced the salinity of the St. Lucie Canal to nearly zero, resulting in the death of oyster beds. The demise of the oyster beds also contributed to the decline of numerous other estuarine species including gastropods, crabs, sponges, fish, and birds. The amount of sea grass at the mouth of the St. Lucie River also substantially declined in 2006.

II.

Claimants are twenty-two individuals who own property along the St. Lucie River and one individual who owns land abutting the St. Lucie Canal. On November 13, 2006, Claimants filed a complaint in the Court of Federal Claims seeking compensation of approximately fifty million dollars for the Government's “intentional and repeated discharge of pollutants” into the St. Lucie River and estuary system. Compl. 2. The Corps' releases of water allegedly took Claimants' “riparian right to use and enjoy the water in the St. Lucie River free from pollution,” including their rights to swim, boat, fish, and use the water for recreation. Id. 12 ¶ 31, 13 ¶ 33. The complaint alleged that Lake Okeechobee has become laden with nutrients from agricultural activities. Id. 11 ¶ 28. These nutrients “concentrated in the Lake's waters, leading to its pollution and algae blooms and extreme turbidity.” Id.

Additionally, the complaint alleges that the Corps' releases of large volumes of fresh water into the brackish water of the estuary “operate as a pollutant” because “[f]resh water releases destroy the delicate balance between salt and fresh water so critical to a tidal estuary.” Id. Claimants maintain that the Corps' periodic releases of polluted fresh water into the St. Lucie River have also “irrevocably altered the biochemical balance (including salinity levels) and character of the St. Lucie, degrading fish life and other marine organisms and critically needed vegetation.” Id. 11 ¶ 29. The complaint also sought compensation for the alleged taking of upland property interests.

The Government filed a motion to dismiss and for summary judgment. Seven months later, the trial court requested supplemental briefing to address additional issues, including whether the “stabilization doctrine,” under which a taking claim does not accrue until a continuous physical process set in motion by the Government has stabilized, applied to this case. J.A. 89. Claimants argued that the stabilization doctrine applies and that their claims accrued at the time of the Okeechobee releases in 2003 and 2005. The...