Petition for Writ of Certiorari — Plantation Landing Resort, Inc. v. United States, 155 S. Ct. 1822 (1995) (No. 94-1329)

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Supreme Court, U.S.

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941329 FEB 6 199

NO. __sesige oF THE CLERK

In The

Supreme Court of the United States

October Term, 1994

PLANTATION LANDING RESORT, INC.,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Federal Circuit

PETITION FOR WRIT OF CERTIORARI

ne @

LAWRENCE D. WIEDEMANN

Counsel of Record

Of Counsel: 821 Baronne Street

WIEDEMANN & WIEDEMANN New Orleans, LA 70113

puna Telephone: (504) 581-6180

821 Baronne Street _ |

New Orleans, LA 70113 Telecopier: (504) 581-4336

Attorney for Petitioner

Plantation Landing Resort,

Inc.

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

Whether a riparian property owner’s right of recla-

mation of coastal property lost to erosion under Loui-

siana Constitutional Article 9, Section 3, is a

compensable property right under the Fifth Amend-

ment of the United States Coustitution.

Whether stonewalling a permit application by delay

and imposition of changing, and unrealistic, pre-req-

uisites by a governmental agency, the Corps of Engi-

neers, represented a constructive denial of the permit.

Whether the interpretation of the state law of Louisi-

ana directly affecting private property rights, previ-

ously undecided by the Supreme Court of the State,

should be certified to the Supreme Court of Louisiana

under Rule XII of the Rules of that Court.

Whether the imposition of penal mitigation as a pre-

requisite to granting a §404 permit constitutes a tak-

ing under the Fifth Amendment of the United States

Constitution.

LIST OF PARTIES

The undersigned counsel of record certifies that the

following persons and parties have an interest in the

outcome of this case.

Folse Roy, Preston Mauboulez, and Plantation Land-

ing, Inc., Plaintiffs-Petitioners;

United States of America, Defendant-Respondent;

Lawrence D. Wiedemann and the firm of Wiedemann

& Wiedemann, Counsel for Plaintiffs-Petitioners;

Martin W. Matzen, Jacques B. Gelin, Thomas Lee

Halkoski, Elizabeth Griffin, Counsel for Defendant-

Respondent.

Sau se

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .........-- i

LIST OF PARTIOS .... 2. ccc csccccncccsccnccaveces ii

TABLE OF CONTENTS........---- esse cece eeeeeee iii

TABLE OF AUTHORITIES ...........----2+++++e0 Vv

OPINIONS BELOW.............c ccc eeeee eee eceeees 1

118) 3 (3) 8) (08 § (0). ne 2

STATUTES PRESENTED FOR REVIEW.........---- 3

STATEMENT OF THE CASE.........----00+++++0: 5

REASONS FOR GRANTING WRIT......--..------- 15

1. Conflict with the Decisions of this Court and

the Supreme Court of Louisiana ........-.--. 15

2. Bureaucratic Stonewalling.........---++.+-+++: 23

ID ci nw ac hecveweseuvencsoeunscbecesens 30

APPENDICES

A. Judgment of the United States Court of

Appeals for the Federal Circuit dated October

ee ere ee eee A-1

B. Judgment of the United States Court of Federal

Claims, dated November 22, 1993..........-. B-1

C. Order Denying Rehearing by United States

Court of Appeal for the Federal Circuit, dated

November 8, 1994.2... . ccc cccccceseeneces C-1

D. Department of Army, New Orleans District,

Corps of Engineers letter, dated November 7,

Se cukae ier keccden eas Kae ene oe es D-1

TABLE OF CONTENTS - Continued

Page

Department of Army, New Orleans District,

Corps of Engineers letter, dated June 19, 1990 E-1

Affidavit of George Scariano, Attorney at Law,

dated June 10, 1993.......... Pectece caw eekn es F-1

Rule XII of the Rules of the Supreme Court of

am Bens OE TAI ode k in wk ea Cena ad enes G-1

Louisiana Revised Statutes 41:1702........... H-1

Article 9, Section 3, Louisiana Constitution ... I-1

Department of Army, Lower Mississippi Valley

Division, Corps of Engineers letter, without

BE cco cus sce cade knee Ue ecede nen ees J-1

TABLE OF AUTHORITIES

Page

Cases

Arkansas La. Gas Co. v. La. Dept. of Highways, 104

So.2d 204 (La. App. 2nd Cir. PU eckicusecss 23

Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211

POE 58146 piede his becany be Ser ke te ee 24, 29

Hodges v. LaSalle Parish Policy Jury, 368 So.2d 1117

Fo FD. DORI adic cc es isc 23

Lachney v. United States, 2 Cl.Ct. 244 (1983). ..24, 25, 28

Lucas v. South Carolina Coastal Council, 112 S.Ct.

inde csp, eC NO OU SEE 24

Mongogna v. O’Dwyar, 204 La. 1030, 16 So.2d 829

Pe. WOE +h crsieieebes scribe cl. 21

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) 24, 29

Phillips Petroleum Company v. Mississippi, 484 U.S.

WP AUN SASSO ATS da ceeded cb ctcdan we, 17, 18, 19

Shelton v. United States, 7 F.3d 1022 (Fed. Cir. 1993) .... 23

State Dept. of Highways v. Vermilion Development

a, 2? Saad 307 fia, 8078... 21

State Dept. of Transportation & Development v. Jacob,

Ter PM TOR (hl. SO oe ociccicssccs... 21

State v. O'Neal, 149 So.2d 421 (La. App. 3rd Cir.

MEMES S vests ants Vixsapinananenec CE ek 23

State, Sabine River Authority v. Salter, 184 So.2d 783

Ve a BOL W......... 23

United States v. Causby, 328 U.S. 256 (1946)....... 21, 23

United States v. 129.4 Acres of Land, 572 F.2d 1385

cppa Nise ca ccces, OE ET EE a 23

TABLE OF AUTHORITIES - Continued

Page

United States v. Powelson, 319 U.S. 266 (1943)........ 20

United States v. Welch, 217 U.S. 333 (1910)........... 23

AUTHORITIES

Louisiana Constitution of 1974, Article 9, Section 3

$35 SPP ee eee er eee 2, 3, 19, 20, 30

Louisiana Constitution of 1974, Article 1, Section 2.... 21

Louisiana Constitution of 1974, Article 1, Section 4.... 22

Louisiana Constitution of 1845, Article 114.......... 19

Constitution of the United States, Fifth Amend-

WEE oc én kn da oe tnae eee 3, 10, 15, 20, 23, 30

Louisiana Supreme Court Rule XII, Section 1

eveaseucebeeseses secveaanee ea enee Tenens 4, 16, 17, 30

The Declaration of Rights of the Louisiana Consti-

tution of 1974, La L.Rev. 1, 18 (1974) ............. 22

STATUTES AND RULES

FPR & OS es cee ere mmnie ec hy 17, 18

CBA RG: GE oo ieee Gases 3, 4, 6, 19

ER Gas GOCE 6 bu vecus neeemereecabeceerens 6, 16, 20

Louisiana Civil Code, Articles 499, 502, 503, and

DOs 0.0 kn gad dccnne ah neniessee lesa 20

2B UIE. Te Te « oko < scenes baesiaceucst ee 3

TB Cie. DI GE a. ob and d denneecbas tek essence 7

SU. Te Se ik sk 6a kad deansndeeheeene 7

SD CR Fes os ove sctwksesvusnsciasheuseenee 10, 26

—_— ~T

;

‘

Vii

TABLE OF AUTHORITIES - Continued

Page

OF MP MS te weleasdegeeens oo oe 25

sept oh pon oe ER EE OTT te) EO 9, 28

WP Ne Be Ririrtd shvnibehtokikcccccs. coc. 24, 27

Pr OE MGS 8S ooo whens pase ig si sch kb eck ak 14, 29

We te ED Saw hse retGs eo 29

iat ct pickin leg ocho TEEPE Te i 3

In The

Supreme Court of the United States

October Term, 1994

PLANTATION LANDING RESORT, INC.,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Federal Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

Plantation Landing Resort, Inc. filed suit on the 27th

day of September, 1991, against the United States in the

United States Court of Federal Claims, seeking damages

for the taking of 59 acres of Property owned by it on

Grand Island, Jefferson Parish, State of Louisiana, with-

out just compensation, in violation of the Fifth Amend-

ment of the United States Constitution. The United States

filed a Motion for Summary Judgment, asserting that

Plantation Landing Resort, Inc. was not the owner of the

Property at the time of the alleged taking. Plantation

Landing Resort, Inc. filed a cross-motion for summary

judgment alleging that it had a property interest at the

time of the alleged taking adequate to support the claim,

and that it was entitled to a judgment as a matter of law.

The United States Court of Claims entered judgment on

November 22, 1993, granting the motion for summary

judgment filed by the United States, denying the cross-

motion for summary judgment filed by Plantation Land-

ing Resort, Inc., and dismissing the complaint of Planta-

tion Landing Resort, Inc. (Appendix B-1, Plantation

Landing Resort, Inc. v. United States, 30 Fed Cl. 63, 1993).

On October 12, 1994, the United States Court of

Appeals for the Federal Circuit entered judgment affirm-

ing the judgment of the United States Court of Federal!

Claims. (Appendix A-1, Plantation Landing Resort, Inc. v.

United States, 94-5064, United States Court of Appeals for

the Federal Circuit, unreported).

On November 8, 1994, the United States Court of

Appeals for the Federal Circuit denied the petition for

rehearing filed by Plantation Landing Resort, Inc.

(Appendix C-1 Plantation Landing Resort, Inc. v. United

States, 94-5064, United States Court of Appeals for the

Federal Circuit, unreported).

JURISDICTION

The petition for writ of certiorari seeks review of the

decision of the United States Court of Appeals for the

Federal Circuit entered on October 12, 1994, and denial of

rehearing in the same Court entered on November 8,

1994, affirming the judgment of the United States Court

of Federal Claims entered on November 22, 1993, holding

the right of reclamation of land lost to erosion vested in

Plantation Landing Resort, Inc. by Article 9, Section 3, of

the Louisiana Constitution of 1974, to be inadequate to

support the alleged taking, without just compensation,

nabLw Kusedoe eee : i

under the Fifth Amendment of the United States Consti-

tution. Jurisdiction is invoked pursuant to 28 U.S.C. Sec-

tion 1254. The application for rehearing was denied by

the United States Court of Appeals for the Federal Circuit

on November 8, 1994. The petition for writ of certiorari is

timely filed pursuant to Sup. Ct. R. 13.1.

STATUTES PRESENTED FOR REVIEW

This case involves the interpretation of Article 9,

Section 3 of the Louisiana Constitution, and LSA RS.

41:1701, for the purpose of deciding, whether, or not, a

property owner in Louisiana with a State Constitutional

right of reclamation of property lost to erosion, has a

sufficient property right to assert a taking claim against

the United States under the Fifth Amendment of the

United States Constitution. The Louisiana Supreme Court

has not previously passed upon the issue presented.

This case also involves a question of whether, or not,

this Court should certify the question to the Louisiana

Supreme Court under Louisiana Supreme Court Rule XII,

Article 9, Section 3, Louisiana Constitution

“§3. Alienation of Water Bottoms

Section 3. The legislature shall neither alienate

nor authorize the alienation of the bed of a

navigable water body, except for purposes of

reclamation by the riparian owner to recover

land lost through erosion. This Section shall not

prevent the leasing of state lands or water bot-

toms for mineral or other Purposes. Except as

provided in this Section, the bed of a navigable

water body may be reclaimed only for public

use.”

LSA R.S. 41:1701

§1701. Declaration of policy; public trust

The beds and bottoms of all navigable waters

and the banks or shores of bays, arms of the sea,

the Gulf of Mexico, and navigable lakes, belong

to the state of Louisiana and the policy of this

state is hereby declared to be that these lands

and water bottoms, hereinafter referred to as

“public lands”, shall be protected, administered

and conserved to best insure full public naviga-

tion, fishery, recreation, and other interests.

Unregulated encroachments upon these proper-

ties may result in injury and interference with

the public use and enjoyment and may create

hazards to the health, safety, and welfare of the

citizens of this state. To provide for the orderly

protection and management of these stateowned

properties and serve the best interests of all

citizens, the lands and waterbottoms, except

those excluded and exempted herein below, or

as otherwise provided by law shall be under the

management of the Department of Natural

Resources, hereinafter referred to as “the

department” which shall be responsible for the

control, permitting, and leasing of encroach-

ments upon public lands, in accordance with

this Chapter and the laws of Louisiana and the

United States.

Louisiana Supreme Court, Rule XII

“XII Certified Questions From Federal Courts

Section 1. When it appears to the Supreme

Court of the United States, or to any Circuit

Court of Appeals of the United States, that there

are involved in any proceeding before it ques-

tions, or propositions, of law of this state which

are determinative of said cause independently

of any other questions involved in said case and

that there are no clear controlling precedents in

the decisions of the Supreme Court of this state,

such federal Courts, before rendering a decision

may certify such questions, or Propositions, of

law of this state to the Supreme Court of Louisi-

ana for rendition of a judgment or opinion con-

cerning such questions or Propositions of

Louisiana law. This Court may, in its discretion,

decline to answer the questions certified to it.”

STATEMENT OF THE CASE

Plantation Landing Resort, Inc., (hereinafter Planta-

tion), owns an undeveloped 59 acre tract of land on

Caminada Bay on the northwest side of Grand Isle, Loui-

siana.' The property in question is bounded on the south

by Caminada, bounded on the east by east boundary line

of Grand Beach #39, bounded on the west by Fir Street

and bounded on the north by Caminada Bay up to the

1921 Shoreline. Thirty-seven acres of this land are shal-

low bay bottom and 22-acres are saline intertidal marsh

which would have been filled for the development of

structures, roads, and appurtenances.

Plantation was formed for the sole Purpose of per-

mitting, owning, and developing, the 59 acres encom-

passed in the Corps of Engineers’ permit application, the

denial of which forms the basis of this lawsuit.

Plantation Landing Resort, a tourist destination

resort, was to be a water oriented recreational, and resi-

dential, community that would stabilize the Caminada

Bay shoreline without Causing injury to the environmen-

tal integrity of the island. Plantation’s development was

to include a hotel, condominiums, townhouses, boat slip,

' The references contained and noted as “APP.” are refer-

ences to the appendix of evidence submitted by Plantation to

the court below, and are provided to this Court as references in

support of the statements contained herein.

boat basin, restaurant, cafe, bar, fish and dive shop, con-

venience shop, and tennis courts. Although Grand Isle

provides the state of Louisiana with an ideal place for

recreational activities and commercial fishing, Louisiana,

unlike its Gulf Coast neighboring states, has no coastal

recreational resort. Plantation, cognizant of this fact,

decided to construct a water oriented recreational com-

plex, which was the highest and best use of the land, in

order to fill this need.

As part of this plan, Plantation was going to reclaim

land lost by erosion pursuant to Article 9, Section 3, of

the Constitution of the State of Louisiana, and LSA-R.S.

41:1701, 1702, in the public interests of the people of the

State of Louisiana, which grants to riparian landowners

abutting navigable waterbottoms the right of reclamation

of land lost to erosion.

The development of Plantation Landing Resort was

influenced by prior work the Corps of Engineers had

undertaken. The Department of the Army, New Orleans

District Corps of Engineers, (hereinafter Corps), initiated

a navigation improvement project consisting of four con-

nected channels known as the Bayou Lafourche Jump

Waterway. The first two channels were completed at the

Corps’ expense; the second channel required the deepen-

ing of Bayou Rigaud; and the third channel, which has

not been completed as of this date, required the Corps to

extend the Bayou Rigaud channel parallel to Plantation’s

property and deposit the dredged material along the

bayou on Plantation’s property, which is what Plantation

sought to do by its permit application.

The Corps has spent in excess of $20 to $50 million

dollars over the past ten years to provide Grand Isle with

protection from hurricane and beach erosion on the south

side of the island. However, the Caminada Bay side of the

island, where Plantation is located, is eroding at an ever

> een Ceunn

accelerating rate. The eastern end of the island, where the

Corps dredged Bayou Rigaud and dumped the fill is

larger than the western end, where erosion is most promi-

nent. Failure to stabilize the western end of the island,

where Plantation’s land is located, has resulted in rapid

deterioration and could result in loss of the Plantation’s

land within 30 to 50 years. However, with Plantation’s

development plan the island could have been preserved

for another 500 years.

The development plan began on October 10, 1983,

when Jefferson Guaranty Bank filed an application with

the Corps for a dredge and fill permit to develop 88 acres

of their land on Grand Isle under Section 10 of the River

and Harbor Act of March 3, 1899 (30 Stat. 1151; 33 U.S.C.

403), and Section 404 of the Clean Water Act (86 Stat. 816:

33 U.S.C. 1344). Section 404 of this law established a

mechanism for applying for permits to discharge

dredged, or fill, material into waters covered by the Clean

Water Act.

In 1984, a joint venture partnership was entered

between Preston Mauboulez, J. Folse Roy, and the Jeffer-

son Guaranty Bank, for the purpose of developing a

tourist destination resort on Grand Isle, Louisiana. To the

Bank’s 88 acres, Preston Mauboulez agreed to add 132

acres of bay front property that he owned, or controlled,

through corporations. The Jefferson Guaranty Bank

agreed to provide the financing.

On November 14, 1985, Jefferson Guaranty Bank filed

an application, on behalf of the joint venture partnership

above, for a Corps permit to prepare 220 acres for a water

oriented community to be named Plantation Landing

Resort. The Corps identified the application for permit as

LMNOD-SP (Bayou Rigaud) 67. This application encom-

passed approximately 220 acres of land, owned by the

bank and consolidated with adjacent property, approx-

imately 130 acres, owned by Preston Mauboulez, or cor-

porations from which he had legal authorization. The

application contemplated the removal of approximately

1,250,000 cubic yards of material to be deposited on wet-

lands with an area approximately 7,000 feet long and

2,850 wide. The proposed dredging: and fill was essen-

tially identical to that contemplated by the Corps in the

proposed third channel of the Corps navigation improve-

ment project, with the exception that it would be funded

by private resources as opposed to public resources.

The Corps issued a public notice of the application

on December 18, 1985, and fixed a January 7, 1986 dead-

line for protest to the project. On January 14, 1986, the

Board of Alderman of the town of Grand Isle, in response

to the public notice, met and voted their support of the

project. In the pre-vote discussion, the Mayor, and one

Alderman, expressed some reservations about the length

of one canal in the project. Plantation voluntarily elimi-

nated the canal and so notified the Board of Alderman

and the Corps.

The Corps took the position that the voluntary reme-

dial action taken by Plantation necessitated a new public

notice and a new period for opposition. On July 24, 1986,

the Corps issued a revised public notice showing the

elimination of the canal and extending the opposition

period to August 13, 1986.

Mitigation was an important aspect of the review and

balancing process on many Department of Army permit

applications. The rules concerning mitigation in 1987

stated that compensation may occur on-site, or at an off-

site location, and that mitigation requirements fell into

three categeries: (1) minor modifications that are feasible

to the applicant and that if adopted will result in a project

that generally meets the applicant’s purpose and need,

including “reductions in scope and size” of the project;

(2) further mitigation may be required to comply with

404(b)(1) guidelines; and (3) additional! mitigation may be

required as a result of the public interest review process.

33 C.F.R. Part 320.4, Federal Registrar, Vol. 51, No. 219,

November 13, 1986.

On January 21, 1987, Plantation, frustrated by Corps

delay, met with the Louisiana Congressional delegation in

Washington, D.C. and sought their intercession in elim-

inating the intentional bureaucratic log jam. The delega-

tion voiced its unanimous support for the project and

addressed a letter to Colonel Lloyd Brown, the Corps’

District Engineer, on February 6, 1987, requesting his

assistance and cooperation.

Plantation met with Colonel Brown on April 1, 1987,

and was advised that he would not issue a permit with-

out an EIS study. If an EIS study was not done, a lawsuit

was being threatened by an environmental group. Planta-

tion advised Colonel Brown that such a study would take

two years and thereby kill the project. Plantation volun-

tarily agreed to reduce the size of the project thereby

falling below the requisites for an EIS. Colonel Brown

assured Plantation at this time that reducing the project

would expedite the permitting process. The reduction in

scope of project reduced the material to be dredged to

640,000 cubic yards, and the acreage to 59 acres, thirty-

seven acres of shallow bay bottom and 22-acres of saline

intertidal marsh. Fill material would be obtained by

dredging an access channel to the proposed marina by

extending the Bayou Rigaud Channel in accordance with

Corps Project Waterway Specifications. The 59 acres

encompassed in the revised permit application were all

owned by Plantation. These 59 acres are the land which

has been taken by the defendant in the instant matter.

In spite of the agreement, Colonel Brown on October

6, 1987, advised Plantation that it would be required to

file a revised application on the reduced-in-scope project.

Plantation filed a revised application for a reduced-in-

scope project on October 13, 1987. At that time, Plantation

had already agreed to specific mitigation activity which

was going to be conducted on the Harrison property in

Township 19 South, Range 23 East, LaFourche Parish.

This mitigation specified work already permitted under

LMNOD-SP (Lafourche Parish Wetlands) 577 and CUP

#841605. The state of Louisiana accepted the plan and

included it as a provision of the Coastal Use Permit, that

was issued to Plantation on December 18, 1987.

The Corps issued a revised public notice on the

reduced-in-scope project on December 7, 1987, and fixed

an opposition deadline of December 29, 1987, which sub-

sequently was extended by the Corps to January 8, 1988.

On March 15, 1988, President Ronald Reagan issued

Executive Order No. 12630, “ ... in order to insure that

government actions are undertaken on a well-reasoned

basis with due regard for fiscal accountability, for the

financial impact of the obligations imposed on the federal

government by the Just Compensation Clause of the Fifth

Amendment of the Constitution... ”

On March 24, 1988, the Corps issued a special public

notice for a public hearing on the reduced-in-scope pro-

ject scheduled for April 26, 1988, and extended the oppo-

sition to May 6, 1988.

On December 14, 1988, Colonel Brown, issued his

“Statement of Findings”, and intent to issue permit in

which he concluded: “I find that issuance of the Depart-

ment of Army permit, as prescribed by regulation pub-

lished in 33 C.F.R. 320 through 330 to Plantation Landing

Resort, Inc. is based on thorough analysis and evaluation

of the various factors enumerated above; that there are no

reasonable alternatives available to the applicant that

will achieve the purpose for which the work is being

constructed; that the proposed work is in accordance

with the overall desires of the public as reflected in the

comments of the state agencies and the general public;

that the proposed work is deemed to comply with estab-

lished state and local laws, regulations, and codes; that

there have been no identified significant adverse envi-

ronmental effects related to the work; that the issuance

of this permit is consonant with national policy, stat-

utes, and administrative directives; and that on balance,

issuance of a Department of the Army permit would not

be contrary to the public interest.” (Bold emphasis sup-

plied).

Colonel Brown in his “Statement of Findings” speci-

fied that Plantation would create five acres of saline

marsh in Caminada Bay during initial infrastructure

dredging and fill activities as mitigation, which was vol-

untarily agreed to by Plantation. Colonel Brown stated

that the Corps, itself, had been successful in creating

artificial marshland with dredge material. By accepting

this mitigation, Plantation was agreeing to supply double

compensatory mitigation, namely: one to comply with the

demands of the state pursuant to its Coastal Use Permit

No. P851473, which included construction of a sewerage

treatment plant and installation of two 36" diameter

water control structures; and two to satisfy the demands

of the Corps. Colonel Brown stated that, in his opinion,

the mitigation Plantation agreed to would stop erosion on

the island, by raising the level of the island by 5 feet, and

improve sanitation on the island by creation of a sew-

erage plant, that would not only service the Plantation

Property but also other parts of the island. Colonel Brown

Stated he felt this mitigation created a proper balance

under the regulations.

Colonel Brown had personally inspected the pro-

posed site of Plantation Landing Resort. Colonel Brown

found that Plantation had complied fully with all require-

ments. In Colonel Brown's Findings he stated that he felt

the federal regulatory agencies’ objections to the pro-

posed development were out of proportion to the area

impacted, since the area represented only 2.39% of the

saline marsh on Grand Isle, .014% of the saline marsh in

the Barataria Basin, and .005% of the saline marsh in

coastal Louisiana.

On January 13, 1989, the United States Environmental

Protection Agency, (hereinafter EPA), under a Memoran-

dum of Agreement, (hereinafter MOA), with the Corps,

requested the Department of the Army to elevate Colonel

Brown’s decision to issue the permit to the Division level

in Vicksburg. General Tom Sands, Commander of the

Lower Mississippi Valley Division of the Corps, con-

ducted a hearing in Vicksburg, without notification to

Plantation, and affirmed Colonel Brown’s intent to issue

the permit.

The EPA, through the Department of the Army, Sec-~

retary of Civil Works then requested elevation of the

decision to permit to the Washington level of the Corps.

On March 21, 1989, a meeting was held in the office of the

Chief of Engineers, Department of the Army, regarding

the elevation of the permit at which Mr. Bernie Goode,

Chief, Regulatory Branch, Office of the Chief of Engi-

neers, defended Colonel Brown’s prerogative to issue the

permit and advised that the permit would be issued.

However, on April 21, 1989, General Patrick J. Kelly,

Director of Civil Works, United States Army Corps of

Engineers, directed the U.S. Army District, New Orleans,

to re-evaluate the Plantation permit under his “personal

guidelines” in the absence of a joint Army/EPA guidance

agreement. General Kelly’s personal guidelines required

mitigation to the “maximum extent practicable,” totally

out of balance with the existing rules on mitigation.

On January 4, 1990, the Corps advised Plantation that

additional mitigation measures would be required, one

being that Plantation would be required to create 22 acres

of saline marsh in Caminada Bay prior to initial infra-

structure dredging and fill activities. Plantation would

also be required to install floating breakwaters to protect

the 22 acres of newly created wetlands.

In a study conducted by Geoffrey T. Andron, Ph.D.

on behalf of the EPA, dated November 21, 1988, Dr.

Andron estimated the cost of creating 22 acres of saline

marsh in Caminada Bay at $311,900.00, exclusive of

breakwaters. To add breakwaters would bring the cost to

near $500,000.00.

A private meeting took place between agents for

Plantation and Colonel Gorski, Colonel Brown’s replace-

ment, at which meeting Plantation offered to provide as

compensatory mitigation the restoration of 22 acres of

prior converted natural wetlands, in addition to previ-

ously agreed upon mitigation.

On May 16, 1990 Colonel Gorski stated that he was

going to issue the permit based upon mitigation encom-

passing the restoration of the proffered wetlands. Colonel

Gorski questioned only the number of acres required for

this mitigation.

However, on June 19, 1990 Plantation received a let-

ter from Colonel Gorski in which he reneged on his

agreement of May 16, 1990, to issue the permit. In

Gorksi’s letter of June 19, 1990, he suggested mitigation

alternatives that required a Corp 404 permit and state of

Louisiana coastal use permits, and contained requisites

that were non-attainable as the Corps had no mechanism

in place that could accommodate the type of mitigation

suggested.

After several years of trying to obtain this permit,

and after Plantation had agreed to 5 acre island for mit-

igation, along with a sewerage plant and water control

structures that Colonel Brown thought sufficient, then

after agreeing to an additional mitigation requirement of

restoring 22 acres to wetlands, which was agreed upon,

then reneged, by Colonel Gorski, Plantation found itself

facing a requirement of mitigation.that Colonel Gorski

could not even tell them how to implement.

Thereafter on December 21, 1990, Colonel Gorski

denied the permit. In Gorski’s denial, he states, “the NOD

has determined that the applicant has clearly rebutted the

presumption against filling wetlands found at 40 C.F.R.

230.10 and has clearly rebutted the presumption of

230.10(a) with convincing evidence that no practicable

alternatives exists which would preclude his proposed

fill. By letter dated September 25, 1990, the applicant

failed to comply with the 404(b)(1) guidelines in accor-

dance with the April 21, 1990, guidance provided by

General Kelly. The memorandum explicitly stated that

the NOD should require compensatory mitigation to the

maximum extent practicable for those values and func-

tions of the special aquatic site directly, or indirectly,

adversely impacted by the proposed development activ-

ity.

Plantation sought relief in the Court of Federal

Claims by filing its action on September 27, 1991, alleging

that the action of the Corp of Engineers, through its

continual alterations of agreements and final denial of a

permit, had constituted a taking of its land pursuant to

the Fifth Amendment of the United States Constitution

without just compensation.

REASONS FOR GRANTING WRIT

1. Conflict with the Decisions of this Court

and the Supreme Court of Louisiana

The United States Court of Appeals for the Federal

Circuit on October 12, 1994, affirmed, without written

reasons, the decision of the United States Court of Fed-

eral Claims entered on November 22, 1993. See Appendix

B-1 and A-1, attached. Therefore, undersigned counsel is

deprived of an opportunity to demonstrate to this Honor-

able Court the error in the Appellate Court’s reasoning.

However, counsel can represent to this Court, without

fear of contradiction, that the appellate Court’s entire

focus, during the argument of the appeal, was on Plain-

tiff-Applicant’s possession, vel non, of a compensable

interest in the property in question; and we can look to

the written opinion of the Court of Federal Claims,

affirmed by the appellate Court, for the reasoning of both

Courts on this pivotal issue. The Court of Federal] Claims,

at p. 35, Appendix B-1, opined that

“At the time plaintiff alleged the taking

occurred, it did not hold a valid (Louisiana

Coastal use permit) to reclaim the submerged

land required for the development project.

Absent a coastal use permit, plaintiff could not

reclaim the submerged land. By not receiving

the permit, plaintiff extinguished its compens-

able interest in the 50.59 acres of land below the

MHW mark, subject to state reclamation regula-

tion.” Parenthesis supplied.

Therefore, the holding of the decisions of both Courts

is that a Louisiana citizen, under their interpretation of

Louisiana law, in the absence of a valid coastal use per-

mit, has an insufficient indicia of ownership to immov-

able property titled to him, and lost to erosion, to support

a taking claim under the Fifth Amendment of the United

States Constitution.

Plaintiff-applicant obtained a valid Louisiana Coastal

Use permit on December 18, 1987. The statute regulating

the permitting, LSA R.S. 41:1702, states that the reclama-

tion authorized by the permit must be completed within

two years of issuance of the permit. Since reclamation

cannot begin until the United States Corps of Engineers

issues a §404 permit the permit is useless and the requi-

sites thereof cannot be fulfilled until the Corps acts.

Therefore, the Corps’ deliberate stonewalling of plaintiff-

applicant’s §404 permit precipitated the statutory lapse of

the Coastal Use Permit. It would have been vain, and

useless, for plaintiff-applicant to have obtained a new

coastal use permit to do, dredge, and fill, that which the

Corps would not permit them to do. The Corps, in

essence, is using its own administrative blockade as a

defense in this case.

The Corps did not mention the coastal use permit,

which expired on December 18, 1989, until Colonel

Gorski reneged on his mitigation agreement with plain-

tiff-applicant in his letter of June 19, 1990, Appendix E-1,

and, even in that letter, he indicated he could help expe-

dite the obtaining thereof.

The coastal use permit/title issue raised by the

United States is a bogus issue in this case and was not

raised until this matter went into litigation.

This threshold state law issue is susceptible of defini-

tive determination by the Louisiana Supreme Court.

Counsel for plaintiff-applicant, in its application for

rehearing filed in the Court of Appeals for the Federal

Circuit, requested the Court to certify the issue to the

Louisiana Supreme Court under Rule XII of the rules of

that Court, Appendix G-1, which provides:

MBiewisie

“XII CERTIFIED QUESTIONS FROM FED-

ERAL COURTS ,

Section 1. When it appears to the Supreme

Court of the United States, or to any Circuit

Court of Appeals of the United States, that there

are involved in any proceeding before it ques-

tions, or propositions, of law of this state which

are determinative of said cause independently

of any other questions involved in said case and

that there are no clear controlling precedents in

the decisions of the Supreme Court of this state,

such federal Courts, before rendering a decision

may certify such questions, or propositions, of

law of this state to the Supreme Court of Louisi-

ana for rendition of a judgment or opinion con-

cerning such questions or propositions of

Louisiana law. This Court may, in its discretion,

decline to answer the questions certified to it.”

The foregoing request was made by plaintiff-appel-

lant in an application for rehearing when it became

obvious that the Court of Appeal for the Federal Circuit

was predicating its opinion solely, and only, on an inter-

pretation of Louisiana law. Since Louisiana is a civilian

state, unlike any other state, it was felt that the Court, not

comprised of civilian jurists, should avail itself of the

quoted procedure. Obviously, the Court felt otherwise

and denied the rehearing.

This Court struggled with the issue of ownership of

water bottoms in Phillips Petroleum Company v. Mississippi,

484 U.S. 469 (1988), in a case not involving a “taking”, but

involving a title contest between the state and the prop-

erty owner. As a consequence of the pro-state decision in

Phillips the Louisiana Legislature in 1992, passed LSA RS.

9:1115.1, which provides:

PART I-A OWNERSHIP OF BEDS OF NON-

NAVIGABLE WATERS

§1115.1 Declaration of purpose

A. The purpose of this Part is to distinguish

the law of Louisiana from the state law upon

which the United States Supreme Court based

its decision in Phillips Petroleum Co. v. Missis-

sippi, 108 S.Ct. 791 (1988), and thereby quiet

titles of lands which have long been owned by

private persons but which titles may have been

clouded as a result of that decision.

B. Consistent with the Louisiana Law Institute

Advisory Legal Opinion Relative to Non-navi-

gable Water Bottoms to the Louisiana Legisla-

ture on or about January 31, 199, the legislature

hereby finds that as to lands not covered by

navigable waters including the sea and its shore,

which are subject to being covered by water

from the influence of the tide and which have

been alienated under laws existing at the time of

such alienation. The Phillips decision neither

reinvests the state, or a political subdivision

thereof, with any ownership of such lands nor

does the state, or political subdivision thereof,

acquire any new ownership of the property.

C. It is the intent of the legislature by the

enactment of this Part to codify and confirm the

law of Louisiana as heretofore interpreted by

the courts thereof without change and without

divesting the state, its agencies, or its political

subdivisions of the ownership or rights as to

any immovable property and without affecting

the provisions of the state Oyster Statutes

passed by the legislature since 1886. Further-

more, it is the intent of the legislature by the

enactment of this Part that no provision herein

shall be interpreted to create, enlarge, restrict,

Deescrcansessnir ster ncnaameceeeeeneece mean mene

terminate, or affect in any way any right or

claim to public access and use of such lands,

including but not limited to navigation, craw-

fishing, shellfishing, and other fishing, regard-

less of whether such claim is based on existing

law, custom and usage, or jurisprudence.”

The foregoing reflects an ongoing intent of the Loui-

siana Legislature to protect the citizens of this coastal

state who, unlike the citizens of any other states, suffer

the loss each year of thousands of acres of their land to

the vagaries of nature.

Even before Phillips, and the enactment of the forego-

ing statute, the Louisiana Legislature recognized the

unique problem germane only to its citizens. In 1845 the

legislature included Article 114 in the Louisiana Constitu-

tion, subsequently carried forward to the Constitution of

1974, as Article 9, Section 3, Appendix K-1. The Article in

present form provides:

“§3 Alienation of Water Bottoms

Section 3. The legislature shall neither alienate

nor authorize the alienation of the bed of a

navigable water body, except for purposes of

reclamation by the riparian owner to recover

land lost through erosion. This Section shall not

prevent the leasing of state lands or water bot-

toms for mineral or other purposes. Except as

provided in this Section, the bed of a navigable

water body may be reclaimed only for public

””

use.

LSA R.S. 41:1701, Appendix K-1, contains a declara-

tion of policy regarding submerged lands in the state of

Louisiana. Those that are for public need are held in trust

for the Public. Those that are not for public need, like the

property herein, are held in trust for the individual rip-

arian property owners under Article 9, Section 3, of the

Louisiana Constitution.

Under Civil Code Article 499, derived from Planicol,

a riparian land owner automatically acquires ownership

of alluvion additions to his land. Articles 502, 503, and

504, of the Louisiana Civil Code also deal with acquisi-

tion, or lost, of land due to the action of bodies of water.

The significance of these articles is that they, like Article

9, Section 3, of the Louisiana Constitution pertaining to

eroded land, and LSA R.S. 41:1702, pertaining to reclama-

tion of eroded land, do not envision any transfer of title.

Ownership of land acquired, or lost, by nature’s whim

under the Louisiana Civil Code is automatically vested in

accordance with prior title. Therefore, ownership, in the

true sense, takes place by operation of law.

The landowner, and not the state, is the only one that

can make an erosion reclamation and, accordingly, is the

only one that can be damaged by interference with recla-

mation resulting from a §404 permit denial, or blockade,

resulting in a partial, or total, taking.

Landowners, like plaintiff-applicant herein, pay real

estate taxes on coastal property per their title, regardless

of the fact that portions thereof have been lost to erosion.

What other vestige of ownership is more demonstrative

of true ownership than the payment of taxes? The failure

to pay taxes will result not only in the loss at tax sale of

above tide land, but also title to the eroded land. Tax sale

would also deprive the landowner of his constitutional

property right of reclamation of eroded land.

This Court in United States v. Powelson, 319 U.S. 266

(1943), at page 279, stated that while the meaning of

“property” as used in the Fifth Amendment is a federal

question, this Court will normally obtain its content by

reference to local law. See also United States v. Causby, 328

U.S. 256 (1946).

The Louisiana Supreme Court, and the Appellate

Courts of the state, have always given a liberal interpreta-

tion to “property” as used in Louisiana’s eminent domain

statute, Louisiana Constitution, Article 1, Section 2,

which provides:

“Except as otherwise provided in this constitu-

tion, private property shall not be taken or dam-

aged except for public purposes and after just

and adequate compensation is paid.”

Ownership, as required by the Court of Claims and

Appellate Court herein, has never been required by the

Courts of Louisiana as a pre-requisite to qualification as

“property” under Article 1, Section 2, of the Louisiana

Constitution, supra.

In State Dept. of Highways v. Vermilion Development

Co., 249 So.2d 167 (La. 1971), the Louisiana Supreme

Court held a developer, under contract with the land-

owner, to have a property interest, without ownership,

sufficient to entitle it to just compensation under Article

1, Section 2, of the Louisiana Constitution.

The Court, at page 174, stated:

“The State does not even argue that the rights of

the developer under the contract with Richter

(the landowner) did not constitute property.

(See Mongogna v. O’Dwyar, 204 La. 1030, 16 So.2d

829). The evidence, as found by the trial Court,

clearly showed that the developers’ rights under

their contract suffered a serious diminution in

value as a result of the taking. The analysis of

the trial Court, as affirmed by the Court of

Appeal was correct.”

In State Dept. of Transportation & Development v. Jacob,

483 So.2d 592 at pp. 594, 595 (La. 1986), the Louisiana

Supreme Court made the following definitive statement

of its position on ownership, as a pre-requisite to a taking

of property of a private citizen.

“The clear intent of the framers of this con-

stitution was to expand the right to compensa-

tion to include not only the property owners,

but also of other persons who have legal status

to require compensation such as lessees. This

intent can easily be gleaned from a reading of

the transcripts made of the debates on the sec-

tion. We note and approve the following sum-

marization of the framers intent regarding La.

Const. Art. 1, §4:

Reference to ‘payment to the owner or into

court for his benefit’ was not meant to

restrict the class of persons who could claim

compensation to ‘owners’ in a technical

property law sense. The purpose was to

give citizens more rights, and the term, as

stated by the author of the final compro-

mise, ‘is intended to be used in its broadest

sense, in other words, a leasehold interest in

land is a property right as you and I well

know, and there’s been some trouble over

that in the past.’ In fact, when one couples

this intent with the requirement that com-

pensation be to the full extent of one’s loss,

the purpose emerges of giving protection to

a broader category of persons than was pre-

viously the case. It is also clear that by

referring to property ‘taken or damaged’

compensation must be given not only when

ownership or a real right is taken, but also

when property is damaged.

Hargrave, The Declaration of Rights of the

Louisiana Constitution of 1974, 35 La. L.Rev.

1, 18 (1974) (footnotes omitted).

TPT te ee

The Appellate Courts of Louisiana have also held

other non-owner relationships to be property rights pro-

tected under the Louisiana Constitution. A servitude, or

easement, in Arkansas La. Gas Co. v. La. Dept. of Highways,

104 So.2d 204 (La. App. 2nd Cir. 1958); Leasee in Hodges v.

LaSalle Parish Police Jury, 368 So.2d 1117 (La. App. 3rd Cir.

1979); Mineral rights reserved in perpetuity, State, Sabine

River Authority v. Salter, 184 So.2d 783 (La. App. 3rd Cir.

1966); Right of ingress and egress, State v. O'Neal, 149

So.2d 421 (La. App. 3rd Cir. 1963).

The Federal law is no different than the Louisiana

law on the issue of ownership as a pre-requisite to a

protected property right under the Fifth Amendment to

the Constitution of the United States. In United States v.

Welch, 217 U.S. 333 (1910), an easement was adequate; in

United States v. Causby, 328 U.S. 256 (1946), an overflight

easement was sufficient; in Shelton v. United States, 7 F.3d

1022 (Fed. Cir. 1993), a mortgage lien, and materialman’s

lien was held to be protected. In United States v. 129.4

Acres of Land, 572 F.2d 1385 (9th Cir. 1978), an irrigation

district’s loss of assessment on government-owned land

was heid to be compensable.

It is respectfully submitted that the decision of the

United States Court of Claims, affirmed by the United

States Court of Appeal for the Federal District, holding

that plaintiff-appellant did not have a compensable prop-

erty right at the time of denial of the permit by the Corps

of Engineers was in error, and should be reversed.

2. Bureaucratic Stonewalling.

The old adage that justice delayed is justice denied

fits the Corps permitting process in this case like a glove.

The United State Court of Federal Claims in its rea-

sons for judgment, Appendix B, concluded, as a matter of

fact, that plaintiff-applicant has failed to meet either of

the requirements for compensable, regulatory action

under this Court’s decision in Lucas v. South Carolina

Coastal Council, 112 S.Ct. 2886 (1992), namely: 1) “Physical

invasion” or 2) “Denial of all Economically Beneficial, or

Productive Use of the Land.” Accordingly, the Court side-

stepped a consideration of a “de facto” taking by abusive

governmental regulation under this Court’s decision in

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), and

consideration of the factors specified by this Court in

Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211 (1986),

namely: economic impact; investment backed expecta-

tions; and character of the governmental action.

The United States Court of Federal Claims’ opinion

does not disclose how 50-1/2 acres of plaintiff-applicant’s

land, below the MHW, and underwater, has economically

beneficial, or productive use.

The United States Claims Court in Lachney v. United

States, 2 Cl.Ct. 244 (1983), at page 4, involving a govern-

mental delay in permitting due to interagency dispute

between the Corps and the EPA, stated:

“ Furthermore, the issue of whether, or not,

there has been a compensable ‘taking’ is one of

fact, and not law, and it is dependent upon the

particular facts of each case.”

The United States Court of Claims does not disclose

in its opinion how it overcame the factual hurdle herein

in granting the motion for summary judgment filed by

the United States.

It is submitted that the facts preponderate in favor of

a “de facto” taking by obstructive, and penal, govern-

mental processing of plaintiff-applicant’s permit.

Throughout the period of pendency of the permit

herein, the Corps, and EPA, were locked in an inter-

agency struggle over mitigation requirements for a §404

permit, and were unable to promulgate a memorandum

of understanding between the Corps and EPA, as speci-

fied under 40 CFR 230.2(C). The EPA was demanding “no

net loss of wetlands”, and the Corps was resisting that

anti-property owner interpretation, in seeking a more

realistic balance between nature and the rights of private

property owners. See Appendix J-1.

During this permitting process, there were “conser-

vationists” within the Corps committed to denial of the

permit and supportive of the EPA position, in conflict

with the Corps position. See Appendix F-1.

In the Lachney decision, supra, the United States

Claims Court concluded that a permit delay due to an

interagency dispute, not the fault of the landowner,

would support a “taking” claim against the United States.

The pertinent facts, hereinafter addressed, will show

that the Corps not only delayed the permit in this case,

due to interagency conflict, but ultimately denied the

permit by demanding, without any basis, “no net loss”,

supported by the EPA, rejected by the Corps, and never

promulgated in the required memorandum of under-

standing between the EPA and the Corps, and confisca-

tory mitigation.

The permitting process in this matter began in 1983,

and involved approximately 350 acres. The final applica-

tion before the Court was filed on October 13, 1987. In the

period between 1983 and 1987 alterations were made in

the project to accommodate interested parties and ulti-

mately the project, at the suggestion of the Corps was

“reduced-in-scope” to 59 acres with the promise of expe-

dited handling of the application. Reduction in scope of a

project is one of the factors to be considered by the Corps

in arriving at agreement with the applicant on mitigation.

33 CFR 320.4(H).

On December 14, 1988, the New Orleans District

Engineer, Colonel Lloyd K. Brown, in furtherance of his

broad discretionary power to review, and approve issu-

ance, or denial, of §404 permits, stated, in his findings of

fact:

“I find that issuance of the Department of Army

permit as prescribed by regulations published in

33 CFR 320-330 to Plantation Landing Resort,

Inc. is based on thorough analysis and evalua-

tion of the various factors enumerated above;

that there are no reasonable alternatives avail-

able to the applicant that will achieve the pur-

poses for which the work is being constructed;

that the proposed work is in accordance with

the overall desires of the public as reflected in

the comments of the state agencies and the gen-

eral public; that the proposed work is deemed to

comply with established state and local laws,

regulations, and codes; that there have been no

identified significant adverse environmental

effects related to the work; that the issuance of

this permit is consonant with national policy,

statutes, and administrative directives; and that

on balance, issuance of a Department of the

Army permit would not be contrary to the pub-

lic interest.”

Major General Thomas A. Sands, Commander of the

Lower Mississippi Valley Division, Corps of Engineers, in

response to EPA’s objection to Colonel Brown’s findings,

stated:

“In accordance with the memorandum of agree-

ment, I have reviewed your concern in this case,

and I believe that the District Commander ade-

quately considered your comments, although

our two agencies do not necessarily agree on the

points considered. I am, therefore, directing the

District Commander to proceed with notice of

intent to issue this permit.”

The mitigation specified in Colonel Brown’s findings,

and General Sands’ approval thereof, required plaintiff-

applicant to create a five-acre saline marsh island in

Caminada Bay, in addition to the many other state mitiga-

tion requirements, incorporated in the Corps requisites.

Plaintiff-applicant agreed to every mitigation, and other

requirements, of every state, and every federal, agency.

On February 3, 1989, at the request of the EPA, the

permit application was elevated to headquarters of the

Corps of Engineers for national policy level review. Briga-

dier General Patrick J. Kelly, Director of Civil Works,

handled the elevation, and on April 21, 1989, stated:

“My review of the case record provided by the

New Orleans District (NOD) leads me to con-

clude that Corps policy interpreting and imple-

menting the 401(b)(1) guidelines should be

clarified in certain respects. Of course, general

guidance interpreting the 404(b)(1) guidelines

ideally should be prepared and promulgated

jointly by the Corps and the EPA. (See 40 CFR

230.2(C)). Consequently, representatives of the

ASA (CW) and the Corps from time to time have

worked with EPA attempting to develop joint

interpretative guidance on important issues

under the 404(b)(1) guidelines, but no final

interagency consensus has resulted to date.

Although I hope and expect that eventually we

will be able to promulgate joint Army/EPA

guidance, in the interim, I believe the guidance

provided in the attached is necessary and will

serve a useful purpose.” (Bold highlighting sup-

plied).

General Kelly then went on to instruct the New

Orleans District to require “mitigation, to the maximum

extent practical,” thereby adopting, without an inter-

agency agreement, the EPA aim of “no net loss.”

The “Kelly” guidelines offered as “interim guid-

ance”, because of interagency conflict preventing a mem-

orandum of understanding, left the property owning

public in the dark, and caused the kind of uncertainty,

that resulted in delay, and ultimate denial, of the permit

characterized by Lachney, supra, as an actionable taking.

On May 16, 1990, plaintiff-applicant met with Colo-

nel Richard B. Gorski, who replaced Colonel Brown in the

New Orleans District, and acceded to his demand for

increased mitigation, albeit confiscatory. Colonel Gorski

required plaintiff-applicant, at its expense, to return 22

acres of land in South Louisiana, removed from wetlands,

back to wetlands. Members of Colonel Gorski’s staff, with

EPA leanings, opposed Colonel Gorski’s mitigation pro-

posal and insisted on “no net loss”. The meeting termi-

nated with Colonel Gorski’s statement to plaintiff-

applicant that he was going to issue the permit.

On June 19, 1990, Colonel Gorski addressed a letter

to plaintiff-applicant advising that he was reneging on his

mitigation request, and his intention to issue a permit,

and demanding “on site” mitigation for which he had no

mechanism, requiring a §404 permit, and a Louisiana

coastal use permit, to dredge and fill other wetland prop-

erties. Oddly, enough, Colonel Gorski represented that

the §404 permit, which plaintiff-applicant has not been

able to obtain over these many years, could, in some

magic way, be expedited on behalf of a Corps contractor.

The Rules and Regulations in force at the time of this

application specified both “on-site” and “off-site” com-

pensation, or mitigation. 33 CFR 320.4(R).

Colonel Gorski in spite of his vacillation on the mit-

igation issue, like Colonel Brown and General Sands

before him, found the project to be entitled to a permit in

every respect, subject only to his onerous mitigation

requirement, and a current Louisiana Coastal use permit.

In his statement of finding dated December 12, 1990, he

concluded:

11. Conformity to Section 404(b)(1) Guidelines: In

summary of the above, the NOD has determined

that the applicant has clearly rebutted the pre-

sumption against filling wetlands found at 40

CFR 230.10 and has clearly rebutted the pre-

sumption of 230.10(a) with convincing evidence

that no practicable alternatives exist which

would preclude his proposed fill. By letter dated

September 25, 1990, the applicant failed to com-

ply with the 404(b)(1) Guidelines by refusing to

perform compensatory mitigation required in

accordance with the April 21, 1990, Guidance

provided by Brigadier General Patrick J. Kelly.

The memorandum explicitly stated that the

NOD should require compensatory mitigation to

the maximum in aquatic site directly or indi-

rectly adversely impacted by the proposed

development activity.

The cost of the problematical mitigation suggested by

Colonel Gorski would have increased plaintiff-applicant’s

mitigation costs to $500,000.00, or roughly $8,500.00 per

acre.

Has not the Corps denied plaintiff all economically

beneficial or productive use of its submerged land? We

submit that the answer to both is yes, and that this case is

squarely on point with this Court’s decisions in Pennsyl-

vania Coal Co. v. Mahon, supra, and Connolly v. Pension

Benefit Guar. Corp., supra.

It is respectfully submitted that there has been "de

facto” taking of plaintiff-applicant’s property by the

Corps in this case and that the United States should

compensate plaintiff-applicant therefor under the Fifth

Amendment of the United States Constitution.

CONCLUSION

Plaintiff-Applicant, Plantation Landing Resort, Inc.,

prays that this Honorable Court reverse the judgment of

the Court of Appeals for the Federal District and enter

judgment herein holding plaintiff-applicant to have a

compensable property right under Louisiana Constitution

of 1974, Article 9, Section 3, entitling him to a cause of

action in damages for its taking by the United States

under the Fifth Amendment of the United States Consti-

tution, and remanding the case to the District Court for

further proceedings, in keeping with this Court’s man-

date.

Alternatively, plaintiff-applicant prays that this Court

certify the issue of “whether, or not, plaintiff-applicant

has a property right under Louisiana Constitution, Arti-

cle 9, Section 3, sufficient to support an action for a taking

under the Fifth Amendment of the United States Consti-

tution” under Louisiana Supreme Court Rule XII.

Respectfully submitted,

WIEDEMANN & WIEDEMANN

Of Counsel:

WIEDEMANN & WIEDEMANN LAWRENCE D. WIEDEMANN

821 Baronne Street #13457

New Orleans, LA 70113 Counsel of Record

821 Baronne Street

New Orleans, LA 70113

Telephone: 504/581-6180

Telecopier: 504/581-4336

A-i

APPENDICES

Page

Judgment of the United States Court of

Appeals for the Federal Circuit dated October

ee ey Cy rh er oe PeAre hit em nme A-1

Judgment of the United States Court of Fed-

eral Claims, dated November 22, 1993......... B-1

Order Denying rehearing by United States

Court of Appeal for the Federal Circuit, dated

I ie le ae C-1

Department of Army, New Orleans District,

Corps of Engineers letter, dated November 7,

SOMA SEED LAS Gace Es each ye sbbhe hecekS ewe cane D-1

Department of Army, New Orleans District,

Corps of Engineers letter, dated June 19, 1990... E-1

Affidavit of George Scariano, Attorney at

Raw, Gated Jame 10, 1993... 2. ccc ccc ccc cccvece F-]

Rule XII of the Rules of the Supreme Court of

| ee G-1

Louisiana Revised Statutes 41:1702............. H-1

Article 9, Section 3, Louisiana Constitution of

oo EE EEE EE oe CELT Te PT CR PE RED I-1

Department of Army, Lower Mississippi Val-

ley Division, Corps of Engineers letter, with-

SY CS ete ea ee Ea bie oo cee es J-1

Louisiana Revised Statutes ne re K-1

A-l

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is

not citable as precedent. It is a public record. The disposi-

tion will appear in tables published periodically.

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

94-5064

PLANTATION LANDING RESORT, INC.,

Plaintiff-Appellant,

THE UNITED STATES,

Defendant-Appellee.

JUDGMENT

(Filed Oct. 12, 1994)

ON APPEAL from the UNITED STATES COURT OF

FEDERAL CLAIMS

in CASE NO(S). 91-1474L

This CAUSE having been heard and considered it is

ORDERED and ADJUDGED: AFFIRMED.

Per Curiam (PLAGER and CLEVENDER, Circuit Judges;

and SKELTON, Senior Circuit Judge). See Fed. Cir. R. 36.

ENTERED BY ORDER OF THE COURT

/s/ Francis X. Gindhart

Francis X. Gindhart, Clerk

DATED OCT 12 1994

ISSUED AS A MANDATE: November 15, 1994

B-1

IN THE UNITED STATES COURT

OF FEDERAL CLAIMS

No. 91-1474 L

PLANTATION LANDING

RESORT, INC.,

v. JUDGMENT

THE UNITED STATES (Filed Nov. 22, 1993)

Pursuant to the court’s order of November 19, 1993,

denying plaintiff’s cross-motion for summary judgment,

and granting defendant’s motion for summary judgment,

IT IS ORDERED AND ADJUDGED this date, pur-

suant to Rule 58, that the complaint is dismissed. No

costs.

David A. Lampen

Clerk of Court

November 22, 1993 By: Illegible

Deputy Clerk

B-2

IN THE UNITED STATES COURT

OF FEDERAL CLAIMS

No. 91-1474 L

(Filed Nov. 19, 1993)

98 a a a OE OE

PLANTATION LANDING Cross-motions for Sum-

RESORT, INC., mary Judgment; Taking;

Plaintiff Inverse Condemnation;

; Clean Water Act Dredge

V. and Fill Permit; Mitigation;

THE UNITED STATES, State Law and Permit Pro-

cess; Compensable Prop-

Defendant. _ erty Interest

2 Oe a Oe a Oa Oo oO Oe a Oo a oe ob Oe oe

Lawrence D. Weidman, New Orleans, Louisiana for plain-

tiff.

Thomas L. Halkowski, Washington, D.C., for defendant.

ORDER

TIDWELL, Judge:

This case is before the court on cross-motions for

summary judgment. For the reasons set forth below, the

court grants defendant’s motion and denies plaintiff’s

cross-motion for summary judgment.

FACTS

In October 1984, Preston Mauboulez, a land devel-

oper in the state of Louisiana; J. Folse Roy, a real estate

consultant in that state; and the Jefferson Guaranty Bank

B-3

formed a joint venture partnership for the purpose of

owning and developing Plantation Landing, a 220 acre

tourist destination resort on Grand Isle, Louisiana, about

forty-eight miles south of New Orleans. In November

1985, the Bank, on behalf of the joint venture, filed an

application with the New Orleans District of the U.S.

Army Corps of Engineers (the Corps) requesting a per-

mit! to dredge and fill the 220 acre site in preparation for

development. Plaintiff alleged that Preston Mauboulez, or

the corporations over which he had control,? held prop-

erty interests in 132 acres of the site, and J. Folse Roy and

the Jefferson Guaranty Bank owned the remaining eighty-

eight acres.

The Corps gave notice of the project to the public on

December 18, 1985 and the town of Grand Isle conducted

a public hearing on January 14, 1986. The consensus of

the general public supported the project. A revised public

1 Section 404 of the Clean Water Act (CWA) authorizes the

U.S. Army Corps of Engineers to issue permits, after notice and

opportunity for public hearings, for the discharge of dredged or

fill material into navigable waters. 33 U.S.C. § 1344 (1988); see

also Section 10 of the Rivers and Harbors Act, 33 U.S.C. § 404

(1988). U.S. Army Corps of Engineers regulations implementing

the CWA define “navigable waters” as “those waters of the

United States that are subject to the ebb and flow of the tide

shoreward to the mean high water mark, and/or are presently

used, or have been used in the past, or may be susceptible to use

to transport interstate or foreign commerce.” 33 C.F.R. § 322.2(a)

(1990). The term “waters of the United States” includes wet-

lands. 33 C.F.R. § 328.3(a)(3) (1990).

2 Plaintiff alleged that Preston Mauboulez retained power

of attorney for Delco Corp.; a partnership composed of Delco

Corp., Burgess McCranie and George Scariano; Bay Property

Developments, Inc.; Shorelands, Inc.; and Horizon Shores, Inc.

arn renee

PRET HAAR OS erg

B-4

notice dated July 24, 1986 called for protests to the pro-

posed work, suggestions for modifications, or objections

to be filed with the Corps by August 13, 1986. Plaintiff,

Plantation Landing Resorts, Inc., was formed in August

1986.3

In a letter dated February 6, 1987, Louisiana senators

and members of congress requested that the Corps give

every possible consideration to Pursuing a revised envi-

ronmental assessment for the project rather than an envi-

ronmental impact statement (EIS),4 thereby facilitating

the permit process for plaintiff.

* Through a series of assignments and transferal of owner-

ship in 1986, the shareholders of Horizon Shores, Inc. and

Shorelands, Inc. acquired all rights, titles, interests, respon-

sibilities and obligations of Delco Corp.; a partnership com-

posed of Delco Corp., Burgess McCranie and George Scariano;

and Bay Property Developments, Inc. See, supra note 2. Further-

more on August 14, 1986 Horizon Shores, Inc. and Shorelands,

Inc. became wholly owned subsidiaries of the newly incorpo-

rated Plantation Landing Resort and the subsidiary stock-

holders agreed to exchange their outstanding common stock for

shares in Plantation Landing Resort, Inc. However, the stock

transfer did not take place until July 1992.

4 The National Environmental Policy Act of 1969, as

amended, 42 U.S.C. §§ 4321 requires that an environmental

impact statement (EIS) be formulated for all “major federal

actions significantly affecting the quality of the human environ-

ment.” 42 U.S.C. § 4332(2)(C) (1988); 40 C.F.R. § 1508.11 (1990).

An environmental assessment (EA) is less rigorous than an EIS

and provides sufficient information on potential environmental

effects of a proposed action so as to determine the requirement

for either an EIS or a finding of no significant impact (FONSI).

33 C.F.R. 230.10(a) (1990).

B-5

At a meeting held on April 1, 1987, plaintiff alleged

that its representatives and those of the Corps agreed

that, in return for a reduction of the project size from 220

acres to 59 acres, which would eliminate the requirement

for an EIS, the Corps would expedite the approval of the

permit. An EIS would cost plaintiff about $200,000 and

precipitate a two year delay in the project.

In a letter dated October 16, 1987, the Corps advised

plaintiff that, as a result of a telephone conversation on

July 27, 1987 and a meeting on August 6, 1987 conducted

between their respective representatives, the Corps

expected to receive a revised permit application. The

Corps explained that because a revised application was

not filed and because plaintiff made no progress on the

project, the Corps decided to return the original permit

application. With a cover letter, also dated October 16,

1987, plaintiff’s agent filed a permit application dated

October 13, 1987 seeking authorization for a fifty-nine

acre proposal with an estimated total project cost of $44

million. The proposal in question encompassed thirty-

seven acres of shallow bay bottom® and twenty-two acres

of saline intertidal marsh on or near the northern side of

Grand Isle. The plan called for extensive dredging of

> Pursuant to the authority of Article IX, Section 3 of the

Louisiana Constitution of 1974, owners of land contiguous to

and abutting navigable waterbottoms belonging to the state

have the right to reclaim or recover land lost through erosion

since July 1, 1921. Permits, issued by the Louisiana Department

of Natural Resources, to reclaim or recover such land are valid

for a period of two years. La. Rev. Stat. Ann. §§ 41:1701, 1702

(West 1990). Plantation was issued a Coastal Use Permit on

December 18, 1987.

B-6

canals and embayments to create a small boat harbor /

marina and the raising of marshlands with fill material to

a height of five feet above sea level for the construction of

condominiums, townhouses, a motel, restaurant, and

other services and facilities. Plaintiff alleged ownership

of the fifty-nine acres involved in the project but defen-

dant disputed plaintiff’s ownership of certain parcels of

land that constituted a significant portion of the develop-

ment site.®

The Corps gave notice to the public of the revised

project on December 7, 1987 and later extended the date

within which to file an opposition to the project from

December 29, 1987 to January 8, 1988. On March 24, 1988

the Corps gave notice of a public hearing to be held on

April 26, 1988 to discuss the project. Once again the

public response to the proposed project was favorable.

On December 14, 1988 the New Orleans District Engi-

neer, Colonel Lloyd K. Brown, U.S. Army Corps of Engi-

neers, issued a draft statement of findings about

plaintiff's permit application. The draft findings con-

cluded that, after thorough analysis of the various fac-

tors, the proposed work complied with established state

and local laws, regulations, and codes. Furthermore, the

of ownership of lots 40 and 41 and lot V2 of subdivision No. 15.

The disputed parcels of land, together, comprised a key and

central portion of the development site. Plaintiff provided evi-

dence of options to purchase certain parcels of land but defen-

dant alleged that both options expired according to the terms of

the respective contracts before plaintiff submitted the permit

application.

B-7

draft findings concluded that although adverse environ-

mental effects had been identified that related to the

proposed work, issuance of the CWA § 404 permit was

consonant with national policies, statutes, and adminis-

trative directives, and that on balance, issuance of the

permit was not contrary to the public interest.

The draft statement of findings required plaintiff to

create five acres of saline marsh in Caminada Bay during

initial infrastructure dredging and fill activities. The arti-

ficially created marshlands, vegetated with native trees

and shrubs and protected from shoreline erosion by the

installation of floating breakwaters, were to be part of the

mitigation required for the wetlands that would be lost as

a result of the development.” The installation of two

thirty-six-inch-diameter water control structures were

proposed as further mitigation. Furthermore, according

to plaintiff, the conditions required for the Coastal Use

Permit issued by the Louisiana Department of Natural

Resources, namely the construction of a sewerage treat-

ment facility for the development, constituted additional

mitigation.

Copies of the Corps’ draft statement of findings and

a letter indicating its intent to issue the permit were sent

to the United States Environmental Protection Agency

(EPA); the U.S. Fish and Wildlife Service, Department of

the Interior; and the National Marine Fisheries Service,

Department of Commerce.

7 Mitigation is a requirement of the CWA to offset wetland

losses. 33 U.S.C. § 1344 (b) (1988); 33 C.F.R. §§ 325.4(a)(1),

325.4(a)(3) (1990).

B-8

On January 13, 1989 the Acting Assistant Administra-

tor of EPA’s Office of Water wrote to the Assistant Secre-

tary of the Army (Civil Works) and requested review of

the New Orleans District Engineer’s draft statement of

findings in favor of issuing the permit to plaintiff. The

Assistant Secretary agreed to policy level review by the

Office of the Chief Engineer and so advised EPA on

February 3, 1989. On April 21, 1989 Brigadier General

Patrick J. Kelly, the Director of Civil Works, U.S. Army

Corps of Engineers in Washington, advised the New

Orleans District Engineer of the Assistant Secretary's

decision, directed the Corps to re-evaluate the application

for permit by plaintiff, and provided additional guidance

as to the interpretation and implementation of the Section

404(b)(1) guidelines.

On January 4, 1990, following re-evaluation of the

permit application in accordance with the April 21, 1989

guidelines, the Corps advised plaintiff that the mitigative

measures required as special conditions for permit issu-

ance were altered to require creation of twenty-two acres,

instead of the original five acres, of saline marsh in

Caminada Bay prior to initial infrastructure dredge and

fill activities. Unsatisfied with the new conditions, plain-

tiff responded on March 6, 1990 with a counter-offer to

acquire twenty-two acres of previously removed freshwa-

ter wetlands in south Louisiana (150 miles north west of

Grand Isle and the development site at issue) and convert

them to their former wetlands status.

At a meeting on May 16, 1990 the subsequent New

Orleans District Engineer and agents for plaintiff dis-

cussed the latter’s mitigation proposal and the relation-

ship between acreage requirements for dissimilar

B-9

wetlands mitigation. Plaintiff alleged that the new Dis-

trict Engineer agreed to issue the Section 404 permit

subject to confirmation of the number of acres required

for such compensatory mitigation. Plaintiff further

alleged that its agents agreed to supply any number of

acres that the Corps determined to be adequate wetlands

mitigation.

On June 19, 1990 the Corps advised plaintiff by letter

that, contrary to the information given at the May 16,

1990 meeting, some reasonable connection must be main-

tained between estuarine values and functions lost by the

proposed infrastructure development and the wetlands

offered as compensatory mitigation. In the letter, the

Corps also suggested some alternative sites within the

Barataria Basin that would have been considered appro-

priate compensation and proposed methods by which to

achieve the mitigation. In addition, the Corps advised

plaintiff that their Louisiana Coastal Use Permit had

expired.

When plaintiff failed to respond by September 12,

1990, the Corps sent a letter advising plaintiff that, absent

a reply within 14 days, the Corps would act on plaintiff’s

permit application. In a letter dated September 25, 1990,

plaintiff responded that the “time ha[d] come to draw a

line in the sand.” Plaintiff asserted that any decision by

the U.S. Army Corps of Engineers to deny the permit

constituted an inverse condemnation by the government

and that the Corps’ untimely delay in considering the

permit, thereby denying plaintiff all use of its property

during that time, constituted a “temporary” taking. After

detailing their dissatisfaction with the mitigation require-

ments, plaintiff sought issuance of a permit unrestricted

B-10

except for the mitigative factors “encompassed in the

proposed project itself.”

The New Orleans District Engineer notified plaintiff

by letter dated December 21, 1990, that, pursuant to 40

C.F.R. § 230.10, he was required to deny the permit appli-

cation “because we are unable to agree on adequate mit-

igation to fully compensate for the values and functions

of those special aquatic sites which would be adversely

affected by [plaintiff’s] proposed project.” Furthermore,

the District Engineer advised that even if the parties

reached agreement on appropriate mitigation, the expira-

tion of plaintiff’s Louisiana State Coastal Use Permit pre-

vented issuance of a Department of Army permit.

Plaintiff filed in this court on September 27, 1991,

alleging that the action by the Corps in refusing to issue

the permit deprived plaintiff of the use of its property

and constituted a governmental taking under the Fifth

Amendment to the Constitution of the United States.

DISCUSSION

Summary judgment under RCFC 56(c) is properly

granted when there are no genuine issues of material fact

and the movant is entitled to judgment as a matter of law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

A material fact is a fact which makes some difference in

the outcome of a case. Curtis v. United States, 168 F. Supp.

213, 216 (Ct. Cl. 1958), cert. denied, 361 U.S. 843 (1959).

Plaintiff must, in response to a motion for summary judg-

ment, make a showing “sufficient to establish the exis-

tence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.”

B-11

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The non-

movant’s burden to set forth “specific facts which gener-

ate the issue for trial” is not met by “reliance on its

pleading alone, or by conclusory allegations and gener-

alities.” Bromley Contracting Co. v. United States, 15 Cl. Ct.

100, 105 (1988). See also Sweats Fashions, Inc. v. Pannill

Knitting Co., 833 F.2d 1560, 1562-3, (Fed. Cir. 1987); Camp-

bell v. United States, 2 Cl. Ct. 247, 249 (1983). A complete

failure of proof of an essential element of the non-moving

party’s case necessarily renders all other facts immaterial.

Celotex, 477 U.S. at 323.

Furthermore, the court must be satisfied that no gen-

uine issues of material fact are present even if the parties

file cross-motions. Tabb Lakes, Inc. v. United States, 26 Cl.

Ct. 1334, 1344 (1992); Mingus Constructors, Inc. v. United

States, 812 F.2d 1387, 1391 (Fed. Cir. 1987). In resolving

cross-motions for summary judgment, the court cannot

weigh the evidence and determine the truth of the matter.

Tabb Lakes, 26 Cl. Ct at 1344; Anderson, 477 U.S. at 249,

255. In considering a motion for summary judgment, the

evidence must be viewed and inferences drawn in a light

most favorable to the non-moving party, and any doubt

must be resolved against the moving party. Litton Indus.

Prod. Inc. v. Solid State Sys. Corp., 755 F.2d 158, 163 (Fed.

Cir. 1985); see also Adickes v. S.H. Kress & Co., 398 U.S. 144,

158 (1970); D.L. Auld Co. v. Chroma Graphics Corp., 714 F.2d

1144, 1146 (Fed. Cir. 1983). The court may deny summary

judgment, however, if “there is reason to believe that the

better course would be to proceed to trial.” Tabb Lakes, 26

Cl. Ct at 1344; Anderson, 477 U.S. at 255.

Before a party can recover just compensation under

the Fifth Amendment for a taking, under either a physical

B-12

invasion or regulatory taking theory, it must establish a

compensable property interest. Lucas v. South Carolina

Coastal Council, 112 S.Ct. 2886, 2899-900 (1992). “In an

action under the Fifth Amendment based upon the

alleged taking by the United States, through inverse con-

demnation, it is clear that only the owner of the property

at the time of the taking is entitled to be compensated for

the taking.” Lacey v. United States, 595 F.2d 614, 619 (Ct.

Cl. 1979).

In the instant case, the primary basis of defendant's

motion for summary judgment was plaintiff’s lack of

compensable property interest. Defendant asserted that

plaintiff did not have a compensable interest in the fifty

and one-half acres of land (of the total fifty-nine acre

project) which lay below the mean high water mark and

that plaintiff failed to pursue its claim of ownership of

that land.® Discussion of this assertion is therefore bifur-

cated in order to accommodate the distinction between

that portion of land above the MHW mark and the area

below it.

When enacting the CWA Congress intended it to

have broad application: “The objective of this chapter is

8 In 1993 a government-arranged elevation survey of the

property involved in plaintiff’s proposed fifty-nine acre devel-

opment project resulted in a finding that 7.97 acres of that area

lay above the mean high water (MHW) mark. The MHW mark

for Grand Isle, Louisiana is 0.94 above the National Geodetic

Vertical Datum (NGVD) of 1929. Also, the survey found that

another 0.44 acres were isolated areas lying below MHW. There-

fore, the survey concluded that approximately 50.59 acres lay

contiguously below the MHW mark.

B-13

to restore and maintain the chemical and biological integ-

rity of the Nation’s waters.” 33 U.S.C. § 1251(a) (1976).?

Congress expressly stated its intent “that the term ‘navi-

gable waters’ be given the broadest possible constitu-

tional interpretation. . . . ” Avoyelles Sportsmen's League,

Inc. v. Marsh, 715 F.2d 897, 914 (5th Cir. 1983); see also

Leslie Salt Co. v. Froehlke, 578 F.2d 742, 754-55 (9th Cir.

1978) which held that “navigable waters” within the

meaning of CWA to be given “broadest possible inter-

pretation under Commerce Clause.” In accordance with

the Corps regulations interpreting and implementing the

CWA the key feature in determining the extent of “navi-

gable waters,” for non-inland waterways at least, is the

MHW mark.!° 33 C.F.R. § 322.2(a) (1990); see also Leslie

Salt Co., 578 F.2d at 753, explaining that “navigable

waters .. . extend to all places covered by the ebb and

flow of the tide to the mean high water (MHW)

mark...” (cited in Owen v. United States, 851 F.2d 1404,

1409 (Fed. Cir. 1988) (en banc)).

Plaintiff’s project included approximately fifty and

one-half acres of land measured by elevation survey to lie

below the MHW mark. By definition this acreage is

clearly navigable waters of the United States and subject

to such state and federal regulation as might apply. The

Louisiana Civil Code establishes state ownership of land

lying below navigable water. La. Civ. Code Ann., art. 450

9 The CWA was originally called the Federal Water Pollu-

tion Control Act. See S. Rep. No. 1236, 92 Cong., 2d Sess. 99

(1972). In 1977, Congress approved the shortened title of “Clean

Water Act.” H.Rep. No. 830, 95th Cong. 1st Sess. 1 (1977).

10 See, supra note 1.

B-14

(West 1980) (“[p]ublic things that belong to the state

are . . . waters and bottoms of natural navigable water

bodies . . . ”). However, the value of riparian ownership

and the problems of tidal influx and land erosion in the

Mississippi delta region are adequately accounted for in

the Louisiana Constitution, which permits “reclamation

by the riparian owner to recover land lost through ero-

sion”. La. Const. of 1974, art. 9, § 3. Louisiana’s statutes

establish the administrative procedure to be followed by

riparian land owners seeking to reclaim lands “lost

through erosion by action of this navigable water body

occurring on and after July 1, 1921...” La. Rev. Stat.

Ann. §§ 41:1702 B (West 1990). Such administrative pro-

cedure requires the application for a coastal use permit

from the Louisiana Department of Natural Resources.1!

By previously applying for the appropriate coastal

use permit, plaintiff was aware of the statutory require-

ments of § 1702 of the Louisiana Code. Later, after the

statutory expiration of the coastal use permit and despite

the Corps’s notice that the permit expired, plaintiff did

not pursue a renewal of the state permit. At the time

plaintiff alleged the taking occurred, it did not hold a

valid permit to reclaim the submerged land required for

the development project. Absent a coastal use permit,

plaintiff could not reclaim the submerged land. By not

renewing the permit, plaintiff extinguished its compens-

able interest in the 50.59 acres of land below the MHW

mark, subject to state reclamation regulation. Without

such interest, plaintiff cannot proceed with a takings

claim as to this land.

'l See, supra note 5.

B-15

Furthermore, defendant asserted, and the court

agrees, that plaintiff failed to provide any evidence of

ownership over specific tracts of land i.e., lot V2 of subdi-

vision No. 15, as well as lots 40 and 41, which are central

to the Plantation project. Each of the three lots is partially

submerged with approximately 50% of-the land above the

MHW mark.

In its reply and cross-motion, plaintiff's “proof” of

ownership of those lots of land consisted of nothing more

than assertions of ownership in an affidavit and copies of

purchase options taken out for the original Plantation

development project in October 1984. Mere conclusory

statements and denials do not take on dignity by placing

them in affidavit form. Sweats Fashions, Inc., 833 F.2d at

1564; see also Barmag Barmer Maschinenfabrik AG v. Afurata

Mach., Ltd., 731 F.2d 831, 836 (Fed. Cir. 1984). Notwith-

standing that the purchase options provided by plaintiff

failed to apply to lots 40 or 41 and perhaps lot V2 of

subdivision No. 15, both options to purchase the property

described therein expired in accordance with the terms of

the agreement.!? Accordingly, because plaintiff failed to

establish proof of ownership of at least two lots of land

central to its development plan, namely lots 40 and 41,

12 “This option is to be for a period of one year from the

date of the signing of this contract, or ninety days after a permit

is obtained from the Louisiana Coastal Zone Management, and

any other regulatory bodies or agencies that are necessary,

whichever occurs first.” (Agreement Part V, Plaintiff’s Appen-

dix 337-45). Both agreements are dated October 5, 1984. There-

fore the option expired prior to the date of the alleged taking,

December 21, 1990, when the permit was denied.

ee ee eee

B-16

plaintiff is not entitled to be compensated for a taking

under the Fifth Amendment with respect to those lots.

In response to a motion for summary judgment,

plaintiff must make a showing “sufficient to establish the

existence of an element essential to that party’s case, and

on which that party will bear the burden of proof at

trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Failure of proof of an essential element of plaintiff’s case

necessarily renders all other facts immaterial and thereby

entitles defendant to summary judgment. Id., at 323. The

second part of the analysis, addressing that portion of

land above the MHW mark, encompasses defendant’s

alternative basis for summary judgment, namely, assum-

ing arguendo that plaintiff established a compensatory

interest in the fifty-nine acre site, plaintiff’s claim did not

withstand analysis under the factors set forth by the

Supreme Court for takings claims. Justice Holmes estab-

lished in Pennsylvania Coal v. Mahon that “while property

may be regulated to a certain extent, if regulation goes

too far it will be recognized as a taking.” Pennsylvania

Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). To determine

whether the government reguiation had “gone too far” in

the instant case, both defendant and plaintiff rely on the

three factors enunciated in Connolly v. Pension Benefit

Guar. Corp., namely, economic impact, investment backed

expectations, and the character of the government action.

Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 224-25

(1986).

Given the facts of this case, it is not necessary to

discuss each of the Connolly factors in detail. In Lucas the

Supreme Court described two discrete categories of regu-

latory action which would be considered compensable

B-17

without “case-specific inquiry into the public interest

advanced in support of the restraint.” Lucas, 112 S. Ct. at

2893. The first category includes “regulations that compel

the property owner to suffer a physical ‘invasion’ of his

property.” Id. The instant case does not come within this

category. Clearly plaintiff has not been forced to suffer

any physical “invasion” of its property.

The second type of regulatory action described in

Lucas requiring categorical treatment is that which

“denies all economically beneficial or productive use of

land.” Id. (citing Agins v. Tiburon, 447 U.S. 255, 260 (1980)).

In Lucas, the restrictive regulation that effected the taking

barred plaintiff from building any permanent habitable

structure on its coastal property. Lucas, 112 S. Ct. at 2889.

Regardless of any compensatory action that plaintiff in

Lucas may have proposed, it could not circumvent the

regulation and it was “flatly prohibited” from making

any occupiable improvements to its land. Id.

The regulatory action in Lucas is therefore distin-

guished from that in the instant case because here the

regulation did not “flatly prohibit” plaintiff from devel-

oping the land, nor did the regulation deny plaintiff all

“economically beneficial or productive use” of the land.

The Corps’ denial of the CWA § 404 permit for plaintiff

was premised on the failure to reach agreement on mit-

igation requirements. The need to mitigate was not at

issue. Central to the instant takings claim was the failure

to reach agreement on the amount of mitigation required

“to fully compensate for the values and functions of those

special aquatic sites which would be adversely affected”

by plaintiff’s proposal. As such, neither the regulation

B-18

nor the Corps’s actions denied plaintiff of all economi-

cally beneficial or productive use of its land.

Furthermore, in June 1990, the Corps provided plain-

tiff with several mitigation alternatives to “restore and/

or create wetlands” which were considered “appropraite

compensation” and offered suggestions as to how these

could be achieved. While not unsympathetic to the frus-

trations of plaintiff, this court cannot find that the regula-

tory action denied all economically beneficial or

productive use of the land. This is especially so where, as

here, the government assisted plaintiff in the regulatory

process by providing alternative solutions that would

advance that plaintiff’s proposals for productive use of

its land.

CONCLUSION

Accordingly, based on the foregoing, plaintiff’s cross-

motion for summary judgment is denied and defendant's

motion for summary judgment is granted. The complaint

is dismissed. No costs.

IT IS SO ORDERED.

/s/ M. R. Tidwell

MOODY R. TIDWELL, III

Judge

C-1

United States Court of Appeals for the Federal Circuit

94-5064

PLANTATION LANDING RESORT, INC.,

Plaintiff-Appellant,

THE UNITED STATES,

Defendant-Appellee.

ORDER

(Filed Nov. 8, 1994)

Before PLAGER, Circuit Judge, SKELTON, Senior Circuit

Judge, and CLEVENGER, Circuit Judge.

A petition for rehearing having been filed by the

APPELLANT,

UPON CONSIDERATION THEREOF, it is

ORDERED that the petition for rehearing be, and the

same hereby is, DENIED.

The mandate will issue November 15, 1994.

FOR THE COURT,

FRANCIS X. GINDHART,

CLERK

Dated: November 8, 1994 by /s/ Diane M. Frye

Diane M. Frye

Chief Deputy Clerk

C-2

cc: LAWRENCE D. WIEDEMANN

ELLEN J. DURKEE

PLANTATION LANDING V US, 94-5064

(CFC ~ 91-1474L)

Note: Pursuant to Fed. Cir. R. 47.6, this order is not

citable as precedent. It is a public record.

D-1

[SEAL]

DEPARTMENT OF THE ARMY

NEW ORLEANS DISTRICT CORPS OF ENGINEERS

P.O. BOX 60267

NEW ORLEANS, LOUISIANA 70160-0267

November 7, 1988

REPLY TO

ATTENTION OF

Operations and Readiness Division

Western Evaluation Section

SUJECT [sic]: (Bayou Rigaud)67

Mr. Richard J. Hoogland

National Oceanic and Atmospheric Administration

National Marine Fisheries Service

Southeast Regional Office

9450 Koger Boulevard

St. Petersburg, FL 33702

Dear Mr. Hoogland:

This letter is in reference to permit application

CELMN-OD-SW (Bayou Rigaud) 67 by Plantation Land-

ing Resort, Inc. for installation of a water oriented recre-

ational complex on Grand Isle, Louisiana. Your agency’s

views were expressed in writing via letters dated Decem-

ber 21, 1987; April 22, 1988; May 23, 1988; July 26, 1988,

August 22, 1988 and verbal comments presented at the

April 26, 1988 public hearing. We have considered your

position and the views of the applicant and others in an

attempt to reach a decision relative to the benefits and

adverse impacts of the project in our public interest

review.

D-2

Evaluation of various alternative project designs

and/or sites that would result in less impacts to wetlands

inclusive of those suggested by EPA were determined not

to be feasible or practicable because they were economi-

cally nonviable and/or would not allow the applicant to

fulfill his intended purpose of establishing a contiguous,

fully-integrated, waterfront resort complex.

As a result of our review, it is our decision that

issuance of a permit for the project with conditions as

presented to your agency at an August 9, 1988 meeting

would not be contrary to the public interest.

This letter is my formal notification that I plan to

prepare a Notice of Intent to Issue in accordance with the

Memorandum of Agreement (MOA) between our

agency’s [sic]. I am attaching a copy of my draft state-

ment of findings in accordance with the MOA.

I look forward to hearing from you on this matter.

Sincerely,

/s/ Lloyd K. Brown

Colonel, Corps of Engineers

District Engineer

CERTIFIED MAIL NO. 079840

RETURN RECEIPT REQUESTED

[SEAL]

DEPARTMENT OF THE ARMY

NEW ORLEANS DISTRICT CORPS OF ENGINEERS

P.O. BOX 60267

NEW ORLEANS, LOUISIANA 70160-0267

Jun. 19, 1990

REPLY TO

ATTENTION OF

Operations and Readiness Division

Western Evaluation Section

SUBJECT: SW (Bayou Rigaud) 67

Mr. Preston Mauboulez, President

Plantation Landing Resort, Inc.

Post Office Box 872

Crowley, Louisiana 70527

Dear Mr. Mauboulez:

This letter is a follow-up to our meeting on May 16,

1990, regarding compensatory mitigation for the subject

permit.

Contrary to what I told you at the meeting, we can-

not consider conversion of agricultural land outside the

Barataria Bay Basin to fresh marsh or bottomland hard-

woods as adequate compensatory mitigation for the

destruction of 22 acres of saline marsh on Grand Isle. My

staff has convinced me that we must maintain some rea-

sonable connection to the lost estuarine values and func-

tions.

However, we believe there are several alternative

sites within the Barataria Basin that you could use to

E-2

restore and/or create wetlands as appropriate compensa-

tion. One alternative site is an open water area located

near mile 7 on the Barataria Waterway in which you

could create saline marsh by placing material from our

periodic maintenance dredging of the waterway. We cal-

culate that you would have to create approximately 36

acres of marsh at this site to provide similar values as the

22-acre saline marsh site on Grand Isle because of the

different land loss rates of each site. (We do take into

account natural erosion over time of both the existing

wetlands and the ones you would create.) We estimate

this alternative would cost $100,000 to $150,000. This

represents the incremental increased cost over our main-

tenance dredging contract to place dredged material to

create the 36 acres of saline marsh.

At this time we have no mechanism that would allow

you to pay us directly to do this work. Our legal staff is,

however, investigating the matter to determine if such an

arrangement could be authorized. You certainly could

contract directly with our contractor for the work. You

would need to obtain a Department of the Army Permit

and a Louisiana Coastal Use Permit and Water Quality

Certification, which we would help expedite.

We have identified other feasible, practicable and

available mitigation sites in the Barataria Basin that can

be restored to productive marsh at a cost of $100,000 to

$300,000. Some of these are sites which you could pur-

chase and retain ownership. We are prepared to discuss

these with you or your representative if you wish.

B-11

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The non-

movant’s burden to set forth “specific facts which gener-

ate the issue for trial” is not met by “reliance on its

pleading alone, or by conclusory allegations and gener-

alities.” Bromley Contracting Co. v. United States, 15 Cl. Ct.

100, 105 (1988). See also Sweats Fashions, Inc. v. Pannill

Knitting Co., 833 F.2d 1560, 1562-3, (Fed. Cir. 1987); Camp-

bell v. United States, 2 Cl. Ct. 247, 249 (1983). A complete

failure of proof of an essential element of the non-moving

party’s case necessarily renders all other facts immaterial.

Celotex, 477 U.S. at 323.

Furthermore, the court must be satisfied that no gen-

uine issues of material fact are present even if the parties

file cross-motions. Tabb Lakes, Inc. v. United States, 26 Cl.

Ct. 1334, 1344 (1992); Mingus Constructors, Inc. v. United

States, 812 F.2d 1387, 1391 (Fed. Cir. 1987). In resolving

cross-motions for summary judgment, the court cannot

weigh the evidence and determine the truth of the matter.

Tabb Lakes, 26 Cl. Ct at 1344; Anderson, 477 U.S. at 249,

255. In considering a motion for summary judgment, the

evidence must be viewed and inferences drawn in a light

most favorable to the non-moving party, and any doubt

must be resolved against the moving party. Litton Indus.

Prod. Inc. v. Solid State Sys. Corp., 755 F.2d 158, 163 (Fed.

Cir. 1985); see also Adickes v. S.H. Kress & Co., 398 U.S. 144,

158 (1970); D.L. Auld Co. v. Chroma Graphics Corp., 714 F.2d

1144, 1146 (Fed. Cir. 1983). The court may deny summary

judgment, however, if “there is reason to believe that the

better course would be to proceed to trial.” Tabb Lakes, 26

Cl. Ct at 1344; Anderson, 477 U.S. at 255.

Before a party can recover just compensation under

the Fifth Amendment for a taking, under either a physical

B-12

invasion or regulatory taking theory, it must establish a

compensable property interest. Lucas v. South Carolina

Coastal Council, 112 S.Ct. 2886, 2899-900 (1992). “In an

action under the Fifth Amendment based upon the

alleged taking by the United States, through inverse con-

demnation, it is clear that only the owner of the property

at the time of the taking is entitled to be compensated for

the taking.” Lacey v. United States, 595 F.2d 614, 619 (Ct.

Cl. 1979).

In the instant case, the primary basis of defendant’s

motion for summary judgment was plaintiff’s lack of

compensable property interest. Defendant asserted that

plaintiff did not have a compensable interest in the fifty

and one-half acres of land (of the total fifty-nine acre

project) which lay below the mean high water mark and

that plaintiff failed to pursue its claim of ownership of

that land.* Discussion of this assertion is therefore bifur-

cated in order to accommodate the distinction between

that portion of land above the MHW mark and the area

below it.

When enacting the CWA Congress intended it to

have broad application: “The objective of this chapter is

* In 1993 a government-arranged elevation survey of the

property involved in plaintiff’s proposed fifty-nine acre devel-

opment project resuited in a finding that 7.97 acres of that area

lay above the mean high water (MHW) mark. The MHW mark

for Grand Isle, Louisiana is 0.94 above the National Geodetic

Vertical Datum (NGVD) of 1929. Also, the survey found that

another 0.44 acres were isolated areas lying below MHW. There-

fore, the survey concluded that approximately 50.59 acres lay

contiguously below the MHW mark.

B-13

to restore and maintain the chemical and biological integ-

rity of the Nation’s waters.” 33 U.S.C. § 1251(a) (1976).?

Congress expressly stated its intent “that the term ‘navi-

gable waters’ be given the broadest possible constitu-

tional interpretation. . . . ” Avoyelles Sportsmen’s League,

Inc. v. Marsh, 715 F.2d 897, 914 (5th Cir. 1983); see also

Leslie Salt Co. v. Froehlke, 578 F.2d 742, 754-55 (9th Cir.

1978) which held that “navigable waters” within the

meaning of CWA to be given “broadest possible inter-

pretation under Commerce Clause.” In accordance with

the Corps regulations interpreting and implementing the

CWA the key feature in determining the extent of “navi-

gable waters,” for non-inland waterways at least, is the

MHW mark.!9 33 C.F.R. § 322.2(a) (1990); see also Leslie

Salt Co., 578 F.2d at 753, explaining that “navigable

waters . . . extend to all places covered by the ebb and

flow of the tide to the mean high water (MHW)

mark...” (cited in Owen v. United States, 851 F.2d 1404,

1409 (Fed. Cir. 1988) (en banc)).

Plaintiff’s project included approximately fifty and

one-half acres of land measured by elevation survey to lie

below the MHW mark. By definition this acreage is

clearly navigable waters of the United States and subject

to such state and federal regulation as might apply. The

Louisiana Civil Code establishes state ownership of land

lying below navigable water. La. Civ. Code Ann., art. 450

9 The CWA was originally called the Federal Water Pollu-

tion Control Act. See S. Rep. No. 1236, 92 Cong., 2d Sess. 99

(1972). In 1977, Congress approved the shortened title of “Clean

Water Act.” H.Rep. No. 830, 95th Cong. 1st Sess. 1 (1977).

10 See, supra note 1.

B-14

(West 1980) (“[p]ublic things that belong to the state

are . . . waters and bottoms of natural navigable water

bodies . . . ”). However, the value of riparian ownership

and the problems of tidal influx and land erosion in the

Mississippi delta region are adequately accounted for in

the Louisiana Constitution, which permits “reclamation

by the riparian owner to recover land lost through ero-

sion”. La. Const. of 1974, art. 9, § 3. Louisiana’s statutes

establish the administrative procedure to be followed by

riparian land owners seeking to reclaim lands “lost

through erosion by action of this navigable water body

occurring on and after July 1, 1921...” La. Rev. Stat.

Ann. §§ 41:1702 B (West 1990). Such administrative pro-

cedure requires the application for a coastal use permit

from the Louisiana Department of Natural Resources."

By previously applying for the appropriate coastal

use permit, plaintiff was aware of the statutory require-

ments of § 1702 of the Louisiana Code. Later, after the

statutory expiration of the coastal use permit and despite

the Corps’s notice that the permit expired, plaintiff did

not pursue a renewal of the state permit. At the time

plaintiff alleged the taking occurred, it did not hold a

valid permit to reclaim the submerged land required for

the development project. Absent a coastal use permit,

plaintiff could not reclaim the submerged land. By not

renewing the permit, plaintiff extinguished its compens-

able interest in the 50.59 acres of land below the MHW

mark, subject to state reclamation regulation. Without

such interest, plaintiff cannot proceed with a takings

claim as to this land.

1! See, supra note 5.

B-15

Furthermore, defendant asserted, and the court

agrees, that plaintiff failed to provide any evidence of

ownership over specific tracts of land i.e., lot V2 of subdi-

vision No. 15, as well as lots 40 and 41, which are central

to the Plantation project. Each of the three lots is partially

submerged with approximately 50% of the land above the

MHW mark.

In its reply and cross-motion, plaintiff's “proof” of

ownership of those lots of land consisted of nothing more

than assertions of ownership in an affidavit and copies of

purchase options taken out for the original Plantation

development project in October 1984. Mere conclusory

statements and denials do not take on dignity by placing

them in affidavit form. Sweats Fashions, Inc., 833 F.2d at

1564; see also Barmag Barmer Maschinenfabrik AG v. Afurata

Mach., Ltd., 731 F.2d 831, 836 (Fed. Cir. 1984). Notwith-

standing that the purchase options provided by plaintiff

failed to apply to lots 40 or 41 and perhaps lot V2 of

subdivision No. 15, both options to purchase the property

described therein expired in accordance with the terms of

the agreement.!? Accordingly, because plaintiff failed to

establish proof of ownership of at least two lots of land

central to its development plan, namely lots 40 and 41,

12 “This option is to be for a period of one year from the

date of the signing of this contract, or ninety days after a permit

is obtained from the Louisiana Coastal Zone Management, and

any other regulatory bodies or agencies that are necessary,

whichever occurs first.” (Agreement Part V, Plaintiff’s Appen-

dix 337-45). Both agreements are dated October 5, 1984. There-

fore the option expired prior to the date of the alleged taking,

December 21, 1990, when the permit was denied.

B-16

plaintiff is not entitled to be compensated for a taking

under the Fifth Amendment with respect to those lots.

In response to a motion for summary judgment,

plaintiff must make a showing “sufficient to establish the

existence of an element essential to that party’s case, and

on which that party will bear the burden of proof at

trial.” Celotex Corp. v. Catrett, 477 US. 317, 322 (1986).

Failure of proof of an essential element of plaintiff’s case

necessarily renders all other facts immaterial and thereby

entitles defendant to summary judgment. Id., at 323. The

second part of the analysis, addressing that portion of

land above the MHW mark, encompasses defendant’s

alternative basis for summary judgment, namely, assum-

ing arguendo that plaintiff established a compensatory

interest in the fifty-nine acre site, plaintiff’s claim did not

withstand analysis under the factors set forth by the

Supreme Court for takings claims. Justice Holmes estab-

lished in Pennsylvania Coal v. Mahon that “while property

may be regulated to a certain extent, if regulation goes

too far it will be recognized as a taking.” Pennsylvania

Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). To determine

whether the government regulation had “gone too far” in

the instant case, both defendant and plaintiff rely on the

three factors enunciated in Connolly v. Pension Benefit

Guar. Corp., namely, economic impact, investment backed

expectations, and the character of the government action.

Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 224-25

(1986).

Given the facts of this case, it is not necessary to

discuss each of the Connolly factors in detail. In Lucas the

Supreme Court described two discrete categories of regu-

latory action which would be considered compensable

B-17

without “case-specific inquiry into the public interest

advanced in support of the restraint.” Lucas, 112 S. Ct. at

2893. The first category includes “regulations that compel

the property owner to suffer a physical ‘invasion’ of his

property.” Id. The instant case does not come within this

category. Clearly plaintiff has not been forced to suffer

any physical “invasion” of its property.

The second type of regulatory action described in

Lucas requiring categorical treatment is that which

“denies all economically beneficial or productive use of

land.” Id. (citing Agins v. Tiburon, 447 U.S. 255, 260 (1980)).

In Lucas, the restrictive regulation that effected the taking

barred plaintiff from building any permanent habitable

structure on its coastal property. Lucas, 112 S. Ct. at 2889.

Regardless of any compensatory action that plaintiff in

Lucas may have proposed, it could not circumvent the

regulation and it was “flatly prohibited” from making

any occupiable improvements to its land. Id.

The regulatory action in Lucas is therefore distin-

guished from that in the instant case because here the

regulation did not “flatly prohibit” plaintiff from devel-

oping the land, nor did the regulation deny plaintiff all

“economically beneficial or productive use” of the land.

The Corps’ denial of the CWA § 404 permit for plaintiff

was premised on the failure to reach agreement on mit-

igation requirements. The need to mitigate was not at

issue. Central to the instant takings claim was th> failure

to reach agreement on the amount of mitigation required

“to fully compensate for the values and functions of those

special aquatic sites which would be adversely affected”

by plaintiff's proposal. As such, neither the regulation

B-18

nor the Corps’s actions denied plaintiff of all economi-

cally beneficial or productive use of its land.

Furthermore, in June 1990, the Corps provided plain-

tiff with several mitigation alternatives to “restore and /

or create wetlands” which were considered “appropraite

compensation” and offered suggestions as to how these

could be achieved. While not unsympathetic to the frus-

trations of plaintiff, this court cannot find that the regula-

tory action denied all economically beneficial or

productive use of the land. This is especially so where, as

here, the government assisted plaintiff in the regulatory

process by providing alternative solutions that would

advance that plaintiff’s proposals for productive use of

its land.

CONCLUSION

Accordingly, based on the foregoing, plaintiff’s cross-

motion for summary judgment is denied and defendant’s

motion for summary judgment is granted. The complaint

is dismissed. No costs.

IT IS SO ORDERED.

/s/ M. R. Tidwell

MOODY R. TIDWELL, III

Judge

C-1

United States Court of Appeals for the Federal Circuit

94-5064

PLANTATION LANDING RESORT, INC.,

Plaintiff-Appellant,

THE UNITED STATES,

Defendant-Appellee.

ORDER

(Filed Nov. 8, 1994)

Before PLAGER, Circuit Judge, SKELTON, Senior Circuit

Judge, and CLEVENGER, Circuit Judge.

A petition for rehearing having been filed by the

APPELLANT,

UPON CONSIDERATION THEREOF, it is

ORDERED that the petition for rehearing be, and the

same hereby is, DENIED.

The mandate will issue November 15, 1994.

FOR THE COURT,

FRANCIS X. GINDHART,

CLERK

Dated: November 8, 1994 by /s/ Diane M. Frye

Diane M. Frye

Chief Deputy Clerk

C-2

cc: LAWRENCE D. WIEDEMANN

ELLEN J. DURKEE

PLANTATION LANDING v US, 94-5064

CFC - 91-1474L)

Note: Pursuant to Fed. Cir. R. 47.6, this order is not

citable as precedent. It is a public record.

D-1

[SEAL]

DEPARTMENT OF THE ARMY

NEW ORLEANS DISTRICT CORPS OF ENGINEERS

P.O. BOX 60267

NEW ORLEANS, LOUISIANA 70160-0267

November 7, 1988

REPLY TO

ATTENTION OF

Operations and Readiness Division

Western Evaluation Section

SUJECT [sic]: (Bayou Rigaud)67

Mr. Richard J. Hoogland

National Oceanic and Atmospheric Administration

National Marine Fisheries Service

Southeast Regional Office

9450 Koger Boulevard

St. Petersburg, FL 33702

Dear Mr. Hoogland:

This letter is in reference to permit application

CELMN-OD-SW (Bayou Rigaud) 67 by Plantation Land-

ing Resort, Inc. for installation of a water oriented recre-

ational complex on Grand Isle, Louisiana. Your agency’s

views were expressed in writing via letters dated Decem-

ber 21, 1987; April 22, 1988; May 23, 1988; July 26, 1988,

August 22, 1988 and verbal comments presented at the

April 26, 1988 public hearing. We have considered your

position and the views of the applicant and others in an

attempt to reach a decision relative to the benefits and

adverse impacts of the project in our public interest

review.

D-2

Evaluation of various alternative project designs

and/or sites that would result in less impacts to wetlands

inclusive of those suggested by EPA were determined not

to be feasible or practicable because they were economi-

cally nonviable and/or would not allow the applicant to

fulfill his intended purpose of establishing a contiguous,

fully-integrated, waterfront resort complex.

As a result of our review, it is our decision that

issuance of a permit for the project with conditions as

presented to your agency at an August 9, 1988 meeting

would not be contrary to the public interest.

This letter is my formal notification that I plan to

prepare a Notice of Intent to Issue in accordance with the

Memorandum of Agreement (MOA) between our

agency’s [sic]. I am attaching a copy of my draft state-

ment of findings in accordance with the MOA.

I look forward to hearing from you on this matter.

Sincerely,

/s/ Lloyd K. Brown

Colonel, Corps of Engineers

District Engineer

CERTIFIED MAIL NO. 079840

RETURN RECEIPT REQUESTED

E-1

[SEAL]

DEPARTMENT OF THE ARMY

NEW ORLEANS DISTRICT CORPS OF ENGINEERS

P.O. BOX 60267

NEW ORLEANS, LOUISIANA 70160-0267

Jun. 19, 1990

REPLY TO

ATTENTION OF

Operations and Readiness Division

Western Evaluation Section

SUBJECT: SW (Bayou Rigaud) 67

Mr. Preston Mauboulez, President

Plantation Landing Resort, Inc.

Post Office Box 872

Crowley, Louisiana 70527

Dear Mr. Mauboulez:

This letter is a follow-up to our meeting on May 16,

1990, regarding compensatory mitigation for the subject

permit.

Contrary to what I told you at the meeting, we can-

not consider conversion of agricultural land outside the

Barataria Bay Basin to fresh marsh or bottomland hard-

woods as adequate compensatory mitigation for the

destruction of 22 acres of saline marsh on Grand Isle. My

staff has convinced me that we must maintain some rea-

sonable connection to the lost estuarine values and func-

tions.

However, we believe there are several alternative

sites within the Barataria Basin that you could use to

E-2

restore and/or create wetlands as appropriate compensa-

tion. One alternative site is an open water area located

near mile 7 on the Barataria Waterway in which you

could create saline marsh by placing material from our

periodic maintenance dredging of the waterway. We cal-

culate that you would have to create approximately 36

acres of marsh at this site to provide similar values as the

22-acre saline marsh site on Grand Isle because of the

different land loss rates of each site. (We do take into

account natural erosion over time of both the existing

wetlands and the ones you would create.) We estimate

this alternative would cost $100,000 to $150,000. This

represents the incremental increased cost over our main-

tenance dredging contract to place dredged material to

create the 36 acres of saline marsh.

At this time we have no mechanism that would allow

you to pay us directly to do this work. Our legal staff is,

however, investigating the matter to determine if such an

arrangement could be authorized. You certainly could

contract directly with our contractor for the work. You

would need to obtain a Department of the Army Permit

and a Louisiana Coastal Use Permit and Water Quality

Certification, which we would help expedite.

We have identified other feasible, practicable and

available mitigation sites in the Barataria Basin that can

be restored to productive marsh at a cost of $100,000 to

$300,000. Some of these are sites which you could pur-

chase and retain ownership. We are prepared to discuss

these with you or your representative if you wish.

J-2

expansion of the existing Pirate’s Cove development. In

addition, the District contacted a local real estate agent to

confirm the nonavailability of lands sufficient in size to

accommodate the proposed project.

Other alternatives examined include no action and mod-

ifications to the project such as reduction and recon-

figuration of the project, putting the project on pilings,

etc. and placing the housing on lands removed from the

boat harbor.

b. Fishery Impacts. The District has studied the

information you furnished by Dr. Roger Zimmerman. The

data were considered in evaluating the impact to fishery

resources that would use the proposed project area. The

proposed project will alter 22 acres of marsh; this repre-

sents only 2.39% of the saline marsh on Grand Isle and

only 0.005% of the saline marsh in coastal Louisiana.

Although we agree that there will be some impact on

fishery resources, we disagree as to the significance of

this issue. I believe that the district adequately consid-

ered the information you furnished concerning this item.

c. Water Dependency. While housing in and of itself

is not a water dependent activity, the regulations require

that the water dependency evaluation be viewed in light

of the basic purpose. The stated purpose of this project is

to establish a water-oriented coastal resort and recre-

ational complex and for the public to utilize the site for

maximizing commercial opportunities related to water

recreation. Therefore, it is my opinion that the basic pur-

pose (as considered re. Louisiana Wildlife Federation v. York

J-3

and Friends of the Earth v. Hintz) supports the determina-

tion that the housing not only provides shelter but is an

integral part of the water-oriented complex as well.

d. Mitigation. Lately our agencies have held differ-

ing views of mitigation requirements for regulatory activ-

ities. While you have stated your agency has a “no net

loss” policy, the Corps has no such policy. The current

regulations provide the District Commander a great deal

of discretion in determining whether mitigation is neces-

sary or appropriate, and if so, how much mitigation will

be required to assure that the proposed project will not be

contrary to the public interest. Mitigation is an important

part of reviewing and processing permit applications,

and may include avoiding, minimizing, rectifying, reduc-

ing or compensation for losses. Of course, losses are

avoided whenever practicable.

The District Commander has determined that the

following mitigative measures will be required for the

application to be found not contrary to the public inter-

est:

(1) The applicant will be required to create a 5-acre

saline marsh in Caminada Bay during initial infrastruc-

ture dredging and fill activities. Any dredged material

resulting from subsequent periodic maintenance dredg-

ing would be specifically dedicated to marsh creation in

Caminada Bay. The applicant shall plant appropriate salt

marsh species on the artificially created marsh in accor-

dance with a plan prescribed by the Fish and Wildlife

Service, Soil Conservation Service, and the Corps.

j-4

(2) The applicant will be required to install floating

breakwaters to reduce shoreline erosion of the newly

created marshland.

(3) The applicant will be required to purchase a

performance bond for the amount of infrastructure cost.

This money would be utilized for site restoration in the

event of project noncompletion or failure.

(4) The applicant will be required to conduct a

water sampling program throughout the project vicinity

to monitor water quality parameter indicative of pollu-

tion problems. The applicant will be responsible for

resources to prevent or correct water quality degradation

resulting from construction and operation of the recre-

ational complex.

(5) The applicant will be required to vegetate the

proposed facilities greenbelt area with native trees and

shrubs to provide habitat for resident and migratory

birds.

(6) The applicant will be required to install or place

stone or concrete rip-rap in front of the proposed bulk-

heads facing Caminada Bay to reduce wave energy and

create fish habitat.

In view of our policies, I believe that the District

Commander has adequately considered mitigative mea-

sures to insure that the proposed action will not be con-

trary to the public interest.

e. Piecemealing. As required by Corps regulations,

all activities planned by the applicant that relate to this

project are included in the current application. Although

the applicant once planned to develop a much larger

J-5

area, that application was withdrawn. The current appli-

cation is not considered a piecemeal of the earlier project;

it stands alone and serves its own purpose. No further

permits need to be issued for the basic purpose to be

realized. I believe that the District Commander very care-

fully considered the piecemealing issue.

f. Water Quality. We appreciate your concern that

the proposed project will be conducive to the develop-

ment of such poor water quality conditions as poor water

circulation, low dissolved oxygen levels, and urban pol-

lution. As you are aware, the State of Louisiana has

issued a water quality certification for this application

stating that the proposed work will not violate state

water quality standards. Although we do not believe that

the proposed project will induce the water quality prob-

lems that you anticipate, we have required a mitigative

measure of sampling water quality parameters indicative

of pollution problems. These data will be evaluated by

the State Department of Health and Human Resources. If

problems develop, the applicant will also be responsible

for providing resources necessary to prevent or correct

water quality degradation resulting from construction

and operation of the proposed recreational complex.

In accordance with the Memorandum of Agreement,

I have reviewed your concerns in this case and I believe

that the District Commander adequately consider your

comments although our two agencies do not necessarily

agree on the points considered. | am therefore directing

the District Commander to proceed with the Notice of

Intent to Issue this permit.

J-6

It is always a pleasure hearing from you, and I look

forward to talking with you again.

Sincerely,

/s/ Thomas A. Sands

Thomas A. Sands

Major General, U.S. Army

Commanding

K-1

Louisiana Revised Statutes

Title 41

§ 1701. Declaration of policy; public trust

The beds and bottoms of all navigable waters and the

banks or shores of bays, arms of the sea, the Gulf of

Mexico, and navigable lakes, belong to the state of Louisi-

ana and the policy of this state is hereby declared to be

that these lands and water bottoms, hereinafter referred

to as “public lands”, shall be protected, administered and

conserved to best insure full public navigation, fishery,

recreation, and other interests. Unregulated encroach-

ments upon these properties may result in injury and

interference with the public use and enjoyment and may

create hazards to the health, safety, and welfare of the

citizens of this state. To provide for the orderly protection

and management of these stateowned properties and

serve the best interests of all citizens, the lands and

waterbottoms, except those excluded and exempted

herein below, or as otherwise provided by law shall be

under the management of the Department of Natural

Resources, hereinafter referred to as “the department”

which shall be responsible for the control, permitting,

and leasing of encroachments upon public lands, in

accordance with this Chapter and the laws of Louisiana

and the United States.

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